BEALES & ZANG
[2020] FCCA 692
•27 March 2020
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) |
| 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 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;
(c)on Christmas:-
(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.
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.
The parents be at liberty to provide a copy of these orders to any school which the child may from time to time attend.
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.
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.
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.
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.
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.
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.
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.
The Airport Watch List order of 24 July 2018 remain in full force and effect.
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.
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
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.
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.
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;
(c)insurance policies remain the sole property of the owner named thereon;
(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
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.
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.
IT IS NOTED that publication of this judgment under the pseudonym Beales & Zang is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 6800 of 2018
| MR BEALES |
Applicant
And
| MS ZANG |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an unusual case involving parenting, property, spousal maintenance and child support issues. The parents first met in late 2011 and developed a relationship from early 2012. They spent time together on some weekends, the exact number of which is not clear. The mother, then resident in China, came to Australia on a series of temporary 3 month visas. In late 2012, she returned to China and prior to leaving, she advised the father that she was pregnant.
In in 2013 the father visited China and they were married in 2013. A couple of months later in 2013 their daughter was born in China.
Subsequently, the father visited China in 2014 for at least two weeks, and possibly for six weeks, according to the mother. The mother and child then visited Australia for six months in 2014-2015, during which the parties cohabited, and for two months in 2016 when they also lived together with their daughter. In 2017, the mother permanently moved to Australia and the parties cohabited until February 2018, when they separated under one roof and physically separated in late October, 2018. Counsel for the father put it as a relationship of “…some seven years” with cohabitation for “…a very limited period” being a total of around 11 months, according to his Opening.
The mother was the primary carer from the birth of their child in 2013 to around late 2017 when she moved to reside in Australia. The child was then aged four years. Counsel for the father said the following in his Opening, “…my client concedes that during the period of time that X was living with her mother in China, clearly she was the primary carer. She had some family support there but clearly the burden rested with her. He did what he could from a distance. He spent some time in China.”
Background
The father was born in 1956, and he is aged 63 years. He is retired and resides on a farm at Town F near City G, which he inherited from his grandfather. The mother was born in 1969, and is aged 50 years. She is currently employed as a tradesperson but also has experience as a health care worker. The parties have one child, X, also known as X, born in 2013.
The father commenced parenting proceedings in this Court with an Application filed 19 June, 2018 and on its return date on 24 July, 2018 the Court made the following orders:
1.The matter be adjourned to the Duty List on 1 October 2018 at 10.00am in the circuit sittings of the Federal Circuit Court of Australia at Geelong.
2.Subject to paragraph 3 below the respondent, whether by herself, her servants, her agents or howsoever otherwise be and is hereby restrained by injunction from removing, attempting to remove or causing or permitting the removal or attempted removal of the child X (aka “X”) born in 2013 from the Commonwealth of Australia.
3.Order 2 above shall cease to have effect 2 years after the date on which it is made or as provided by any further order.
4.The Marshal and all officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and hereby empowered to take all steps as may be necessary to give full effect to these orders.
5.Subject to paragraph 5 below, the Court requests that the Australian Federal Police place the names of the child X (aka “X”) born in 2013 on the Watch List at all points of international arrival and departure in Australia for the purpose of preventing removal of the child from Australia in breach of these orders.
6.Order 5 above shall cease to have effect 2 years after the date on which it is made or as provided by any further order.
7.Within 28 days the Mother file and serve a Response and Affidavit in support.
8.Costs are reserved.
The mother filed a Response on 20 September, 2018, where she sought property relief as well as parenting orders, and on 1 October, 2018, I made the following orders including orders by consent:
1.The matter be adjourned to the Geelong circuit sittings of this Court, in the week commencing 25 February 2019 for Final Hearing (“Final Hearing”).
2.In the event of any applicable filing, setting down, mediation or enforcement fee or fees (“the Fees”) not having been waived, the party responsible for the payment of the Fees or any of them do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in the Family Law (Fees) Regulation 2012 (Cth).
3.Pursuant to s.62G(2) of the Family Law Act 1975 the parents and the child X (X) born in 2013 (“the child”) attend upon a Family Consultant nominated by the Regional Coordinator, Child Dispute Services in the Melbourne Registry (“the Family Consultant”) on a date and at times to be advised for the purposes of the preparation of a Family Report (“the Family Report”), with the Family Report to be released by the Court thirty-five (35) days prior to Final Hearing.
4.The Family Report to deal with the following matters:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes;
(b)the matters set out in ss.60CC, 61DA and 65DAA of the Family Law Act 1975;
(c)any other matters that the Family Consultant considers important to the welfare or best interests of the child;
5.The parties send copies of all of their Court documents to the Family Consultant within seven (7) days of being requested to do so by the Family Consultant.
6.If a party is not represented by a lawyer, then within seven (7) days of being notified of the Family Consultant that party do deliver or cause to be delivered to the Family Consultant copies of the following documents:
(a)all relevant applications and responses filed by him/ her, or filed on his/ her behalf, in the current proceedings;
(b)all relevant affidavits filed by him/ her, or filed on his/ her behalf, in the current proceedings; and
(c)any family violence intervention or restraining Order currently in force.
7.For the purpose of completing the Family Report the Family Consultant has permission to inspect the Court file and all documents produced on subpoena once permission to inspect has been granted to a party and to any Independent Children’s Lawyer in the proceedings.
8.The parties comply with all reasonable directions as to attendance upon the Family Consultant as and when required by the Family Consultant.
9.If either party proposes to have the relevant Family Consultant available for cross examination purposes at the Final Hearing then such party will (if applicable authorise their lawyers to) notify the relevant Family Consultant in writing of his or her need to attend Court no less than fourteen (14) days prior to the Final Hearing.
10.Upon the Family Report being provided to the Court, the Court will provide a copy to each party (or if represented the party’s lawyer) and to any Independent Children’s Lawyer in the proceedings.
11.Unless a party objects, in writing, within fourteen (14) days of the date of releasing the Family Report, copies of the Family Report may further be provided to the following, if the Court is requested to do so for a purpose related to the care, welfare or development of the child to whom these proceedings relate:
(a)a Children’s Court;
(b)a child protection authority;
(c)a State or Territory legal aid authority; and
(d)a convener of any legal dispute resolution conference.
12.Unless otherwise ordered, no person shall release the Family Report, or provide access to the Family Report to any other person.
13.The parties attend for property mediation with an accredited Family Dispute Resolution Practitioner (“FDRP”) as nominated by Relationships Australia (Victoria) on 21 January 2019 at 9.30am.
14.Within fourteen days each legal representative or self-represented litigant is to contact Relationships Australia (Victoria) ([email protected] or 1800 679 491) to confirm arrangements for mediation.
15.Within fourteen days of being notified of the nominated FDRP, each party send to the FDRP documents outlining the dispute including the following :
(a)a copy of the Application filed on 19 June 2018 and Response filed on 20 September 2018.
(b)a full list of assets ( including any superannuation ) and liabilities including values;
(c)details of alleged financial contributions;
(d)relevant factors pursuant to section 75(2) of the Family Law Act 1975, i.e. future needs;
(e)the proposal for property settlement; and
(f)any current intervention or restraining orders.
16.Unless otherwise exempted from payment the Applicant must pay the Conciliation Conference fee of $395 in accordance with the Family Law (Fees) Regulation 2012 prior to the property mediation.
17.Each party exchange a market appraisal or valuation of any asset in dispute no later than fourteen days before the mediation event conducted by the FDRP.
18.Each party is to provide to the nominated FDRP any market appraisal or valuation of any asset in dispute no later than seven days before the mediation.
19.Unless within 28 days the parties have confirmed in writing an agreement as to the current market value of:
(a)H Street, Town F;
(b)The wife’s property in China being City J, China
then the parties forthwith do all acts and things necessary to obtain a joint sworn valuation by an appropriately qualified person, the cost of same to be borne equally by the parties and such valuation to be filed with the Court no later than seven (7) days prior to the Mediation.
Filing Directions
20.The applicant electronically file and serve any further affidavits to be relied upon by the applicant at the final hearing not later than 21 days prior to the trial; and
21.The respondent electronically file and serve any further affidavits to be relied upon by the respondent at the final hearing not later than 14 days prior to the trial;
AND FURTHER that each party be permitted to rely upon only one affidavit by each of the parties and each witness unless:
(a)the second or subsequent affidavits of the witness (or party) do not contain any paragraph numbers or exhibit numbers used in the earlier affidavit or affidavits; or
(b)the party has first obtained leave of the court.
22.Not later than 4.00pm 2 business days prior to the trial all parties do electronically file and serve an Outline of Case Document (not exceeding 5 pages) including the following:
In relation to parenting:
(a)a list of the material relied upon;
(b)a brief chronology listing significant events;
(c)a list of the significant factual issues requiring determination;
(d)a list of contentions with respect to each of the considerations relevant to determining the best interests of the child(ren) (s.60cc factors);
(e)a list of contentions relevant to the operation ofs.65DAA;
(f)a list of any other contentions relevant to the decision; and
(g)the actual orders sought.
In relation to property:
(a)a list of the material relied upon;
(b)a brief chronology listing significant events;
(c)a table listing all of the assets, liabilities and financial resources claimed to be part of the pool, with the values contended for by each party;
(d)main contentions on disputes as to:
(i) inclusion of items in the pool; and
(ii) the value of items where the value is in dispute;
(e)list of contributions claimed or contended for and the percentage assessment on contributions contended for;
(f)list of other factors relied upon (s 75(2) factors) and percentage adjustment contended for;
(g)other contentions relevant to determining a ‘just and equitable’ division of property; and
(h)the actual orders sought.
23.No party be permitted to rely upon an affidavit or outline if it is not filed in accordance with these orders (nor any affidavit not listed in their outline filed in accordance with these orders) unless they have first obtained leave of the court.
24.Pursuant to rule 21.15 of the Federal Circuit Court Rules 2001, the Court certifies that it was reasonable for the parties to employ an advocate.
25.There be interim parenting Orders and interim property Orders, by consent, in terms of the Minute of Consent Orders handed to the Court this day and signed by the parties (“the Minute”) and further:
(a)The Minute be placed upon the court file and marked Exhibit “A”.
(b)The solicitors for the Applicant do engross the Minute and email a clean, duly certified copy of the same (“the Copy”) to [email protected] within 7 days.
(c)An order will be engrossed and entered once the Minute is provided.
EXHIBIT “A”
MINUTES OF CONSENT
THE COURT ORDERS BY CONSENT UNTIL FURTHER ORDER THAT:
1. Within 14 days the Father pay to the Mother the sum of $5,000 by way of part property settlement.
2. Within 28 days the Mother vacate the property at H Street, Town F and thereafter the Father have the sole right to occupy the property and during such right of occupation the Father shall be responsible for all expense of and related to the said property.
3. The child X (“X”) born in 2013 shall live with the parents on a week about basis with changeover occurring on Fridays at the conclusion of childcare or 1:30pm commencing with the Father, save that X shall spend time with the parents with whom she is not living that week, on Monday from the conclusion of her activities until 9:00am on the following day and as otherwise agreed between the parties by text message.
4. Each parent shall be at liberty to communicate with X by telephone or electronic means at any reasonable time and each parent shall facilitate X communicating with the other parent by telephone or electronic means should she express a wish to do so.
5. Each parent shall be at liberty to obtain information from and liaise with any childcare provider, kindergarten or school attended by X and to attend events normally attended by parents.
6. Each parent shall keep the other parent advised of any significant injuries or illnesses suffered by X whilst in their care, together with the details of any medical or dental professional treating X and each party shall be at liberty to liaise with such medical or dental professional and shall follow their directions in relation to X’s medical and dental care.
7. Each parent shall be restrained by injunction by themselves, their servants and agents from:
(a) Denigrating the other parent in X’s presence or hearing;
(b) Discussing these proceedings in X’s presence or hearing;
(c) Exposing X to family violence.
8. The parties shall keep each other advised of their address and mobile telephone number.
9. The parties shall communicate by text message and respond to each other’s message as soon as practicable.
10. Each party shall facilitate X attending kindergarten, childcare, and sports lessons.
11. Changeover shall occur at the home of the parents whose time with X is concluding.
12. Within 21 days the Father shall file and serve a Financial Statement and an Affidavit in relation to financial matters.
13. Within 21 days each party cause to be provided to the solicitor for the other party copies of all documents necessary to discharge their obligations of disclosure pursuant to the Rules of the Court, together with any relevant documents requested.
It is to be noted that from November, 2018 X was living week about with her parents, save for Monday nights when she would stay with the other parent.
At paragraph 106 of the father’s affidavit sworn and filed on 19 February, 2019, he says as follows:-
106. Before Ms Zang and I commenced living together for the first time, in 2015 I had assets as set out below:
ASSETS ESTIMATED VALUE H Street, Town F (unencumbered)
Volume Folio
Registered in the name of Mr Beales$1,100,000 Vacant land at H(2) Street, Town F
(unencumbered)$300,000
Funds in Bank at 31 December 2014
$288,714
Shares as at 4 December 2014
$363,366
Farming equipment and household contents
E$31,000
TOTAL $2,083,080
SUPERANNUATION VALUE Super Fund 1 at 30 June 2015 $613,035 TOTAL $613,035
The mother did not challenge this.
At paragraph 68 of the mother’s affidavit sworn or affirmed on 22 February, 2019 and filed 25 February, 2019 she says:-
“…at the commencement of the relationship, I did not own any assets of significance. I have an unencumbered property at City K China with an estimated value of $135,468.”
I note that the Applicant father did not challenge this. Subsequently, when cross-examined the mother admitted she also had an interest in a superannuation benefit which I will refer to further in this judgment.
Material relied upon by the parties
Applicant father:-
(a)Family Report prepared by Ms L on 15 February, 2019;
(b)Amended Initiating Application (Family Law) filed 19 February, 2019;
(c)Trial Affidavit of Mr Beales filed 19 February, 2019;
(d)Affidavit of Mr M filed 21 August, 2019;
(e)Affidavit of Mr Beales filed 22 August, 2019;
(f)Financial Statement filed 22 August, 2019; and
(g)Case Outline filed 30 August, 2019.
Respondent mother:-
(a)Amended Response to Final Orders filed 25 February, 2019;
(b)Trial Affidavit of the Mother filed 25 February, 2019;
(c)Notice of Risk filed on 25 February, 2019;
(d)Updated Trial Affidavit of the Mother filed 28 August, 2019;
(e)Updated Financial Statement of the Mother filed on 28 August, 2019; and
(f)Case Outline on Parenting and Property filed 30 August, 2019.
Applicant Father’s evidence
The father presented as a mature man who often gave direct answers but he was sometimes hampered by his fixed views about the mother, particularly in relation to communication. It was my assessment that he was trying generally to assist the court, as best he could.
Respondent Mother’s evidence
Generally, a simple question requires a simple answer but the mother tended to provide too much information, often not directly on the topic that was raised, and was sometimes untruthful. It appeared to me that on occasion, she was evasive and had some very fixed views. She sometimes contradicted herself.
On the first day of the trial, 2 September, 2019 at around 3.55pm as the Court was about to adjourn for the day, I warned the mother that she was still under oath and she was not to discuss the evidence in this case with anyone. She acknowledged that warning.
It appears she contacted her Migration Agent and communicated with her solicitor soon after the hearing. She forwarded a message to the agent before 5.00pm that day and also on the next day at 11.56am, during a brief adjournment.
She also admitted speaking to her solicitor at the end of the first day of the trial about the Migration Agent. It appears that they were both outside the Court building and in the street when they came across each other and the mother said “… we talked about errors made in the form but we did not discuss anything beyond that. I don’t remember what else was discussed.”
This behaviour by the mother means that her evidence must be approached carefully, as it may be tainted or negatively affected by her discussions with the Migration Agent and/or her solicitor.
Where the evidence of the mother and the father conflicts, I prefer the evidence of the father.
The Family Consultant
A Family Report dated 14 February, 2019, was written by Ms L (“Ms L”). The recommendations of which were generally supported by the father but strongly challenged by the mother. I generally found the contents of the report and cross-examination of Ms L helpful and will comment on this further.
Ms E
This witness was the Migration Agent assisting the mother for a fee to obtain a Residence Visa in Australia. She appeared to be quite unprofessional in this role, as the following cross-examination and re-examination discloses:-
a)Counsel for the father:-
“… So to your recollection, she understood that anything in here [Application for Residence Form] had to be 100 per cent correct?---Yes.
And that there could be penalties if it wasn’t correct? --- Yes.
And, of course, going back to the code of conduct, you’re required to keep copies of any written communications between you and the client? ---M’hmm.
And file notes of every substantive or material old communication between you and the client? --- Yes.
But there are not any files notes, are there? --- No, no.
You haven’t written down what you discussed with Ms Zang? --- No, I – I could try to find it in the WeChat, but not really file notes.
And you’re required to keep those records for seven years and, of course, the clients are entitled to production of all those documents? --- Yes. We generally - - -
So when you get a subpoena saying I want everything – it says all – you’re reminded of that? ---Yes.
The fact that their correspondence has been provided - - -? ---Mmm.
- - - is a bit of a misstep on your part, isn’t it? ---Yes.
Because his Honour doesn’t know what conversation you had with Ms Zang in relation to that aspect or any other aspect in this application? ---I did try to find the conversation, basically, about the other deceased – the parents. That’s what I found.
And a registered Migration Agent must act on the basis that the agent’s electronic communications are part of the agent’s records and documents. So they’re not separate to your obligations - - -? ---Understand.
- - - to produce and keep those records? ---Understand.
Did you understand that when you received the subpoena? ---Yes. But during the conversation with her, basically, it’s all in Chinese and all on which all phone call.
What are they? ---Yes, we …we didn’t take the record off our notes. That’s what are we missing.
You just make it up as you go along? ---No, we never make up the documents or ---
Well, with respect, you do, because you’re saying now that you put information in and it wasn’t put to you by Ms Zang? --- No. Sorry?
You’re saying that you put material in the form 80 that Ms Zang never asked you to put in there? ---Yes, that’s right. That’s a mistake ---
So you do make things up: is that what you’re saying? ---But that’s a mistake during the translation. I can’t remember if we called or anything, but ---
HIS HONOUR: How can you have a mistake in – during translation about someone being dead or alive?---That’s – the problem is that we translated not the major part of the phone…
b)Counsel for the mother:-
This gentleman here asked you what Ms Zang told you in the Chinese version of question 44? ---Yes.
Yes. And she told you where her parents were living? ---City J, yes.
Yes, she told you they were living in City J? --- Mmm.
Yes? --- Yes.
And on the English form, it says “Country of current residence. If not living, write deceased”? --- We misunderstand that.
No, no, no, does it say that in English – “Country of current residence (if not living, write deceased)”. Have I correctly summarised that question? ---Yes.
Yes. Ms Zang told you they were living in City J, didn’t she? ---Yes.
Yes. That told you two things, didn’t it: it told you (1) they were living, and secondly, where they were living, correct? ---Yes.
Yes. So the country of current residence is China, isn’t it? ---Yes.
So you made two mistakes, didn’t you? ---We misunderstand that question.
No, no, no, no, what is there to misunderstand: if somebody says they are living in City J, what is there to misunderstand? ---In this one, I ask her this - - -
No, no, no, no, madam, I live in Melbourne? ---Yes.
Am I alive? ---Yes.
Do I live in Australia? --- That’s why we made that mistake.
…
Are you going to give her her money back? ---Well, it’s our responsibility.
Are you going to give her her money back? ---But, we didn’t really discuss about this.
I see? --- I could discuss with her.”
Her evidence disclosed such a troubling level of incompetence that I have decided to send a copy of the transcript of her evidence to the relevant officer at the Department of Home Affairs to investigate her firm.
I will deal with the parenting matter first and then turn to the property, spousal maintenance and the child support dispute, before I undertake concluding assessments of these issues.
Relevant legal principles
Section 60B(1) of the Act sets out the objects of Part VII of the Act, to ensure the best interests of the children is met by:-
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2) of the Act sets out the principles underlying those objects They are that, except when it is or would be contrary to a child’s best interests:-
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together;
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives);
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children;
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA of the Act directs that, when deciding to make a particular parenting order, the best interests of the child are the paramount consideration.
Section 60CC(2) and (3) of the Act set out the primary and additional considerations for the Court in determining what is in the child’s best interests.
Section 64B of the Act defines the expression ‘parenting order’.
In making any parenting order, the Court must, to the extent it is possible and promotes the child’s best interests, ensure its orders are consistent with any family violence order and do not expose a person to an unacceptable risk of family violence.
If the Court is satisfied that the parents are to have, pursuant to sub-section 61DA(1) of the Act, equal shared parental responsibility, then subject to sub-section 65DAA(6), the Court must turn to sub-sections 65DAA(1) and (5) to consider equal time.
If equal time is not appropriate in all the circumstances, then sub-sections 65DAA(2) to (5) inclusive requires the consideration of the substantial and significant time. This will be considered after the section 60CC considerations.
Section 60CC factors
Section 60CC(1) provides that in determining what is in the child’s best interests, the Court must consider the matters set out in section 60CC(2).
The two primary considerations are set out in s.60CC(2) are:-
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
I will turn to these after the relevant matters in section 60CC(3) are considered, (see Collu & Rinaldo [2010] FamCAFC 53 at paragraph 335).
Section 60CC(2A) requires the Court to give greater weight to paragraph (2)(b).
The additional considerations in section 60CC(3) of the Act are:-
(a) any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child's views
X is around six and a half years of age, and whilst she may be bright and mature for her years, she is too young for the Court to put any meaningful weight on her wishes. I note page 16 of the Family Report where it says at paragraph 92 ... “given her age and stage of development, her views should be considered but not given significant weight.” I agree with that assessment. I also note page 17 at paragraph 101 that… “X likes the current time spent arrangement.”
(b) the nature of the relationship of the child with:
(i) each of the child's parents
At page 17 of the Family Report, the author comments on observing the interactions between the mother and daughter:-
“105. X and Ms Zang shared an affectionate greeting.
106. There were occasions where X and Ms Zang spoke in Mandarin, but the majority of the observation they spoke in English.
107. The observation was unremarkable in that they both appeared to enjoy each other.
108. Ms Zang’s interactions were age appropriate, encouraging and supportive.”
At page 18 of the report, the author comments on the observation of the child and the father as follows:-
“113. This observation was also unremarkable. Both enjoyed playing together. X appeared slightly more subdued than she had with Ms Zang, but was very comfortable.
114. Mr Beales interactions were also age appropriate, encouraging and supportive.”
The evidence discloses that both of the parents have a close and loving relationship with their daughter, and she with them.
(ii) other persons (including any grandparent or other relative of the child)
Not relevant, no evidence was led in relation to third parties.
(c) the extent to which each of the child's parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long-term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
For the first four years of the child’s life, she had a limited role with the father, given the geographic and financial barriers with the mother and child living in China and the father living in Australia. It appears that subsequently the father has taken every opportunity to be involved with the child.
In relation to the mother, it appears to me that the mother has taken every opportunity to be involved with the child.
(ca) the extent to which each of the child's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the child
In my view both parents, to the extent of their capacity, have provided financial support for this child. It appears that the burden fell on the mother in a significant way during the first four years when she was living with the child in China, although according to the mother during this period, the father paid $11,540 to the mother for X’s support, whereas the father alleges it totalled around $16,500 plus the cost of purchasing and forwarding baby formula for the first 2 or 3 years.
From living in Australia in 2017, the responsibility of maintaining X has appeared to have fallen on the father, with the mother being either unemployed or having limited employment with a low income. This is not a criticism as both supported the child to the extent that they could in all the circumstances.
(d) the likely effect of any changes in the child's circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents
The evidence discloses that X has a close and loving relationship with both her parents. It would have a very negative effect on her emotional and psychological wellbeing if she was separated from either of her parents for a significant period of time.
I note at page 19 of the Family Report the author says the following at paragraph 124:-
“Ms Zang wondered if X may be experiencing separation anxiety. It appeared that X had a strong bond with both parents. During observations, she exhibited some hesitation about leaving Ms Zang, but settled quickly. Generally X appears a happy and settled child. There were no significant indicators of separation anxiety.”
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
There was no evidence led about this and therefore, it is not relevant.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis
This is not relevant given both parties live in the City G area and spending time with or communicating with a parent will not be difficult for the child.
(f) the capacity of:
(i) each of the child's parents; and
(ii) any other person (including any grandparent or other relative of the child)
to provide for the needs of the child, including emotional and intellectual needs
The evidence suggested by the parties and by the Family Report writer was that both of these parents could adequately provide for the needs of X, including her emotional and intellectual needs. There was no evidence led on this topic in relation to sub-section (f)(ii).
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child's parents, and any other characteristics of the child that the court thinks are relevant
It is a significant issue that the mother and child were both born in China, whilst the father is an Australian by birth and culture. The obvious benefits of X being well-versed and educated in the Chinese language and culture is something that both parents and the Court should be mindful of. By living in Australia, it will be easier for the child to be involved in Australian culture, however that is defined, but both parents must make a real effort to ensure that she is educated fully and encouraged to be involved in the richness of Chinese language, history and culture.
The father was cross-examined by Dr Ingleby on this topic as follows:-
“DR INGLEBY: Did you take X to Chinese class?---No.
Why not?---It was on the weekend. X had already been in school for five days it was my time with X and I wanted to spend time with X on the weekend. Not put her into school for another four hours.”
I found this very troubling, as firstly it was not the father’s time with the child, it was the child’s time with her father, and secondly, I would have thought for the need for X to be versed in the Chinese language was a higher priority in the short term, and of more significance than a few hours with the father. It was a pity that he did not put the child’s best interests ahead of his own interests.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right
Not relevant.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
Both parents generally appear to be child focused, although it was sometimes subjective, for example, their views appeared to be affected by what is convenient for them. The Family Report dated 14 February, 2019 at page 21 says the following from paragraph 135:-
“It is of some concern that Ms Zang appears to have taken X to work with her at times, particularly so given her admission of leaving X, alone and outside of her workplace, while she worked. Ms Zang appeared to defend her position of leaving X alone by indicating that X’s temperament and knowledge of what to do minimised any risk to her.”
I note the mother at paragraph 14 of her affidavit sworn or affirmed on 28 August, 2019, says:-
“…I always make appropriate arrangements for X and I only work when X is (in) Mr Beales’ care.”
This comment is inaccurate and misleading given her past behaviour, which she does not explain in her affidavit.
The Family Report author goes on to say:-
“136. It is respectfully submitted that X is not old enough or mature enough to be left unsupervised in any circumstance.
137. It is unclear why Ms Zang did not seek to organise alternative care for X on that day, including enquiring from Mr Beales about whether he may have been able to care for X while she worked. It may be that her fear of Mr Beales is such that she, perhaps without thinking, finds it preferable to compromise X’s best interests over seeking support from Mr Beales if required.
138. It is also concerning that, despite his apparently significant concern for X on that occasion, Mr Beales did not take immediate protective action. It can only be assumed that communication between the parents is at such a poor level that both prefer to compromise X’s best interests over communicating around her needs and safety.”
I also note the comments that followed in paragraphs 139 and 140:-
“139. Mr Beales expressed concerns around Ms Zang not supplying him with X’s medication. He admitted that he did not contact Ms Zang to collect that medication. Again it appeared that the relationship between the parents can lead to X’s care being compromised.
140. Communication between the parents regarding X may need to be structured to ensure X’s needs are being met. A communication book or the use of an App such as Talking Parents or My Mob, might enable the sharing of pertinent information in a non-threatening way. The parents may need Orders to ensure that they communicate with each other around urgent matters.”
Notwithstanding their subjective attitude to this young girl, there is no doubt that these parents are committed to her welfare and they love her dearly.
(j) any family violence involving the child or a member of the child's family
In the interview with the father in the Family Report at page 8, the following was detailed:-
“39. Mr Beales denied grabbing Ms Zang by the throat in June 2018, as accused by Ms Zang. He claimed that, on that occasion, Ms Zang had pushed him and that he then pushed her back and held for ‘for 10 seconds’ before walking away.
…
41. Mr Beales advised that he had been charged with assault following that incident. He advised that he pleaded guilty to that charge, despite his denial of committing any offense, upon advice from his solicitor. He agreed to an Undertaking, without admission. Mr Beales was required to attend a Men’s Behaviour Change Program. He claimed to have commenced that Program at O Family Services in November 2018.
42. Mr Beales claimed that he is finding the Men’s Behaviour Change Program useful. Whilst he considers that he has always had respect for women, he had reflected that pushing and holding Ms Zang may mean that ‘I need more respect for women’.”
Subsequently, there was an interview with the mother who at paragraph 62 of the Family Report says as follows:-
“62. Ms Zang stated that she had finally decided to move out of the family home as she could not take Mr Beales’ swearing any longer. She added that X had been pleading with her to not leave the home, but that she had been so affected by Mr Beales’ anger that she had been unable to sleep. She explained that she had stayed with a friend until appropriate accommodation had been obtained, 2 weeks prior to interviews.”
At page 7 of the Family Report there is an assessment of family violence and abuse as follows:-
“25. Ms Zang counter accused Mr Beales of grabbing her with force around the throat in June 2018. She further accused him of being verbally abusive and controlling, both during the relationship and following separation. She claimed that he would regularly call her a ‘[stupid] woman’, turn off the home’s electricity at night, inspect her room and rubbish and admonish her for cooking and doing laundry as those activities were too noisy.
26. Ms Zang also claimed that Mr Beales would refuse to drive her and X to the bus stop, which was 2 Kms from their home.
27. Ms Zang stated that she is very frightened of Mr Beales and that she cries when he is angry.
28. It is assessed that the nature of the conflict between the parents most closely fits with Intimate Partner Violence. As such, it is commonly resolved by separation.
29. Given the lack of communication between the parents, future violence or abuse is unlikely.”
(k) if a family violence order applies, or has applied, to the child or a member of the child's family--any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter.
On 15 June, 2018, an Officer with the Victoria Police sought a Family Violence Intervention Order against the father on behalf of the mother and X. The father says the matter was resolved with a two year ‘without admission’ Intervention Order in place. The Victoria Police sought this Intervention Order following an incident on 13 June, 2018, where the mother contacted the Police alleging the father had assaulted her. This is discussed in subparagraph (j) above.
It is difficult to draw inferences from the Intervention Order, save that during the period of the failing marriage, it is quite clear that from time to time they did have arguments with the mother being upset with the father’s inappropriate behaviour or comments, and pushing and shoving did occur. I note the father agreed to the Intervention Order to last until June, 2020 ‘without admission’, but I would have expected that if there was no sound basis for the mother’s complaints, he would have disputed the order being sought rather than an admission with a denial of the allegations.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
In this matter it is my view that the sooner the parties are finished with litigation, the sooner they can move on with their lives and clearly that is in the best interests of the child. I will do my best to draft orders that will be the least likely to lead to further proceedings in the future.
(m) any other fact or circumstance that the court thinks is relevant
What is particularly relevant in this trial is the age and career differences of the parties, as well as their cultural differences. The father is aged 63 years and retired. There is no suggestion that he will ever return to income earning employment, save for his current role as a small holding farmer.
The mother is 53 years and has worked in Australia in unskilled positions, such as a labourer. Her knowledge and expertise in English is limited and I accept her evidence for the need for further studies to develop her English and employment skills. She proposes to work for many years to support herself and her daughter.
There is a clear need for her to develop her English skills. The mother’s availability to care for X in the short term, given her need to develop these skills and undertake studies or courses to improve her employment opportunities, will be less than the father’s availability.
Section 60CC(2) factors
(a) the benefit to the child of having a meaningful relationship with both of the child's parents;
In the case of McCall & Clark (2009) FLC 93-405 the Full Court considered this sub-section. At paragraph 109 the Court said:-
“The Act does not contain a definition of “meaningful”, nor does it provide any specific criteria to assess how parents either have, or should have, a “meaningful involvement” in a child’s life. It does not give guidance to the interpretation of the phrase “meaningful relationship”.
It then went on to discuss in paragraph 115 the decision of Mazorski & Albright (2007) 37 Fam LR 518, where the Honourable Justice Brown said the following at paragraph 26:-
“…I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one.”
At paragraph 177 of McCall’s case , the Full Court said as follows:-
“Bennett J discussed the terminology in G and C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage (to) a child.”
The Full Court then went on to say that there are three possible interpretations of section 60CC(2)(a) and concluded that it preferred the interpretation that was called the ‘prospective approach’ but also said that depending on the factual circumstances, the ‘present relationship approach’ may be relevant.
The ‘present relationship approach’ was defined by the Court in paragraph 118 as follows:-
“(a) one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”).
The prospective approach, which I prefer, was set out at paragraph 118 as follows:-
“(c) the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in the child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”)
Currently, X has a meaningful relationship with both parents. She loves them and wants an ongoing relationship with them. I will draft orders to support and promote that.
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
There is a definition of family violence in section 4AB of the Family Law Act 1975. When one applies that to these facts it is clear that when the relationship was failing there was a physical dispute between the parents, primarily of pushing or shoving. This has stopped now on separation and is underpinned by the Intervention Order referred to in section 60CC(3)(k) above.
Parental Responsibility
Both parents seek orders for Equal Shared Parental Responsibility. The Family Report is silent on this topic and it was not put to the author when cross-examined. This was not surprising given it was not a fact in issue between the parents.
Although I am worried about their poor communication, I expect that will improve given the Family Report’s recommendation on that topic, and where I am ordering the parents to attend a post separation parenting course to improve their relationship, to develop further insight into parenting and in turn, improve their communication.
Section 65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
I note the following is stated in subsection (1) of section 65DAA of the Act:-
(1) Subject to subsection (6), if a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
I also note that sub-section (2) says the following:-
(2) Subject to subsection (6), if:
(a) a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents;
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
In the most unusual circumstances of this case, I am satisfied that it is in X’s best interests for her to initially have substantial and significant time with her mother pending her improving her English and employment skills which limits her capacity to implement shared care at this stage, (see section 65DAA(5)(b)), and then move to an equal shared care arrangement with each parent at the start of Grade 5. This follows the recommendation contained in the Family Report and I note whilst the mother is silent on this topic, save that she wants X live with her, the father agrees to a shared care arrangement commencing at secondary school level.
However, I am concerned with the timing of the father’s proposal given for X it is an important change in her life to go from a primary school to a secondary school education in a new school, new environment, and no doubt with new teachers along with new pupils. This change is a significant one in her life, and I do not want to impose on her a further change in her relationship with her parents, in moving from substantial and significant time with her mother to one of equal shared care for both parents. It is my view that it would be easier for X to adjust to shared care before she moves from primary education to her secondary education, after the completion of Grade 4, as she starts Grade 5.
A further reason to have it earlier rather than at the same time as she moves to a secondary school, involves her physical maturity. Her moving into puberty was an important issue in the trial and I estimate that she will be entering her eleventh year when commencing Grade 5 which allows both parents to be available to her during her puberty.
Property dispute
Approach to property proceedings
There is a general approach to hearing property applications that has been established over time by the decisions in this area by the Full Court of the Family Court of Australia. This in part was recently refined following the High Court decision of Stanford v Stanford (2012) 87 ALJR 74.
I adopt this approach as detailed by the Honourable Justice Walters at paragraph 72 of his decision in Jewel v Jewel [2013] FCWA 81 which provides:-
“72. Assuming a step-based approach to the determination of an application brought pursuant to the provisions of FLA s 79 is still appropriate, it is arguable that the effect of the High Court’s decision in Stanford is as follows:
a) The first “step” in the property settlement exercise is to identify, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in their property.
b) The second “step” involves ascertaining whether it is just and equitable to make an order altering the interests of the parties in their property. In most cases – relevantly, where the parties have separated and are no longer living in a marital relationship – the underlying assumptions that the parties had to the effect that the existing property ownership arrangements were functional (or perhaps irrelevant) and could be varied by agreement between them, no longer apply. That fact alone should ordinarily persuade the court that it is just and equitable to make orders altering the parties’ interests in their property. It is only after the Court has concluded that it is just and equitable to make such orders that it should proceed to take what might be regarded as the third and fourth steps.
c) In the third “step”, the court should identify and assess the contributions of the parties within the meaning of ss 79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties.
d) In the fourth “step”, the court should identify and assess the relevant matters referred to in ss 79(4)(d), (e), (f) and (g), including, because of s 79(4)(e), the matters referred to in s 75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established as a consequence of the previous step.
e) Finally, the court should consider the effect of the various findings and assessments it has made and make such orders as it considers are just and equitable in all the circumstances. As I have recorded above, my view is that this process does not amount to an opportunity to make a further adjustment; it is an opportunity for the judicial officer to determine finally how, in reality, just and equitable orders might be achieved having regard to all the circumstances of the case.”
The pool
Assets of the Applicant Husband
| ASSETS | |
| Asset | Value determined on the evidence or as agreed between the parties (rounded to nearest dollar) |
| a) H Street, Town F | $ 1,555,000 |
| b) H(2) Street, Town F | $162,500 |
| c) P Bank account | $57,772 |
| d) ANZ Cash Investment account and shares (as at 2 September, 2019) | Total $208,779[1] |
| e) Q Financial Investment | $153,383 |
| f) Motor Vehicle R | $8,000 |
| g) Motor Vehicle S | $38,000 |
| h) Farm equipment | $47,125 |
| i) Household contents | Nominal |
[1] Day 1 of Final Hearing, pages 43, 44 & 45 of transcript.
Assets of the Respondent Wife
| ASSETS | |
| Asset | Value determined on the evidence (rounded to nearest dollar) |
| a) Apartment, City K, China | $135,468 |
| b) Motor Vehicle T | $3,000E[2] |
| c) Bank Accounts | $8,400E[3] |
| d) Household Contents | $1,000E[4] |
| e) Cash on hand and at home | $1,400E |
[2] As stated in Wife’s Financial Statement filed 28 August, 2019.
[3] As stated in Wife’s Financial Statement filed 28 August, 2019.
[4] As stated in Wife’s Financial Statement filed 28 August, 2019.
Liabilities of the Applicant Husband
| LIABILITY | |
| Liability | Agreed (rounded to nearest dollar) |
| a) Credit Card | $1,000 |
Liabilities of the Respondent Wife
| LIABILITY | |
| Liability | Agreed (rounded to nearest dollar) |
| b) Loans from five people | $97,760[5] |
| c) Credit card or cards | $4,179E[6] |
[5] As stated in Wife’s Financial Statement filed 28 August, 2019.
[6] As stated in the Wife’s Financial Statement filed 28 August, 2019.
| SUPERANNUATION [7] Day 1 of the Final Hearing, cross-examination of the Husband. | |
| Superannuation | Agreed value (currently) (rounded to nearest dollar) |
| a) Husband’s superannuation – Super Fund 1 | $643,000(c)[7] |
| b) Wife’s superannuation – Interest in Chinese Social Security Agency benefit | $23,000 contributed (Claims eligible for monthly payments of $450E from December, 2019) |
Section 79(2) the court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
The parties’ marriage has failed. They are separated and seek a different property outcome. In my view, it is just and equitable for there to be proceedings between the parties to resolve their differences.
Contributions
Section 79(4)(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them
I note that in the Respondent wife’s closing submissions on page 2 she says… “The father’s own case is that he is entitled to assets in the region of $2.8 – 2.9 million. True it is that these assets effectively represent his initial contributions.”
In this most unusual case, it is common ground that the Applicant husband has made an overwhelming contribution to the pool of assets and resources in this case. The Court should note however, that the wife retains her interest in a unit in China and her humble superannuation. Whilst she was employed from time to time during the marriage, the evidence is that those monies generally were used for her benefit.
The husband was cross-examined by Counsel for the wife on this topic as follows:-
“Well, could you have, after separation, given money to Ms Zang so that she could study English? ---She was working. She had her own money. She never gave me any money. So all of her income was used by herself.
I don’t think you’ve really answered my question. If you would have given her money, she wouldn’t have need to work so much, correct? ---Yes.
Well, why didn’t you give her money so that she could learn English, rather than work in a restaurant? --- Well, maybe I disagree with what you said there because I was paying for everything. She didn’t need to pay for household costs or food.
After separation she needed to support herself, correct? ---If she was still living under my roof, no.”
The following was put to the wife in cross-examination at paragraph 40 page 135:-
“MR GLEZAKOS: Thank you, your Honour. Ms Zang, turning to financial matters, you accept, of course, that at the time that you commenced your relationship with my client, he owned his house?
THE WITNESS: Yes.
MR GLEZAKOS: And the property that’s near it?
THE WITNESS: Yes.
MR GLEZAKOS: And he had some savings and some shares?
THE WITNESS: I don’t know.
MR GLEZAKOS: Well, you accept that you didn’t financially contribute to those assets?
THE WITNESS: Yes.
MR GLEZAKOS: And that if he says that he had these assets prior to the commencement of the relationship, that’s probably true?
THE INTERPRETER: I know he had a – he has a farm. I didn’t know about his shares.
MR GLEZAKOS: Okay. I will ask you a different way. Do you agree that the assets that he currently holds in his name you have not made a financial contribution to? You agree with that proposition?
THE WITNESS: Yes.
MR GLEZAKOS: And that includes your superannuation. You haven’t put money into his superannuation at all?
THE WITNESS: Yes.
MR GLEZAKOS: And in the same way, he didn’t contribute to the property that you have in China?
THE WITNESS: Yes.
MR GLEZAKOS: Or your pension in China?
THE WITNESS: Yes.”
Section 79(4)(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them
Both parties made contributions in this area, but neither were significant in this most unusual case. Both made indirect contributions that maintained or conserved their property.
Section 79(4)(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent
This is the high point of the wife’s property case and it should not be underrated or understated.
An early Full Court case in this area is Rolf & Rolf (1979) FLC 90-629 where the then Chief Judge said at page 78, 272:-
“The purpose of section 79(4) (b) (the precursor to section 79 (4) (c)) in my opinion is to ensure just and equitable treatment of a wife who has not earned income during the marriage, but who has contributed as a home maker and parent to the property….Because of that responsibility she may earn no income or only small earnings, but provided she makes her contributions to the home and to the family the Act clearly intends that her contribution should be recognised not in a token way but in a substantial way.”
In Mallet & Mallet (1984) FLC 91-507 His Honour Wilson J said at page 79, 126 the following:-
“The Act requires that the contribution of a wife as a homemaker and parent be seen as an indirect contribution to the acquisition, conservation or improvement of the property of the parties regardless of where the legal ownership resides. The contribution must be assessed, not in any merely token way, but in terms of its true worth of the building up of the assets. However, equality will be the measure other things being equal only if the quality of the respective contributions of the husband and wife, each judge by reference to their own sphere, are equal…It follows that it cannot be said of every case where the parties reside together that equal value must be attributed to the contribution of each…What the Act requires that in considering an order that is just and equitable the court shall take into account any contribution made by a party in the capacity of homemaker or parent. It is a wide discretion which requires a court to assess the value of that contribution in terms of what is just and equitable in all the circumstances of a particular case. There can be no fixed rule of general application.”
In the Full Court case of Ferrarro & Ferrarro (1993) FLC 92-335 the Full Court said at page 79, 572:-
“The task of evaluating and comparing the parties respective contributions where one party has exclusively has been the breadwinner and the other exclusively the homemaker is difficult one to perform because the evaluation and comparison cannot be conducted on a ‘level playing field’. Firstly, it involves making a crucial comparison between fundamentally different activities, and a comparison between contributions to property and contributions to the welfare of the family. Secondly, whilst the breadwinner contribution can be objectively assessed be referenced to such things as a party’s employment record, income and the value of the assets acquired, an assessment of the quality of a homemaker contribution to the family is vulnerable to subject value judgments as to what constitutes a competent homemaker and parent and cannot be readily equated to the value of the assets acquired. This leads to a tendency to undervalue the homemaker role.”
“However, there are cases where the performance of those roles has what may be described as ‘special’ features about it either adding to or detracting from what may be described as the ‘norm’. For example, in relation to the homemaker role the evidence may demonstrate the carrying out of responsibilities well beyond the norm as, for example, where the homemaker has the responsibility for the home and children entirely or almost entirely without assistance from the other party for long periods or cases such as the care of a handicapped or special needs child.”
The above comments in Ferrarro’s case have some application to this matter given the role of the wife as a parent in China for around 4 years and 4 months before coming to live in Australia has in my view, a ‘special’ feature about it notwithstanding the visits by the husband for some weeks in 2014 the wife’s and child’s presence in Australia for 6 months 2014 to 2015 and 2 months in 2016.
In early 2018, the wife obtained employment up to 6 days a week and during this time, X was in the care of the husband. It appears that during the periods of cohabitation and separation under one roof in 2014-2015, 2016 and from November, 2017 to October, 2018 both parents were involved in the care of X, but to what degree this was shared is not entirely clear. I note that the husband says at paragraph 38 of his affidavit filed 22 August, 2019 the following:-
“I was unable to provide care to X while she was living in China and agree that Ms Zang was the primary carer during this time. However, once X returned to live in Australia I became equally involved in her care.”
This appears to conflict with paragraph 84 of the same affidavit where he says the following in part:-
“She (the wife) was the primary carer while living in China. However, since moving to Australia I have resumed the role of primary carer for X.”
My reading of the authorities in this area and the plain words of section 79(4)(c) requires the Court to assess the intrinsic value of the nature and quality of the parent or homemaker contribution to the welfare of the family. Unlike sub-sections (a) and (b) there is no reference to property. I am ever mindful of section 79(2).
Section 79(4)(d) the effect of any proposed order upon the earning capacity of either party to the marriage
My orders are not likely to have a direct effect on the husband’s earning capacity in a narrow sense as he is currently retired. It may have an indirect effect on the income he earns from his farm holding and/or investments including superannuation.
The orders I will make are intended in part to improve the earning capacity of the wife given her current low-earning capacity and the need to develop same.
Section 79(4)(e) the matters referred to in subsection 75(2) so far as they are relevant
(a) the age and state of health of each of the parties
The Applicant husband is aged 63 years, turning 64 years in 2020. His health is good for his age which he acknowledges at paragraph 4 of his affidavit filed 19 February, 2019.
The Respondent wife is aged 50 years, turning 51 years in 2020. Her health also appears adequate for her age, save that she had an operation on her hands for alleged ‘bilateral carpal syndrome’ according paragraph 17 and annexure Z-27 of her affidavit sworn or affirmed on 28 August, 2019.
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment
The Applicant husband will retain most of his property and financial resources with a limited income from investments and a small government benefit. He is otherwise retired.
The Respondent wife will also retain her apartment in China and a small interest in her superannuation fund in that country, as well as a payment from the husband provided for in these orders. She has the physical and mental capacity for gainful employment, with the range of job opportunities being improved with greater English skills, and a course of study.
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years
This applies equally to both parties. Their daughter X is currently aged 6 years and each wants a significant role in her future care.
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
The parties’ Financial Statements with the husband’s sworn on 22 August, 2019 and the wife’s sworn on 28 August, 2019 detail the commitments they have.
(ii) a child or another person that the party has a duty to maintain
It is clear that both parents have a duty to maintain X and the wife claims a duty to support her son in China, although her evidence is far from clear. I note she says at paragraph 59 of her affidavit filed 25 February, 2019, the following:-
“My disabled elder son is living in the apartment I own in China and I cannot sell it and leave him with no residence. His father is living with him to look after him in China. Annexed here to and marked Z 14 is a true copy of the English translation of my older son’s Certificate of Disability in China and a copy of the Chinese Certificate of Disability.”
That annexed Certificate did not assist me much, save that it details that the adult child is aged 27 years and has a physical disability but does not detail the nature of that disability save for describing it as…“fourth degree”… which is unhelpful.
Under cross-examination on Day 2 of the trial the wife gave evidence that her son was working full-time in a factory for disabled workers and she admitted he has the capacity for full-time employment. It is unclear whether his father still lives with their son but in the absence of further evidence, I do not accept the wife cannot sell or otherwise deal with her apartment in China.
(e) the responsibilities of either party to support any other person
Save for my comments in sub-paragraph (d) above, this is not relevant.
(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
The Applicant husband details in his Financial Statement that he receives a payment from the Australian Government in the form of Family Tax Benefit of $80 per week. The wife does not receive any pension from Australia or other benefit but she said has applied for it now she has permanent residency.
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party
The Applicant husband has a superannuation interest of some $643,000 and the Respondent wife, at page 8 of her Financial Statement at paragraph 45 with the heading ‘Interest in Superannuation’, discloses she will be eligible for a monthly payment of about $450 by way of a Chinese pension from December, 2019.
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable
The evidence in my assessment discloses that the Applicant husband has a reasonable standard of living in all the circumstances of this case whereas the Respondent wife currently does not, given her low income earning capacity and as a consequence, her low income.
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income
This is a significant issue in this case which will be commented on further when I consider this issue in my conclusion under a number of headings. I note that volume 2 of the CCH Australian Family Law and Practice details at page 28, 904 paragraph 37 – 515 the following:-
“Confusion is more likely to arise when applications for property settlement and spousal maintenance are determined at the same time by the Court. A party’s entitlement to an order under s79(1) or s90SM(1) (including consideration of s75(2) or s90SF(3) factors) is assessed before the question of entitlement for spousal maintenance under s72 is considered. A s79 order may remove the need for one party to be maintained by the other party (Anastopoulos & Anastopoulos 1982 FLC 91-201 and Clauson & Clauson 1995 FLC 92-595) and the terms of any property order or proposed property order is expressly included in the list of s79(2) factors (as s75(2)(n) and (naa), and s90(3)(n)(o)and (p)).”
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant
Not relevant.
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party
See sub-paragraph (h) above, and I note that from the evidence the wife has not made any significant contributions to the earning capacity, property, and financial resources of the husband, save for her role as homemaker and parent.
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration
See sub-paragraph (h) above, but in the range of disputes that come before this court, it could be said that this was a short marriage with limited cohabitation.
(l) the need to protect a party who wishes to continue that party's role as a parent
It is clear from the evidence that both parties wish to continue in a significant way in their role as a parent to X.
(m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation
Not relevant.
(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
The orders I propose to make in relation to property will provide for the husband to pay a lump sum to the wife that will give her not only financial security, but the ability to provide accommodation for herself and X as well as providing a source of funds to meet the costs of developing her English skills and income earning capacity pursuant to section 75(2)(h).
(ii) vested bankruptcy property in relation to a bankrupt party;
Not relevant.
(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii);
Not relevant.
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage
The affidavit of the Respondent wife sworn or affirmed on 28 August, 2019 annexes at Z-22, a copy of the Child Support Assessment letter dated 15 July, 2019 which indicates that there is a Child Support assessment for the period of 1 August, 2019 to 31 October, 2020. At paragraph 1 of the letter to the wife it says… “under the new assessment Mr Beales is to pay you child support for the child X.” It then goes to set out in a table on the same page that the Child Support amount is zero per month. In the following paragraph in the same letter it says… “we expect him to make payments directly to us and we will forward these to your nominated bank account. Please make sure your bank account details are up to date.”
While this is a triumph of computerisation over common sense, the net effect of this assessment and letter is to show that no assessed child support will be paid by the father notwithstanding his strong financial circumstances.
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account
My earlier comments in relation to section 60CC(3)(m) above are relevant here also. The history of this case is very unusual where they developed a relationship in 2012 when the wife was visiting Australia on a visa. Subsequently, they were married in 2013 and their child X was born in that year.
Following her birth, the husband visited China for some 2 to 6 weeks in 2014 and the wife and child visited Australia for 6 months in 2014 to 2015 and 2 months in 2016. In, 2017, the wife relocated permanently to Australia with X until the parents separated under one roof in February, 2018. The marriage lasted less than 5 years with a total maximum period of cohabitation of around 12 months prior to their separation under one roof. A significant feature of this relationship was the primary care of the child by the wife for the first 4 years of her life with little assistance during that period from the husband. This and her other welfare contributions have to be acknowledged in a substantial and not token way.
(p) the terms of any financial agreement that is binding on the parties to the marriage
Not relevant.
(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
Not relevant.
Section 79(4)(f) any other order made under this Act affecting a party to the marriage or a child of the marriage
This dispute is not only a property dispute but a parenting dispute also involving Child Support and Spousal Maintenance. I will deal with the latter two topics shortly.
Section 79(4)(g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
I have dealt with this topic under sub-paragraph (na) above and that should be referred to again.
Lump sum Child Support
In her Case Outline (Property) filed on 30 August, 2019, the wife requested an Order for the husband to pay her $237,292 by way of lump sum Child Support.
It appears to me that she has difficulties with this request given:-
a)It is argued by the husband that the Application was not properly pleaded in Court which has some merit;
b)The wife who sought this has not made any written or other submissions on this topic nor did she pursue it during the trial in any detailed or effective way;
c)Given the property Order I will make in this case, and given the age of the husband and the fact he is retired, to make an Order for him to pay a further sum of over $200,000 to the wife would in my view cause him unreasonable and undue hardship (see HKL v HCB [2002] FMCAFam 257);
d)Given the husband’s written submission at paragraphs 92 to 95, I am prepared to make a Substitution Order pursuant to section 124 of the Child Support (Assessment) Act 1998 where based on the following:-
i)At section 124 subparagraph (a) it could be said that the wife as a carer has applied pursuant to section 123(1)(a) giving a broad interpretation to this sub-section; and
ii)Further, I am satisfied in all the circumstances of this case given the husband’s financial resources, the benefit to X of guaranteed paid education and health expenses and to the Respondent wife who may find it difficult to meet these expenses that this is an appropriate order for the benefit of the child and that in it is otherwise proper while noting and being satisfied that the requirements of subsections (2), (3) and (4) have been also satisfied.
Conclusion
Parenting Dispute
The Respondent mother’s closing written submission argued that X should live primarily with her. It was submitted that for the first “four and a half years” she was brought up almost exclusively by the Respondent mother. The attachment that was formed during this period cannot be ignored it was argued and that it is a serious deficiency of the Family Report.
The transcript of Friday, 8 November, 2019 when the author of the Family Report was cross-examined indicates that this topic was considered by her in answer to Counsel for the father, and she said that she did have regard for the early formative years living arrangements for X:-
“What about the attachment that derives from growing up essentially, with one parent for the first four and a half years?...So what I observed and what I came to understand was that X had a strong attachment to her mother. She also had a very strong attachment with her father, and so I think I do comment that I think that she had a strong and meaningful relationship with both parents by the time I saw her.”
She went on also to say the following:-
“Could you please answer the question?‑‑‑So I was influenced – I was certainly aware of the fact that she had spent the first four and a half years of her life with her mother, and I was looking for indicators of how that might impact where she is at the moment. I was also aware that she had spent significant time with Mr Beales, both once – while they were all living in the family home and once Ms Zang left the home, and that she had apparently coped well in that arrangement. You know, my understanding was Ms Zang was working very long hours once she moved to Australia and was living in the family home, so Mr – Mr Beales was a significant, if not primary, carer at that time.. So in taking into account – of course she made a very strong attachment to her mother while she was in China in that first four years. That attachment period is, you know, usually the first three or four years, after which either a healthy attachment has been made or it hasn’t. So, given X’s age, I came to the conclusion that a healthy attachment had been made, that it had expanded to an attachment and strong bond with her father so that at the time that I met her, she wasn’t exhibiting any sort of indicators of separation anxiety which would indicate attachment difficulties. She seemed equally comfortable with both parents. She seemed comfortable with the current time-spent arrangement, other than wanting to change the Monday night. So I could see no indicator that the fact that she had spent the first four and a half years with her mother ruled out the possibility that she would be comfortable and capable of adjusting to different sorts of time-spent arrangements.”
The report writer went onto say that her focus was on X now and X in the future and so she did not include a lot about the history.
She was further cross-examined as follows:-
“Yes. Do you think there is any possibility of any relationship at all between what you observed in paragraph 109 and the possibility that X has a primary attachment to her mother?‑‑‑Not particularly, no.
You exclude that as a possibility?‑‑‑In the face of everything else, yes.
Do you exclude that as a possibility: yes or no?‑‑‑Yes.
Where is there discussion of that possibility in your report?‑‑‑So I came at it from the direction of expressing concern that the prolonged goodbye, Ms Zang’s comments about her distress when not being with X tended to indicate to me that perhaps X – and given my assessment that she didn’t show any indicators of separation anxiety – perhaps X was more concerned about her mother’s wellbeing and that’s – that behaviour was an expression of that concern rather than any issue about primary carer.”
A further written submission on behalf of the mother argued the following:-
“As she reaches puberty and the transitions of her teenage years, her mother will be far better placed than her father to deal with those challenges.”
In relation to that concern, the report writer said the following:-
"Yes. And in terms of the more mundane things, you have got a girl who is going to mature into puberty, and obviously, biology has an impact in respect of that. Have you turned your mind to those aspects in relation to X’s care down the track?‑‑‑So I’m – I’m – I think I have had it in my report that I’m open to an equal share arrangement once X becomes older, so a week-about arrangement. So to my mind ‑ ‑ ‑
HIS HONOUR: Can I just stop there, sorry to interrupt. When you say older, do you have an age range that you think about?‑‑‑I think I put in grade 4, when she completes grade 4.
Okay. Thank you?‑‑‑Yes. So that would be, you know, prior to the time that X starts to commence puberty, hopefully. So, yes, in my mind that was going to be accounted for by her spending significant time with her mother as well as her father.”
The third submission by the mother was that the Court should reject the father’s proposals, and the approach of the Family Report to the extent that they depend on the suggestion that a parent who is working is less qualified for a full-time parenting role. This argument misses the point in my view as the mother is not being penalised for having a work-ethic. The question really is one of X’s early years with the father being more available to her to promote her welfare given that he is retired and secondly, the need for the mother to improve her English skills and her employment opportunities in the short term to give her and X long-term financial benefits.
This was raised with the author of the report in cross-examination as follows:-
“Yes. Ms Zang needs to work?‑‑‑Of course.
And one of the reasons why she needs to work is because Mr Beales isn’t making any money available to her?‑‑‑So my understanding – that an assessment has been made by the Child Support Agency.
Mr Beales has the better capacity to care for X –
because he’s not working?‑‑‑He has more – he is ‑ ‑ ‑
Yes?‑‑‑My understanding is he is working on his farm, but he has more ‑ ‑ ‑
Yes?‑‑‑ ‑ ‑ ‑ flexibility. Ms Zang continually referred to the difficulty of her work routine.
Yes?‑‑‑Her work schedule.”
The final argument in the Respondent mother’s written closing submissions was that the Court should be cautious about according a full-time role to the father in circumstances where the evidence is clear that he does not respect the role of the mother.
In my view, this concern was addressed by the author of the report when she said the following:-
“I think I commented in my report that the conflict and lack of communication between the parents was something that needed to be addressed, hence why I’ve recommended both of them attend a post-separation parenting program at the least. So, actually, it doesn’t surprise me that Mr Beales didn’t think immediately as – of Ms Zang as someone he would confer with about issues relating to X because that’s not how they are operating, unfortunately.”
I do not accept the premise that the father does not respect the role of the mother. It appears to me that he does not appreciate the full value of that role in promoting the welfare of X and that I am confident that after undertaking a parenting course that these parties over time will have a better form of communication, as well as a greater insight.
At page 24 of the Family Report dated 14 February, 2019 authored by Ms L it is recommended at paragraph 150… “that once X completes Grade 4 at school, consideration be given to X living with each parent on a week about basis with a midweek dinner or overnight with the other parent.” After reading the parties material and in particular, observing them at Court and hearing from them in the witness box, the parties are basically capable, caring and loving parents who otherwise have to improve their communication and insight into their respective roles as parents of their daughter.
Whilst the Family Report writer was energetically challenged on her recommendation that X should live primarily with the father initially, it has to be appreciated that this Court must look at the short AND long term best interests of any child and has to be mindful of the clear directions contained in section 60CA, section 61DA, section 65DAA along with section 60CC, amongst other sections in Part VII of the Act.
In promoting X’s best interests I have formed the view that initially she should primarily live with the father for the following reasons:-
a)There was merit in the recommendation at paragraph 150 in the Family Report when the whole of the document and the cross examination of the author is considered;
b)The mother and child will still have a meaningful relationship with significant and substantial time with arrangements in the interim;
c)In answer to a question from me, the mother said she needed around three years to undertake her English and proposed Childcare courses. During this period, where the child will live primarily with the father, the mother will have an opportunity to attend courses to improve her English skills and employment skills which will result in greater employment options including the ability to use her experience in child education, (see the affidavit of the mother filed 25 February, 2019 at paragraphs 23 (u) and (w), and 27 (r) along with Annexure ZL16 being a letter from The Job Centre) and this is a significant factor for her need for maintenance pursuant to section 75(2)(h);
d)The father is retired and hence more available to the child, (see paragraphs 4 and 103 of the father’s affidavit filed 22 August, 2019);
e)The mother made the following concessions when cross-examined on Day 2 of the trial:-
“MR GLEZAKOS: And the reality is that he and X have a very good and strong relationship.
THE WITNESS: Yes.
MR GLEZAKOS: And that whilst your parenting style and his might be a little bit different, that doesn’t mean that one is better than the other.
THE WITNESS: Yes.
MR GLEZAKOS: Because there was a time that you were concerned about his capacity to care for X.
THE INTERPRETER: In terms of day-to-day living.
MR GLEZAKOS: In fact, that’s something that you complained about to the family consultant.
THE WITNESS: Yes.
MR GLEZAKOS: But are you now happy that X is properly and well cared for in my client’s care?
THE INTERPRETER: Yes.”
f)The mother also conceded in cross-examination that she could not write in English and whilst she had a basic grasp of English that currently the father is in a better position to help X with her school work; and
g)The father has the support of his extended family and friends and I also note paragraph 60 of page 12 of the Family Report where the mother commented that she has no friends or family in Australia.
Property Dispute
It is clear from the evidence that the vast bulk of the assets and resources brought into this marriage came in from the husband. However, it cannot be ignored the significant contribution the wife made after the birth of X in caring for her in China before she came to reside in Australia and when living in their home, caring not only for the child, but also the family unit.
The authorities of Rolf, Mallet, and Ferrarro make it very clear that this Court has an obligation to ensure that the homemaker contribution is recognised in a substantial way and not in a token way.
I note that on the first day of the trial I had the following conversation with Counsel for the wife:-
“DR INGLEBY: If it please your Honour, I appear for the Respondent Ms Zang.
HIS HONOUR: A million dollars. Very interesting, Doctor. Most people talk in percentages but your client wants a round million dollars.
DR INGLEBY: Give or take. We will never know what that really is. It’s a give or take figure of about a third, seven-year marriage and one child.
HIS HONOUR: How long did they cohabit?
DR INGLEBY: Not very long at all.
HIS HONOUR: Yes.
DR INGLEBY: We were bringing up the child unaided.
HIS HONOUR: I follow that, and that’s really the strength of your argument, isn’t it?
DR INGLEBY: Yes.
HIS HONOUR: Home-maker and parent.
DR INGLEBY: Four and a-half years.
HIS HONOUR: Financial contributions from your client?
DR INGLEBY: Well, a considerable amount of unaided support, your Honour. We have been basically starved out since separation and been forced to assume sole responsibility for the child with ‑ ‑ ‑
HIS HONOUR: I’m not talking about separation.
DR INGLEBY: Yes.
HIS HONOUR: I’m talking about contributions under section 79(4).
DR INGLEBY: Direct financial contribution, very limited, your Honour.”
The facts peculiar to the financial circumstances of this most unusual case have made it very difficult to assess a just and equitable outcome pursuant to section 79(2) of the Act. Although married in 2013 and separated under one roof in February, 2018, they only cohabited for around twelve months.
They did not blend or mingle their assets or income. They effectively lived separate financial lives save that (quite properly) the husband made financial contributions to the support of his wife and child pre-separation and post-separation when they lived separated under one roof for eight months. They did not make any financial contributions to the assets owned by the other.
In his opening the Counsel for the husband said the following:-
“My client concedes that during the period of time that X was living with her mother in China, clearly she was the primary carer. She had some family support there, but clearly that burden rested with her. He did what he could from a distance. He spent some time in China. There’s some debate about how much time he spent, but he spent some time in China with the wife and with X and provided some financial support, he says. But from the time that X came to live in Australia, he says that he was actively involve.”
The most significant issue for the wife’s case in this unusual matter is the contribution made by the wife pursuant to section 79(4)(c) to the welfare of the family.
The closing written submissions on the property issue provided by the wife were brief and as follows:-
“1. The father’s own case is that he is entitled to assets in the region of $2.8 to $2.9 million.
2. True it is that these assets effectively represent his initial contribution, but the Court must give significant weight to:
· The mother’s contributions to his welfare and the welfare of the family – which contributions were made effectively alone for a significant period of time;
· The mother’s need for housing; in relation to which the best evidence is that a sum in the region of $400,000 is the minimum required to “put a roof over her head.”
· The fact that the mother cannot confidently look forward to any voluntary support from the father.
· The fact that the mother, by reason of language and other disadvantages, can only ‘scrape and scrimp’.”
The latter point is overstating the financial circumstances of the wife as it was clear from the evidence she can earn an income that is relatively low, and is entitled a monthly pension of $450 from China through her superannuation fund and may also qualify for Australian Government benefits.
The wife does need accommodation for herself and X when she is in her care. I note that she gave evidence that the house she was then renting in Suburb U would cost about $350,000 to buy. There is also an aspect to any payment of monies in the need for her to have some monies during the next few years when she is undertaking studies to improve her English and her work skills, limiting her employment opportunities during this phase; see section 75(2)(h).
The husband’s assets including superannuation totalled $2,873,559 less $1000 credit card, leaving a net balance $2,872,559. I have treated his superannuation as any other asset as he is retired and can access this resource as he has done before.
The wife’s assets including her superannuation are $172,268 less debts of $101,939 giving a net figure of $70,329. I have treated her superannuation like any other asset also, given it is a total of her own financial contributions over time and I am sceptical of other evidence that she cannot access this fund. She gave no evidence about the possibility of hardship claims for release of monies (if available), and she did not always give evidence that was clearly truthful.
In all the circumstances, pursuant to section 79 of the Act and in particular subsection (2) I find it just and equitable if the husband was to pay $395,000 in ninety days, (noting $5,000 has already been paid in part-satisfaction of her property claim). This in my view, is in a substantial recognition of her contribution to the welfare of the family and her section 75(2) maintenance and other factors. This is approximately 16% of the total in net pool giving her total net assets of around $470,329 at the time of hearing and final written submissions. I am not satisfied that the husband’s proposal of payment of $100,000 satisfies the Mallet and others test nor section 79(2). It would be a token payment.
Spousal Maintenance
The Full Court in the case of Clauson & Clauson (1995) FLC 92 – 595 said at page 81, 907 the following:-
“Section 74 empowers the Court to make a spousal maintenance order and s. 72 delineates the circumstances in which that power may be exercised. It may be summarized by saying that spousal maintenance may be ordered where the applicant is unable to support himself or herself adequately and the respondent is reasonably able to do so (or to the extent that he or she is able to do so). Section 74 provides that the Court may make such order as it considers proper for maintenance and by s. 75(1) it is provided that in the exercise of the jurisdiction under s. 74 the ``Court shall take into account only the matters referred to in sub-section (2)''. Hence the picking up of s. 75(2) in the exercise of the power to order spousal maintenance: see generally Eliades and Eliades at 76,231-2; Rowan and Rowan .
Here lies the potential for the confusion which in fact occurred in this case. However, the distinction, although difficult to define with precision, has been clearly identified in this jurisdiction over many years.
Where spousal maintenance is sought in addition to a property order it becomes, in effect, the fourth step in the process. It is only to be exercised after the three step process under s. 79 has been completed and it is not to be confused with the s. 75(2) component in that latter exercise. The reason why it must be exercised after the s. 79 exercise is because that latter exercise establishes the background against which s. 74 must operate, that is, the financial circumstances of the parties.
The result of the s. 79 order may be such that the applicant for maintenance can no longer be described as being ``unable to support himself or herself adequately'' because he or she may have sufficient assets which, with or without income arising from the investment or use of those assets, will provide an adequate level of support. It also defines the other party's capacity to meet any order.
In addition, it is necessary to determine the issue of periodic maintenance first because this type of lump sum maintenance is the capitalization of that conclusion. The Court must satisfy itself of the components necessary to justify a periodic maintenance order, namely, in effect, need and capacity, and determine the amount in question and in some cases the duration of that order. If the applicant fails to establish those components that will end any claim for not only periodic maintenance but lump sum maintenance as well.
…
The distinction between s. 74 and the s. 75(2) exercise in a property order is important and must be maintained. In the latter context the s. 75(2) exercise is not an exercise of the maintenance power. Nor is it a ``back door'' maintenance order. It requires the Court to take into account, so far as relevant, the various matters set out in that sub-section in determining, in effect, what alteration, if any, should be made to the conclusions already reached on the basis of the parties' contributions to their property.”
The wife in this case has detailed an income earning capacity at page 2 of her Financial Statement filed 28 August, 2019 where she says she has an average estimated weekly income working casually of $250 along with, (at page 8 of that same document), a Chinese pension of about $450 per month from December, 2019.
In her affidavit filed 7 November, 2019 at paragraph 9 the wife deposes to earn about $200 per week working casually… “to do whatever casual jobs that allow me to work and in the meantime looking after X.” It is common ground that since November, 2019 the parents have had equal shared care of X.
When cross-examined on her income earning capacity she said the $200 was not a weekly average but a ‘record’ as her income varies and sometimes is as low as $75. She agreed that she worked for a restaurant titled ‘V’. Counsel for the husband then produced the witness’ own bank statements which showed weekly deposits from that source of $248, $300, $336, $256, $404, $248, $378, $204, $320 along with other payments of $168 and $108. The wife in explanation said that this was her income before she did two days a week of English classes which commenced on 7 October, 2019. I note her affidavit did not detail this nor did the wife when she talked about $200 being a ‘record’. The bank document went on to show that after 7 October, 2019 she earned $244 on 18 October, 2019 and $260 on 30 October, 2019.The wife was not frank about her income earning capacity.
As part of the property proceedings, I will be making an Order for the wife to be paid a lump sum as her property settlement of about 16% of the pool pursuant to section 79(2), section 79(4), and significantly noting the importance of section 75(2)(h) in this case.
It is my assessment that upon the property payment she will be able to support herself adequately but until she receives the benefit of this property Order, there will be some difficulty for her to be able to maintain herself within the meaning section 72 of the Act and the husband has shown some capacity to contribute to her maintenance pending the property payment. He details in his Financial Statement that he has an income from share dividends and interest income of $371 per week. I also note in his evidence that he also said he had an income from the sale of livestock but no further information was detailed.
After assessing the evidence of the parties and reading their documents (in particular their Financial Statements), I am satisfied that until she is paid the property settlement, the husband should pay the wife the sum of $70 per week Spousal Maintenance. Once she receives the benefits of the property Order noting her age, her capacity to develop her income earning capacity through English classes, and otherwise her financial resources, I am of the view that she may be then able to adequately support herself. In this approach I have followed the Full Court in the case of Little & Little (1990) FLC 92 – 147.
I certify that the preceding one hundred and sixty-seven (167) paragraphs are a true copy of the reasons for judgment of Judge Curtain
Date: 27 March 2020
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