CANH & CANH

[2020] FamCA 882

FAMILY COURT OF AUSTRALIA

CANH & CANH [2020] FamCA 882

FAMILY LAW – CHILDREN – Interim parenting orders – Where interim parenting orders previously made – Where the mother is experiencing financial distress due to the father’s alleged failure to meet his spousal maintenance obligations – Where the mother proposes to relocate with the children to take up gainful employment – Where the relocation would entail changing the children’s school enrolment – Where the father’s Response to an Application in a Case is summarily dismissed but his evidence is still relevant to his defence of the mother’s application – Where the father opposes the mother’s relocation with the children and any change to the children’s schools – Where the mother submitted her relocation with the children will not affect the time the children spend with the father under the current interim parenting orders – Where there is no need to make an order allowing the mother to relocate – Ordered the mother be allocated sole parental responsibility to decide the schools at which the children are to be enrolled.

FAMILY LAW – PROPERTY – SINGLE EXPERT WITNESS – Where previous orders were made appointing single expert witnesses to value different assets owned by the parties – Where a single expert witness has withdrawn – Where the mother seeks appointment of a substitute single expert witness – Where the father opposes appointment of the single expert witness proposed by the mother – Where existing orders require the parties to jointly instruct the singe expert witnesses – Where the parties have been unable to cooperate sufficiently well to procure the expert evidence needed for trial – Ordered the single expert nominated by the mother be appointed – Ordered the mother be vested with responsibility for instructing the single experts.

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth) Pts VII, VIII, ss 61C, 61D, 61DA, 69ZL, 114

Family Law Rules 2004 (Cth) r 19.08

AMS v AIF (1999) 199 CLR 160
Franklyn & Franklyn [2019] FamCAFC 256
Gadde & Gadde [2019] FamCAFC 116
Sampson v Hartnett (No.10) (2007) FLC 93-350
U v U (2002) 211 CLR 238
Zanda & Zanda (2014) FLC 93-607

APPLICANT: Ms Canh

RESPONDENT: Mr Canh

FILE NUMBER: NCC 2413 of 2016

DATE DELIVERED: 18 September 2020

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 18 September 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Ms K. Fielden, Fielden & Associates

COUNSEL FOR THE RESPONDENT: Not Applicable

SOLICITOR FOR THE RESPONDENT: Not Applicable

Orders

PENDING FURTHER ORDER, IT IS ORDERED THAT

1.The mother shall have sole parental responsibility in respect of decisions related to the school at which the following children are enrolled:

a)X, born … 2011; and

b)Y, born … 2013.

2.Order 8 made on 15 June 2018 is discharged upon the mother notifying the father in writing of her relocation of the children’s residence to the northern suburbs of Sydney and, in lieu thereof, the parties shall then respectively ensure the children’s exchange between them by:

a)Their collection from school whenever the children’s residence or expenditure of time with the party is to commence at or about the conclusion of school during school term;

b)Their return to school whenever the children’s residence or expenditure of time with the party is to conclude at or about the commencement of school during school term; and otherwise

c)D Area northbound on the expressway.

3.Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

4.Order 1 made on 15 August 2018 is varied to substitute the appointment of Mr B for Ms C as the single expert witness.

5.Order 2 made on 15 August 2018 and Order 1(a)(1.2) made on 15 January 2020 are discharged.

6.The wife shall provide written instructions to the single expert witnesses to fulfill Order 1 made on 15 August 2018 and Order 1 made on 15 January 2020.

7.Otherwise:

a)The Application in a Case filed on 14 August 2020 is dismissed;

b)The Response to an Application in a Case filed on 18 September 2020 is dismissed; and

c)Any and all other outstanding applications for interim relief are dismissed.

NOTATIONS

A.The parties agree the orders made on 15 June 2018 should be amended under the slip rule in accordance with proposed orders 16, 17, 18 and 19 as set out within the Application in Case filed on 14 August 2020.

B.Other than as varied by these orders, the orders made on 15 June 2018 continue to operate with full force and effect.

C.The mother is at liberty to establish the children’s residence wherever she chooses provided she complies with the parenting orders made on 15 June 2018 (as amended by these orders).

D.The proceedings remain listed before the Registrar for further procedural directions on 14 October 2020.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Canh & Canh has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 2413 of 2016

Ms Canh

Applicant

And

Mr Canh

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1.These proceedings were commenced by the mother in June 2018. Since then the proceedings have expanded to include disputes under both Parts VII and VIII of the Family Law Act 1975 (Cth) (“the Act”).

2.There have already been numerous interlocutory disputes, which resulted in orders being made on:

a)15 June 2018 – concerning spousal maintenance, injunctions and parenting orders;

b)15 August 2018 – concerning the engagement of a single expert witness in relation to the parties’ corporate and business interests;

c)18 March 2019 – concerning the payment of single expert witness fees and financial disclosure;

d)15 January 2020 – concerning further financial disclosure; and

e)4 February 2020 – concerning even more financial disclosure.

3.The parties have again approached the Court in a busy duty list with fresh interlocutory applications relating to all those same issues. 

4.The applicant mother prosecutes her Application in a Case filed on 14 August 2020 and relies upon her affidavit filed on the same date. 

5.The respondent father seeks to rely upon his Response to an Application in a Case filed on 18 September 2020 (that is today), together with his affidavit filed on 16 September 2020 and his financial statement filed on 12 September 2020. 

6.In addition, the father sent a USB stick to my chambers which he told me today he wanted to tender in evidence, in apparent expectation that at some point in the future I would sit and view its contents on a computer. Shortly stated, the tender of that “document” (as it would be defined under the Evidence Act 1995 (Cth)) is rejected. I attempted to explain to the father that documents need to be demonstrably relevant and probative to be admissible in evidence and, additionally, disseminated between the parties in a timely way in order to be fairly admitted into evidence. While the USB stick apparently contains video footage of the children, its largely unknown content does not fit that criteria. The tender of the USB stick was therefore rejected and I have ignored it.

Response to the Application in a Case

7.The father’s Response to the Application in a Case will be summarily dismissed, though his evidence is still relevant to his defence of the mother’s application. 

8.On 22 July 2020, the Registrar ordered the father to file his Response to the Application in a Case by 2 September 2020. It was not filed until today and he had no excuse for its lateness. 

9.Besides, the father seeks 22 separate orders, many of which cannot possibly be made, either because they have no jurisdictional basis, no evidentiary basis or lack any form of prescription and would be unenforceable.

Application in a Case

10.The Application in a Case seeks 19 orders and deals with numerous different issues, which I will address separately.

Parenting orders

11.The parties’ current dispute over their children is determined by reasons given in short form pursuant to s 69ZL of the Act.

12.The subject children are now aged nine and seven years. 

13.Proposed Orders 1 to 5 inclusive deal with arrangements for the mother to move with the children from the southern region of Newcastle to Sydney. That would entail changing the children’s school enrolment, but would not apparently affect the time the children spend with the father because he lives on the Central Coast of NSW, approximately equidistant between Newcastle and Sydney.

14.The mother’s wish to move to Sydney with the children is reasonably based, even though she is not obliged to demonstrate compelling reasons for the proposed move (U v U (2002) 211 CLR 238 at 261). Orders have previously been made for the father to pay spousal maintenance to the mother, but her unchallenged evidence is that he has not met his spousal maintenance obligations for many months. She asserts she is in financial distress and needs gainful employment in order to establish some form of financial independence from him. Despite her searches in the Newcastle and Central Coast areas, she has not been able to secure employment, but she has now found employment in Sydney and therefore wants to move to the northern suburbs of Sydney with the children to take-up that employment opportunity.

15.As a matter of law, there is no juridical basis to restrain the mother from living with the children wherever she likes, providing the children are still able to spend time with the father as has already been ordered (AMS v AIF (1999) 199 CLR 160 at 223-224, 231-232; U v U at 262; Sampson v Hartnett (No.10) (2007) FLC 93-350; Zanda & Zanda (2014) FLC 93-607 at [132]-[136]; Franklyn & Franklyn [2019] FamCAFC 256 at [28]).

16.Nor is there any evidentiary basis to restrain the mother from establishing her residence with the children in the northern suburbs of Sydney, which is the effect of the father’s application. He wants the mother restrained from changing the children’s residence from its current location so that they can continue spending time with him – not just in accordance with existing orders, but even more time than those orders contemplate. 

17.Conversely, there is no need to make an order allowing the mother to move to Sydney. Indeed, such an order is probably not an order the Court can make under Part VII or s 114 of the Act (Gadde & Gadde [2019] FamCAFC 116 at [65]).

18.The move of the children to Sydney would require a change of their schools. Presently, both parties retain parental responsibility for the children pursuant to ss 61C and 61D of the Act, because the interim parenting orders made on 15 June 2018 did not allocate parental responsibility for the children. The father opposes the mother’s move to Sydney and opposes any change of schools for the children because he asserts it will be emotionally disturbing for them. I do not doubt the honesty of his perception, but his honest opinion is not objective proof of the fact. If that were so, no children would ever be able to move schools, which would be absurd.

19.In my view, no reason is demonstrated in the evidence preventing the mother’s decision to move with the children to Sydney, at least in circumstances where she undertakes to the Court that the existing orders providing for the children to spend time with the father will be observed.

20.Given the parties’ intractable dispute about any change in the children’s school enrolments, it will therefore be necessary for the mother to be allocated with sole parental responsibility to decide the schools at which the children are to be enrolled. Otherwise, I am inclined to apply s 61DA(3) of the Act, given this is an interlocutory dispute, and not make any other order to disturb the existing parental responsibility retained by the parents.

21.The mother proposed new arrangements for the children in school holidays and on other special occasions, but as I explained to her solicitor during submissions, there is no need for any such change. The orders made on 15 June 2018 apply during both school terms and school holidays. If the parties agree to vary those arrangements, as they have apparently done on occasions in the past, then that is their prerogative. There is no reason to now arbitrarily fix times for the children to spend time with the father in the school holidays and on other special occasions. Neither party has demonstrated any reason in the evidence to warrant revisiting the orders made in June 2018 which prescribe the amount of time the children spend with the father. 

22.Obviously enough, if the children are to live with the mother in the northern reaches of Sydney, the changeover venue will need to be amended. The mother proposes to share the travelling with the father and to meet him at D Area on the expressway. That seems an eminently reasonable proposition, and I will make orders in those terms.

23.The father explained how the children have told him they want to spend more time with him, which is a wish he wants to accommodate. His desire to do so is entirely understandable, but he needs to appreciate that children who love their parents are liable to say things they expect each parent wants to hear. Expressed wishes, especially by children the tender ages of these children, are not to be met merely to satisfy such statements of loyalty.

24.In my view, nothing has changed since the orders were made in June 2018 to warrant revisiting the question of how much time the children spend with the father.

Spousal maintenance

25.Proposed order 6 is not an enforcement order at all and I decline to make an order in those terms.

26.The mother asserts that, because the father is some $23,000 in arrears with his spousal maintenance payments under orders made in June 2018, I should now calculate the lump sum arrears and order him to pay that amount. Simply put, if the father has defaulted in compliance with existing orders and is in arrears with his periodical spousal maintenance, there is no point making an order for his payment of the arrears because he will likely default on that order too.

27.What the wife needs to do is to bring enforcement proceedings pursuant to Chapter 20 of the Family Law Rules 2004 (Cth). If she wishes to do so, that is a matter for her.

Single expert witnesses

28.Orders have already been in August 2018, March 2019, and January 2020 concerning the appointment of two different single expert witnesses to provide expert opinion evidence about different assets owned by the parties. 

29.The single expert appointed to value corporate assets has withdrawn, apparently due to her dissatisfaction about her interaction with the father. 

30.To overcome that problem the mother now proposes the parties instead use Mr B as the single expert witness to value corporate assets.

31.In submissions the father proposed two other experts in lieu of Mr B, but he conceded the forensic accountants he has privately consulted (H Company) have given him a shortlist of three satisfactory experts, one of whom is Mr B.  

32.The mother’s solicitor has not indicated to me she knows of or is prepared to accept either of the two other choices put forward by the father, but since Mr B is the mother’s choice and since Mr B is one of the recommendations shortlisted by the father’s own accountants, Mr B is the appropriate choice. I will make an order substituting him for the existing single expert witness.

33.Existing orders require the parties to jointly instruct the experts. The mother alleges the father has not been cooperating and has delayed the engagement of the single experts and the procurement of their reports. It is unnecessary for me to get to the bottom of the dispute about the level of the father’s cooperation. Suffice to say, the appointment of the single experts extends back over a period of two years and there are still no expert reports available. Even if it is entirely innocent, the parties appear to be dragging their feet. They have been unable to cooperate sufficiently well to procure the expert evidence they need for the trial, which is delaying the progression of the proceedings. At the moment, I see no alternative but to vest one party with principal responsibility for acquiring the expert evidence and I intend to give that responsibility to the mother, since she is the party who has made the application seeking orders to that effect.

34.The orders made so far require the husband to pay all the fees of the single expert witnesses at the first instance. Orders to that effect were made with the father’s consent on 15 January 2020. If he does not pay such fees, as and when the liability arises, then the existing orders can obviously be enforced. There is no satisfactory evidence before me as to how that order can be satisfactorily enforced at this point in time. The mother will need to demonstrate the father’s default before she is entitled to enforce the existing orders. Self‑evidently, there is no need to make an order merely repeating what existing orders already say. 

35.Nor do I intend to make the orders proposed by the mother which are tantamount to injunctions restraining the father from having any contact at all with the appointed single expert witnesses. I can see no evidentiary basis for orders to that effect. As I understood the submissions made by the mother’s solicitor, the mother accepted that is so, provided the person she nominated for appointment as the substitute single expert witness is approved and she is given responsibility for issuing instructions to the single expert.

Motor vehicle 1

36.Proposed order 12, as I understand it, was withdrawn by the mother. She accepts any argument about the valuation of that vehicle is a matter for evidence and argument at the final trial.

Financial disclosure

37.As I understand it, proposed order 13 was abandoned by the mother.

38.So far as I can tell from the file, comprehensive orders were made on 4 February 2020 about the father’s financial disclosure, in light of preceding orders about his financial disclosure in March 2019 and January 2020.

Slip rule

39.The mother seeks orders 16, 17, 18 and 19, which will amend the terms of orders made on 15 June 2018. 

40.According to the Response to the Application in a Case filed by the father today, he agrees to orders 16, 17, 18 and 19 proposed by the mother, so those orders can be made by consent. 

Costs

41.The mother proposes that the father pay her costs of these interim proceedings on an indemnity basis, in the rather elaborate terms set out in proposed orders 14 and 15. I do not intend to make those orders. 

42.Having sought indemnity costs, the mother has failed to comply with r 19.08(3) of the Rules when seeking indemnity costs.

43.I will make no costs order at all at this point. In the event either party seeks costs in relation to these interlocutory proceedings, the Rules grant them 28 days within which to make such an application.

ORDERS DELIVERED

I certify that the preceding forty-three (43) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 18 September 2020.

Associate: 

Date:  22 October 2020