Ding & Kang
[2021] FCCA 1769
•3 August 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Ding & Kang [2021] FCCA 1769
File number(s): CAC 495 of 2020 Judgment of: JUDGE W J NEVILLE Date of judgment: 3 August 2021 Catchwords: FAMILY LAW – parenting and property – where the respondent lives in China and was assisted by a Mandarin interpreter – where there was continued non-compliance by the Respondent with Orders to file material – where no financial disclosure was provided by the Respondent – where the Respondent did not seek any Orders in relation to parenting and where Court in China had also made Orders in the Applicant’s favour where the Respondent has not spent time with the child since November 2018 – parties agree for matter to be determined after hearing and by way of written submissions – Orders sought by Applicant in best interests of child and just and equitable in relation to property issues Legislation: Family Law Act 1975 (Cth), ss 60CA, 60CC(2) & (3) Cases cited: Chang & Su (2002) 170 FLR 244; (2002) 29 Fam LR 406
Collu & Rinaldo [2010] FamCAFC 53
Mazorski v Albright (2007) 37 Fam LR 518
McCall & Clark (2009) 41 Fam LR 483
Moose & Moose (2008) FLC ¶93-375
Vontek v Vontek [2017] FamCAFC 28
Number of paragraphs: 33 Date of last submissions: 19 April 2021 Date of hearing: 12 April 2021 Place: Canberra Counsel for the Applicant: Dr J Behrens Solicitor for the Applicant: Robinson + McGuinness Solicitor for the Respondent: Self-Represented ORDERS
CAC 495 of 2020 BETWEEN: MS DING
Applicant
AND: MR KANG
Respondent
ORDER MADE BY:
JUDGE W J NEVILLE
DATE OF ORDER:
3 AUGUST 2021
THE COURT ORDERS THAT:
Parenting
1.The Applicant have sole parental responsibility for the child, X, born in 2018.
2.The child live with the Applicant in Australia.
3.The child spend time with the Respondent in Australia, as agreed in writing between the parties.
4.Until further Order or else subject to the authenticated consent of all parties required to provide consent by Part VII of the Family Law Act 1975 MR KANG, born: in 1986, his servants and/or agents be and are hereby restrained by injunction from removing or attempting to remove or causing or permitting the removal of said child, X born: in 2016, from the Commonwealth of Australia;
5.AND IT IS REQUESTED that the Australian Federal Police give effect to this Order by placing the names of the said child on the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until he attains the age of 18, or until the Court Orders its removal, or with the consent of the parties.
6.The Respondent be restrained from pursuing any parenting applications in China.
7.Pursuant to Section 68B of the Family Law Act 1975, the Respondent be and is hereby restrained by injunction from authorising, requesting or directing any other person to do any of the things set out below:
(a)Being at the premises where the Applicant and the child reside, namely, the property located at B Street, Suburb C, ACT;
(b)Being within 100m of the child’s day care facility and/or school; and
(c)From removing the child from the Applicant’s care, except in accordance with Orders made under the Family Law Act 1975.
Property
8.Within 42 days of the date of these Orders:
(a)The Respondent Husband shall do all acts and things and sign all documents necessary to transfer to the Applicant Wife the whole of the Respondent Husband’s right, title and interest in the property located at B Street, Suburb C, ACT, more particularly described as Section … Block … on Deposited Plan … (“the B Street, Suburb C property”).
(b)The Applicant Wife shall do all acts and things and sign all documents necessary to discharge the mortgage secured against the B Street, Suburb C property to Westpac (dealing number …);
(c)The parties shall do all acts and things and sign all documents necessary to transfer to the Applicant Wife the whole of the balance of the proceeds of sale of the investments properties located at D Street, Suburb E, South Australia and F Street, Suburb G, South Australia (“the investment properties”) held in the trust account of H Conveyancing.
(d)The parties shall close all joint bank accounts in which they have an interest, with the Applicant Wife to retain the proceeds, including but not limited to the parties’ joint Westpac Bank Offset Accounts ending x…97 and x…77.
9.Pending and following the transfer of the B Street, Suburb C property pursuant to Order 8:
(a)The Applicant Wife be solely responsible for and indemnity the Respondent Husband in relation to all outgoings in relation to the B Street, Suburb C property including mortgage repayments, rates, utilities and insurances; and
(b)The Applicant Wife be entitled as against the Respondent Husband to sole occupation of the B Street, Suburb C property.
10.Unless otherwise provided in these Orders, the Applicant be declared, as against the Respondent, the sole legal and beneficial owner of all items of property in her name, possession or control, including but not limited to:
(a)The B Street, Suburb C property;
(b)The proceeds of sale of the investment properties;
(c)All funds paid to her by way of costs Orders in these proceedings;
(d)The Motor Vehicle 1;
(e)Monies standing to her credit in any bank and/or credit union accounts in her name including:
(i)Commonwealth Bank of Australia account (ending x…08);
(ii)Commonwealth Bank of Australia account (ending x…85);
(f)All superannuation entitlements in her name, including her Super Fund J superannuation entitlements; and
(g)Household furniture and belongings in her possession.
11.Unless otherwise provided in these Orders, the Respondent be declared, as against the Applicant, the sole legal and beneficial owners of all items of property in his name, possession or control, including but not limited to:
(a)The funds withdrawn by him from the parties’ joint account (ending x…97) on 17 August 2018;
(b)Any property interests in China, including the properties located at:
(i)K Street, Suburb L, City M, China; and
(ii)N Street, Suburb O, City P, China
(c)His interests in Q Pty Ltd;
(d)The proceeds of sale of the Motor Vehicle 2;
(e)The Motor Vehicle 3;
(f)Monies standing to his credit in any bank and/or credit union accounts in his name; and
(g)All superannuation entitlements in his name, including his Super Fund R superannuation entitlements;
(h)The computer, iPad and wedding jewellery taken from the B Street, Suburb C property at separation; and
(i)Household furniture and belongings in his possession.
12.Each party shall 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.
13.That the Husband be restrained by injunction from pursuing any Court applications in China in relation to property matters.
14.If either party refuses, fails or neglects to execute any documents necessary to put these Orders into effect within 14 days of being requested to do so, and any such refusal, failure or neglect is proved by affidavits filed and served by or on behalf of the party alleging this, the Registrar of the Federal Circuit Court of Australia at Canberra be and is hereby appointed pursuant to section 106A of the Family Law Act 1975 to execute such document in the name of such party.
Costs
15.The Respondent Husband pay the Applicant Wife’s costs of and incidental to the Wife’s two Applications in a Case filed 9 February 2021 and 24 February 2021 in the sum of $3,734.
16.The Respondent Husband pay the Applicant Wife’s costs of an incidental to this Amended Initiating Application in the sum of $10,000.
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Ding & Kang is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE:
Introduction
This matter relates to both parenting and property proceedings.
The child of the relationship is X, who was born in 2018. X is currently aged 3 years old. He lives with his Mother in Canberra.
The Mother is 34 years old, as is the Father. The parties married in 2016 in China. They separated on 11th November 2018. They are not yet divorced. The Mother is a permanent resident of Australia (as from 2013). She became an Australian citizen in 2016.
The Respondent Father, who resides in China, has participated in all Court events electronically and with the assistance of a Mandarin interpreter.
To date, the Father/Husband has filed a signed but unwitnessed and incomplete Affidavit (filed in Court on 3rd June 2020), and brief Written Submissions, which were filed on 19th April 2021. But otherwise he has not filed either a Response or Financial Statement notwithstanding Orders of the Court for him to do so. There is no evidence of financial disclosure by him. The Mother/Wife contends that there has been no financial disclosure at all by the Respondent. Nor have the parties participated in any financial mediation, essentially for the reasons already given – lack of financial disclosure and the immense logistical distance between Australia and China.
On the Mother’s evidence, the Respondent has not spent any face-to-face time with X since November 2018. On the Mother’s largely unchallenged evidence, the Father has not spent any video conference time with the child since August 2020. He does not send X any cards or gifts.
The Father’s non-compliance with Orders of the Court could, of itself, permit the matter to proceed pursuant to Division 13.1A – Order or Judgment on default. I will not do so in the light of the circumstances already outlined, namely the Father being resident in China, the matter proceeding with the assistance of an interpreter, and the Father having filed some material, which he seems to regard as compliance with the Court’s Orders. Nonetheless, I will take into account, to the degree apposite, the Father’s non-compliance as a factor in the course of the Court’s determination of the matters before it.
There has been a significant history of non-compliance by the Father, in part, no doubt, because of matters of logistics with him being in China, and in part because of some language difficulties. The defaults gave rise to the Mother bringing multiple Applications in a Case to seek relief for a range of non-compliance issues.[1]
[1] Such Applications were filed by the Mother/Wife on: 19th May 2020, 9th February 2021, 25th February 2021, and ultimately an Amended Initiating Application, filed 22nd March 2021.
As a result of the Father’s/Husband/s non-compliance, on 24th November 2020, the matter was listed for an undefended hearing on a date and time to be advised by the Court and directions made for the filing of material. On 16th February 2021, Orders published from Chambers setting the matter down for an undefended hearing on 12th April 2021 at 2:00pm. Both parties appeared at the hearing via AAPT Teleconferencing. The Respondent was assisted by a Mandarin interpreter. The matter was unable to finish on this occasion due to the interpreter having a conflicting commitment. Counsel for the Applicant suggested that the matter should proceed to finality on the basis of further written submissions to be filed by the parties and the material previously filed. This was put to the parties, and each of them has filed written submissions, albeit in the Father’s case, not as thorough-going as one would have wished or hoped.
For the reasons that follow, with minimal “tweaking”, the Orders as sought by the Mother are, in relation to parenting, in X’s best interests, and in relation to property, just and equitable.
Orders sought by Applicant
The final Orders sought by the Applicant are set out in her Amended Initiating Application filed 22nd March 2021. They are as follows:
Parenting
The Court Orders that:
1. The Applicant have sole parental responsibility for the child, X, born in 2018.
2. The child live with the Applicant in Australia.
3. The child spend time with the Respondent in Australia, as agreed in writing between the parties.
4. Until further Order or else subject to the authenticated consent of all parties required to provide consent by Part VII of the Family Law Act 1975 X, born: in 1986, his servants and/or agents be and are hereby restrained by injunction from removing or attempting to remove or causing or permitting the removal of said child, X born: in 2016, from the Commonwealth of Australia;
5. AND IT IS REQUESTED that the Australian Federal Police give effect to this Order by placing the names of the said child on the Family Law Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until he attains the age of 18, or until the Court Orders its removal, or with the consent of the parties.
6. The Respondent be restrained from pursuing any parenting applications in China.
7. Pursuant to Section 68B of the Family Law Act 1975, the Respondent be and is hereby restrained by injunction from authorising, requesting or directing any other person to do any of the things set out below:
a. Being at the premises where the Applicant and the child reside, namely, the property located at B Street, Suburb C, ACT;
b. Being within 100m of the child’s day care facility and/or school; and
c. From removing the child from the Applicant’s care, except in accordance with Orders made under the Family Law Act 1975.
Property
The Court Orders that:
8. Within 42 days of the date of these Orders:
a. The Respondent Husband shall do all acts and things and sign all documents necessary to transfer to the Applicant Wife the whole of the Respondent Husband’s right, title and interest in the property located at B Street, Suburb C, ACT, more particularly described as Section … Block … on Deposited Plan … (“the B Street, Suburb C property”).
b. The Applicant Wife shall do all acts and things and sign all documents necessary to discharge the mortgage secured against the B Street, Suburb C property to Westpac (dealing number …);
c. The parties shall do all acts and things and sign all documents necessary to transfer to the Applicant Wife the whole of the balance of the proceeds of sale of the investments properties located at D Street, Suburb E, South Australia and F Street, Suburb G, South Australia (“the investment properties”) held in the trust account of H Conveyancing.
d. The parties shall close all joint bank accounts in which they have an interest, with the Applicant Wife to retain the proceeds, including but not limited to the parties’ joint Westpac Bank Offset Accounts ending x…97 and x…77.
9. Pending and following the transfer of the B Street, Suburb C property pursuant to Order 8:
a. The Applicant Wife be solely responsible for and indemnity the Respondent Husband in relation to all outgoings in relation to the B Street, Suburb C property including mortgage repayments, rates, utilities and insurances; and
b. The Applicant Wife be entitled as against the Respondent Husband to sole occupation of the B Street, Suburb C property.
10. Unless otherwise provided in these Orders, the Applicant be declared, as against the Respondent, the sole legal and beneficial owner of all items of property in her name, possession or control, including but not limited to:
a. The B Street, Suburb C property;
b. The proceeds of sale of the investment properties;
c. All funds paid to her by way of costs Orders in these proceedings;
d. The Motor vehicle 1;
e. Monies standing to her credit in any bank and/or credit union accounts in her name including:
i. Commonwealth Bank of Australia account (ending x…08);
ii. Commonwealth Bank of Australia account (ending x…85);
f. All superannuation entitlements in her name, including her Super Fund j superannuation entitlements; and
g. Household furniture and belongings in her possession.
11. Unless otherwise provided in these Orders, the Respondent be declared, as against the Applicant, the sole legal and beneficial owners of all items of property in his name, possession or control, including but not limited to:
h. The funds withdrawn by him from the parties’ joint account (ending x…97) on 17 August 2018;
i. Any property interests in China, including the properties located at:
iii. K Street, Suburb L, City M, China; and
iv. N Street, Suburb O, City P
j. His interests in Q Pty Ltd;
K. The proceeds of sale of the Motor Vehicle 2;
l. The Motor Vehicle 3
m. Monies standing to his credit in any bank and/or credit union accounts in his name; and
n. All superannuation entitlements in his name, including his Super Fund R superannuation entitlements;
o. The computer, iPad and wedding jewellery taken from the B Street, Suburb C property at separation; and
p. Household furniture and belongings in his possession.
12. Each party shall 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.
13. That the Husband be restrained by injunction from pursuing any Court applications in China in relation to property matters.
14. If either party refuses, fails or neglects to execute any documents necessary to put these Orders into effect within 14 days of being requested to do so, and any such refusal, failure or neglect is proved by affidavits filed and served by or on behalf of the party alleging this, the Registrar of the Federal Circuit Court of Australia at Canberra be and is hereby appointed pursuant to section 106A of the Family Law Act 1975 to execute such document in the name of such party.
Costs
15. The Respondent Husband pay the Applicant Wife’s costs of and incidental to the Wife’s two Applications in a Case filed 9 February 2021 and 24 February 2021 in the sum of $3,734.
16. The Respondent Husband pay the Applicant Wife’s costs of an incidental to this Amended Initiating Application in the sum of $10,000.
Orders sought by Respondent
As already noted, the Respondent did not file any Response material. His final Orders sought were contained in his written submission, filed 19th April 2021, and did not include any Orders in relation to the parenting proceedings. His final Orders sought were as follows:
I get the following:
1.All proceeds of sale two Adelaide, SA houses ($220, 585) + $80,000 (refinance from B Street, Suburb C, ACT house), total is $300,000. I am waiting for the money to return to my relatives and parents.
2.$100,000 (refinance from B Street, Suburb C, ACT house)
3.My bank’s money (which is show on page 3)
Ms Ding get the following:
1.B Street, Suburb C, ACT house, and undertake the original home loan of $472,482 + undertake refinance new home loan $180,000. She get $1,050,000 (house value) - $472,482 (original home loan) - $180,000 (refinance new home loan) = $397,518
2.The super in her account $100,000.
3.The Ford in her name is $15,000
4.She keep the jewelry (it’s under her control now) and furniture (it’s under her control now) valued $26,000
5.She keep the $6,000 (it’s under her control now) which is my parents gave us for the birth gift of our child.
Written submissions file on behalf of the Applicant
The Applicant filed written submissions on 19th April 2021 which were as follows:
Written submissions on behalf of the Applicant Wife and Mother – 19 April 2021
1.These submissions were filed pursuant to his Honour’s Order of 12/4/21. The proceedings were commenced on 13/3/20. The Respondent was first ordered to file his material on 3/6/20 but did not. On 24/11/20 he was given one more opportunity to file responding material 7 days prior to the hearing. He has not done so. On 24/11/20 the matter was listed for an undefended hearing – later advised to be on 12/4/21.
2.The Mother seeks the parenting and property orders set out in her Amended Initiating Application filed 22/3/21 and relies on: Affidavit of Ms Ding filed 23/3/21 (“Wife’s Affidavit”); Affidavit of S filed 25/3/21; and Financial Statement of Ms Ding filed 22/3/21. On 12/4/21 to the Court Mr Kang appeared to concede he had been served – although not clearly. Service correspondence is therefore attached and tendered.
3.Notwithstanding the proceedings are undefended, the Court will need to be satisfied based on the evidence that the parenting orders sought are in X’s best interests, and the property orders sought are just and equitable (Lanceley (1994) FLC 42-491).
4.Mr Kang has not provided any disclosure to the Wife (Wife’s Affidavit [57]) – notwithstanding orders were made for him to do so on 3 June 2020. In In the Marriage of Weir [1992] FamCA 69 at [33], the Full Court stated the well-established principle that “once it has been established that there had been a deliberate non-disclosure … then the Court should not be unduly cautious about making findings in favour of the innocent party.” This is because “the failure to disclose undermines the whole process of adjudication of proceedings for a settlement of property in that the court is unable to identify the property of the parties, to properly assess contribution, or to properly assess s75(2) factors” [45].
5.The Father has not filed any evidence save for an incomplete and unwitnessed Affidavit which he filed in Court on 3/6/20. In that Affidavit he acknowledged there may be mistakes. He also said he would provide further evidence and translations but has not done so in the now 10 months since. Although this evidence can be read in undefended proceedings (A and Z [2006] FamCA 179), the Court would not put any weight on it – and particularly in circumstances where it cannot be tested under cross-examination and where the Wife’s Affidavit filed in accordance with the Court’s directions contradicts any of the evidence in it which is relevant to the matters at hand.
6.Parenting – The parties have one child – X, aged nearly 3. The Mother’s orders sought preserve the situation in the interim orders made 3 June 2020. The Court would be readily satisfied the Orders sought by the Mother are in X’s best interests, given the evidence about the Father’s lack of engagement with X since separation and the practicalities of the fact that the Father lives in China and X in Canberra. Since August 2020, the Father has stopped taking the opportunity of video calls with X (Wife’s Affidavit, [43] and [44]) and the Court would not require her to keep trying.
7.Property – The parties were married on 16 July 2012 and the relationship lasted 6.5 years. Broadly, the Wife seeks orders that she retain the net known Australian assets and that the Husband retain the $500,000 withdrawn from the parties’ joint account just prior to separation (Wife’s Affidavit [19] and [60]) and his Chinese assets as well as other small items and anything else he may have. A Balance Sheet is at [133] of the Wife’s Affidavit.
8.The Balance Sheet includes the Wife’s best estimate of the value of the K Street, Suburb L, City M and N Street, Suburb O, City P properties which she says the Husband owns. While the Court will not be able to find there are Chinese assets owned by the Husband which have those values, it will be able to find (in light of the principle in Weir) that the Husband owns some Chinese assets of significant value. The Court is referred to the Wife’s evidence of the Husband’s admissions to her [82] and her other evidence at [71] – [81]. While denying he owns property in China, he also claims (inconsistently) that the Australian courts have no jurisdiction over property in China. In any case, even without the Chinese assets “in the pool”, it is submitted (as set out below) that the outcome sought is just and equitable.
9.The other major factual issue in dispute is whether the Husband owed and continues to owe any money to his relatives. On the principle in Weir, the Court would find that he did not and does not. The Court is referred to the evidence of the Wife at [93] – [97].
10.Where, because of deliberate non-disclosure, the Court is not able to make precise findings as to the identity and value of property available for distribution, the Court may still assess whether an order is just and equitable; otherwise, of course, failure to disclosure why stymy the Court’s powers to act (Chang and Su [2002] FamCA 156).
11.The Wife would receive net $802,356 plus her superannuation of $106,550. This represents: of the total known pool including estimated Chinese assets, addbacks and superannuation – approximately 31% of the non-superannuation pool of known Australian assets, including addbacks – 60%; of the known Australian assets (including superannuation and addbacks) – 63%. The Court might well find she is entitled to more, but she is realistic about the prospects of receiving a cash payment from the Husband while he remains living in China and so focuses her orders on what is available here.
12.The Court will be satisfied the outcome she seeks appropriately recognises the parties’ relevant contributions, namely: the Husband’s ownership of the Chinese properties unencumbered before the commencement of the relationship (Wife’s Affidavit [71] – [78]); the parties both receiving gifts from family – being $653,785 from the Husband’s family and $286,600 from the Wife’s family (Wife’s Affidavit [93] – [95]); and the Wife’s significantly greater contributions during the relationship – including by way of income earning and primary care of X (Wife’s Affidavit [83] – [92]); and the Wife’s overwhelmingly greater contributions since separation over two and a half years – including financially and by way of care and payment of expenses for X while receiving no child support (Wife’s Affidavit [111] – [126]).
13.On contributions alone we say the Wife would receive what she seeks. This is even without allowance for the Wife’s very significant s75(2) adjustment in circumstances where she has the sole care of the parties’ three-year old child with no financial support from the Father (Wife’s Affidavit [127] – [132]).
14.The outcome can also be tested against an approach which looks only at the known “Australian” assets and add backs. The pool would then be $1,439,027. The Husband would not then have contributed the Chinese properties. The Wife’s contributions and 75(2) adjustment would be a greater percentage because the pool is much smaller. It is submitted that the 63% she would then receive of the known Australian pool with addbacks would represent and outcome which is “just and equitable” – recognising the Husband’s greater monetary gifts from family, but the Wife’s greater contributions otherwise (so perhaps 50% on contributions and 15% for future needs).
15.Given the Husband’s conduct in this matter – including the need to file multiple Applications in a Case to give effect to orders – the Wife seeks costs orders as set out in her Amended Initiating Application. Evidence can be put on as to offers if necessary.
Respondent’s written submissions
The Respondent filed written submissions on 19th April 2021. They were as follows:
PETITION FOR DIVISION OF PROPERTY
Your honor, I’m Mr Kang
1. The following two tables show all property and liabilities.
1.1 Joint Property
DESCRIPTION
OWNERSHIP
VALUE
B Street, Suburb C, ACT Joint $1,050,000 the proceeds of sale (F Street, Suburb G, SA) both parties jointly owned (In the third party’s trust account) $168,859 the proceeds of sale (D Street, Suburb E, SA) both parties jointly owned (In the third party’s trust account) $51,726 Q Pty Ltd Under Mr Kang’s name $0 Mr Kang’s Commonwealth bank Under Mr Kang’s name (please see attached evidence) $574.1 + $2085 super Westpac bank Jointed by both parties (please see attached evidence) 98.35 + 2.58 = $101 Ms Ding’s Commonwealth bank Under Ms Ding’s name about $15,000 Jewelry and Furnitures now in B Street, Suburb C, ACT
(Under Ms Ding’s control)It’s joint property, but she has hidden all the jewelry. more than half of the jewelry was given by my parents when we got married. 20,000 (jewelry) + 6000 (Furniture) = $26,000 Motor Vehicle 1 It was bought by Ms Ding after marriage, under Ms Ding’ name $15,000 Ms Ding’s Super It’s joint property, now it is in Ms Ding’s commonwealth bank super account About $100,000 Birth of child gift (cash) by my parents It’s all under Ms Ding’s control $6,000 TOTAL Joint Property $1,435,300 1.2 joint liabilities
DESCRIPTION
OWNERSHIP
VALUE
Westpac home loan – B Street, Suburb C, ACT house Joint home loan $472,482 We still owe money with my relatives and my parents I borrowed money and I signed the Chinese loan file with my relatives and my parents, but the loan money was used for the down payment (house deposit) of the three houses in Australia, so it was joint liabilities. In 2016 to 2018 years, I borrowed about $734,755 from my relatives and $65,245 from my parents = about $800,000. After I discussed with her, I return part of loan back to my relatives. The remaining loan amount is shown on the right. Mr Kang’s aunt Ms T $47,255+
Mr Kang’s cousin U $142,803+
Mr Kang’s uncle Mr V $46,013+
Mr Kang’s parents Mr W & Mrs W $65,245 total of this part is $301,316
TOTAL joint liabilities $773,798 Therefore, the total assets pool is: $661,532. And all the assets pool are in Australia.
Your honor, thanks for your understanding and tolerance of my poor English. At the same time, I also deeply apologize for the inconvenience caused to your honor by my poor English. I am vulnerable group in this incident, my English is bad and I have no money to hire a lawyer. I wrote this document with kinds of translation software, but it’s still hard for me to write. Hope your honor can understand what I write.
2. financial and non-financial contributions of both sides
1-1. Mr Kang’s financial contribution: I used my grandfather’s legacy and I borrowed money from my relatives and my parents to pay all the down payment (house deposit) of the three houses in Australia, and I spent a lot of time to manages the three houses in Australia, and the rent income (3 houses) of Ms Ding and I received was used to repay the home loan of the three houses (2 in SA, 1 in ACT), and used for our daily expenses, and for child fee. Before I came to Australia for study, I transferred $30,000 from China to the commonwealth Bank of Ms Ding, which was used for my master study and living expenses. And I only earned about $20,000 in Australia these years, I also used the money to repay the Westpac home loan and use for our daily expenses. When we buy these three houses (2 in SA, 1 in ACT), I provide all most all the down payment (house deposit) (In the wechat chat between she and me on January 7, 2018, she admitted it. please see the wechat chat pictures and translation documents on page 3). The source of the down payment (house deposit) I provided: the legacy by my grandfather to my parents is about $145,000 (870,000 RMB), this money was remitted to her Australia commonwealth bank by her parents before 2016, We used the money to buy our first house (D Street, Suburb E house), her parents did not make any contribution at all, her parents only transferred my grandfather’s legacy ($145,000 = 870,000 RMB) to the her Australian account through her parents’ China bank account with theirs’ foreign exchange limit. The rest of the down payment (house deposit) is the loan borrowed from my relatives and my parents, because each person in China only has foreign exchange limit of 50,000 USA dollars for one year, so some of our borrowed money was also through her parents’ and her parents’s friends China’s bank account transferred to my and her Australian account. But she lied that it was her parent’s contribution. In fact Her parents didn’t make any contribution to the above three houses, and Her parents didn’t give any financial support or gifts (Except some jewlry) to us. She lied that it was her parents’ contribution to try to get more money that didn’t belong to her. Note: In the Ms Ding’s affidavit, she said she saw and knew the loan file (Between my relatives and I). And I told her many times that the money in the joint account and part of the down payment (house deposit) the was borrowed. With full knowledge, she also lied to your honor that those loan slips were used by me to evade taxes. Your honor, my super account is only about $2085 in all these years. I can’t find a job in Australia, and the operation of the company in Australia is bad. Basically, it doesn’t make money. The company only run 3 years and only made annual profit is about $6,000. I don’t need to avoid taxes at all. After I discussed with her, I return part of the loan back to my relatives. Your honor, She just wanted to get more money so she lie to you these loan it’s fist.
Ms Ding’s financial contribution: She and her parents did not contribute to the down payment (house deposit), Ms Ding used almost of her income to repay the home loan of three houses in Australia, used for our daily expenses, and supporting her parents living expenses in SA and ACT.
2-2. Mr Kang’s non-financial contribution: I stayed at house for a long time because I can’t find a job. I was responsible for cleaning the house, mowing the grass, buying vegetables, cooking, purchasing daily necessities, weeding, installing furniture, washing clothes, drying clothes, repairing furniture, and transporting her, take care of her. I am responsible for almost all the housework like a house husband. Sometimes I complained that I work too tired with the housework, but I don’t have job, I have no choice, I have to keep on doing almost all the housework.
Ms Ding’s non-financial contribution: Ms Ding has full-time job all these years. She is very busy at ordinary times. Because she often has to do experiments, she has little time to take care of housework. She only washes a small amount of bowls occasionally after eating and throws our coats into the washing machine. Because she is busy with work, I can understand that she doesn’t want to do housework.
She mentioned something that had nothing to do with this case: she comically mentioned two addresses in China which had nothing to do with her, the two China address properties are under my parents’ name, these had nothing to do with her! Please ask Ms Ding not to mislead your honor with wrong, meaningless and irregular documents. The documents she provided is only the same meaning with the driver’s license of Australia, only means I live at that address. The only property I own in China is a car which is now worth $8,000. It was bought in 2011 before I got married. According to the law of the people’s Republic of China (mainland), the property before marriage is owned by individual, which means that it is not included in the asset pool. I have emphasised this law to her, and she fully knew and agreed with this law. Because my care is in China, so please ask her respect China’s jurisdiction and the laws of China (mainland).
Ms Ding’s seek is totally unreasonable. She even wants all the property, that is all our community property and borrowing money from my relatives. The seek of hers will make me not get any money, but also make me owe about $300,000. We talked about before. At least two SA houses give to me. Please see wechat Pictures and Translations on page 3.
As mentioned above, I seek the final property division:
I get the following:
4.All proceeds of sale two Adelaide, SA houses ($220, 585) + $80,000 (refinance from B Street, Suburb C, ACT house), total is $300,000. I am waiting for the money to return to my relatives and parents.
5.$100,000 (refinance from B Street, Suburb C, ACT house)
6.My bank’s money (which is show on page 3)
Ms Ding get the following:
6.B Street, Suburb C, ACT house, and undertake the original home loan of $472,482 + undertake refinance new home loan $180,000. She get $1,050,000 (house value) - $472,482 (original home loan) - $180,000 (refinance new home loan) = $397,518
7.The super in her account $100,000.
8.The motor vehicle 1 in her name is $15,000
9.She keep the jewelry (it’s under her control now) and furniture (it’s under her control now) valued $26,000
10.She keep the $6,000 (it’s under her control now) which is my parents gave us for the birth gift of our child.
Outline of principle
In the singular circumstances of the current matter, I need only note two decisions, one in relation to parenting, the other in relation to property matters.
Regarding parenting, the basic point of reference obviously remains as set out in s.60CA of the Family Law Act 1979 (Cth) (“the Act”), which requires parenting Orders to be made that are in the best interests of the child who is the subject of the proceedings. Such Orders are determined of course by reference to the considerations in s.60CC(2) and (3), to the degree that the Court can make relevant determinations.
In Mazorski v Albright, in the light of, and by reference to, relevant Full Court authority, Brown J conveniently set out an overview of principle in relation to Part VII of the Act. Respectfully and gratefully, I adopt Brown J’s comments:[2]
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2))
[2] (2007) 37 Fam LR 518 at [3] – [6]. Brown J’s comments were endorsed by Boland J (with whom May & O’Reilly JJ agreed) in Moose & Moose (2008) FLC ¶93-375 at [67] – [68].
Her Honour also made important observations about the term “meaningful”, as used in Part VII of the Act, in the context of what is comprehended by a “meaningful relationship.” At [20] – [26], her Honour outlined a range of considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations:[3]
[3] Brown J’s remarks in this regard were endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and even more recently by a differently constituted Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121]. More recently still, a further Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335], similarly endorsed Brown J’s remarks, as did the Full Court in Vontek v Vontek [2017] FamCAFC 28 at [26].
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA (2) — (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationships with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. 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 quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
Regarding property matters, it is sufficient for current purposes to note the following from the Full Court decision in Chang & Su.[4] In that case, firstly at [67] said:
The law to be applied and the approach that may be adopted in cases where, through the lack of a full and frank disclosure, the Court is unable to fully ascertain the extent of a party's wealth, is well settled (see Stein v Stein[1986] FamCA 27; (1986) FLC 91-779; 11 Fam LR 353; Mezzacappa v Mezzacappa[1987] FamCA 20; (1987) FLC 91-853; 11 Fam LR 957; Black and Kellner (1992) FLC 92-287; 15 Fam LR 343 and Weir v Weir(1993) FLC 92-338; 16 Fam LR 154).
[4] Chang & Su (2002) 170 FLR 244; (2002) 29 Fam LR 406.
Then at [70] the Full Court (Kay and Dawe JJ; Finn J agreeing) stated (emphasis added):
In Weir v Weir(1993) FLC 92-338; 16 Fam LR 154 the Full Court (Nicholson CJ, Strauss and Nygh JJ) dealt with an appeal against the refusal by the trial Judge to make orders in respect of unascertained property because he could not quantify it. The Court said at 79-593:
"This Court has pointed out in a line of cases leading up to the recent decision of the Full Court in Black and Kellner (1992) FLC 92-287, that it is the duty of a party involved in property proceedings in this jurisdiction to make a full disclosure of their financial affairs. See also Giunti and Giunti [1986] FamCA 15; (1986) FLC 91-759 , and Mezzacappa and Mezzacappa [1987] FamCA 20; (1987) FLC 91-853 . It is clear enough from his Honour's findings in the present case that the husband had not done so and had in fact pocketed the proceeds of a substantial number of cash sales. It is obvious that in most cases of this nature it is difficult enough for the other party to establish that fact let alone establish the quantum of what has been taken.
It seems to us that once it has been established that there has been a deliberate non-disclosure, which follows from his Honour's findings in this case, then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature.
It is true that in the case of Monte and Monte [1986] FamCA 1; (1986) FLC 91-757, the Full Court said that to found jurisdiction under s. 79 in relation to property other than that which had been identified, the trial judge was obliged to make a finding as to the existence and value of other undisclosed property, even though the unsatisfactory nature of the evidence made it necessary to express that finding in the most general terms both as to identify and value.
We confess to some difficulty with this proposition. We should have thought that the Court's jurisdiction to make an order going beyond the identified property arises once there is sufficient evidence to support a finding that the party has not made a full disclosure of his or her assets.Consideration and disposition
Given the matters already set out, and the circumstances regarding (a) the lack of engagement of the Father with X as outlined by the Mother, (b) the Father formally not seeking any Orders in relation to X, and (c) the significant limitations of the Husband’s material in relation to property (which is not in any way related to his English, for which he needlessly apologised in his submissions), I can and need to be quite brief.
First, in relation to parenting, most significantly because I cannot make any finding in the circumstances, but otherwise do not question the Mother’s account of events, the singular most important factors in the parenting matters are the following. No parenting Orders are sought in the current proceedings by the Father. That is concerning. No less concerning is the fact, as the Mother deposed in her most recent Affidavit (filed 23rd March 2021; pars.31 – 33), the Father filed parenting proceedings in China, seeking that X live with him (“100% custody”). The Mother stated that she had no notice of these proceedings or the Father’s intentions in this regard.
At par.39 of her trial Affidavit, the Mother confirmed that after she notified the Chinese Court that parenting Orders had previously been made in this Court, the Court in China made Orders in the Mother’s favour (“full custody of X”). There were no Orders made by the Court in China for X to spend any time with his Father. A copy of those Orders is Annexure A to the Mother’s Affidavit, filed 23rd March 2021.
Secondly, interim parenting Orders were made in this Court on 3rd June 2020. The Mother seeks that those interim Orders be made on a final basis.
Because of the procedural matters outlined, not least that X has lived with his Mother all of his life, that she has been his primary carer, and that final parenting Orders have been made in China, in my view, the Orders as sought by the Mother, including an airport watch list Order and sole parental responsibility, are in X’s.
In relation to property matters, I note summarily the following.
First, it has not seriously been challenged that the Husband withdrew approximately $500,000 from the parties’ joint offset account in or around August 2018, which was some three months prior to separation.[5]
[5] See the bank statement at Annexure D to the Wife’s March 2021 Affidavit.
Secondly, despite various Orders requiring him to do so, the Husband has not made full and frank disclosure of all his financial matters. He has confirmed that the Mother’s claims regarding him having real estate in China are not correct, but at the same time, he has confirmed that his parents own two parcels of land. Presumably he will inherit that property at some stage in the future. In any event, as the Wife’s documents attached to her March 2021 Affidavit make clear, specifically Annexures E and G, and Annexure F regarding valuation of the K Street, Suburb L, City M property, the properties remain in the Husband’s name, accepting the Wife’s contention that they were purchased, and built (respectively), by the Husband’s parents.
Thirdly, pursuant to the Wife’s urgent Applications filed earlier in these proceedings, two investment properties in Adelaide owned by the parties were sold. The net proceeds of sale are set out in the “balance sheet” provided by the Wife in her March 2021 Affidavit (pp.9 – 10). See also the Wife’s Asset Pool description set out at pp.20 – 21 of her trial Affidavit. In the circumstances already outlined, I accept this outline of the asset pool.
The Mother’s account of contributions, by both parties, during the relationship is set out at par.83 – 97. Non-financial and post-separation contributions are set out pars.109 – 122. In the absence of relevant evidence from the Husband, I accept the account of events and matters set out in these paragraphs. This is also, and especially, in circumstances where the Wife was solely responsible for the care of X (and much else) and the Husband has returned to, and resides in, China.
The Mother deposed (pars.127 – 132, March 2021 Affidavit) of her future needs, and opined on the situation of the Husband.
In all of the circumstances, including in particular the failure of the Husband to provide relevant disclosure as Ordered by the Court, and in the light of the principles set out by the Full Court in Chang & Su above, the Orders sought by the Wife in my view are just and equitable. The Orders for costs sought by her, in the circumstances here, are appropriate in all of the circumstances.
In addition to the reasons given here, I also accept and adopt the submissions on behalf of the Mother/Wife.
I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville. Associate:
Dated: 3 August 2021
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