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
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…
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CaseChat Overview and Summary
The court was required to determine several legal issues, including the appropriate parenting arrangements for the child, X, born in 2018, and the division of the parties' property. Specifically, the court needed to decide on sole parental responsibility, the child's residence, and whether to grant an injunction preventing the respondent from removing the child from Australia or pursuing parenting applications in China. Furthermore, the court had to address the division of various assets, including real estate and financial accounts, and the allocation of liabilities.
In relation to parenting, the court noted the father's lack of engagement with the child and his initiation of parenting proceedings in China without the mother's knowledge, which was considered concerning. The court applied principles of family law to make orders for the child's sole parental responsibility to the applicant, residence with the applicant in Australia, and time with the respondent as agreed. Crucially, an injunction was granted to prevent the respondent from removing the child from Australia, with the Australian Federal Police requested to place the child on the Family Law Watch List. The respondent was also restrained from pursuing parenting applications in China and from attending near the child's residence or educational facilities. For property, the court ordered the transfer of the parties' Australian property and the proceeds of sale of investment properties to the applicant, with the applicant assuming sole responsibility for associated outgoings. Each party was declared the sole legal and beneficial owner of property in their respective names, with specific exclusions for funds withdrawn by the respondent and property interests in China. The court also ordered the respondent to pay the applicant's costs.
Orders
Orders of the court
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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.