E & T - [2001] FMCAfam 156

FEDERAL MAGISTRATES COURT OF AUSTRALIA

E & T

[2001] FMCAfam 156

FAMILY LAW – Children – parenting order – contact – relationship with each parent – conduct of parents – cultural issues.

PROPERTY SETTLEMENT – Just and equitable – contributions – value of property – Family Law Act1975 s60B, s68F(2), s72, s 75, s79.

H and W (1995) FLC 92-598, Mehmet v Mehmet (1986) FLC 91-730, Farnell and Farnell (1996) FLC 92-681.

Applicant:

A E

Respondent:

Y H T

File No:

ZP 629 of 2000

Delivered on:

10 September 2001

Delivered at:

Parramatta

Hearing Dates:

5 & 6 September 2001

Judgment of:

Scarlett FM

REPRESENTATION

Counsel for the Applicant:

Mr Stewart

Solicitors for the Applicant:

Mr Gilroy of Markham Geikie Farrugia
DX 5001 Liverpool NSW

Counsel for the Respondent:

Mr Ladopoulos

Solicitors for the Respondent:

Ms Wu of Ma and Company
DX 11564 Sydney NSW

ORDERS

(1)The child of the marriage, D T, born 26 April 1990 is to reside with the wife who shall have the responsibility for the long term and day to day care, welfare and development of the said child.
(2)The wife shall cause to be forwarded to the husband a copy of the child’s school reports and school photos at the husband’s expense within 14 days of receiving such items.
(3)The husband is to have telephone contact with the said child on the first Monday of each month and on the child’s birthday between the hours of 8 and 8.30 pm eastern standard time or eastern summer time whichever is currently in force.
(4)For the purpose of telephone contact the husband shall make the telephone call to the wife’s mobile phone which the wife shall keep switched on between the hours referred to in order 3.
(5)Within 14 days from the date of these orders the wife shall provide to the husband details of (a) her mobile telephone number, (b) a postal address for the child and (c) an e-mail address for the child.
(6)The parties shall forthwith do all such things and execute all such deeds, documents, instruments and writings and give all such instructions as are necessary to list for sale and sell the property situate at and known as T Street, S in the State of New South Wales with a real estate agent agreed upon between the parties or in default of agreement within 14 days an agent nominated by the president for the time being of the Real Estate Institute of New South Wales or his or her nominee whose decision shall be final and binding upon the parties and at a price determined to be a fair market price by the president for the time being of the Australian Institute of Valuers or his or her nominee whose decision shall be final and binding upon the parties and upon completion of the said sale after adjustment for shire, council rate, and water rates the balance of proceeds of the said sale shall be applied as follows:
(a)in payment of any fees due for the nomination of a real estate agent if any together with reasonable agents commission and legal costs and disbursements incurred in relation to the sale,
(b)in payment of fees due for the nomination of a valuer and valuation fees if any,
(c)in payment to the wife of the sum of $224,241.24 and
(d)in payment of the balance remaining to the husband.
(7)In the event that the said property is not sold by private treaty within four months from the date of these orders then the parties shall do all things to ensure that the said property is to be sold by public auction by the real estate agent agreed upon between the parties or nominated as set out in order 6 hereof at a reserve price agreed upon between the parties or in default of agreement within 14 days at a reserve price determined to be a fair market reserve price by the president for the time being of the Australian Institute of Valuers or his or her nominee as provided by order 6 hereof whose decision shall be final and binding upon the parties and on completion of the sale by auction the proceeds shall be applied as set out in order 6 hereof.
(8)The wife shall be declared to be solely entitled to the whole of the sum currently held on trust to the parties in the controlled moneys account at the Commonwealth Bank operated by the wife’s solicitors.
(9)The wife is to retain and the husband is to have no right, entitlement or interest in any of the following: (a) all cash at bank in the wife’s name, (b) Ford Falcon motor car registered number VTP 588 and (c) all furniture, furnishings and effects currently in her possession or control.
(10)The husband is to retain and the wife is to have no right, entitlement or interest in all moneys held by the husband in accounts at the following banks: (a) National Australia Bank,
(a)Hong Kong and Shanghai Banking Company Bank and
(b)the Bank Lippo.
(11)In the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these orders within 14 days of being required to do so the registrar or a deputy registrar of the Federal Magistrates Court shall be appointed pursuant to section 106A of the Family Law Act to execute such deed, document or instrument and do all acts and things necessary to give validity to the deed, document or instrument or upon the registrar or deputy registrar being satisfied of such refusal or neglect verified by way of affidavit.
(12)The husband is hereby restrained from removing or attempting to remove the said child, D T, from the Commonwealth of Australia or applying for a passport for the said child.
(13)All other applications are dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

ZP 629 of 2000

2. A E S

Applicant

And

3. Y H T

Respondent

REASONS FOR JUDGMENT (Ex Tempore)

The applications before the court are for parenting orders and orders for property settlement. The applicant wife seeks orders that the child of the marriage, D, reside with her. The respondent father seeks now somewhat limited orders relating to contact with the child. The wife also seeks orders relating to the distribution of property between the parties, the most significant assets of which include a house at T Street, S valued at some $455,000 and a large sum of money in a controlled moneys account held by the wife’s solicitors. That amount is some $110,119.64 representing the net proceeds of sale of another item of real estate formerly owned by the parties in Bankstown.The wife seeks that those items in effect be transferred to her.
The history of the matter is that the father is some 40 years of age and is of Hong Kong Chinese background. The mother is significantly younger aged 30 and comes from Egypt. The parties met in Cairo as a result of their employment in a hotel. The father is a pastry chef by occupation and his career has taken him to a variety of places around the world where he has worked in large international hotels. He met the wife in 1988 when she was still 18 years of age. They were married in November of that year in Cairo. The father says that some negotiations took place with the wife’s father relating to the purchase of a property in Cairo as a place to provide some security for the wife should the marriage come to an end and it was that property, he says, in which they resided when they were first married.
The parties moved in the course of the husband’s occupation. Their one child, D, was born on 26 April 1990 when they were in Abu Dabi. The parties spent some time living in Istanbul and eventually came to Australia in July of 1995. The mother had spent a fair amount of time travelling back to her native Egypt to be with her family and for a time the child, D, was in fact placed with the father’s parents in Hong Kong. The parties originally made application for permanent residence in Australia in 1992 and the Stanmore property was purchased. During that time the father and his family were also involved in purchases of property in Hong Kong and on one occasion in Thailand.
The parties would live for most of thetime in accommodation provided by the hotel at which the father was currently employed. During that time, with one exception, accommodation and meals would be provided. The exception was the Swiss hotel in Istanbul, the father said, where meals did not come on the house, so to speak. The mother worked for some time in Istanbul as a travel agent and tour guide during the season. She also spent time caring for the child. In 1995 the parties came to Australia. The wife and D remained. The father returned to his employment in Istanbul.
By the mid-1990s the marriage was on somewhat rocky ground and discussions took place in 1996 about ending the marriage. As it was, however, the parties did not separate on a final basis until 1998. They have since divorced. During the intervening time the father would come to Australia, stay for periods of time and the mother remained in Australia. D travelled with the mother back to Egypt to stay with the mother’s parents. The father obtained employment at a hotel in Djakarta where he now works and the mother and child visit him there on the way to Cairo and then on the return journey they remained living with him for some four months. In July 1998 the property being a home unit in Bankstown was purchased. That was purchased in the joint names of the parties.
The mother and D returned to Australia and obtained rental accommodation whereas both properties which were purchased had tenants. The property in Bankstown was sold in the latter half of the year 2000 and the balance remaining after repayment to the mortgagee was some $105,000. The parties could not agree as to the distribution of that money. It was placed in a controlled account with the Commonwealth Bank of Australia. The moneys remain there.
The parties were well and truly separated and the mother had formed a relationship with another man called K M and in January of this year the mother gave birth to Mr M’s child, a child called M K. That relationship, on the evidence before me, has broken down and Mr Marbrook has now apprently left Australia to seek employment elsewhere. The mother continues to reside in rented accommodation in Sydney with the child, D, who is at school in Sydney and with the young baby, M K. The mother had sought child support from the father which had come on an unofficial basis. As that the father has been residing elsewhere outside Australia he is not subject to the operation of the Child Support Assessment Act.
In the course of these proceedings an expert report was ordered under order 30A of the Family Law Act. This report was prepared by a child psychiatrist, Dr Carolyn Quadrio. The psychiatrist interviewed the parents and the child. It became obvious from the report that D and her father were well and truly estranged. It was clear from the report that the relationship between father and mother was acrimonious. Dr Quadrio formed the impression that the child was in fact identifying with the mother and in fact she displayed signs of hostility toward the father. On page six of the report Dr Quadrio reports the child as saying to her that she didn’t want to talk to her father at all and asked why does he have to be here. The father showed signs of distress at the daughter’s distant and quite hostile attitude towards him.
It’s clear that there had been no face to face contact between father and daughter since January 1999. There had been telephone contact since that time but telephone contact stopped for a period of time although it did resume. The daughter indicated hostility towards the father based to some extent on negative comments that she attributed to the father about the mother. Dr Quadrio reported the father as dealing with the child in an inappropriate way, arguing with her as if she were another adult rather than dealing with her as a child. She also reported the father as being extremely distressed at the child’s negative reaction.
The child, when interviewed in the presence of the mother, showed a completely different reaction. The child was concerned that she’d be taken away from the mother, did not wish to either live in Djakarta or visit Djakarta to spend time with the father but indicated that she was prepared to consider contact by letter. All in all the report offered very little comfort for the father in his quest to have his daughter either live with him or spend periods of time with him. Dr Quadrio reported at page 19 of the report and I quote:
For the timebeing it would be extremely traumatic for D to contemplate any kind of visit that involved leaving her mother. She’s very fearful of any threat to the relationship with the mother. The best that could be arranged at the moment would be for regular contact by correspondence and perhaps telephone and for the father to visit her when he comes to Australia.
Dr Quadrio went on to suggest that if orders were made that provided D with some confidence that she was not to be removed from the mother it’s possible that there might be some softening in her current attitude towards the father. Dr Quadrio went on to conclude that the child would be older in two years time when it would be possible for Mr Tam to settle in Australia and by that stage the child may have some interest in spending some time with him. In the meantime, said Dr Quadrio, there is little to be gained from insisting on contact that the child does not want. Given the difficult circumstance of the father living abroad and the mother not facilitating contact there seems little that can be done to ameliorate the situation.
The outlook, as I indicated earlier, was rather bleak as far as the father is concerned. The father before these proceedings commenced to be heard last week indicated that he would not be proceeding with his application for residence and would certainly not be proceeding with the face to face contact orders that he was previously seeking. Rather, he chose to modify his consideration quite radically. He went into the hearing with the view that orders should be made that the child should reside with the mother. He sought orders that the mother forward to him copies of the child school reports and school photos, that he have telephone contact on a fortnightly basis. These were of course quite substantially different from what was previously sought.
The father’s counsel, Mr Ladopoulos, submitted that these somewhat minimal contact arrangements were a major concession by the father and a realistic assessment by him of the difficult state of the relationship between father and daughter, but that there was a need for some orders to take place so that the relationship did not completely disappear. Mr Stewart for the mother suggested that contact orders providing any sort of regularity and an obligation on the daughter would be counter-productive and that the pressure should be taken off D so that she could deal with her father in a way that she would be more comfortable.
In dealing with parenting orders the court must be mindful of the object and principles set out in section 60B of the Family Law Act. Subsection 1 says the object of this part is to ensure the children receive adequate and proper parenting to help them achieve their full potential and to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children. Subsection 2 says the principles underlying these objects are that except when it is or would be contrary to a child’s best interest, (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 of contact on a regular basis with both their parents and with other people significant to their care, welfare and development, (c) parents share duties and responsibilities concerning the care, welfare and development of their children, and (d) parents should agree about the future parenting of their children.
Section 65E of the Family Law Act enjoins the court to regard the best interests of the child as the paramount consideration. Section 68F(2) of the Act sets out a number of matters that the court must consider when deciding what’s in the child’s best interests. They include any wishes 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 wishes. Certainly the wishes of children have been the subject of consideration by the Full Court of the Family Court of Australia in H v W reported in 1995 FLC 92-598. Fogarty and Kaye JJ held that the wishes of children are important. Proper and realistic weight should be attached to any wishes expressed by the children. As a matter of practical day to day experience the problem in this area usually relates to the ascertainment of the wishes of the child and their interpretation and assessment in the face of conflicting evidence.
Against that background the court will attach varying degrees of weight to a child’s stated wishes depending upon, among other factors, the strength and duration of the wishes their basis and the maturity of the child including the degree of appreciation by the child, the factors involved in the issue before the court. His Honour, Baker J, in an extensive decision analysed the question of child’s wishes very thoroughly. His Honour took the strong view that in his opinion a child’s wishes must not only be considered but must be shown to have been considered in the reasons for judgment of the trial judge. Furthermore if the trial judge decides to reject the wishes of a child then clear and cogent reasons for such a rejection must be given.
He went on to say the weight to be given to the wishes of a child depends upon the individual child and an assessment of the validity of the wishes must be made by the trial judge in each individual case. This will involve the consideration of the child’s level of maturity and understanding.
In this case the child is now 11 years of age. She has expressed very firm views. She is adamant about what she wants and what she does not want. The father to his credit has accepted that residence and any arrangements for face to face contact certainly outside Australia is something which this child could not accept at all at this stage. What he is hoping to do is maintain enough of a relationship with the child that as she becomes more confident that she is not going to be taken away from the mother and as she matures she can learn to negotiate with the father and spend time with him with less concern. I am of the view that the wishes of this child are clear and that she is of an age where serious consideration must be given to those wishes.
I am not of a mind, however, that the entire question of contact should be left entirely to an 11 year old girl. I am of a view that there must be some formalised arrangement where it is clear that the relationship still exists, where it is clear that there should be some communication. There should be some contact by telephone. There should be the ability for the father to send letters and there should be the ability for the father to send e-mail messages. The advantages of messages and e-mail messages is that there is no immediate obligation to reply and that the child can choose to reply to those things in her own time. The father has said that he hasn’t had the means to communicate with her other than by telephone as he hasn’t known an address and hasn’t had an e-mail addressed.
These things need to be remedied and there must be some framework of contact still existing so that this relationship can keep alive. I am mindful of the fact that children do have a right of contact on a regular basis with both of their parents. The child has relatives on her father’s side although it does appear from the evidence that the child’s relationship with the father’s brother who apparently resides in Australia is particularly strained and there does not appear to be any benefit to the child in endeavouring to enforce that relationship with the paternal uncle.

I look at the property issues and I would comment that the background in the financial relationship between these parties is somewhat unusual compared to many of the cases that would be seen in this court. The parents come from widely differernt backgrounds. Indeed, at one stage it appeared that the only language they had in common was English although the father acquired some Arabic. The child, D, has some ability to speak in Cantonese although at the moment with the rejection of her father which she is undergoing she is also reported to be rejecting Cantonese as a language and chided the father in the order 30A report for speaking to her in Cantonese rather than in English.
The mother has some ability in the English language but it was necessary for her to give evidence through an interpreter and she is of a view that her employment prospects are hampered in Australia by limitations on her language. In the early stages of their relationship it’s perhaps interesting to conjecture how the parties managed to communicate at all. In determining an application under section 79 the authorities make it clear that a three-stage process should be adopted. I refer to such cases as the marriage of Le Steer, Foraro v Foraro, McLeay v McLeay and Pastrikos.
The court first of all must identify the property, liabilities and financial resources of the parties at the time of the hearing. Next the court must evaluate the contributions made by the parties as defined in section 79(4) of the Family Law Act. Subsections (a), (b) and (c) cover the financial contributions made by or on behalf of the parties, contributions other than financial contributions made directly or indirectly by or on behalf of the parties and contributions made by a party to the welfare of the family. The third step is to look at the matters set out in section 75 subsection 2 of the Family Law Act and determining what adjustment, if any, should be made for the 75(2) factors. Before finalising the matter the court must be satisfied that in all the circumstances it’s just and equitable to make the orders that are proposed and I refer to section 79(2).
There has been a degree of argument about some of the assets contained in this matter. First of all the father says that he contributed an amount of $24,000 at the time he and the wife were married. He says that the wife’s father told him that he must purchase a property in Egypt for the benefit of his daughter so that if the marriage did come to an end she would not be left homeless. He says that he agreed to that request or demand as he termed it and parted with the sum of $24,000 for that purpose. The mother says she has no recollection of any of those transactions at all. The husband says however that the negotiations between himself and his future father in law took place not only in her presence but she in fact interpreted for them as the father spoke only Arabic and the husband spoke no Arabic at all or certainly no Arabic sufficient to conduct a conversation.
As far as that point is concerned I am satisfied that the husband’s account should be accepted, to the extent at least that I am satisfied that the husband did part with a sum of money at the request of the wife’s father. The husband said that he was of the view that the money was to be used for the purchase of a place for the wife to live in and he was of the understanding that the residence in which he and the wife lived when they first married, they lived in Cairo, was in fact the property for which he had provided the purchase money and he was of the belief that it was in the wife’s name. The wife’s account was that the property was in fact owned by her father. The husband said the first he knew of that was on reading the wife’s affidavit.
The husband was not able to produce any evidence of the purchase, any evidence as to the title and in fact the description just given of the transaction represents the entire evidence. Quite clearly there is insufficient evidence to show that there is any real estate in Cairo in the wife’s name or which is being held on trust for the parties. Mr Ladopoulos of counsel referred the court to the decision in Mehmet v Mehmet reported in 1986 FLC 91-730. In that case it was held that the assumption by a wife of responsibility for children in Cyprus represented an indirect contribution by her to the acquisition and conservation of the husband’s home in Australia and constituted a contribution to the welfare of the family.
It was further held that the wife’s contribution as a parent freed the husband to devote his time and energy in the pursuit of financial gain. The wife’s efforts in raising the children over so many years must be equated in equality of sense with the husband’s efforts in acquiring and conserving the former matrimonial home. Mr Ladopoulos of counsel sought to persuade the court that this principle would assist the husband in showing that at the very least the real estate in Cairo should be regarded as a resource available to the wife. I am not satisfied that it does. If anything, the decision in Mehmet v Mehmet assists the wife in establishing her claims as far as some contribution is concerned.
If an amount of money paid by the husband to the wife’s father was used to purchase any real estate by the father there is no evidence to show that it can be taken into account in any way by the court in these proceedings. Now it may well be that the husband has a cause of action against the wife’s father in respect of that money but otherwise I am of the view that it’s not a matter that should be taken into account by this court in assessing the property held by parties to the marriage. I am certainly satisfied that the real estate at T Street, S valued at $455,000 represents an asset that should be taken into consideration. I am satisfied that the controlled moneys account held by the wife’s solicitors should be taken into account. The mother’s motor vehicle worth all of $3500 is a matter that should be taken into consideration.
Mr Ladopoulos of counsel submitted to the court moneys held by the father in various bank accounts amounting to some $126,282.13 should not be regarded as an asset but should be regarded as property acquired after separation that should at least be regarded in the realm of a financial resource which the court should consider under section 75(2). I am not of a view that that interpretation can be sustained. Even if it were the case that this amount of money was acquired since the separation over a period of two years which appears to be the case when comparing the financial statements filed in these proceedings I am of a view that it still should be regarded as an asset.
Accordingly I am of the view that the gross assets of the parties should be regarded as follows:
i)property at T Street, S in the State of New South Wales with an agreed value of $455,000,
ii)the balance of the moneys contained in the controlled moneys account with the Commonwealth Bank of Australia in the sum of $110,119.64,
iii)the wife’s Ford Falcon motor vehicle valued at $3500,
iv)the assets held by the husband in various accounts in the National Australia Bank, in the Hong Kong and Shanghai Banking Company both in Australia and in Hong Kong and in the Bank Lippo in Indonesia totalling $126,282.13 should all be regarded as the gross assets. Totalling those four amounts a gross asset total of $694,901.77 is arrived at.
On ascertaining the gross assets the court must look at outstanding liabilities. Some of these are uncontroversial. There is a sum of $12,020 representing the wife’s outstanding living expenses. There is an amount of $4800 owed to GE Financial. There are, however, two other matters which were the subject of submissions that they either should be or should not be regarded as liabilities. First of these is a debt owed by the husband to the husband’s father in the sum of $40,000. Mr Stewart of counsel submitted that the evidence as to this debt is skimpy, to say the least. The husband says that he was persuaded to purchase the property in Bankstown since sold by the wife and that the wife suggested to him since he didn’t have sufficient money to meet the balance of purchase price that he should borrow the amount from his father in Hong Kong.
The husband says that initially he was reluctant but in due course borrowed that sum. There is no evidence from the father that in fact that amount was lent. The husband’s evidence is that he owed $40,000. It’s a family arrangement which is done within the family and that he’s paying interest to his father at the generous rate of five per cent. It was put to him by Mr Stewart of counsel that if he had $126,000-odd in the bank that it would be quite easy for him to pay out that loan at any time. The husband replied that the father had not asked him for the money and it appears that he’s content to pay five per cent interest until the money is otherwise called on.
In support of the claim of the loan the father produced evidence by way of exhibit 1 and exhitib 3 showing transactions in the sum of $40,000 from his account with the National Australia Bank, University of Sydney and an amount being received into his account at the Hong Kong and Shanghai Bank in Sydney. I am of a belief that the evidence submitted by the husband is sufficient to show the existence of a debt of some $40,000 to the husband’s father which remains outstanding and which is not the subject of any immediate call.
The other issue related to the question of outstanding legal costs. Mr Stewart for the wife submitted that an amount of some $53,775 for outstanding legal costs plus a further amount for the costs of these proceedings not yet rendered should be regarded as a liability. Mr Ladopoulos for the husband said that, one legal costs should not be considered but if they were the sum of $33,545.06 on the husband’s side should be taken into account. I have had recourse to the authorities in this matter. The decision in the case of Farnell v Farnell reported at 1996 FLC 92-681, a decision of the Full Court of the Family Court of Australia deals with the relevance of legal costs of parties in section 79 proceedings.
It is fair to say that this decision does not settle once and for all in words of blinding clarity the position in respect of outstanding legal costs. Although his Honour, Fogarty J, said at page 83,072 it was not appropriate to take legal expenses and anticipated expenses into account. If it is thought by either party that an order for costs should be made then this should be the subject of a separate application at the end of these proceedings. In the decision of the Full Court in Farnell a decision by the trial judge, the honourable Purvis J not to take legal costs into account was in fact upheld as within the judge’s discretion by the Full Court and I am of the view that the decision in Farnell is authority for the proposition that this court should not similarly take those amounts into account although I must confess to a degree of unease that the authority is not as helpful on the subject either way as courts of first instance would like.
This leaves the outstanding liabilities at the sum of $56,820 made up as follows: the wife’s outstanding living expenses, $12,020; the amount owing to GE Finance of $4800 and the husband’s debt to the father of $40,000, a total of $56,820. Deducting that amount from the gross assets of $694,901.77 a value for the net assets is arrived at at $638,081.77.
The next stage in these proceedings is to ascertain the contributions of the individual parties. The submissions by counsel for the husband and wife were a long way apart. Counsel for the husband assessed the contributions as 80 per cent by the husband and 20 per cent by the wife. Counsel for the wife said that whilst the monetary contributions by the wife were substantially less that her other contributions in the parenting role brought the matters, to quote Mr Stewart, “the contributions perilously close to equal”. There is no doubt that the husband took into the marriage a significant amount of money, approximately $120,000. The wife did not have that amount or anything remotely resembling that amount at the commencement of marriage.
There is also little doubt that the husband contributed the total cost of the purchase price of the premises at Temple Street, Stanmore, that he contributed approximately $120,000 towards the purchase of property in Eldridge Road, Bankstown, the balance being borrowed from the bank and from the father. It’s also said it was the husband who provided the funds for the wife travelling to and from Egypt to see her parents. Against this, whilst the wife contributed as a parent and homemaker, it was submitted that those contributions could be discounted because for a substantial part of the marriage when the parties lived in hotels food and accommodation was provided and that there were periods of time when the child, D, was left with grandparents or in fact with the father himself.
It’s on this basis that it was submitted that the husband’s contribution amounted to 80 per cent. Mr Stewart for the wife pointed out that there was some financial contribution by the wife. She did in fact obtain employment in Istanbul. She worked as a travel agent and as a tour guide during the summer season which is the high season and earned income there although her income was substantially less than that of the husband. Her contribution as parent and homemaker should be seen as greater, said Mr Stewart. Whilst there were meals provided and the husband did concede the wife did cook, she was responsible for the care of the child. It was pointed out that there are many authorities that parent and homemaker contribution should be regarded as the person who keeps the family together, and I would comment that the contribution is seen a homemaker and not as a housekeeper. The mother in particular in recent years has had a considerable amount of time when she has in effect been the sole parent of D and with an absent husband and with requests for financial support, not all of which have been forthcoming, has placed a greater burden on her than many homemakers could expect.
At the same time there has been evidence that the husband did provide money towards the support of the family and indeed there is evidence that he has been providing a regular amount of money on a monthly basis in recent times, although as Mr Stewart pointed out it was considerably less than would be assessed against the husband by the Child Support Agency if the husband were residing in Australia.
The position relating to the contribution by the parties is to my mind in between those extremes. I am of the belief, however, that the weight of any contributions still favours the husband due to the large amount of assets that he brought into the marriage, due to his substantially greater income and due to the assistance in accommodation and meals provided by his employment over a period of time. I am of a view that the contributions should be assessed as 70 per cent to the husband and 30 per cent to the wife.
The next matters that should be considered are whether there should be any adjustment to those figures under section 75(2) of the Family Law Act. If it’s a fact that the contribution favours the husband overall the 75(2) factors favour the wife. Under section 75(2)(a) whilst the wife is younger both parties are still of a young age. The wife is 30, the husband is 40. They are both in good health. As far as section 75(2)(b) is concerned income, property and financial resources, there is no doubt that the husband has a significantly greater income than the wife. He has the potential to earn a significantly greater income than the wife. In his recent financial statement he gave his gross salary and wages before tax on a weekly basis as $2286.
After tax and very little else including a small amount for loan repayments to his father Jack Yuen Tam of $40 a week and $59 support for D his outgoings apart from entertainment, clothing, etcetera come to $425 per week which leaves him with a capacity to save anything up to $1800 per week. It’s hardly surprising that he’s managed to acquire a significant bank balance. He is a skilled pastry chef whose skills are in demand and his contract with his current hotel, the Hotel Muelier in Jalan Asia Africa in Djakarta has recently been renewed.
The wife by comparison does not have the same skills. She resides in Australia. She has to support two children. Her English skills are limited. She is acquiring greater fluency as the days and weeks go past but her limited English is going to be a hindrance to her in obtaining employment in this country. This combined with her comparative lack of qualifications is going to make gainful employment a difficult situation for her.
I look at the provisions under section 75(2)(c), care and control of the children of the marriage. D is 11 years of age. She is at school. She is expected to be at school until she completes her higher school certificate so she has all of high school still to go. She is going to be a dependent child without income of her own right throughout high school. The wife also has the obligation and responsibility to support the child, Mahnala Khalid. It’s been argued by Mr Ladopoulos of counsel for the husband that this should not be taken into account. I am of the view, however, that it is clearly a matter which has to be taken into account. The wife has the responsibility to support another person which is this particular child. It’s certainly a matter that impacts on her and it is a matter that must be considered.
I look at the question of a reasonable standard of living. The orders which this court proposes to make will have no effect on the husband’s standard of living, may have some ability to increase the wife’s standard of living, bearing in mind she is currently living in rented accommodation in Sydney. It’s certainly a situation that the wife’s standard of living is considerably lower than that of the husband. The question of financial resources are such that the wife really has nothing more than what she can expect out of these proceedings. All in all I am of a view, as I said earlier, that section 75(2) factors favour the wife to the extent that there should be an adjustment in her favour of some 20 per cent. This would take the wife’s entitlement to a share in the matrimonial property up to 50 per cent notwithstanding the far greater contributions by the husband.
Of course I must consider whether these matters are just and equitable. The wife of course sought in effect that the house at Stanmore should be hers and that she should receive the money in the controlled moneys account, that those moneys which the husband holds in various bank accounts should remain with him. I am not of a view that that is achievable or realistic nor am I of a view that such a situation would be just and equitable. The Stanmore property is worth some $455,000. It is a very valuable piece of real estate and the awarding of that alone to the wife would, to my mind, give her a far greater share of the matrimonial assets than she would otherwise be entitled.
She must receive a substantial sum of money. She must have the capacity to rehouse herself and her children, particularly the child, D, and she must be in a position where she can obtain some stability as far as residence is concerned. The orders which I propose to make will give her the ability to secure such residence. They will give her the money to do so although the property at Stanmore I am of the belief would be beyond it. It is for these reasons that I propose to make the following orders.
(1)The child of the marriage, D T, born 26 April 1990 is to reside with the wife who shall have the responsibility for the long term and day to day care, welfare and development of the said child.
(2)The wife shall cause to be forwarded to the husband a copy of the child’s school reports and school photos at the husband’s expense within 14 days of receiving such items.
(3)The husband is to have telephone contact with the said child on the first Monday of each month and on the child’s birthday between the hours of 8 and 8.30 pm eastern standard time or eastern summer time whichever is currently in force.
(4)For the purpose of telephone contact the husband shall make the telephone call to the wife’s mobile phone which the wife shall keep switched on between the hours referred to in order 3.
(5)Within 14 days from the date of these orders the wife shall provide to the husband details of (a) her mobile telephone number, (b) a postal address for the child and (c) an e-mail address for the child.
(6)The parties shall forthwith do all such things and execute all such deeds, documents, instruments and writings and give all such instructions as are necessary to list for sale and sell the property situate at and known as T Street, S in the State of New South Wales with a real estate agent agreed upon between the parties or in default of agreement within 14 days an agent nominated by the president for the time being of the Real Estate Institute of New South Wales or his or her nominee whose decision shall be final and binding upon the parties and at a price determined to be a fair market price by the president for the time being of the Australian Institute of Valuers or his or her nominee whose decision shall be final and binding upon the parties and upon completion of the said sale after adjustment for shire, council rate, and water rates the balance of proceeds of the said sale shall be applied as follows:
(a)in payment of any fees due for the nomination of a real estate agent if any together with reasonable agents commission and legal costs and disbursements incurred in relation to the sale,
(b)in payment of fees due for the nomination of a valuer and valuation fees if any,
(c)in payment to the wife of the sum of $224,241.24 and
(d)in payment of the balance remaining to the husband.
(7)In the event that the said property is not sold by private treaty within four months from the date of these orders then the parties shall do all things to ensure that the said property is to be sold by public auction by the real estate agent agreed upon between the parties or nominated as set out in order 6 hereof at a reserve price agreed upon between the parties or in default of agreement within 14 days at a reserve price determined to be a fair market reserve price by the president for the time being of the Australian Institute of Valuers or his or her nominee as provided by order 6 hereof whose decision shall be final and binding upon the parties and on completion of the sale by auction the proceeds shall be applied as set out in order 6 hereof.
(8)The wife shall be declared to be solely entitled to the whole of the sum currently held on trust to the parties in the controlled moneys account at the Commonwealth Bank operated by the wife’s solicitors.
(9)The wife is to retain and the husband is to have no right, entitlement or interest in any of the following: (a) all cash at bank in the wife’s name, (b) Ford Falcon motor car registered number VTP 588 and (c) all furniture, furnishings and effects currently in her possession or control.
(10)The husband is to retain and the wife is to have no right, entitlement or interest in all moneys held by the husband in accounts at the following banks: (a) National Australia Bank,
(a)Hong Kong and Shanghai Banking Company Bank and
(b)the Bank Lippo.
(11)In the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these orders within 14 days of being required to do so the registrar or a deputy registrar of the Federal Magistrates Court shall be appointed pursuant to section 106A of the Family Law Act to execute such deed, document or instrument and do all acts and things necessary to give validity to the deed, document or instrument or upon the registrar or deputy registrar being satisfied of such refusal or neglect verified by way of affidavit.
(12)The husband is hereby restrained from removing or attempting to remove the said child, D T, from the Commonwealth of Australia or applying for a passport for the said child.
(13)All other applications are dismissed.

I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:

Date: