Guan & Shen

Case [2024] FedCFamC2F 117


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Guan & Shen [2024] FedCFamC2F 117   

File number(s): PAC 399 of 2023
Judgment of: JUDGE STREET
Date of judgment: 1 March 2024
Catchwords:  FAMILY LAW - PARENTING AND PROPERTY – undefended hearing –– de facto relationship 16 years- two children – mother has sole care since separation in 2021 -no binding financial agreement – purported financial agreement set aside – alternation of property interests
Legislation:

Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth)

Federal Circuit and Family Court of Australia Act2021 (Cth)

Cases cited:

A & Z (2006) FamCA 179

A v A (1998) FLC 92

Abrum & Abrum [2013] FamCA 897

Axelsen v O’Brien (1949) 80 CLR 219

Barre & Barre [2021] FamCA 101

Chaffin& Chaffin [2019] FamCA 260

Chen & Chen [2018] FamCA 828

Clowes & Konig [2022] FedCFamC1F 565

Cotton & Cotton (1983) FLC 91

Deiter & Deiter [2011] FamCAFC 82

Dickons & Dickons [2012] FamCAFC 154

Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5

Dovgan & Dovgan [2021] FamCA 306

Estate of Gardner [2019] NSWSC 1324

Fairbairn v Radecki [2022] HCA18

Fitzmaurice & Woolridge [2020] FamCAFC 64

Fitzwater & Fitzwater (2019) 60 Fam LR 212

Fewster & Drake [2016] FamCA 214

G & C [2006] FamCA 994

Hickey and Hickey and Attorney-General (Cth) (Intervener) [2003] FamCA 395

Hoult & Hoult (2013) FamCAFC 109

Isles & Nelissen (2022) FLC 94

Jabour & Jabour [2019] FamCAFC 78

Johnson & Page (2007) FLC 93

Jurchenko & Foster (2014) FLC 93

Kostres & Kostres [2009] FamCAFC 222

Lancy and Lancey (1994) FamCA 94

Lincoln & Miller [2016] FamCA 547

Loddington & Derringford (No 2) [2008] FamCA 925

Logan & Logan [2013] FamCAFC 151

M v M (1988) 166 CLR 69

Martin & Newton [2011] FamCAFC 233

McCall & Clark (2009) FLC 93

Michaels & Vidal [2022] FedCFamC1F 252

N v S (1996) FLC 92

Napier & Hepburn (2006) FLC 93

Nikolakis & Nikolakis [2010] FamCAFC 52

Norman & Norman [2010] FamCAFC 66

Nyles & Nyles [2011] FamCA 565

Piras v Egan [2008] NSWCA 59

Potter and Potter (2007) FLC 93

Stott & Holgar [2017] FamCAFC 152

Talley & Patterson [2022] FedCFamC2F 1203

Teuh &Muir [2017] FamCA 138

Thorne v Kennedy [2017] HCA 49

Division: Division 2 Family Law
Number of paragraphs: 130
Date of hearing: 24 January 2024
Place: Parramatta
Counsel for the Applicant: Mr E Yin
Solicitor for the Applicant:  Sophie Zhang Lawyers
Respondent: No Appearance

ORDERS

PAC 399 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS GUAN

Applicant

AND:

MR SHEN

Respondent

ORDER MADE BY:

JUDGE STREET

DATE OF ORDER:

23 JANUARY 2024

THE COURT ORDERS THAT:

1.The matter proceed as an undefended hearing.

Parenting

2.That the applicant mother shall have sole parental responsibility for X, born in 2012 and Y, born in 2013 (“the children”).

3.That in exercising her parental responsibility pursuant to Order 1, the applicant mother shall:

(a)Inform the respondent father…

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AGLC
Guan & Shen [2024] FedCFamC2F 117
Case
[2024] FedCFamC2F 117
Decision Date

CaseChat Overview and Summary

This matter involved an application by Ms Guan for parenting orders and a property settlement in relation to her former de facto relationship with Mr Shen. The couple had two children, born in 2012 and 2013, and had been in a relationship from 2005 until their separation in April 2021. The application proceeded as an undefended hearing before Judge Street. The legal issues before the court included determining the appropriate parenting arrangements for the children, whether a purported financial agreement from 2017 was binding, and whether an alteration of the parties' property interests was just and equitable.

The court found that the purported financial agreement was not binding due to non-compliance with legislative requirements. Given the de facto relationship's duration and the significant age gap between the parties, the court determined that altering the property interests was just and equitable. The court ordered that the family home be sold, with proceeds distributed according to specific percentages, and directed that each party retain personal property and financial accounts in their sole name. The court also granted Ms Guan sole parental responsibility for the children, with specified arrangements for the father's time with the children. The father was also ordered to pay the mother's costs associated with the proceedings.

The court's detailed orders ensured clarity in parenting arrangements, property division, and ongoing communication between the parties regarding the children's welfare. The decision reflects the court's consideration of the children's best interests and the need for a fair and equitable property settlement.

Orders

Orders of the court

PAC 399 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS GUAN

Applicant

AND:

MR SHEN

Respondent

ORDER MADE BY:

JUDGE STREET

DATE OF ORDER:

23 JANUARY 2024

THE COURT ORDERS THAT:

1. The matter proceed as an undefended hearing.

Parenting

2. That the applicant mother shall have sole parental responsibility for X, born in 2012 and Y, born in 2013 (“the children”).

3. That in exercising her parental responsibility pursuant to Order 1, the applicant mother shall:

(a) Inform the respondent father of the major long-term decision to be made at least 30 days before the decision is required, to allow the respondent father sufficient time to investigate and provide his input into the decision to be made;

(b) The respondent father to provide the applicant other with any view or input he wishes to express in respect of the decision within 21 days of receiving notice from her;

(c) The applicant mother to take into account the respondent father’s views expressed and, if necessary, seek any further clarification from him; and

(d) Inform the respondent father of the decision made.

4. That the children shall live with the applicant mother.

5. That the children shall spend time with the respondent father as follows:

(a) During school terms, each alternate Sunday from 10:00am until 5:00pm;

(b) On the respondent father’s birthday from 12 noon to 5:00pm, if a non-school day; and from 3:00pm to 6:00pm if a school day.

(c) At other times as agreed in writing between the parties.

6. The respondent father’s time with the children is suspended on the applicant mother’s birthday from 9:00am to 12 noon to 5:00pm if a non-school day, and from 3:00pm to 6:00pm if a school day, whereby the children shall spend time with the applicant mother.

7. That for the purpose of changeover, unless otherwise agreed, the respondent father shall collect and return the children from and to the applicant mother’s place where the respondent father is to keep the distance of at least 100 meters from the applicant mother’s residence and being responsible to monitor the children’s safety.

8. That the applicant mother and respondent father shall communicate with each other via SMS or through legal representatives in emergencies regarding the children.

9. That in the case of emergency, the party with the care of the children shall telephone the other parent as soon as possible and advise them of the nature of the emergency, the location of the children, and any treatment provided or proposed to be provided to the children.

10. That each party shall keep the other informed of any illness or injury suffered by the children and any medication prescribed for the children, with medication for the children, with medication for the children to travel with the children.

11. That these orders act as an authority for the applicant mother to communicate with any health or education professional and any school attended by the children and the applicant mother is to provide the respondent father with information or updates related to the children.

12. That the applicant mother and respondent father are both restrained from criticising or denigrating the other party or the other party’s partner or family members in the presence or within hearing of the children.

13. That the applicant mother holds the children’s passports and birth certificates.

14. That the applicant mother is granted the sole right to make major decisions for the children, including signing of documents for the children with the absence of the father’s signature, including the documents for applying for the renewing of passports and documents regarding the children’s education until the children get to the age of 18.

15. That the respondent father pay the applicant mother’s costs incidental to these proceedings.

Property

16. The Court declares that the undated purported financial agreement of 2017 is not binding upon the parties by reasons of failure to comply with s90UJ(1)(b) in relation the applicant.

17. Pursuant to s 90UM(1)(g), 90UM(1)(h), that the undated purported financial agreement of 2017 is set aside.

18. Pursuant to s90RD of the Family Law Act 1975 (Cth), the Court declares that there was a de facto relationship between the applicant that commenced in 2005 and continued until April 2021.

19. Pursuant to s90SL & s90SM of the Family Law Act 1975 (Cth) and insofar as applicable s90UM(6), the Court declares that it is just and equitable to alter the property interests of the parties to the de facto relationship.

20. Pursuant to s90SL & s90SM of the Family Law Act 1975 (Cth) and insofar as applicable s90UM(6), the property located at B Street, Suburb C be sold by public auction within six weeks of the date of these orders, and that the respondent is to execute all necessary documents to appoint a real estate agent for that the sale and to meet the marketing costs of the same, and a reserve price be agreed by the parties, and failing such agreement, be determined by the proper officer of the real estate institute or his nominee, and that the proceeds of the sale are disbursed as follows:

(a) Payment of agent’s commissions and advertising expenses and the legal expenses of sale;

(b) Payment of any money due or owing to the mortgagee

(c) The net balance to be divided as follows:

(i) 20% to the respondent;

(ii) 80% to the applicant

21. Until the sale of the said Suburb C property, the respondent is to continue to pay as and when they fall due, all regular instalments in respect of the mortgage, council rates and water rates in respect of said property.

22. If the property fails to be sold at public auction, the property is to be sold by private treaty and a price to be determined in the same manner as the reserve price, if the parties are unable to agree, and the proceeds are to be applied in the same manner as identified above as if the property was sold by public auction.

23. That as between the applicant and respondent, and subject to the above orders, the applicant and respondent shall each respectively retain all interest in and entitlement to:

(a) All personal property now in his or her respective possession or control.

(b) All shares, debentures, until trusts, bank, building society to credit union accounts standing in his or her sole name respectively.

(c) All interests in life insurance policies and superannuation funds standing in his or her sole name respectively.

(d) That except as otherwise provided by these orders, each party remains solely responsible for all debts, including credit card debts, in the parties respective names.

24. That each party is solely liable for and indemnifies the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.

25. That the parties shall do all acts and things necessary and give all consents an execute all documents and writings to give effect to these orders in the time periods prescribed.

26. That in the event that either party refuses or neglects to execute any deed, document or instalment necessary to give effect to these Orders, the Registrar of the Court be appointed pursuant to s106A of the Family Law Act 1975 (Cth) to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation of the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.

27. The respondent is to the pay the applicant’s cost of these parenting and property proceedings, as agreed or as assessed under s 117 of the Family Law Act 1975 (Cth).

28. The Court reserves its written reasons.

THE COURT NOTES THAT:

A. It is satisfied that service, in accordance with the orders, has been made upon the respondent and that the respondent has been provided with procedural fairness in respect of today’s undefended hearing.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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

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