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)
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
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
Potter and Potter (2007) FLC 93
Stott & Holgar [2017] FamCAFC 152
Talley & Patterson [2022] FedCFamC2F 1203
Teuh &Muir [2017] FamCA 138
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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- Guan & Shen [2024] FedCFamC2F 117
- Case
- [2024] FedCFamC2F 117
- Decision Date
CaseChat Overview and Summary
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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