Han and Kwok - [2016] FCCA 1475

FEDERAL CIRCUIT COURT OF AUSTRALIA

HAN & KWOK

[2016] FCCA 1475

Catchwords:
FAMILY LAW – Parenting – where the child is to attend school – who the child is to live with and how much time he should spend with the other parent –
property – effect of initial contributions – s75(2) factors.

Legislation:

Family Law Act 1975, ss.61C(1), 61(C)(2), 61 DA, 60B, 60CA, 60CC, 79(4), 79(2), 75(2).

Mazorski & Albright (2008) 37 FLR 518
Stanford v Stanford (2012) 293 ALR 70
Bevan & Bevan [2013] FamCAFC 116
Polonius & York [2010] FamCAFC 228
Singerson & Joans [2014] FamCAFC 238

Applicant:

MS HAN

Respondent:

MR KWOK

File Number:

MLC 8287 of 2014

Judgment of:

Judge Small

Hearing date:

21 October 2015

Date of Last Submission:

23 November 2015

Delivered at:

Melbourne

Delivered on:

17 June 2016

REPRESENTATION

Counsel for the Applicant:

Mr Nehmy

Solicitors for the Applicant:

Taussig Cherrie Fildes

Counsel for the Respondent:

Self-represented

Solicitors for the Respondent:

Self-represented

ORDERS

Parenting Orders

All previous parenting orders in relation to the child [X] born 2004 (“the child”) are hereby discharged.
Subject to paragraph 7 hereof, the parties shall have shared parental responsibility for the child.
The child shall live with the husband.
The child shall spend time with the wife as follows:
(a)During school terms:
(i)in Week 1 of a two week cycle from after school on Thursday to before school on Monday;
(ii)in Week 2 of the same two week cycle from after school on Thursday to 10:00 a.m. on Saturday.
(b)For half of each school term holiday period by agreement between the parties and failing agreement for the first half in even-numbered years and the second half in odd-numbered years;
(c)For half of the long summer holidays each year by agreement between the parties and failing agreement for the first half in 2016/2017 and in each alternate year thereafter, and for the second half in 2017/2018 and in each alternate year thereafter;
(d)from 10:00 a.m. on Christmas Eve to 12:00 noon on Christmas Day 2016 and in each alternate year thereafter and from 12:00 noon on Christmas Day to 6:00 p.m. on Boxing Day in 2017 and in each alternate year thereafter;
(e)from after school on Thursday to 6:00 p.m. on Saturday on the Easter weekend 2017 and in each alternate year thereafter and from 6:00 p.m. on Saturday to 6:00 p.m. on Monday on the Easter weekend 2018 and in each alternate year thereafter;
(f)from 6:00 p.m. on the evening before Mother’s Day to 6:00 p.m. on Mother’s Day each year;
(g)for the child’s birthday:
(i)from after school to 8:00 p.m. on the child’s birthday in odd-numbered years, and after school to 8:00 p.m. on the day before the child’s birthday in even-numbered years should it fall on a school day; and
(ii)from 2:00 p.m. to 7:30 p.m. in odd-numbered years and 9:00 a.m. to 2:00 p.m. in even-numbered years should the child’s birthday fall on a non-school day;
(h)from after school to 8:00 p.m. on the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Han and Kwok

Details

AGLC: Han and Kwok [2016] FCCA 1475
Case: [2016] FCCA 1475
Decision Date: 17 June 2016

CaseChat Overview and Summary

This matter concerned parenting orders and property division between the parties, Han and Kwok, heard by Judge Small. The dispute involved the arrangements for their child, [X], and the division of assets following their separation.

The court was required to determine appropriate parenting orders for the child, including living arrangements, time spent with each parent, and responsibilities concerning the child's education. Additionally, the court needed to make orders for the division of the parties' property, including the distribution of funds from the sale of a property and the allocation of other assets and liabilities.

Judge Small discharged previous parenting orders and made new orders for shared parental responsibility, with the child to live with the husband and spend significant time with the wife, detailing specific arrangements for school terms, holidays, and special occasions. The court also made orders regarding the child's secondary education, with the wife having sole decision-making power and responsibility for fees, subject to a condition for state school attendance if private fees could not be met. In relation to property, the court found that contributions to the acquisition, conservation, and improvement of property should be allocated 55 per cent to the husband and 45 per cent to the wife, primarily due to the husband's greater initial financial contributions. The court then made detailed orders for the division of specific assets, including funds from the sale of Property A, and specified how Property B would be dealt with if necessary payments were not made. The court also addressed the retention of other assets by each party and included provisions for injunctions and the appointment of a Registrar to sign documents if a party failed to comply with the orders.

Orders

Orders of the court

Parenting Orders

All previous parenting orders in relation to the child [X] born 2004 (“the child”) are hereby discharged.

Subject to paragraph 7 hereof, the parties shall have shared parental responsibility for the child.

The child shall live with the husband.

The child shall spend time with the wife as follows:

(a)During school terms:

(i) in Week 1 of a two week cycle from after school on Thursday to before school on Monday;

(ii) in Week 2 of the same two week cycle from after school on Thursday to 10:00 a.m. on Saturday.

(b) For half of each school term holiday period by agreement between the parties and failing agreement for the first half in even-numbered years and the second half in odd-numbered years;

(c) For half of the long summer holidays each year by agreement between the parties and failing agreement for the first half in 2016/2017 and in each alternate year thereafter, and for the second half in 2017/2018 and in each alternate year thereafter;

(d) from 10:00 a.m. on Christmas Eve to 12:00 noon on Christmas Day 2016 and in each alternate year thereafter and from 12:00 noon on Christmas Day to 6:00 p.m. on Boxing Day in 2017 and in each alternate year thereafter;

(e) from after school on Thursday to 6:00 p.m. on Saturday on the Easter weekend 2017 and in each alternate year thereafter and from 6:00 p.m. on Saturday to 6:00 p.m. on Monday on the Easter weekend 2018 and in each alternate year thereafter;

(f) from 6:00 p.m. on the evening before Mother’s Day to 6:00 p.m. on Mother’s Day each year;

(g) for the child’s birthday:

(i) from after school to 8:00 p.m. on the child’s birthday in odd-numbered years, and after school to 8:00 p.m. on the day before the child’s birthday in even-numbered years should it fall on a school day; and

(ii) from 2:00 p.m. to 7:30 p.m. in odd-numbered years and 9:00 a.m. to 2:00 p.m. in even-numbered years should the child’s birthday fall on a non-school day;

(h) from after school to 8:00 p.m. on the wife’s birthday each year should it fall on a school day and from 2:00 p.m. to 8:00 p.m. should it fall on a non-school day;

(i) At such other times as the parties might agree.

The parenting arrangements pursuant to paragraph 4 hereof shall be suspended if necessary on the following occasions, such that:

(a) the child’s time with the mother concludes at 6:00 p.m. on the evening before Father’s Day each year;

(b) on the husband’s birthday the child spends time with the husband from after school to 8:00 p.m. if it falls on a school day and between 2:00 p.m. and 8:00 p.m. if it falls on a non-school day.

For the purpose of changeover:

(a) during the school term, changeover shall occur at the child’s school, save that the husband will collect the child from the wife’s residence at 10:00 a.m. on each alternate Saturday;

(b) on special occasions such as birthdays, Christmas, and Easter, the parent from whose care the child is departing will deliver the child to the home of the other parent if changeover does not occur at the child’s school; and

(i) the child’s school holidays are deemed to commence at the conclusion of school on the last day of term and to conclude at the commencement of school on the first day of the next school term;

(ii) if the school holidays consist of an even number of weeks, changeover shall occur at 5:00 p.m. on the Saturday of the middle weekend;

(iii) if the school holidays consist of an odd number of weeks, changeover shall occur at 5:00 p.m. on the Wednesday of the middle week; and

(iv) the parent from whose care the child is departing will deliver the child to the home of the other parent if changeover does not occur at the child’s school.

From the 2017 school year the child shall attend School A or such other school as the wife may decide and she shall be solely responsible for the payment of all fees and expenses involved with the child’s secondary education.

In the event that the wife is unable or unwilling to pay the child’s private school fees and expenses, and the husband is likewise unable or unwilling to do so, then the child shall attend the State secondary school for which he is zoned according to his place of residence, and the parties shall be jointly responsible for all fees and expenses associated with his secondary education.

For the sake of clarity, nothing in paragraph (7) hereof shall be construed as preventing the husband from contributing to the child’s private secondary education fees and expenses should he wish to do so.

10.

Each parent shall be authorised to:

(a) attend any school attended by the child and communicate with the school staff;

(b) receive copies of reports, photographs and notices usually provided to parents, at their expense respectively (if any);

(d) provide a copy of these orders to any school attended by the child.

11.

Both parties are hereby restrained by injunction from abusing, insulting, belittling, rebuking or otherwise denigrating the other to or in the presence or hearing of the child, and from permitting any other person so to do.

12.

Each parent shall:

(a) immediately inform the other in the event that the child is involved in a serious accident or suffers from any serious injury or illness while in their respective care;

(b) forthwith inform the other of any medical or other health practitioner with whom the child is scheduled to consult;

(c) be authorised to make all reasonable enquiries of such medical or health practitioners in respect of matters concerning the child’s health; and

(d) be authorised to provide a copy of these orders to any medical or health practitioner involved with the child.

13.

The parties shall do all such acts and things and sign all such documents as may be necessary to ensure that the child continues to hold a current Australian passport.

14.

In the event that either party wishes to travel overseas with the child he or she shall provide to the other no later than 28 days prior to such travel a full itinerary including flights, accommodation information, and contact details for the child during such travel.

Property orders

15.

Within fourteen days of the date of these orders (“the due date”) the husband shall pay or cause to be paid from the monies currently held in trust for the parties as a result of the sale of the property situate at and known as Property A in the State of Victoria, the following:

(a)the sum of $120,132.23 to the husband;

(b) the sum of $160,912.77 to the wife; and

16.

In the event that the husband fails to make the payments to the wife pursuant to paragraphs 15(b) and (c) hereof (“the payments”) by the due date, he shall pay interest on the payments at the rate of 9.5 percent per annum calculated from the due date to the date when payment is made in full.

17.

In the event that the husband fails to make the payments in full within 45 days of the date of these orders, he shall forthwith do all such acts and things and sign all such documents as may be necessary to sell the property situate at and known as Property B in the State of Victoria, and more properly described as the whole of the land comprised in Certificate of Title Volume (omitted) (“Property B”), and the proceeds of such sale shall be applied:

(a)first, to pay all costs and commissions of the sale;

(b) second, to discharge any registered encumbrance over Property B;

(d) fourth, such of the payments as is outstanding, together with the interest specified in paragraph 16 hereof, to the wife; and

(e) the balance to the husband or at his direction.

18.

The husband shall retain the monies in the (omitted) Mutual Fund and the (omitted) Credit Union Term Deposit for his own use and benefit absolutely and the wife shall do all such acts and things and sign any such documents as may be necessary to give effect to this order.

19.

Should either party fail to sign any document necessary for the operation of these orders then pursuant to s.106A of the Family Law Act 1975 a Registrar of this Court is appointed to sign any such documents on his/her behalf, and the Registrar shall be satisfied as to his or her authority to sign such documents upon the non-defaulting party, or his/her solicitor, filing an affidavit setting out evidence of non-compliance by the other party.

20.

Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:

(a) each party shall be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders and without limiting the generality thereof:

(i) the wife shall retain for her own use and benefit absolutely, free from all claim by the husband:

A. the real property situate at and known as Property C in the State of Victoria, more particularly described as the whole of the land comprised in Certificate of Title Volume (omitted) (“Property C”);

B. the contents of Property C and all other chattels otherwise in her possession;

C. funds standing to her credit in bank accounts;

D. her 2003 (omitted) motor vehicle registration number (omitted); and

E. The sums due to her pursuant to paragraphs 15(b) and 15(c) of these Orders.

(ii) The husband shall retain for his own use and benefit absolutely, free from all claim by the wife:

A. Property B;

B. the contents of Property B and all other chattels otherwise in his possession;

C. the (omitted) Multi-Cap Growth Fund;

D. his (omitted) stock;

E. the (omitted Employee Stock Plan;

F. the (omitted) Stock Investment Plan;

G. funds standing to his credit in any bank accounts;

H. his 2007 (omitted) motor vehicle registration number (omitted)

I. the sums due to him pursuant to paragraphs 15(a) and (c) of these orders.

(b) insurance policies remain the sole property of the life insured named therein;

(c) each party forgoes any claims they may have to any superannuation benefits, long service leave entitlements, and retirement, redundancy and other like benefits belonging to or earned by the other;

(d) 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;

(e) any joint tenancy of the parties in any real or personal estate is hereby expressly severed; and

(f) each party forgoes any claim they may have to any inheritances to which the other party is entitled either presently or in the future.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

I therefore find that the parties’ contributions to the acquisition, conservation and improvement of their property should be stated as 55 per cent to the husband and 45 per cent to the wife mainly because of the husband’s greater initial financial contributions.D. Should there be an adjustment to the contribution-based entitlements of the parties after a consideration of the matters set out in s.75(2) of the Family Law Act 1975 (Cth) (“the Act”)? S75(2) of the Act sets out the considerations which a court must take into account when deciding whether to make an order for spousal maintenance between parties who have been married and are now separated. The statute sets out those considerations as follows:(2) The matters to be so taken into account are: (a) the age and state of health of each of the parties; and (b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and (c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and (d) commitments of each of the parties that are necessary to enable the party to support: (i) himself or herself; and (ii) a child or another person that the party has a duty to maintain; and (e) the responsibilities of either party to support any other person; and (f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under: (i) any law of the Commonwealth, of a State or Territory or of another country; or (ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia; and the rate of any such pension, allowance or benefit being paid to either party; and (g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and (h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and (ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and (j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and (k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and (l) the need to protect a party who wishes to continue that party's role as a parent; and (m) if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and (n) the terms of any order made or proposed to be made under section 79 in relation to: (i) the property of the parties; or (ii) vested bankruptcy property in relation to a bankrupt party; and (naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to: (i) a party to the marriage; or (ii) a person who is a party to a de facto relationship with a party to the marriage; or (iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or (iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and (na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and (o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and (p) the terms of any financial agreement that is binding on the parties to the marriage; and (q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.