Han and Kwok
[2016] FCCA 1475
•17 June 2016
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 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
(c)during the child’s school holidays:
(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.
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);
(c)attend all functions and activities, including extracurricular activities, to which parents are invited; and
(d)provide a copy of these orders to any school attended by the child.
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.
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.
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.
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
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
(c)the balance to be divided 57.5% to the husband and 42.5% to the wife.
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.
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;
(c)third, in adjustment of rates and taxes in respect of 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.
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.
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.
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.
IT IS NOTED that publication of this judgment under the pseudonym Han & Kwok is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 8287 of 2014
| MS HAN |
Applicant
And
| MR KWOK |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a parenting and property matter involving Ms Han (“Ms Han” or “the wife”), Mr Kwok (“Mr Kwok” or “the husband”) and their son [X] born 2004 (known as “[X]”).
[X]’s parents have very different parenting styles, that difference having led to the parenting matters for decision in these proceedings.
In addition, the husband and wife cannot agree on how their property ought to be divided between them in the aftermath of the breakdown of their marriage.
The particular issues to be decided in this matter can be set out as follows:
Parenting Issues
A. Should [X]’s parents retain equal shared parental responsibility for him, or should his father have sole parental responsibility in relation to his health and educational issues?
B. Should [X] live with his father for nine nights each fortnight, or will he live in an equal shared care arrangement, or will he live with his mother for eight nights each fortnight?
C. Which school will [X] attend for his secondary education?
Property Issues
D. What are the property interests of the parties and what is their value?
E. Is it just and equitable to alter those interests?
F. If it is just and equitable, what were the parties’ contributions to the property?
G. 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”)?
H. In light of the above findings, what orders should be made to effect a just and equitable division of property between the parties?
Background
Both parties were born in China, with the husband being born on (omitted) 1954 and the wife on (omitted) 1972.
Mr Kwok first migrated to Australia in 1992 and Ms Han in 2000.
The parties met in (omitted) in 1997 and began their relationship in 1999 when Ms Han was studying and Mr Kwok working in (country omitted). They were married in (omitted) in 2000 and migrated to Melbourne in August of that year. They did not cohabit before marriage.
The parties were married for 13 years before separating on a final basis in July 2013.
[X] is the only child of the marriage.
Since separation, [X] has lived predominantly with his father and has spent time with his mother on weekends and during school holidays.
During the course of the marriage, the parties amassed substantial assets valued at over $2 million.
Ms Han works as an (occupation omitted) and Mr Kwok is retired, having worked in (omitted) positions in the past. Both parties have achieved post-graduate qualifications in their respective fields.
Procedural History
Ms Han initiated these proceedings in 15 September 2014 by filing an Initiating Application for both property and parenting matters.
Mr Kwok filed his responding material on 13 November 2014 and the matter came before me in the Duty List on 17 November 2014. Both parties were represented on that date.
I set the matter down for trial, listed it for a Conciliation Conference and ordered the preparation of a Family Report under section 62G(2) of the Act. I also made interim parenting orders by consent on this date.
I note that the consent minutes that the parties entered into were quite detailed in relation to the time each would spend with [X]. The orders also allowed for a partial property settlement to the wife in the sum of $396,026 to be paid from the sale proceeds of the parties’ property at Property A.
On 11 February 2015, the parties attended the Conciliation Conference but they were unable to reach an agreement. Both parties had representation on this date.
On 14 May 2015, the parties were granted a divorce. The wife appeared in person on that date before Registrar Lethbridge.
The husband filed an Amended Response on 19 October 2015, outside the time limits set down in the trial directions of 17 November 2014. However he did not pursue the orders set out in that Amended Response at trial and no questions in relation to those matters were put to the wife. I therefore consider the amended response to have been abandoned by the husband and have not considered the orders sought therein.
Both parties filed trial affidavits and affidavits of expert witnesses in accordance with the trial directions made on 17 November 2014.
The parties appeared before me for Final Hearing on 21 October 2015 with Ms Han represented by Counsel and Mr Kwok appearing in person.
As a preliminary issue, an affidavit and report of Dr J, a private psychologist who had seen [X] for therapeutic counselling at the behest of the husband (“Dr J”), was struck out, as were some limited paragraphs of the husband’s trial affidavit.
The trial lasted for three days, with witnesses being the husband, the wife, Mr G, a former work colleague of the wife’s, and Dr D, the family consultant who had prepared the family report in this matter.
All witnesses were cross-examined and I reserved my decision and ordered the parties to provide written submissions.
Ms Han’s final submissions were filed on 6 November 2015 and Mr Kwok’s were filed on 23 November 2015.
Issues and Evidence
Parenting matters
A. Should [X]’s parents retain equal shared parental responsibility for him, or should his father have sole parental responsibility in relation to his health and educational issues?
Ms Han seeks an order for equal shared parental responsibility in relation to all decisions to be made about [X]’s care, welfare and development.
Mr Kwok says that the conflictual nature of his relationship with Ms Han means that it would not be in [X]’s best interests for both parents to share responsibility for decisions about his education or his health.
He seeks an order that he be solely responsible for decisions about [X]’s education and health, with all other parental responsibility matters being equally shared between him and [X]’s mother.
The law in relation to parental responsibility
The law relating to parental responsibility for the children of separated parents is found in Division 2 of Part VII of the Family Law Act 1975 (“the Act”), and more particularly in ss.61C and 61DA.
Section 61C(1) and (2) state that each of the parents of a child who has not reached the age of 18 years has parental responsibility for the child, whether or not the parents are living together, are married, or have separated.
In Note 1 attached to s.61C(1), the Act makes clear that the above statement simply states the legal position that exists unless and until an order to the contrary is made by the court.
Section 61 DA states as follows:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parents family (or that other person’s family); or
(b) family violence.
Subsection 4 of s.61DA states that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The wife’s evidence in this matter is that the husband was overbearing and insisted on having his own way throughout the relationship, although the husband vehemently denies that allegation saying that while the parties argued constantly, he often left decisions to the wife.
In any event I do not believe that there is enough evidence before the court to make a positive finding that a parent of the child has engaged in family violence. Therefore the presumption of equal shared parental responsibility stands.
It is under subsection 4 of s 61DA that Mr Kwok argues that he should have sole parental responsibility in the areas of [X]’s education and health.
His affidavit evidence sets out several instances where the parties have been unable to agree on matters relating to the time [X] spends with each parent. For instance in his initial affidavit sworn 13 November 2014 Mr Kwok says:
48. Since separation, Ms Han and I have continued to disagree on a range of parenting matters, including weekend time, holiday time and [X]’s routine. I have tried to be flexible and open to changes in the time that [X] spends with each of us, to cater for [X]’s needs and to ensure he spends quality time with each of us. I have felt that Ms Han has been inflexible with the parenting arrangements, making it difficult to co-parent cooperatively.
In his Affidavit sworn and filed 2 April 2015, Mr Kwok says at paragraph 34:
The period between March and August 2014 saw a significant number of incidents in the implementation about parenting agreement, giving rise to numerous highly emotional and argumentative email exchanges between Ms Han and myself. When the emotional verbiage (on both sides) is stripped away, the facts are rather simple. We argued between [X]’s needs and Ms Han’s entitlement.
It was the submission of the wife’s counsel that any such conflict is in fact instigated and fuelled by Mr Kwok in order to support his application for sole parental responsibility.
Mr Kwok believes that Ms Han has engaged in a concerted campaign to diminish his role in [X]’s life and that only he is focused on what is best for [X].
Mr Kwok clearly sees himself not only as [X]’s father and primary parent, but also as his mentor and instructor in almost every aspect of his life, but particularly in the areas of school homework, Chinese language learning, and swimming training.
His parenting style is very different from that of Ms Han in that he focuses his relationship with [X] around learning opportunities. He describes himself as [X]’s “father/coach” and says, in his affidavit sworn and filed on 2 April 2015:
79. [X]’s learning activities constitute a big part of our everyday life together. I work with him on his writing, online research, and English grammar. I teach [X] Chinese. I coach [X] in swimming. As much as all this sounds, our learning time is not boring.
80. In teaching [X], I practise my belief that learning is best achieved through play, fun, and personal experience.
The evidence produced in this case shows that [X] responds very well to his father’s teaching methods while in his care, he having reported to Dr D that his father makes his learning fun and that he enjoys it, and there is no evidence before the court to suggest otherwise.
Ms Han’s parenting style appears to be more focused on formal school-based learning and recreational activities. If anything, she is more focused on formal school-based learning, and the homework that accompanies it, than is Mr Kwok.
The question of homework, and its importance to each parent, took up considerable time at trial. I do not intend to set out that evidence in great detail here, save to say that I see that issue as indicative of each parent’s different relationship with [X] rather than as a separate issue.
Parents often have differing parenting styles, especially after separation. That is the reality for the majority of children whose parents come before this court, and children learn that there are different rules pertaining to their lives with each parent and they adapt themselves to that reality.
Dr D gave evidence at trial that the expression “chalk and cheese” could have been invented to describe the difference in parenting styles between these parents.
But it is not parenting styles which have caused the disputes between the parties in this matter – for the most part those disputes have been about the amount of time [X] spends with each party.
Once final orders have been made in relation to the amount of time [X] spends with each parent, they will each establish a routine for [X] while he is in their care.
While each might believe that his/her routine is best for [X], they will simply have to come to terms with the fact that they do not control [X]’s life while he is in the other’s care.
I have no doubt that [X], who by all accounts is a highly intelligent child, albeit one who is under pressure because of the conflict between his parents, will come to terms with the fact that he lives in two separate households with two separate ways of living, and that he will flourish in both.
I therefore find that the presumption applies and that Mr Kwok has not shown, on balance, that it is not in [X]’s best interests for his parents to share responsibility for the major decisions about his life.
I will therefore make an order that [X]’s parents share parental responsibility for him with one exception.
There are particular times in a child’s life where specific decisions need to be made, such as where a child goes to school. When parents cannot agree on matters such as that, specific parenting orders need to be made. This is one of those cases, and I will consider later in these Reasons the issue of the school that [X] will attend for his secondary education and will make orders accordingly.
However those orders should not be taken as derogation from the presumption that applies under s61DA, nor the order I will make in that regard.
B. Should [X] live with his father for nine nights each fortnight, or should he live in an equal shared care arrangement, or should he live with his mother for eight nights each fortnight?
This is the major issue in dispute in these proceedings.
Mr Kwok seeks orders that [X] spend nine nights each fortnight in his care and five nights in the care of Ms Han.
Ms Han seeks an equal shared care arrangement, or, as an alternative, a regime whereby [X] would live with her for eight nights each fortnight and with Mr Kwok for six nights.
Pursuant to interim orders made by consent on 17 November 2014, [X] currently spends nine nights per fortnight with his father and five with his mother such that he spends time with his mother from after school on Friday until 11:00 a.m. on Sunday in week one of a two week cycle, and from after school Friday to the commencement of school on Monday in the second week.
The law in relation to parenting matters
The law relating to parenting orders is found in Part VII of the Act.
Section 60B sets out the objects and principles upon which this Part is based and I set that section out here for the benefit of the parties.
Section 60B(1): The objects of this part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse and neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2): the principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(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; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly 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; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 60CA provides that when a court is deciding whether to make a particular parenting order in relation to a child, the child’s best interests must be its “paramount consideration”.
Section 60CC then sets out 16 separate “considerations” that the court must take into account when deciding what orders might be in a child’s best interests, and I will address each of those considerations in turn.
There are two “primary considerations” set out in s60CC(2):
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
What the words “meaningful relationship” mean has been discussed in many cases before this and other courts.
In an oft quoted passage from the case of Mazorski & Albright[1], Brown J said that a “meaningful relationship” is a relationship that is “important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one.”
[1] Mazorski & Albright (2008) 37 FLR 518
I think the final sentence of that portion of Her Honour’s judgement is of great relevance in this case.
What it means is that the “meaningfulness” of a relationship between parent and child does not depend on the amount of time a child spends with that parent, but rather on the quality of the time spent.
It is clear from all the evidence before the court that [X] has a meaningful relationship with both his parents and that he benefits greatly from each of those relationships.
That is so despite both parties giving evidence that [X]’s relationship with the other is flawed. I particularly note Dr D’s evidence in that regard.
There is no evidence before the court that [X] is at any risk of physical harm, or abuse, or neglect in the care of either parent.
There is, however, some evidence to say that he is at risk of psychological or emotional harm as a result of being exposed to the conflict between his parents and I will discuss that issue throughout these Reasons.
I take the need for [X] to be protected from that harm as my paramount consideration pursuant to s 60CC(2).
Section 60CC (2A) states that in applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
In the context of these proceedings I interpret that section as meaning that if the risk of psychological or emotional harm to [X] as a result of being caught in the conflict between his parents is in conflict with the benefit he receives from maintaining and developing meaningful relationships with both parents, then I must consider the need to protect him from that psychological harm over all other considerations.
In the time between trial and the writing of this judgement, [X] has turned twelve and he has begun his final year of primary education.
He is likely to be approaching or to have entered puberty which makes this a very important yet vulnerable time in his young life.
There is therefore a great need to protect him, as far as is possible, from the psychological harm he has undoubtedly suffered from being exposed to the conflict between his parents, and I take that need as my paramount concern.
I do not find that the second primary consideration as set out in s 60CC(2) is in conflict with the first primary consideration, and therefore will craft orders that facilitate the continuation of [X]’s relationships with both parents while at the same time attempting to shield him from their conflict.
Section 60CC(3) then sets out 14 “additional considerations” for the court to take into account:
(3) Additional considerations are:
(a) any views 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 views;
[X] clearly feels torn between his parents. He loves both and enjoys his time with both, and while he may express the view that he wants to live predominantly with his father, there is evidence that that view has been coloured by the particular relationship he has with Mr Kwok.
In 2007 Mr Kwok ceased working full time, he says, to devote his attention to raising [X]. Ms Han has worked for external employers ever since she arrived in Australia in 2000, and she continues to work four days a week for a nonprofit organisation.
This has meant that [X] has spent far more time with Mr Kwok that he has with Ms Han. That is not a criticism of either parent but merely an observation of this family’s reality.
That reality has meant that while [X] is clearly attached both parents, Dr D’s evidence shows that he considers his primary home to be with Mr Kwok.
[X] is now 12 years old, and I do take his views into account, although I do not give them the weight that I would give to those of a child in his middle adolescence.
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
The issue of the nature of the relationship of the child with each of his parents is at the very heart of these proceedings.
Mr Kwok has a relationship with [X] that he has called “father/educator”, with both of those roles appearing to be equal in his mind, and indeed in [X]’s mind.
Mr Kwok sees himself as [X]’s primary carer, and as the only person who has a full understanding of [X]’s educational and extracurricular needs. He sees himself therefore as the only person who can meet those needs outside the formal education system.
He appears almost obsessed with the need for [X] to learn from every experience he encounters, and he therefore attempts to turn every experience into one of learning.
[X] loves his father dearly, and clearly enjoys the way Mr Kwok approaches his education, making games of learning tasks, and, as [X] says, making his learning “fun”.
Father and son are clearly very close, although there is some evidence that [X]’s rather compliant nature may cause him to be more concerned about his father’s needs than his own.
Dr D describes the relationship between Mr Kwok and [X] as he observed it in the following terms:
Where Ms Han’s approach was warm and playful and natural, [Mr Kwok’s][2] appeared jokey and educational. [X] reverted to his earlier more earnest style, playing with a toy that his father then attempted to teach him about.
[X] stood at his father’s chair, sort of physically attached to his father, and the pair spoke quietly while [X] played.
[2] Mr Kwok is known as “[Mr Kwok]” – his initials if one places his family name first as is the Chinese tradition
And
In contrast to the conversation between mother and son, there were frequent pauses in which [X] played and his father observed.
[X]’s relationship with his mother is very different, though no less important to him and his development.
She too is focused on the issue of [X]’s education, wanting him to attend weekend tutoring and a private secondary school, and wishing him to be the best student he can be.
However, her relationship with [X] appears to be more relaxed in general, in that she does not see every moment in [X]’s life as an opportunity to learn something new or consolidate previous learning.
Dr D’s description of the relationship between [X] and his mother was quite startling in the context of the father’s Affidavit evidence about that relationship. Far from [X] being afraid of his mother, as claimed by Mr Kwok, Dr D describes their encounter for the family report in the following terms:
It was striking that both mother and son seemed to come alive in each other’s company. [X], who had presented as somewhat earnest when interviewed individually, rapidly became playful and affectionate with his mother, as she did with him. She frequently praised him in a natural and self-evidently familiar manner.
And
Ms Han kept talking in an animated and cheerful manner, and [X] succumbed, giggling and laughing and acting spiritedly with his mother.
Dr D describes Ms Han’s manner when interacting with [X] as “warm and enthusiastic” and “natural”.
In my view, [X] is a very lucky child in that he has two parents who love him dearly and who genuinely want only what is best for him. That they approach that responsibility in very different ways is only a problem if one (or both) of them believes that his or her way is the only or even the superior way for [X] to be raised.
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
Both parents have taken the opportunity to make unilateral decisions in relation to important issues about [X]’s life.
For example, Mr Kwok sent [X] to Dr J for counselling in mid-2015 without any consultation with [X]’s mother beforehand. Ms Han, on the other hand, has decided matters in relation to [X]’s weekend school attendance without reference to Mr Kwok.
These are important life decisions about which parents ought to consult and which they ought to make jointly. That they have not done so on occasion indicates the lack of trust between them, and also each parent’s need to feel in control of [X]’s life.
Both parents have spent regular and frequent time with [X] since separation and both have ensured, as far as has been practicable given Ms Han’s employment obligations, that his relationship with both parents has been maintained.
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
Both parents supported [X] during the marriage and each provides for his daily needs when he is with them now.
Because Ms Han is employed almost full-time and Mr Kwok is not in formal employment, and because [X] is currently in Ms Han’s care for five nights per fortnight, Ms Han has been assessed to pay child support for [X].
She has paid child support to the Department of Human Services (Child Support) since Mr Kwok sought an assessment in March 2015.
While there is some dispute between the parties as to where [X] will attend high school and who will pay for his secondary education, the court has no concerns about their ability to support [X] into the future.
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
There is no suggestion that [X] should be separated from either parent for any great period of time.
His father wishes to maintain the current regime where [X] spends nine nights per fortnight with him and five nights per fortnight with his mother.
Ms Han’s proposal is either for equal shared care on a week about basis, or for [X] to live with her for eight nights per fortnight.
On either party’s proposal, [X] will have an ongoing and stable relationship with both parents.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
Ms Han lives in Suburb A, and Mr Kwok in Suburb B, approximately four kilometres away. Both have motor vehicles, and there does not appear to be any practical difficulty or particular expense involved in [X] moving between their households in order to maintain his relationship with both parents.
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
There is no suggestion that either parent lacks the capacity to provide for [X]’s material needs. Both are materially well off and [X] appears to want for nothing that is necessary for his welfare and development.
Similarly, both parents are well educated and capable of providing for [X]’s intellectual needs, a task to which they are both committed.
It is in the area of [X]’s emotional needs that the court has some concerns.
This child is under enormous pressure to perform well - scholastically, in sport, and in every endeavour he undertakes.
However, there is some evidence that Mr Kwok sees [X] not as an individuated person in his own right, with his own views, needs and interests, but as a kind of extension of himself.
Despite Mr Kwok’s successful business career, built and developed after a somewhat difficult childhood in the China of the 1950s and ‘60s, he appears to be so enmeshed with his son that he sees [X]’s achievements and failures as his own.
He presents as a somewhat intense man who might be described as “driven”, and he appears to have little time for the frivolities of life.
His need for [X] to call him each day when he is in his mother’s care speaks more of Mr Kwok’s need for reassurance than of [X]’s, and the fact that he provided [X] with a “secret” mobile phone so that he could do so sends emotional messages to [X] that his mother is not to be trusted with his welfare.
It is Ms Han’s evidence that [X] was considerably stressed by having to hide his mobile phone from his mother, and he expected her to react very badly when she discovered him using it, which she did not do.
It is in this context that the court has concerns that Mr Kwok might struggle to provide appropriately for [X]’s emotional needs, while also being mindful of [X]’s expressed wish to live with him.
He does not appear to be a man of great insight in that regard and presents as wanting to prove himself right and Ms Han wrong at every opportunity.
Ms Han does not appear to be so enmeshed with her son, although she is equally committed to providing him with the best education possible, and has perhaps placed unwanted pressure on him in relation to his homework and weekend school attendance.
She appears able to be relaxed and playful with [X], and from the observation of Dr D, it appears that [X] delights in and receives much benefit from that side of his relationship with his mother.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
As already stated, [X] is now twelve years old. He is by all accounts a bright, mostly happy child, but one who is clearly torn between his warring parents.
It is significant that at separation, when a child might be expected to be upset at the prospect of his parents separating, [X] expressed his relief that he would no long be subjected to his parents’ arguments.
As his parents share a cultural heritage, [X] is learning Chinese, with his father teaching him the written form and speaking to him in Chinese and his mother also speaking to him in Chinese. [X] cannot help but benefit greatly from that opportunity to learn the language of his cultural heritage.
Both parents appear to be mature functioning members of society, although their inability to agree on a long-term regime of care for [X] may indicate some immaturity and clash of personality.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This consideration is not relevant in this case.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
What is absolutely clear to the court is that both of these parents love this child very dearly. He is their only child, and while Mr Kwok has two adult children from a previous relationship, he has dedicated his life to [X]’s upbringing since 2007.
Ms Han has ensured through her consistent employment, as well as her care of [X], that she is committed to providing the best possible life for him.
Indeed, the only criticism one could have of these two parents’ attitude to their responsibilities as parents, is that each has an entrenched belief that the other is trying to take [X] away from him or her.
That has led the parties to a position where they are able to agree on very little, each taking a fixed stand, involving [X] in their disputes, and somewhat losing sight of the very reason they are parents – that is to ensure that their son is safe and secure, and that he is not burdened with adult problems until he is an adult himself.
If they are to provide that safety and security for [X] in the long term, they must stop involving him in their disputes, and accept that they have different styles of parenting which neither is prepared to change, and that [X] is flourishing academically in that situation.
(j) any family violence involving the child or a member of the child’s family;
In Ms Han’s initial affidavit, sworn and filed on 15 September 2014, she says the following:
17. I consider [Mr Kwok] to have been very emotionally abusive and controlling of me during our thirteen- year marriage.
18. From very early on in the marriage, [Mr Kwok] insisted that I comply with his requests, on the threat of divorce. […]
19. [Mr Kwok] could be very manipulative of me and like to toy with my feelings.[…]
20. My self-esteem was systematically eroded while I was married to [Mr Kwok]. He would swear at me and say harsh words to me without any thought of my feelings. After an argument, he would sometimes refuse to speak to me or look at me for days – or even weeks – on end. I found myself begging him to look at me and talk to me, and I would apologise for things I felt had not even done just so he would resume speaking to me. I sometimes felt I would rather die than continue to endure the emotional torture [Mr Kwok] meted out to me.
[…]
22. [Mr Kwok] ran a campaign of emotional manipulation designed to make me believe that I was unable to parent [X]. He would say words to me to the effect of “no woman is a good enough mother.[…]
23. [Mr Kwok] would constantly supervise and shadow me in my interactions with [X]. I had limited say in insignificant decisions in [X]’s life, including decisions about [X]’s schooling and extracurricular activities.
[…]
25. [Mr Kwok] at times had trouble controlling his temper. I have observed him to have palpable mood swings before and after smoking. He has on various occasions smashed household items, including speakers and a rubbish bin, during arguments with me. I was fearful for my safety and for [X]’s during these episodes.
26. Towards the end of the marriage when I had made it known that I wanted to leave the relationship, [Mr Kwok] would assert that I was not capable of looking after [X] if I was to leave the marriage. He stated that I would “lose” [X] if I went to see a lawyer to advise me on the separation. I recall that on or about on July 2013, [Mr Kwok] screamed at me “you can walk over my dead body if you want custody of [X]”. I was petrified and did not know whether or not to believe [Mr Kwok] that I would never get time with [X].
While agreeing that the parties were in a deteriorating state of conflict at the end of the marriage, a situation which has pertained even after separation, Mr Kwok specifically denies all of the allegations raised in Ms Han’s initial affidavit as set out above.
In his affidavit sworn and filed 13 November 2014 he says the following:
148. … I deny having trouble controlling my temper. I deny having had palpable mood swings. I admit that Ms Han and I had arguments and each of us said things to the other that I now regret. I deny that Ms Han was fearful for her safety and for [X]’s safety during those episodes.
It is of course perfectly possible for one party to an argument to believe in all honesty that they are simply asserting their view forcefully, while the other party’s experience of that behaviour is that he or she is being bullied and intimidated.
My notes taken during the trial show no mention of the issue of family violence being raised by either party in oral evidence, although much was made by Dr D of Mr Kwok’s assertive influence over [X] in the context of his having taken [X] to see Dr J and having provided him with a mobile phone about which his mother knew nothing.
I find, on the balance of probabilities, that there is insufficient evidence that either party perpetrated physical family violence in the relationship, although it is clear that there was conflict between the parties, especially in relation to [X]’s care post separation.
However, Ms Han’s evidence about Mr Kwok’s controlling and undermining behaviour has a ring of truth about it, especially when seen in the context of Mr Kwok’s intense demeanour and somewhat self-serving evidence at trial.
I infer from that evidence an almost obsessive need to control the lives of both Ms Han and [X] on the part of Mr Kwok.
The effect of such behaviour is insidious and while physical violence is more visible, the effect of controlling and undermining behaviour can be every bit as damaging and long-lasting.
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
Neither party appears to have sought a Family Violence Intervention Order against the other, either during or after the breakdown of the marriage.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
It is difficult to know whether the orders I propose to make will result in further proceedings, as these parents, and Mr Kwok in particular, appear to have fixed and entrenched beliefs about how to raise their son.
It is to be hoped that, having left the decision about where [X] will live to the court, they will accept the court’s decision and leave the legal system altogether as they raise [X] if not cooperatively, then in parallel.
(m) any other fact or circumstance that the court thinks is relevant.
There is no other fact or circumstance that the court believes is relevant to [X]’s best interests.
I now turn to s.65DAA of the Act, which states that if an order for equal shared parental responsibility for a child is to be made, the court must consider whether to make an order for equal shared time.
I note that equal shared time is the mother’s preferred order.
If equal time is not considered to be in a child’s best interests, then the court must consider whether to make an order for a child to live with one parent and spend “substantial and significant time”.
S. 65DAA(3) states that “substantial and significant time” means the following:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child's daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
Both parties told Dr D that they had had a goal of [X] spending equal time with each of them, although Mr Kwok’s proposal at trial was not in accordance with what he told Dr D.
The evidence before the court is that [X] enjoys, and indeed thrives in the current arrangement where he spends not more than five nights away from either parent at any given time during school terms. Therefore I find that any equal shared time regime would need to allow for that irregular time and not be a “week about” regime where he would spend one week with each parent in turn.
The current regime was put in place to allow for Ms Han’s working arrangements so that she spent more weekend time with [X] and Mr Kwok spent all of the week time. In circumstances where Mr Kwok does not work outside the home, that has worked well.
Ms Han currently works on four days per week. It is Mr Kwok’s evidence that he intends to find work when these proceedings are ended. He has previously worked in property development and it was his evidence that his hours were flexible and under his control.
[X]’s current care arrangements could be said to involve “substantial and significant time” with his mother and his father, although that time is certainly more skewed to provide week time with Mr Kwok and weekend time with Ms Han.
[X] has said that he would like more weekend time with his father, although Mr Kwok was clear that he did not “need” more weekend time with [X] and sought no more than a further two hours of weekend time with him. He did not seek to extend Ms Han’s time with [X] by that extra two hours.
More importantly, Dr D’s evidence was that [X] saw his father’s home as his primary place of residence. [X] also told Dr D that he feels closer to his father.
In circumstances where the parties do not communicate well, an equal shared care arrangement is unlikely to work, and especially one which involves week about care.
[X] will enter secondary school in 2017 and will need a clear and steady regime of care between his parents that meets his particular needs.
I therefore decline to make an order providing for equal shared care as I do not believe such a regime to be in [X]’s best interests.
However, I do find it in his best interests to spend more time with his mother than he spends at present, particularly time which will allow her to be more involved in his school activities, whether curricular or extra-curricular. I also find that it is in [X]’s best interests to spend more non-school time with his father. [X] has asked for more such time and I find that spending more recreational time with his father is likely to give [X] a more rounded life experience as he enters adolescence.
Based on all the evidence, and having considered the matters set out in ss. 60CC and 65DAA of the Act, I will make orders for [X] to live with his father for eight nights per fortnight, and with his mother for six.
I will structure that regime so that [X] spends both school days and non school days with each parent. That will allow him to spend both educational and recreational time with each.
There will, of course, be orders for the time [X] will spend with each parent at Christmas and Easter and on other special occasions, and I will allow for flexibility in those arrangements to take each parent’s commitments into account, noting that the parties have been able to make such arrangements on many occasions already, including arrangements for overseas travel with [X].
C. Which school will [X] attend for his secondary education?
As previously stated, Ms Han wishes for [X] to attend either School A (“School A”) or School B (“School B”), both of which are private schools.
Mr Kwok wants [X] to attend either School C or School D, both of which are public schools.
It is Ms Han’s evidence that the parties had agreed, and she had always understood, that [X] would attend a private school. She says that the parties discussed the matter and she had stated that she wanted [X] to attend a private school, while Mr Kwok had said he wanted him to attend a co-educational school. Ms Han pointed out in her oral evidence that both School A and School B are co-educational schools.
While she preferred School B, that school did not have a place for [X], and it was her evidence that School A is an associated school with School B. In those circumstances, she wished to leave the option of School B open in case a place became available.
It was her evidence that because [X] is a “compliant” child, she felt his needs would be better met in the “nurturing and safe environment” of a private school. Under cross-examination she said that her “logic” for that view was that [X] “follows crowds” and that private schools have “better crowds”.
Ms Han said that there had been an agreement between the parties that [X] would attend School A and that Mr Kwok had attended a meeting with the Vice-Principal of that school with a view to [X] being enrolled there.
She stated very clearly in her oral evidence that she would pay for all [X]’s school expenses, including fees, uniforms, books and other requisite equipment, school camps and excursions, sporting expenses and the like. She estimated that those expenses would be approximately $140,000 to $150,000 over [X]’s secondary education and it was her clear evidence that she was able to meet those expenses from her own funds.
Under cross-examination, Ms Han conceded that while Mr Kwok had expressed concerns about the cost of a private secondary education for [X], he had not actually said he would refuse to pay for it.
Mr Kwok tendered a letter which he had written to Ms Han in March 2015 which set out his objections to [X] attending School A and suggested that School E (where his older children had undergone their secondary education) or School D might be options for [X].
Mr Kwok’s letter says that if the parties were living in the United States he would definitely prefer [X] to attend a private school as such schools were “dramatically different” to public schools in the US, but in Australia there was not “the same gap”, with both systems teaching the same curriculum. It was his view that “top public secondary schools compete well with private schools in academic importance”, and that “we have such public secondary schools in (omitted)”.
Mr Kwok’s letter ends by stating: “Having considered the above, I decline signing the School A enrolment form”.
Mr Kwok’s evidence was that while he had attended the initial meeting with the Vice-Principal he had not signed the ultimate enrolment form for School A because he was not convinced that [X] would receive a better education there than he would at one of the two secondary colleges in (omitted).
Under cross-examination at trial, he conceded that the parties had always intended that [X] would attend a private school during the marriage. He then said that he was not “absolutely opposed to private schooling” but that he was concerned that there is no difference between the public and private schools suggested by each party. He said that if the choice were between School F or School G and public schools he would agree to [X] attending a private school.
Mr Kwok confirmed under cross-examination that financial issues in relation to [X]’s secondary education were “no longer a concern”.
He denied the suggestion that his primary concern was that the extra-curricular activities at a private school would interfere with [X]’s homework and (omitted) training obligations. He otherwise conceded that the extra-curricular activities offered by private schools would assist [X] in developing peer relationships.
Both parents clearly want the best education possible for their son.
It is not for this court to say whether a private education is superior to that found in public schools and my decision should not be construed in that light.
However, if, as Mr Kwok says, there is no difference between the facilities offered by the public and private schools suggested by each party, and Ms Han is prepared to pay for all [X]’s expenses at a private school, then I see no reason why [X] should not attend such a school, and I will make orders accordingly.
That is, I will make orders that [X] attend a private school of Ms Han’s choosing for his secondary education and she will pay for that schooling in its entirety should Mr Kwok choose not to contribute to those expenses. Of course, Mr Kwok is at liberty to so contribute should he wish to do so.
Property matters
A. What are the property interests of the parties and what is their value?
The parties’ property consists of real property in Australia and several bank account and other financial assets in both Australia and the United States of America.
There is little disagreement about the composition and value of the property pool and it can be set out as follows:
Assets
Owner
Value
Property B
Husband
$980,000
Property C
Wife
$780,000
Sale proceeds of Property A (held in trust)
Joint
$281,045
Cash (part property distribution)
Wife
$396,026
Cash at bank (omitted)
Wife
$54,839
Cash at bank (omitted)#1
Husband
$375,303
Cash at bank (omitted)#2
Husband
$3,717
2007 (vehicle omitted)
Husband
$6,000
2003 (vehicle omitted)
Wife
$14,000
(omitted) Mutual Fund
Joint
$19,327
(omitted) Credit Union term deposit
Joint
$20,032
(omitted) Fund
Husband
$8,430
(omitted) stock
$9,896[3]
(omitted) Employee Stock Plan
Husband
$28,774
TOTAL Assets
$2,977,389
Liabilities
Owner
Value
Mortgage Property B
Husband
$300,400
Mortgage
Property C
Wife
$479,281
Credit Cards
Husband
$1,120
Credit Cards
Wife
$1,748
TOTAL Liabilities
$782,549
Total net non-superannuation assets
$2,194,840
Superannuation
(omitted) Employer Super
Husband
$19,898
(omitted) Employer Super
Husband
$3,713
(omitted) Super
Husband
$45,471
(omitted) Stock Investment Plan
Husband
$37,781
(omitted superannuation)
Wife
$93,000
Total Superannuation
$199,863
Total nett property
$2,395,703
[3] I note that the value of this item is agreed, but that Mr Kwok claims it is a superannuation entitlement while Ms Han says it is a cash resource. I do not think anything significant hangs on that dispute as however it is characterised, Mr Kwok will retain it.
Therefore, the nett value of the non-superannuation assets can be said to be $2,195,840 ($2,977,389 minus $782,549) and the value of the total nett property, including the parties’ superannuation entitlements, is $2,394,703 ($2,977,389 plus $199,863, minus $782,549).
$320,404 of those assets, comprised of the sale proceeds of the property at Property A, the funds in the (omitted) Mutual Fund, and the (omitted) Credit Union term deposit, are said to be joint assets and are currently held in trust for the parties, either literally or effectively.
I note that the wife has already received the sum of $396,026 as a partial property settlement during these proceedings.
B. Is it just and equitable to alter those interests?
This question arises by the operation of s79(2) of the Act, which states:
The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
In Stanford v Stanford[4] (“Stanford”), the High Court of Australia said the following at paragraph 42:
In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and the wife.[5]
[4] Stanford v Stanford (2012) 293 ALR 70
[5] Stanford v Stanford (2012) 293 ALR 70 paragraph 42
In Bevan & Bevan[6] the Full Court said that the circumstances described in that passage of the Stanford judgment “encapsulate the vast majority of cases”[7] .
[6] Bevan & Bevan [2013]FAMCAFC 116
[7] Bevan & Bevan [2013]FAMCAFC 116 paragraph 70
In this case, apart from the fact that the parties have property in two countries, which is not nowadays an uncommon occurrence in cases before this court, there is nothing to distinguish the matter from “the vast majority of cases” and therefore I find that it is just and equitable in all the circumstances to consider altering the current interests of the parties in their property.
C. If it is just and equitable, what were the parties’ contributions to the property?
Section 79(4) of the Act states:
(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d) the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e) the matters referred to in subsection 75(2) so far as they are relevant; and
(f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g) 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.
That is, I must now calculate what the parties’ financial and non-financial contributions have been to their property.
It is the husband’s evidence that at the commencement of the parties’ relationship in 1999 he had assets and financial resources worth $455,499. Those assets and resources are set out in a table in his trial affidavit sworn 6 and filed 7 October 2015 at paragraph 278. He states in that affidavit that he has provided the schedule to the wife together “with bank statements and other supporting documents”.
However, he provided no bank statements to support his assertions about monies held in Australian bank accounts at that time, saying at trial that they were “missing from the pile”.
Nevertheless was the submission of counsel for the wife at the commencement of trial that the wife accepts that Mr Kwok contributed about $310,000 more than she to the parties’ assets at the commencement of the marriage, those funds being used to buy various properties over the next few years.
It is common ground that at the commencement of cohabitation Ms Han had about $22,00AUD in a US account.
A matter of weeks after the parties arrived in Australia about a month after their wedding in mid-2000, they purchased the property at Property C (“the Property C property”) for $235,000. They paid a ten percent deposit, stamp duty and bank fees from Mr Kwok’s funds and obtained a mortgage for the remainder of the purchase price.
They also paid for transitional costs and setting up costs in relation to their move to Australia and into the Property C property, which served as the family home for their first few years in Melbourne.
Between 2001 and 2006 the parties bought and sold several properties, making a profit on all but one sale.
During that time, both parties were employed by third parties.
In March 2005 the parties engaged builders to construct three townhouses at the Property C property, the builder retaining Unit 2, and the parties selling Unit 3 in 2008.
In mid-2006, the parties purchased the properties at Property B and Property A, moving into Property B in early 2007.
Between 2007 and 2014 the husband, predominantly on his own but using qualified tradesmen where appropriate, performed major renovation works on the two properties at Property B and Property C.
He did not work outside the parties’ properties from early 2007, while the wife was employed as an accountant.
When the parties separated finally in December 2013 the wife moved into the remaining townhouse at Property C while the husband and [X] remained at Property B.
The property at Property A was sold in February 2014 with settlement of that sale taking place on 20 May 2014. The net proceeds of sale of that property were placed in trust with the wife’s solicitors.
The wife received $396,026 of those funds as a partial property settlement pursuant to orders made by consent in these proceedings on 17 November 2014.
So, during the relationship and marriage, the parties were either working outside the marriage and earning income which they used for their ordinary living expenses, or renovating/investing in property for sale, or taking care of [X].
That is, both were using their best endeavours to support the family and/or acquire, conserve and improve their property.
Mr Kwok believes that in addition to his superior initial financial contributions, he made superior contributions to the property through his non-financial contributions in the form of labour in developing the properties at Property B and Property A.
However, as he would have been unable to do so had Ms Han not been employed outside the marriage, I do not consider his contribution in renovating the property to have been superior to that of Ms Han in earning an income so as to maintain the family during that period.
It is the wife’s evidence, unchallenged by the husband, that she received redundancy payments in 2006 and 2012 which were contributed to the parties’ mortgage loans.
I note here that parties’ contributions to the property of a mid-length marriage can never be returned to them dollar for dollar at the end of the marriage.
In Polonius & York[8], the Full Court said:
It is also well established that it is not a mathematical exercise. In Garrett and Garrett (1984) FLC 91-539 the Full Court (Evatt CJ, Lindenmayer and Strauss JJ) observed at 79,372 that the terms of s79(4)(a) of the Act suggest that “a broad estimate of the financial contribution of each party must be made” and that when dealing with non-financial contributions under s79(4)(b) the “must of necessity be a matter of judgment and not of computation”.[9]
[8] Polonius & York [2010] FamCAFC 228
[9] Polonius & York [2010] FamCAFC 228 paragraph 107
In Singerson & Joans[10], the Court said:
Section 79(4) of the Act is clear. There is nothing to suggest that any category of contributions needs to be quarantined and applied solely to particular assets. The court is mandated to look at the totality of what the parties have contributed in a financial and non-financial sense, including contributions to the welfare of the family and to the acquisition, conservation and improvement of assets. The court is required to evaluate the significance of all the various contributions to the property, notwithstanding there may be different categories of that property.[11]
[10] Singerson & Joans [2014] FamCAFC 238
[11] Singerson & Joans [2014] FamCAFC 238 paragraph 66
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.
In this case, the husband is aged 60 and the wife 43. The wife earns a salary of about $97,000 per year and the husband apparently derives an income from his investments. There is no evidence that either suffers any particular health problems that would affect their ability to work should they wish to do so.
Nevertheless, the husband has fewer potential working years left to him because he is older than the wife and I do take that into account.
Both parties own real property, albeit both subject to a mortgage, and both will be able to provide [X] with a standard of living to which he is accustomed.
While the parenting orders I will make mean that [X] will spend slightly more than half his time in his father’s care, those orders will also provide for his mother to be responsible for paying all his private school fees and expenses for the duration of his secondary education, which means that [X]’s major costs throughout his adolescence will be shared between the parties, and it is likely that it will be Ms Han who has the greater burden in that regard, especially if she continues to pay periodic child support for [X].
In all of those circumstances, I find that it is appropriate for there to be an adjustment of 2.5 per cent in favour of the husband because of his likely shorter working life.
That is, on top of his contribution-based percentage of 55 per cent, the husband should retain or receive a further 2.5 per cent of the parties’ property.
That results in a final division of the parties’ property of 57.5 per cent to the husband and 42.5 per cent to the wife.
E. In light of the above findings, what orders should be made to effect a just and equitable division of property between the parties?
Having decided that the parties’ property should be divided such that the husband retains 57.5 per cent of their assets and superannuation entitlements overall and the wife 42.5 per cent, I must now decide on specific orders which would arrive at a just and equitable settlement in real terms.
In this case, where each of the parties currently owns a real property and a motor vehicle, and the remainder of their property is in the form of either superannuation entitlements or cash, it is a fairly straightforward process to determine the orders which will result in an overall 57.5/42.5 percent settlement.
The entire property “pool” is worth $2,394,703. 57.5 per cent of that “pool” is $1,376,954.23 and 42.5 per cent is $1,017,748.77.
That is, the husband should retain property and entitlements worth $1,376,954.23 overall and the wife should retain property and entitlements worth $1,017,748.77 overall.
Currently, the husband owns nett assets and superannuation entitlements worth $1,217,463 and the wife $1,337,865.
The current joint property is worth $320,404, made up of the monies held in trust, the (omitted) Credit Union monies and the (omitted) monies.
In order to effect a 57.5/42.5 settlement in favour of the husband, such that the husband retains property and entitlements to the value of $1,376.954.23, an amount of $159,491.23 should be added to the value of the property he currently owns.
Ms Han should have the amount of $160,912.77 added to her property’s worth.
That is, on top of his current ownership of property, Mr Kwok should be paid the sum of $159,491.23 from the joint monies and Ms Han should receive the sum of $160,912.77.
I will therefore make orders that each party shall retain the property currently in their possession, that the husband will retain the (omitted) Credit Union and (omitted) monies ($39,359), and that the monies held in trust will be divided so that the husband receives $120,132.23 and the wife $160,912.77, with any further monies resulting from interest payments being divided 57.5 per cent to the husband and 42.5 per cent to the wife.
Conclusion
The result of these proceedings is that [X] will live with each parent for roughly half the time and that both parties will be able to plan their futures with some financial certainty.
It is to be hoped that both parties will now be able to live their lives parenting [X] in parallel instead of fighting over the amount of time he is to spend with each of them.
I certify that the preceding two hundred and thirty-nine (239) paragraphs are a true copy of the reasons for judgment of Judge Small
Date: 17 June 2016
Key Legal Topics
Areas of Law
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Family Law
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Property Law
Legal Concepts
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Injunction
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Remedies
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Costs
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