Hopman & Shu

FAMILY COURT OF AUSTRALIA

HOPMAN & SHU

[2007] FamCA 600

FAMILY LAW – PARENTING – Best Interests of a Child – Proposals involved the child continuing to live in North Queensland with his father who had been his primary caregiver or living with his mother in Melbourne – Significant distance and parties’ relative impecuniosity precludes considerations of equal or substantial and significant time with the other party – Ex-parte orders obtained for the child to live with the father due to the mother’s absence from the country – Reasons for the absence disputed – Father alleged that mother had abandoned the child to the father and returned to China – Found that the father had thwarted the mother’s attempts to gain a visa after persuading her to leave Australia – Father’s concerns that mother will remove child from Australia to China not made out – Family violence – Insufficient evidence provided by either the mother or the father to enable findings to be made – Child to live with the mother

FAMILY LAW - PROPERTY - PROPERTY DIVISION – Very little evidence put before the Court – Mother’s contribution was about 14-18 per cent – Adjustment of six percent for long-term care of a child

FAMILY LAW - CHILD SUPPORT – APPLICATION FOR DEPARTURE – Insufficient evidence – Application adjourned to another date to be fixed

Family Law Act 1975

Briginshaw v Briginshaw (1936) 68 CLR 333
Townsend v Townsend (1995) FLC ¶92-569

Chorn v Hopkins (2004) FLC ¶93-204

APPLICANT:

MR HOPMAN

RESPONDENT:

MS SHU

FILE NUMBER:

TVF 192 of 2005

DATE DELIVERED:

18 May 2007

PLACE DELIVERED:

Cairns

JUDGMENT OF:

Faulks DCJ

HEARING DATE:

14-18 May 2007

REPRESENTATION

THE APPLICANT FATHER:

In person

COUNSEL FOR THE RESPONDENT:

Ms Demack

SOLICITOR FOR THE RESPONDENT:

Ms Cuthbertson

INDEPENDENT CHILDREN’S LAWYER COUNSEL:

Mr Fellows

INDEPENDENT CHILDREN’S LAWYER SOLICITOR:

Ms Gray

Orders

(As amended under the slip rule on 23 May 2007)

These orders relate to T (who is also known as “[I]”) who was born on … November 2000 (“[T]”).
The parents will not have equal shared parental responsibility for T.
T will live primarily with his mother but will spend time with his father as hereafter set out.
T’s mother will have responsibility for all day-to-day decisions about T when he is living with her and T’s father will have responsibility for day-to-day decisions about T’s care and welfare when T is spending time with him in accordance with these orders.
(a) Long term decisions about T’s care, welfare and development will be made by T’s mother but she will, wherever possible, consult with T’s father prior to making any such decision.
(b)In particular, but without limiting in any way the last order, if T requires medical treatment (other than a ordinary consultation with a doctor) T’s mother will give immediate notice of the requirement to T’s father and will keep him informed about the progress and development of any medical treatment. In this context “medical” includes dental and other forms of therapy such as physiotherapy.
(c)If T requires medical treatment when he is in either parent’s care and the nature of the care and the need for it is such that it is impossible to consult the other parent before that care is given to T than the parent in whose care he then is will arrange for such care but will advise the other parent as soon as practicable after the treatment is administered and consult with the other parent about future care.
This is not a matter in which T should spend equal time with each of his parents and this is not a matter in which he should spend substantial and significant time in accordance with the terms of the Family Law Act1975 with his father.
T will spend the following time with his father, unless the parties otherwise agree, and these orders should not be taken in any way to limit any additional time that the parents of T may agree that T will spend with his father:
(a)For the whole of the Victorian second term school holidays in 2007;
(b)For the period from 19 December 2007 until the Wednesday proceeding the recommencement of school in the following year; and
(c)For the whole of the first term Victorian gazetted school holidays.
(a) The pattern above will continue on the basis that the Christmas school holidays will be spent with his father from 19 December until the Wednesday before the recommencement of school in every second year and in the alternate year for the last three weeks of the Christmas school holidays ending on the Wednesday before the recommencement of school.
(b)T will spend the whole of the first term school holidays in each year with his father and will alternate between spending the holidays at the end of the second term and the third term with his father in each year. In 2008 T will spend the third term school holidays with his father and the shorter period of Christmas holidays (January 2009)
(c)Each school holiday period (unless the parties otherwise agree) will commence for the purposes of these orders on the first day after the last day on which T is obliged to attend school and will end on the Friday before school is due to commence in the next term (subject to the longer school holidays referred to above for which the period T will spend with his father ceases on the Wednesday before the recommencement of school).
(a) T mother will pay for T’s travel to North Queensland for the first period T will spend with his father (the June/July or second term school holidays).
(b)T’s father will be responsible for the cost associated with T’s or his travel to spend time with each other except for one visit in each year when the mother will pay for T to travel to North Queensland. That visit will be for the end of first term school holidays, unless the parties otherwise agree.
(a) The time that T spends with his father will occur at the father’s option either in North Queensland or in Melbourne, but if the time that the father spends with T is to occur somewhere substantially other than at the father’s ordinary place of residence then the father will advise the mother of where he and T will be for most of the time that they are together not later than one month in advance of the proposed period when they are together and provide a contact phone number.
(b)In addition, if the father is not proposing that T would spend the holiday period with him in North Queensland he will give the mother not less than one month’s written notice thereof.
(a) T may telephone his father at any reasonable time and T’s father may telephone him on every Tuesday and Saturday between the hours of 6:30pm and 7:30pm, unless the parents otherwise agree.
(b)Nothing herein prevents the parents from agreeing to the father’s having other telephone contact initiated by him however, such calls to T shall not exceed (except in the case of emergencies) one call per day and will be made at reasonable times.
(c)When T is with his father T’s mother may ring him twice a week on Tuesdays and Saturdays between the hours of 6:30pm and 7:30pm, or at such other additional times as the parents may agree.
(d)If T is with his father T may ring his mother at any reasonable time.
(e)In every case the parents will respect T’s privacy and leave him alone during the telephone call.
(f)Neither parent will question T about the other parent during the course of telephone conversations except in the ordinary course of T’s reporting on his day-to-day activities.
(g)Each of the parents will do everything in his or her power to encourage T to have and continue telephone contact with the other parent.
(h)If the father is able to set up and establish appropriate telecommunications links then in substitution for telephone calls he may communicate with T via e-mail or via webcam. Unless the parents otherwise agree any video link connexions will be in substitution for the telephone calls referred to above and not in addition thereto.
(a) The father may and should send to T materials relevant to his understanding and development of knowledge of the African culture.
(b)The mother will accept such material from the father and encourage T to read and use such materials and wherever possible promote with T an interest in his father’s cultural heritage.
The father may send letters, presents and photographs to T but such letters, photographs and presents will be appropriate for T’s age and will not attempt to involve him in further matters of litigation or in reporting on his mother’s or Mr G’s activities.
In accordance with the agreement of both parents and of Mr D, as trustee for an education fund for T, may make available at his discretion to T’s mother funds from time to time to assist T in his education from money held by him in trust.
Pursuant to section 65DA(2) and section 62B, the particulars of the obligations these orders create and of the consequences that may follow if a person contravenes these orders, and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached and these particulars are included in these orders.

AIRPORT WATCH LIST

Until further order both parents, and their servants and agents be and are restrained from taking or sending or attempting to take or send the T from Australia.
The Court requests that until further order the Australian Federal Police place T’s name on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of him from Australia in breach of these orders.
Both parents will continue to leave deposited with the Court all of their passports (and any of T’s passports) and such passports may only be released by further order of this Court.

IT IS NOTED THAT:

These orders (16, 17 and 18) will continue in operation until discharge by further order of this Court. The agreement of the parents that the order should be discharged even if in writing will have no effect until such time as a further order of this Court is made.

IT IS FURTHER ORDERED THAT:

Each of the parents be and is hereby restrained from saying unpleasant or unkind things about the other parent or the other parent’s family in the presence of T or from causing or permitting any other person to do so in T’s presence.

POST ORDER ARRANGEMENTS

(a) I hereby authorise and direct a Family Consultant attached to the Family Court at either the Dandenong Registry or the Melbourne Registry of the Family Court to make contact with the mother, Mr G and T as soon as practicable after these orders are made and to explain to the mother, Mr G, and so far as it is reasonable to do so to T, the effect of the orders and to discuss with them the practical consequences thereof.
(b)In addition the Family Consultant will again have a meeting or conference with the mother, Mr G and T approximately six months from this date to again discuss with them how the orders are working, how the arrangements about the time that T will spend with his father are working and how the communication between T and his father has been occurring.
(c)The Family Consultant involved is not required to report to the Court about either of the meetings referred to but what is said at the meetings is reportable in any subsequent proceedings before this Court if there should be any.
(d)A Family Consultant attached to the Cairns Registry of this Court will meet so soon as is practicable after the making of these orders with the father and will discuss the terms of the orders with him and the arrangements set out therein to enable him to maintain a relationship with T.
(e)Each of the Family Consultants referred to above will provide advice to the parents of T about professional assistance they may obtain and where they may obtain it to assist them with the development and continuation of the relationship between T and each of his parents and to assist T to settle comfortably into his new environment and to adjust to the arrangements put in place by these orders.

PROPERTY ORDERS

The husband will pay to the wife on or before noon on 17 August 2007 (unless the parties otherwise agree) the sum of $78,500.
Otherwise each of the parties will retain as his or her property both at law and in equity against the other parent any other property in his or her possession or control.
If the husband should fail to pay the sum of $78,500 to the wife as aforesaid on or before the time stipulated in order 22 hereof then the said sum shall bear interest at the rate prescribed under the Family Court Rules from the date of this order (but no interest will be payable if it is paid by the due date).
(a) If the husband should fail to pay the wife the said sum within the time stipulated the husband shall do such things as may be necessary to effect the sale of the property known as W, Queensland and in relation thereto shall nominate a real estate agent in relation to the sale and communicate such nomination to the wife on or before noon on Thursday 23 August 2007. He will also nominate a listing price for the sale of the property and communicate that also to the wife.
(b)If the wife agrees with the nomination of the agent and with the listing price the property will be listed by that agent at the agreed listing price as soon as practicable thereafter and each of the parties (and in particular the husband) will do such things as may be necessary to cause this to happen.
(c)If the mother does not agree with the agent nominated then the parties will accept the nomination of an agent by the nominee of the President for the time-being of the Real Estate Institute of Queensland.
(d)If the wife does not accept the listing price nominated by the husband the listing price will be determined by the listing agent.
(e)Thereafter the husband will cooperate with the agent in terms of presenting the property for sale and will make it available for inspection at reasonable times and will do and sign such documents as may be necessary to facilitate the sale.
(f)If an offer to purchase the property is received which is less than the listing price then the parties will confer about whether the price should be accepted or not. If they are unable to agree they will accept the determination for the time being of a valuer nominated by or on behalf of the President of the Real Estate Institute of Queensland that the offered price is a reasonable market price for the property at W
(g)Upon completion of the sale the husband will cause the proceeds of sale to be paid into the trust account of the Cairns office of Legal Aid Queensland. That office is authorised and directed to pay from the proceeds of sale the sum of $78,500 to the wife together with any interest accruing thereon in accordance with these orders and then to pay to Mr D as trustee for the T Education Trust the sum of $7,000 and then to pay the costs and expenses in relation to the sale and then to disburse the balance to the husband.
The Independent Children’s Lawyer is hereby discharged.
The property and the child matter is otherwise removed from the pending cases inventory.
All material produced subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable.
Any material produced subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it. Any material produced by a party which became the subject of an exhibit will be returned by the Court to the party at the expiration of the appeal period, with the exception of the husband’s passport.

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Deputy Chief Justice Faulks delivered this day will for all publication and reporting purposes be referred to as Hopman v Shu.

FAMILY COURT OF AUSTRALIA AT

FILE NUMBER: TVF 192 of 2005

MR HOPMAN

Applicant

And

MS SHU

Respondent

REASONS FOR JUDGMENT

Background

The proceedings before the Court today related to where T, who was born on … December 2000, should live and what time he should spend with the parent with whom he is not living. The proceedings also before the Court related to how the property of the parties should be divided between them.
I indicate formally that as the proceedings concluded (and, in fact, the end of the submissions from each of the parties) the husband, who represented himself, drew my attention to an Amended Reply, filed in this Court on 26 February 2007, which sought (almost certainly inappropriately) a departure from a child support assessment for a period between 1 July 2004 until 31 December 2006.
Counsel for the Independent Children’s Lawyer provided some advice, as a friend of the Court, to the father during the adjournment prior to my delivering judgment and it appears that there is no assessment for at least most of that period and, indeed, it is likely that during most of that period the mother was overseas, which raises its own set of problems so far as jurisdiction of the Child Support Assessment Act1989 is concerned and also the jurisdiction of this Court properly to deal with the matter under that Act or, indeed, as a child maintenance matter under the Family Law Act 1975 (the “Act”).
In any event, the husband, at my questioning, has asked that I simply adjourn the matter to another date. That means, unfortunately, for the parties that they will have to come back at some point to have that disposed of. It does seem, unfortunately, for the husband in this context, that the application is not correctly framed and is almost certain to be dismissed. However that will be a matter for another day.
The final order in relation to T was obtained ex parte by the husband on 20 June 2005. That resulted from an Application for Final Orders that had been filed on 6 June 2005. The only formal order made after that point [in relation to T] was an application made by the father in the Federal Magistrates Court on 9 August 2006 in which he sought orders that the child, T, be permitted to leave the Commonwealth of Australia notwithstanding that the consent of the mother had not been obtained.
This was, in essence, a suggestion by the father that the he wanted to visit an elderly and sick relative in the African country from where the father came. A Reply, filed by the father on 8 February 2007, dealt principally with property matters and as we have recently discovered a subsequent Amended Reply dealt with matters of child support.
However, the mother filed a Response on 4 December 2006 and she sought orders that T live with her and that he spend time with his father as recommended by the family consultant. The material before the Court was substantially confusing. In many instances it contained material which was inadmissible and, in some cases, material which was incomprehensible. I was assisted by the father, who conducted his own proceedings, and did so with good grace and patience over nearly four and a half days of hearing; Ms Demack, who represented the mother and who presented the evidence fairly and properly before me; and Mr Fellows who literally sat between the father’s and the mother’s lawyers and provided invaluable service to the father as well as to the Court.
In essence, although there were details suggested by each of the parties about the form of the orders, about where and how T would spend time with each parent, this was a dispute about where T would primarily live.
The applicant was born in an African country. The mother was born in China. The parties, in fact, met and married in China in December 1999 and lived there for a time. T was born in China on … November 2000. He currently attends school in North Queensland. The parties came to live in Australia in April 2002 and lived together in North Queensland. In circumstances to which I will return in a moment, the child has been living with the father since 19 June 2004. This occurred principally because the mother returned to China. But the circumstances in which she returned to China were the subject of significant contest between the parties.

The orders were obtained by the father ex parte as previously mentioned on 20 June 2005 provided that T would live with his father and that the mother might have telephone and supervised contact with him. An order was also made at the time that there be PACE or alert order put in place prohibiting the removal of T from Australia. The circumstances in which that order was obtained are also contested.
The mother first returned to Australia for a brief period in March 2006 and then returned to Australia in August 2006 and since that time has lived in Melbourne with her second husband, Mr G. He was a witness in these proceedings. The father asserts, among other things, that this was not a permanent plan on her part but part of a broader plot (which he did not resile from even in final addresses) to kidnap T and return with him to China. The father, among other things, asserted that the mother was a spy for the People’s Republic of China, and that she had relatives in the Embassy in Canberra, and that she is a multi-millionaire with assets and money in China.
In October 2006 an order was made for the mother to have supervised time with T, and in December 2006, following the first Family Report, interim orders were made by Monteith J which, in effect, permitted T to spend five weeks time over Christmas in Melbourne with the mother on an unsupervised basis. Since that time the mother has also spent time with T in North Queensland on two occasions and T had time with his mother in Melbourne at Easter.
As was helpfully pointed out by Mr Fellows on behalf of the Independent Children’s Lawyer, this case has raised a number a significant issues, the resolution of which must occur before I can properly turn to the rest of the matters that I am obliged to take into account.
However, it is important that I should review the relevant legislative provisions under the Act dealing with children cases. I do this for two reasons: one, because some of those matters are things that the parties themselves should realise and understand as being important for T’s future. Another is to ensure that I will deal with and be seen to have dealt with all of the matters I am obliged to deal with under the now (quite prescriptive) provisions of the Act.

Legislative Background

The Act contains, as seems to be the modern habit with legislation, a section, which sets out the objects of the Act and the principles upon which it is to operate. I will repeat the Objects for the benefit of the parties; the lawyers will be very familiar with them.
Section 60B – Objects of Part and Principles Underlying It
(1) The objects of this Part are to ensure that the best interests of the 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, neglect or family violence; and
(c)ensuring that the 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.
(2) The principles underlying these objects are that (except when it is or would be contrary to the child’s best interests):
(a)children have a 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).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a)to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii)to develop a positive appreciation of that culture.
Section 60CA of the Act provides that in deciding whether to make a particular parenting order in relation to a child a Court must regard the best interests of the child as the paramount consideration. I pause to comment that in proceedings about children whether or not a parent feels his or her rights are being infringed, ultimately, my determination must be made on what is best for the child or children; not what might be even fair for the parents or what a parent may feel is his or her right as a parent.
In determining what is in the child’s best interests s 60CC provides that (other than in considering whether to make an order by consent) the Court must consider the following matters in determining what is in the child’s best interests.
60CC(2) Primary considerations
(1) 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.
The Act then prescribes a sequence of additional considerations to be taken into account, which I will deal with more particularly in due course. However, as my attention was drawn to the matter in her address by Ms Demack, I comment about s 60CC(4) which prescribes that the Court must consider the extent to which each of the child’s parents has fulfilled or failed to fulfil his or her responsibility as a parent, and in particular, the extent to which each of the child’s parents:
(a) 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; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long-term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
Finally, s 60CC(4A) provides:
If the child’s parents have separated, the court must, in applying subsection (4), have regard in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
The system under which the Act operates requires that I should first consider a presumption, which the Act imposes under s 61DA. This section reads:
(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.
The Act then provides in s 61DA(2) that,
The presumption does not apply if there are reasonable grounds to believe the parent of the child (or a person who lives with the parent of that child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
Then there are provisions about interim orders and s 61DA(4) provides:
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.
I pause to say that the existence of presumption does not mean that the Court must necessarily operate from that position. Clearly, the Court may conclude, in the best interests of the child in any event, either that shared parental responsibility is appropriate, or alternatively, that it is not. However, the starting position would seem to be that presumption.
The effect of that section is that it triggers the application of s 65DAA, which states that,
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide or including a provision in the order that the child is to spend equal time with each of the parents.
If notwithstanding that the Court feels that it is not in the best interests of the child to spend equal time with each of the parents, but nevertheless, the presumption applies, then the Court must consider whether it would be appropriate for the child to spend substantial and significant time with a parent, and whether that substantial and significant time is reasonably practicable, and if it is, consider making an order to provide for the child to spend substantial and significant time with the parent.
The definition of “substantial and significant”, which is contained in the Act in s 60CA(5), is distinctly unhelpful. It provides a reference to those things, which the outside observer might reasonably contemplate as being “significant time”. It makes the suggestion that significant and substantial time would include that the child spends time with the parent including both (and I am paraphrasing, not quoting) weekends and holidays and days that are not weekends and holidays, time that would allow the child to spend part of his or her daily routine with a parent, occasions and events which are of particular significance and time for the child to spend with days that the parent considers to be particularly significant.
The point of that, of course, is that those are significant things, but not necessarily “substantial” things, and no guidance is provided as to what is to constitute substantial time. The Act also contains a definition of what constitutes “reasonable practicality” in s 65DAA(5).
I will indicate at this point in this matter, as I did during the course of addresses, that it seems patently clear to me that this is not a matter in which equal shared parental responsibility is appropriate. The parties by any measure have difficulty in communicating. In some cases they do not even share a common language although they lived together for some time.
The extent to which the mother is capable properly of conversing in English is not clear to me although it seems to me it is probably better than her attendance in Court would suggest. That is not a criticism of her but rather an indication of how stressful and difficult sometimes Court proceedings are and I do not intend in any way to suggest that she has not been participating as well as she properly could in the Court proceedings.
The parties will live for the foreseeable future, so I was informed at the beginning of proceedings, at opposite ends of Australia. The mother will continue to live in Melbourne; and the father will continue to live in North Queensland where he has lived principally since he moved to Australia from the African country.
The parties have a number of issues between them, which I will go through in a moment which have really meant that there is little trust, little understanding, little support and little co-operation. To suggest that they would regularly and equally share decisions about the matters of parental responsibility for T is illusory.
The conclusion I reach does not mean that I need not necessarily consider whether or not the T should spend equal time or substantial and significant time each of his parents. The rebuttal of the presumption does not in itself preclude determinations of those matters. To avoid any suggestion that I might have not considered or that I might have overlooked these matters I indicate: first, it is not physically possible for T to spend equal parenting time with each of his parents given their geographical separation; even if it were possible, in my opinion, it would be inappropriate in this matter for the reasons I have set out above, and because of the circumstances in which the parties have lived and will live.
The geographical distance between the parties precludes there being (in any meaningful sense) substantial and significant time for T to spend with the parent with whom he is not living. That does not mean that he should not spend significant time with that parent nor does it not mean he should not spend as substantial a time as is possible. Perhaps, the Act intentionally omitted reference to temporal elements in defining “significant and substantial” thereby recognising that what is significant and what is substantial may vary from matter to matter and, indeed, be affected significantly by the geography of the parents’ homes.
The primary matters I am obliged to take into account in determining what is in T’s best interests under s 60CC relate to the benefit to him of having a meaningful relationship with both his parents. There is no doubt, in my opinion, and, in fact, no party in these proceedings has suggested other than that T should have a meaningful relationship with both of his parents.
The nearest that any of the participants has come to suggesting to the contrary is the father who has, in effect, suggested that if T were to spend substantial unsupervised time with his mother there is a real prospect that he would be removed from Australia and that would, in turn, preclude him from having any relationship with T. Leaving that to one side, I do not interpret the father’s proposals broadly as inconsistent with T having a meaningful relationship with his mother.
There is also the question somewhat more moot in these proceedings about the need to protect T from physical or psychological harm or from being exposed to abuse, neglect, or family violence. There is no time element associated with “family violence” as such, but logically it must mean violence in the future.
I turn to the significant background issues as identified by the Independent Children’s Lawyer’s counsel, and adopted by Ms Demack as her submissions for the course of these proceedings.

Serious Matters for Determination

There were three very serious matters between the parties which require some resolution. The first was in 2004 the mother returned to China. She says this was because the father had persuaded her that she must leave Australia for the purposes of renewing her visa; that this could only happen in those circumstances; and that she could not take T with her when she went. The father’s evidence was that the mother left voluntarily and, in effect, abandoned T to him for the purposes of her trip away.
If the mother’s version of these events is to be believed, the father engaged in an almost the total antithesis of his obligations under the Act. It means that he has deliberately set out to preclude the mother from having any meaningful involvement in T’s life. He has set out, if the mother’s evidence is to be believed, to prevent her from possibly returning to Australia and may have intended thereby to preclude her ever from having any real relationship with T.
In addition, the consequences of her being removed from Australia, if this version of the facts is to be accepted by me, would mean that she had been precluded from spending time with T over this period – a crucial period in his development and which may have had a serious effect upon his development. I do not say that in any professional sense.
On the other hand, if the father’s version of the events is to be believed, the mother has deliberately set aside her obligations and responsibilities to care properly for T; has effectively abandoned T and left him (admittedly, the father would say, in good hands, but nevertheless left him) and gone away precluding herself from being involved in T’s upbringing. In either event, the parent who was responsible for the action is going to find that he or she has failed significantly in his or her duties as a parent. In addition, if I were to accept the mother’s version of the facts, the father has behaved in a way, which could only be described as totally inimical to T’s best interests.
In this matter I accept the submissions of the Independent Children’s Lawyer and Ms Demack, that the father’s evidence about this matter is so unsatisfactory it cannot be accepted. I accept that he deliberately mislead the mother into believing she had to leave Australia for the purposes of renewing her visa. I accept that he did so knowing what he was doing and further with the intention deliberately of ensuring that her visa was cancelled and that she would be unable to return to Australia. I believe that in doing so he did so with the purpose of, and with the intention of, ensuring that T was precluded from having a meaningful relationship with his mother.
I find this to be the case on the following basis. First, the evidence of the father generally (it was suggested by the Independent Children’s Lawyer) was meandering (which, in itself was understandable in the circumstances of this matter) but was demonstrated on a number of occasions (one identified by the Independent Children’s Lawyer in response to a totally minor part of the evidence in cross-examination about some documents to be unbelievable). The father, in my observation, retreated from one untenable position to another until he was forced into a situation of admitting that all the previous answers he had given were either wrong or, in fact, had been deliberate deceptions.
I do not find, nor do I believe it to be appropriate to do so, that the father in that instance deliberately sought to mislead the Court, but it was indicative of the way he gave his evidence that his relationship with the truth was, in some cases, accidental; and in some cases, quite coincidental. In relation to the incident referred to, part of the evidence before the Court was the recorded conversations of the mother with the father from China. These conversations were the subject of some objection from the father on the basis that they were an invasion of his privacy because they had been recorded.
Ultimately, I admitted into evidence the transcript, and ultimately the voice recordings of the events, which we listened to in Court and compared with the transcripts. The father was of the view that it was illegal to tape-record telephone conversations. The issue was never tested before me, as it might have been, as to the legalities of the terms and circumstances in which the conversations were recorded. Whether or not such an action in China, which is where the recording occurred, was in some way contrary to the laws of China was never even remotely explored.
So far as I am able to ascertain from the evidence before me, even if the recording had occurred in Australia, the recording would have been legal. Even if it were not, in my opinion, it is appropriate in this matter to admit the documents into evidence. The recording and the conversations were relevant to these proceedings. They did turn on and deal with matters that were directly in issue before this Court, particularly, relating to the matters that I have just referred to. They reveal on the part of the father a totally dishonest approach with the mother about the circumstances in which she could obtain a visa and I formed the view, quite strongly, from listening to the evidence and from seeing the transcript, that this, on the part of the father, was a deliberate act designed to prevent the mother from making the appropriate inquiries.

He constantly referred to the fact that he was acting for her, fighting for her to get her visa returned when as a subsequent exhibit before the Court revealed he had written directly and deliberately to the Department of Immigration withdrawing his sponsorship with the obvious consequence that the mother’s visa would be cancelled. The father presented this on the basis that he was doing so in fulfilment as his duty as a good citizen to report events to the Immigration Department which he felt would affect the visa.
I do not accept that that was either his motive, or his intent. And, in my opinion, this action was quite clearly undertaken for the deliberate purpose of preventing the mother from obtaining the visa that she so earnestly sought. If I should be mistaken in accepting the evidence in relation to this matter by means of the telephone calls, I would nevertheless prefer the evidence of the mother on this point in her affidavit and in her oral testimony to that of the father. In this regard I would say in relation to both parties, but most particularly, in relation to the father, that I would not ordinarily accept from him any evidence as truthful unless it were agreed by the other party to the proceedings or, alternatively, corroborated from an independent source.
So far as the mother is concerned, her evidence is difficult to assess because it was given principally through an interpreter. I am not satisfied in each case that the answers I obtained from her were, in the words of the oath, “the truth, the whole truth and nothing but the truth.” Nevertheless, it seems to me that on certain important matters her evidence is preferable to that of the husband and I find that in circumstances where there is such a significant conflict over the principal matters which I am presently dealing with, the mother’s evidence is preferable to that of the father notwithstanding his assertion as late as the end of his address to me that the mother had been lying throughout the course of the proceedings.
The second matter which is relevant is that the father believes and asserted throughout the proceedings that the mother’s return to Australia was in some way other than as she genuinely said as part of her relationship with Mr G, and her desire to settle in Melbourne was only some part of an overall ruse designed to enable her to obtain, in some way, control of T so she could remove him from Australia. The principal question then is, if T were with his mother, is it likely that she would take him and flee the country?
The third matter raised by the Independent Children’s Lawyer bears upon this and I will deal with it at the same time because some of the matters inter-relate. The father also alleges that the mother is very wealthy in China, has a relative in the Chinese Embassy in Canberra and is still a member of the Intelligence Service of the Peoples’ Republic of China. He repeated this on a number of occasions, and when I first heard it, it seemed to me that this was possibly some flight of fancy on the part of the husband. However, I believe that he genuinely thinks this is the case. This in itself is a deeply concerning thing.
If, in fact, all of the things the father believed were true of the mother, were true, then it seems extraordinary to suggest that someone of such power and influence would not have already removed T from Australia on a number of occasions when she might well have done so. The father has been at pains to point out usually by reference to some comment made by the way by Monteith J sometime ago, that an order that is placed on the airports and ports in Australia preventing the removal of children from Australia cannot ultimately operate 100 per cent to protect children from being removed from this country.
If that is so, given the supposed influence and power and money the father believes the mother has, she presumably would have availed herself of these opportunities and removed T some time ago. This has not happened. The opportunities have existed. I do not accept that it was or is her intention to remove T from Australia permanently. I accept that in the past she may have said to some of the father’s friends that she wanted to take T to China. I do not accept those words were said in the context of removing him from Australia permanently or from the father or otherwise and were in circumstances of significant stress brought about in many cases by the actions of the father himself. There are a number of factors associated with these allegations, which need attention in a different context, and I will return to them in due course.
The fourth matter that, in my opinion requires some attention on a broader base, are the mutual allegations of violence the parties brings against each other. In this regard, the father asserts that he has never been violent towards his ex-wife. He asserts that his mother had brought him up in a way that caused him to have respect for all women and he would not harm or do any physical damage to any woman.
I find myself unable to make any significant determinations about issues of violence. The father asserted that the mother assaulted him and that his actions were only in self-defence. He asserted that this had brought about injuries to him, usually of a bruising nature, and that he sought medical advice about it. He produced the medical reports in a non-admissible way, but nevertheless produced them which suggested that he had, in some way, been assaulted, however, the information was not corroborative of his own allegations because they were unrelated to any specific instances, unrelated to the sorts of injuries occasioned, unrelated in time to any particular event and unrelated and unconnected by any supporting evidence from the doctor who made the reports in the first place.
I am unable from that material to reach any conclusion that what he produced is corroborative of his assertions. I am unable to be satisfied from his evidence (even if I were to accept it in its entirety) that the actions of the mother were necessarily unprovoked or pre-mediated assaults upon him. The actions of the mother may have been – I do not say were – matters of self-defence. In such a case it would be a question rather of who initiated the violence.
The mother’s evidence was equally unsatisfactory. Her affidavit, which seemed to be compiled primarily by herself was replete with phrases such as, “the father was continually violent to me.” This leaves me with no ability to make any finding whatsoever about the allegations that she makes. Her evidence was in part supported by some oral evidence and a very short written statement from a backdoor neighbour. The backdoor neighbour was honest in her evidence in which she described an assault by a man on the mother in the parties’ backyard.
She said honestly that while the voice of the male person assaulting the mother sounded like the voice of the father, she could not say for certain that it was the father and I do not accept that her generalised evidence of having heard of other assaults in the past between the parties is in any way corroborative of the allegations of the mother.
I am left, therefore, with the mother’s allegations about violence and while it may well be that violence did occur, the evidence is not such as would enable to me to make a determination either that the father was violent towards the mother or that the mother was violent towards the father. This is an instance of when I would not be prepared to accept the evidence of either party without some independent and reliable corroboration.
I accept that corroboration does have to be completely supportive of the evidence of a party. However, in my opinion, in this case, the corroboration put forward by either party is not sufficient to satisfy me to the requisite extent as indicated by their Honours in the High Court in Briginshaw v Briginshaw (1936) 68 CLR 333, at more particularly page 336. Their Honours indicated that in circumstances where there is serious allegations (and assault is one of them) that the party seeking to convince the Court must convince that something has occurred. I have no such conviction in this matter about those events.
In any event, even if it were the case that I found that such violence had occurred by either or both of the parents in the past, I am not satisfied that violence between the parents is an issue which is likely to impact upon the best interests of T in the future. I say this because of the events that have occurred in recent times, the separation of the parties, the improbability that they will be placed in situations where there is a power imbalance between them such as would excite some force or violence, and the fact that the mother has re-partnered and that it is improbable in the future that she would be exposed to any violence from the father if, ever there had been any realistic risk thereof.

The Evidence

I should indicate that each of the parties gave evidence and was cross-examined. There were three family reports (including a short one from Ms A). Each of the family reporters was cross-examined, in some cases extensively. There were witnesses from each of the parties both in relation to child matters and principally in relation to financial matters, to which I will return in due course.
The short history of the parties’ relationship in proceedings in this Court is set out effectively in a chronology in the Independent Children’s Lawyer’s outline of case. I adopt that chronology for the purposes of my judgment.
The matters other than the meaningful relationship that T is to have with each parent and the need to protect him from exposure to violence, are matters which are preliminary and primary to my considerations which I am now about to embark upon. These were matters that each of the parents dealt with in various ways. In a comprehensive affidavit the father has gone through most of these matters, obviously, with some professional assistance and which I found helpful in understanding his perspective about many of the issues before the Court.

Best Interests

It is important in the circumstances of matters such as this where the proposal is that T be removed from care which he has enjoyed and under which he has substantially flourished for a substantial part of his life, to a substantially unknown and prospectively different environment for him in a different town, for me to outline each of the matters that I considered to be appropriate to determine what is in his best interests.
The Act requires that I should take account of any views expressed by T as to where he should live. T, at aged seven or thereabouts, is not of an age where his maturity or level of understanding would be such that I would consider that his views should be given a determinative effect. Indeed, he has not been asked to express his views, at least not so that I have heard in Court and I am satisfied from the evidence I have heard from both parents and from the family reporters, that he enjoys a loving and happy relationship with each of his parents.
In the case of the father, he has urged on me that if T were separated from him, “if his little man” were to move away from him as he expressed it, then T would be singularly unhappy. I have no doubt that if T were to live away from his father that would have that effect. Ms A, in her first report, suggested that if T were to be removed from his father, for a substantial period such as five weeks (which was then in prospect) that it would have very serious consequences for T’s psychological and emotional well-being.
Nevertheless, she expressed a view that an opportunity should be taken, and orders were made requiring such a removal for such a period. The consequences proved, contrary to the counsellor’s expectations, to be substantially satisfactory and – indeed, beneficial for T.
I am satisfied that while I do not have the benefit of any views expressed by T, his demeanour as reported by both parents, and by the family reporters, and by independent witnesses, confirms that he could live happily with either of his parents. He would obviously, in my opinion, prefer that his parents were together. This will never occur.
The second matter I am to take into account is the nature of the relationship of T with each of his parents and with other persons. Starting with his parents, I am satisfied from the evidence before me that T has a good and loving relationship with both of his parents. Obviously, his father has been the most significant person in his life, until his mother’s return to Australia. It would be a strange thing if, as I have found, the father has deliberately attempted to preclude the relationship between T and his mother, that action on his part, could be taken as having established an appropriate relationship between him and T. It is a sad and sorry fact that in this situation if there is any difference in the relationship between T and his father, and T and his mother, the difference comes about as a consequence of the actions of the father.
There are other people in his life who have been important to T. The father enjoys a network of support in North Queensland, which includes Mr D, who is the godfather of T, and who is a trustee in relation to an educational trust created by the father and some of his friends. T enjoys contact with other friends of the father and, according to the father (although it does not appear in any of the sworn evidence) has friends at school. I do not doubt that he does. There is some comment that he is a little isolated in his father’s care, but to be frank, the evidence about all of those matters is so unsatisfactory that they could not possibly influence my determination.
If T is to live with his father, it is improbable, in my opinion, that he would have any relationship whatsoever with any of his mother’s family. If he lives with his mother he will have some relationship with his mother’s family, even if it is only by distant means of communication. I do not believe that it is probable that if T lives with his mother that he will be restricted except by geography and financial circumstances from having a relationship with any of those with whom he has had a relationship with in North Queensland.
The third matter I am to take into account is the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent. Both parents have said that they want to do this. I accept the mother’s evidence that she wants to do it. I am somewhat less satisfied that the father has that intention. The evidence he gives, even in his own affidavit (which was, of course, prepared and filed on his behalf) together with the evidence of the family reporters, would suggest that there is something significantly lacking in his commitment to encouraging T in a close and continuing relationship with his mother. In my opinion, it is more likely that if T were to be living with his mother he would have a close and continuing relationship with his father (assuming his father is prepared to accept this) than [it would be that he would have a close and continuing relationship with his mother if he were living with his father].
The fourth matter I am to take into account is the likely affect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his parents or any other child or person with whom he has been living. In this case there will be a serious and immediate consequence for T if he were to be separated from the parent with whom he has lived for most of his life. If he is living with his mother it will certainly make him sad at the start. I have no doubt about that. If he is living with his father and he is not able to have a proper relationship with his mother, I think he will also be sad in the circumstances that I have heard from the parties themselves, from Mr G, and from the counsellors who have had an involvement in this matter.
I propose in relation to this to make orders which I had foreshadowed to the parties that upon completion of these proceedings I would request the assistance of family consultants in this Court, both in the Cairns Registry and in Melbourne, to ensure that T receives such additional support from community-based organisations as may be appropriate and from the Family Court family consultants. I equally believe that it is important that the parents should be both understanding of and receive assistance with the adjustment processes necessary no matter what the consequence of this case may be. I will make orders accordingly.
The next matter I am to take into account is the practical difficulty and expense of T spending time with a parent. To some extent, when this matter began, I put to the parties that it was essentially, an ‘all or nothing’ matter. In real terms neither of the parties has much money. This is subject to a determination of one matter, mentioned previously about the father’s belief that the mother is a multi-millionaire in China. The evidence on its face from both parents is that it would be a struggle and, indeed, in some cases, possibly a financial impossibility for them to spend significant time with T because of the expenses of travel.
The mother has demonstrated since her return to Australia with the assistance of

Mr G, a very significant commitment to spending time with T. She has made efforts to ensure that she spends time with him and in the process and (I accept the evidence of Mr G on this matter) has expended most of their life savings [in doing so] and precluded them from being able to a pursue a business interest that they had previously intended to develop.
The father said to me in his evidence that if, in fact, T were to be living with his mother he doubted that he would be personally able to travel to Melbourne very often for the purposes of spending time with T or, indeed, for paying for T to come to North Queensland to spend time with him. These are practical matters, which bear upon the parties’ financial circumstances. These are the subject of proceedings before me as well.
I say in relation to that the following matters: first, I accept that the father’s property at present involves a house in which he lives and which he has been a substantial and the substantial contributor to. The house is worth, he says, $400,000 and that valuation is accepted on behalf of the mother. It is a house built on a block of land that he owned at the time when the parties first came together and upon which he substantially was responsible for the construction of a dwelling with money that he received from the sale of a house he also owned at that time and I find with [some] contribution from the mother, notwithstanding the father’s denial that that occurred.
As a consequence, he lives in an unencumbered house. He receives both a family allowance and, presumably, a child allowance from the government. He also possibly has some other pension as a result of a disability from an accident he suffered some years ago, which apparently, precludes him from working at least in most remunerated employment. He has very little savings and he owes a sum of $7,000, which he took from T’s trust account for the purposes of paying his legal fees. That sounds a malicious and unpleasant thing to have done. I do not think that was part of the father’s intention at the time. He saw it as something that should be done. I suspect that he may have even argued that it was in T’s best interests that he should have paid his legal fees. Nevertheless, in accordance with the normal practices in this Court as outlined in Townsend v Townsend (1995) FLC ¶92-569, and more recently in Chorn v Hopkins (2004) FLC ¶93-204, it is clear that the amount that he expended on his legal fees should be added back into the property pool, and the $7,000 will be dealt with in that way in due course. That appears to be the only debt he has. He has very little in the bank, and his income is such that he cannot travel from his income on a very frequent basis.

The mother is living with her husband, Mr G. He has been substantially unemployed to this point. He has now resumed business as a carpenter or builder and is expecting that he will earn some reasonable money in due course. That will assist them in their personal circumstances. They live in a house that is owned by Mr G’s parents and I accept that it is. It is a dual occupancy, if I can put it that way, with his parents being the other occupants of the premises, and I gather, although the circumstances are not clear, that it does not involve them in any financial outlays. Their personal circumstances may have a brighter prospect, perhaps, than those of the father.
If, as a consequence of the orders I will make about property, as seems likely, the father will have to sell his house, then the consequence of that will be that there may be some money available for him, which he may choose to expend on spending on travel and developing his relationship with T. It was put to me by the Independent Children’s Lawyer that the father had demonstrated a significant disregard for that by asking why he should spend his money in that way. I did not interpret the father’s comments in that way, I must say during the course of evidence. I accept that the words the Independent Children’s Lawyer’s counsel, Mr Fellows, has put to me may well be exactly what the father said [previously].
In any event, the possibilities of T’s being able to find from one source or the other, some money to enable him to spend time with father, if he is living with his mother, have improved or may improve as a consequence of these actions and of this action before the Court.
I am next required to determine the capacity of each of the parents and any other person to provide for T’s needs including his emotional and intellectual needs. There is no doubt the father has been the supplier of both intellectual and emotional support for T for some time. The mother has been precluded by the father’s actions from doing so. I have no doubt from the evidence I have received from the family reporters that the relationship between T and his mother is one which is suitably and appropriately supportive in emotional terms.
Whether the mother is able to contribute to T’s intellectual development in the short term is somewhat problematic. There is no doubt about the mother’s intellectual ability but her capacity to converse and to assist him in his English and to assist him in his studies because of that, is not as high as the father’s. I might add the father has told me that he [himself] had only received quite limited formal education, but has nevertheless done his best to assist T on the way through. I do not believe that the difference in the ability of the parents to contribute to the intellectual needs of T is a determining factor and in this regard I accept also the [possible effect of the] involvement of Mr G and his ability to provide assistance.
Each of the parents comes from a different cultural background to that that is normally applicable to many residents of Australia although in a nation that is increasingly diverse in its background lifestyles and inhabitants, it is not unusual for a child to enjoy the richness of the mixed cultures which T has. In this regard it is imperative in my view that he should continue to have access to each of his parents’ cultural heritage and I will made orders accordingly about that matter.
T is not of Aboriginal or Torres Strait Islander descent and in those circumstances, those provisions of the Act they are relating are not relevant to him.
I have already made comments, which refer to the attitude of each of the parents to T and to the responsibilities of parenthood demonstrated by each of them. I make the following comments however of matters which I think are of some concern.
One of the family reporters commented on the fact that the father interrupted a counselling session after very little time, to check if his son was all right. This incident was an example of the father’s ability to change his evidence to retreat to a position he felt was more defensible. Initially, he wanted to inform me that this related to bus timetables and the need to ensure that they caught the bus in an appropriate time. The father does not drive. That might have been understandable in the circumstances although not within the time-frame previously given in evidence by the family reporter. However, it is clear that the father in entering the room was doing so to check up on T. This he said himself is what a father would do or words to that effect. This was not an example of his solicitousness for T but rather an example of his interference in the process, which was designed to determine where T might best live. In my opinion it demonstrates on his part an attitude to T, which is either overly protective or alternatively alienating of the mother - or both.
In addition the extraordinary proposition to which the husband adhered notwithstanding, its almost total absurdity, is that after T had been away for a week, the father felt obliged to call at the school to see if T was there and he claims that T did not recognise him. I cannot believe this. I must confess I did not ask at the time if the father was wearing a mask or doing something else to preclude him from being seen. But it seemed impossible to me to expect that a child who lived so long with a parent, after an absence of one week, would not recognise that parent. I found the father’s report of this either to be an exaggeration or a falsehood or a total breakdown of all parental insightfulness or sensitivity. In my opinion it demonstrates that the father’s attitude to T is, in some ways, quite strange.
I have discussed violence. I do not propose to say anything more about it. One of the proposals put forward by the family reporter involved my making orders which would leave T where he was, subject to my being satisfied about a certain number of things. In effect, as I described it in the course of addresses, Ms B suggested that the father should be put “on probation” for a year to see if he could get his act together and to ensure that he would then encourage T to have a proper relationship with his mother.
The terms of that arrangement, it seems to me, would infringe the prescription under subsection 60CC(2)(l) that the Court ought properly to make orders which would be least likely, to lead to the institution of further proceedings about T. I do not believe that the proposals by Ms B are appropriate. She has made suggestions, which in my opinion, would simply prolong the dispute in this matter and not resolve the essential issues between the parties. In my opinion it is not appropriate for there to be any other reason for the parties to return to this Court – unless other incidents developed. It is inappropriate when the parties have limited finances, the geography is substantially difficult and the history of the parties incredibly complicated, to have them return to re-agitate matters that ought properly to have been resolved by the long period of this trial.
All of these matters, in my opinion, add up in significant terms to the fact that notwithstanding the good job (and I say that with total sincerity) that the father has done; in his day-to-day care of T, it is inappropriate that T should continue to live with his father at this point. He should live with his mother and he should spend time with his father in a substantial way.
I will publish shortly the orders I propose to make about this.
The provisions that I make in relation to the time that he spends with his father is designed to ensure that the important part that his father has played in his life, can play in his life, and should play in his life, will continue. The fact that at this point the father has decided he wanted to leave the courtroom is a sad reflection on the fact that it is not only the father who is to determine what is in the best interests of his son and I hope that the good qualities he has evidenced in the past in a number of different ways, he will continue to provide for the benefit of his son.
The father’s enthusiasm for many things is something that his son will need at some point in the future. I have discussed in part during the course of addresses with the parties through their counsel where it is appropriate the sorts of orders that might be made, including orders that provided for various parts of the school holidays and the ways in which those holidays might best be used to T’s advantage. I have also made provision in the draft orders for a number of factors which, I think, are important, including the need to ensure that matters such as medical treatment are properly the matters of consultation and the responsibility of both parents.
The fact that the parents do not have equal parental responsibility does not remove the obligation each of the parents has as a parent for T. That ceased when T was born as a result of both parents. It is also part of the orders that I make that the cost of T’s spending time with his father will be borne in part by the mother and in part by the father in the circumstances as set out. I have endeavoured to facilitate, in the course of my orders, proposals which would enable the father to spend time in Melbourne if he wished to do so, so that he can then find and enjoy part of the relationship that T has in his new home environment.
I have also provided that it is important that T should spend time with his father in North Queensland, so that what has constituted a major part of his life will continue to be so. I have made provision for telephone communication between T and each of his parents when he is with the other parent. These are substantially in line with what has been put to me by each of the counsel and a reflection on the relationship that the parties have managed to develop, notwithstanding some of the other matters involving the parents. I have facilitated in the course of these orders the communication of T by e-mail and web cam when that becomes available to the father.
I have made a provision that the father may send to T materials relating to his understanding and development of knowledge of the African country’s culture and I will impose an order that the mother will accept such material from the father and encourage T to read and use such materials and wherever possible promote with T an interest in his father’s cultural heritage. In this regard, I have not made any specific provision in relation to T’s Chinese cultural heritage because he will be living principally with his mother.
I have made provision the father may send letters, presents and photographs to T, but such items will not be an attempt to involve him in further matters of litigation or in reporting about what the mother or Mr G is doing.
I have made provision, as has been discussed in advance and agreed by Mr D that Mr D would continue as trustee of an education fund for T and will make money available to T’s mother from time to time within the discretion imposed on him in relation to the trust.
I have made provision that, until further order, both parents and their servants and agents are restrained from sending or attempting to take or send T from Australia. I have continued that his name be placed on the airport watch lists and will only be removed from those lists by an order of this Court. I have required both parents to continue to leave deposited with the Court all of their passports and such passports may only be released by further order of this Court. I have also made orders, which will have the effect of proving some assistance for the parties with post-order counselling.

Property Matters

The property matters between the parties were the subject of much less evidence, although they were still a matter of significant debate between the parties. The property pool is identified within short compass. The items of property are: the house in the father’s name in W, Queensland worth $400,000; the money that is to be added back into the pool in relation to the father’s expenditure on legal fees of $7,000 and the interest of the mother in a family property in China worth, on her valuation which in the end was uncontested, $9,000.
I do not find that the mother has any other resources in China. I specifically find that she is not a multi-millionaire as the father suggested and I do not find that there is any property in China that is available either for distribution or alternatively to enable her to continue her lifestyle in Australia.
The matters of contribution, as asserted by the father in the course of his carefully prepared affidavit on this point, set out what he did in making arrangements for the construction of his house here. He asserts, and I accept, that at the time co-habitation commenced he had a house in B, land at W, which is the property on which his house is presently built, a bank account with a small amount of money and a car that was in fact owned, he said, by Mr X. He had no superannuation. He had household furniture.
As at the time of these proceedings the house in W, is worth $400,000 and there is no substantial difference in the other matters apart from the fact that he has a loan due to T’s godfather, Mr D, of $7,000 relating to the money that was removed from the trust funds for T’s education. He says he has income from a pension of about $370 per week. There is a small amount contributed from child support by the mother to this point.
The mother asserted in her affidavit that she had made very significant contributions at the time that the parties began to live together. It was asserted by her that she had contributed some $100,000 from pre co-habitation resources and had made other contributions along the way. The evidence about these matters was singularly unsatisfactory and in the end, in my opinion, unacceptable.
What is acceptable, and which I find as a fact, is that the mother contributed by money she brought from China to Australia, not less than $40,000 in cash which in my finding was contributed either to the house or alternatively to family purposes. In my opinion, it does not matter much, which it was in the context of this matter.
The mother asserts that she also paid for other expenses and counsel drew to my attention a schedule contained in YF4 of the mother’s affidavit which sets out expenditure totalling $105,000 which she says was spent either on the family or on matters relating to the family. This was not the subject of cross-examination by the father. In the ordinary course of events a failure to cross-examine on something in an affidavit could reasonably lead to the Court’s making a finding that the material contained in the affidavit, not challenged, was accepted. I do not believe this is an appropriate way to deal with this part of the evidence in this case. The affidavit material was voluminous, not necessarily admissible, but voluminous, and it was ill-organised. In my opinion, I should draw no ultimate conclusion from the failure on the part of the father to cross-examine the mother about these matters.
Nevertheless, in my opinion, it is not reasonable to make a finding that the mother did contribute, as she suggests, $100,000. I am only satisfied on the evidence that she can be found to have contributed not less than $40,000.
This is by any measure an unsatisfactory conclusion about contribution of the parties.
In addition, I am satisfied that the father expended most of the money that he received from the sale of his first house on the construction of the second. So the $200,000 roughly from the sale of the first house constituted a contribution towards the property that is presently there. The mother’s funds contributed a further amount towards the property or the well-being of the parties. The father contributed his labour to the construction of the house. The mother says she did too. The father denies it. In this regard, I accept the mother’s contention, although her contribution would not be regarded as any-where near as substantial as that of the father.
The mother says she contributed other things to the construction of the house, including the purchase of taps and other fittings in China with her money and the contribution of them to the house. The father denies that the mother contributed anything from her own money. In this regard, in this area I accept the corroborating evidence of the mother’s sister, Ms J, that the money came from the mother’s bank account. The total contribution, however, was relatively small in the overall picture of things.
It is desirable in most cases from a Court to come to a conclusion about contribution so far as is possible in percentage terms. Certainly that has been the tradition. The Act does not require that a Court should find with any such precision. It requires that first the Court should make a determination about the contributions of the parties and then to consider other matters relating to their financial future which are set out under s 75(2) of the Act. Finally, the Court is obliged, so the Full Court has said, to look at the result of the orders and determine whether in fact they comply with the prescription of the Act that no order is to be made unless it does justice and equity between the parties.
In this matter, because of the uncertainties associated with the contributions made particularly by the wife, but to some extent by the father, because we have no value as to the property or the cost of construction of the present house, it seems that I can only determine contributions in a range. I might add that the fact that the father was contributing his labour principally for the house, would have meant that the mother must, in the same circumstances, have contributed more during that period as homemaker and parent because it must follow that if the father was busily engaged in physical labour he could not at the same time be caring for T.
As a consequence, in my opinion, the contributions of the mother were in the order of between 14-18 per cent and the father’s contributions were the balance. In this regard, it is difficult to be prescriptive.
In addition, there are factors under s 75(2) of the Act, which I should take into account and identify as follows. First, the mother’s obligation as a continuing homemaker and parent and now as the principal parent of T, will be made a little better by the contributions she may receive, (and I emphasise the word “may” receive), from the education trust set up by the father and by his friends. That contribution may alleviate what, in my opinion, would be the major difference between the parties in the future – the cost and keeping of T for the next eleven years or thereabouts. It would be reasonable to say that the finances of the mother, on the basis of my finding that she does not have the Chinese property asserted that she did have (other than the $9,000 that she does have) are not great. Equally, I might add, the father’s property, particularly if he is obliged to sell his house, will only give him a diminishing, one might think, bank account for the future.
The father’s capacity to work, he says, is limited. I have no medical evidence to support that proposition and as I have said before, the father’s evidence on that matter is without corroboration and is not something I would readily accept. Nevertheless, it seems to me there is very little to choose between the parties on the grounds of their particular financial capacity.
The mother as was asserted by her representative, Ms Demack, has a lack of English. This will preclude her being able to engage in meaningful employment. I am unconvinced that this is significant and I do not apply it in any substantial way.
I have also to take into account the financial circumstances of the co-habitation of the mother with Mr G and I accept that while at present that is hardly a major financial advantage to either of the parties, it does suggest some balancing on her part.

All in all, it seems to me that it would be appropriate that I should make an adjustment of about three per cent in favour of the mother as a consequence of those matters and that would create between the parties a differential of about six per cent, which in round terms, would be an adjustment or a differential between the parties of just under $25,000. When that is taken as a figure to apply over the next eleven years of T’s life, it seems to me to be a relatively small adjustment and one, which is within appropriate boundaries.
I say in this regard that I have not failed to take account of the fact that it is improbable that the mother will receive significant financial assistance from the father from his own income by way of child support. Accordingly, in my opinion, the mother should receive from the property pool the sum of $87,500 and in the draft orders that I prepared I placed that figure in there. In fact that figure is wrong as it became apparent to me as I was reading my judgment because that fails to take account of the $9,000 the mother already has. So that figure will be reduced by $9,000 in the overall distribution of property.
I propose to allow the father a period of 90 days, or thereabouts, in which to pay to the mother the sum of $78,500 that is on or before noon on 17 August 2007. If he fails to do that then I order that he sell his property and I make consequential orders about how that will occur and the involvement of the mother in determining that that sale will happen. I have provided in the draft orders provision for resolution of potential conflict between the parties. I am still waiting to hear from Ms Demack about the appropriate person to prescribe as determining the value of an offer that might be made.
I have provided on completion on the invitation of Ms Gray, who is the Independent Children’s Lawyer, that the money from the sale might be held in the trust account of the Legal Aid Commission. I trust that her generous offer is one her employers will accept and I have made provision for the distribution of money.

I certify that the preceding one hundred and twenty four (124) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks

Associate:

Date:

[2007] FamCA 600

18 May 2007

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Abuse of Process

Jurisdiction