Huang and Darling

[2010] FMCAfam 1400

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HUANG & DARLING [2010] FMCAfam 1400

FAMILY LAW – Relocation – best interests of the children – separation of siblings – mother Chinese – initially the mother wishes to relocate from [A] North Queensland – does not proceed with relocation to Brisbane – Father then wishes to relocate to Brisbane – Father requests Mother and her two other children to relocate and reside near him in Brisbane – property – Husband significant initial contributions – Wife’s contributions during the marriage – two separations – two years post-separation.

Family Law Act 1975, ss.60B, 60CC, 65DAA, 75(2), 79
Family Law (Shared Parental Responsibility) Act 2006

Marzorski & Albright [2007] FamCA 520
MRR v GR [2010] HCA 4
A & A Relocation Approach (2000) FLC 93-035
U & U [2002] FLC 93-112
KB & TC (2005) FLC 93-224
Taylor & Barker [2007] FamCA 1246
McCall & Clark [2009] FamCAFC 92
Sampson & Hartnett (No.10) [2007] FamCA 1365
Porter & Byrne [2009] FamCAFC 8
Ferraro and Ferraro (1993) FLC 92-335
Hickey and Hickey and AG for the Commonwealth of Australia (Intervenor) (2003) FLC 93-143
Pierce & Pierce (1999) FLC92-844
Cabbell & Cabbell [2009] FamCAFC 205
Williams & Williams [2007] FAM CA 313

Applicant: MS HUANG

Respondent: MR DARLING

File Number: TVC 1154 of 2008

Judgment of: Willis FM

Hearing dates: 11, 12 & 14 May 2010

Date of Last Submission: 14 May 2010

Delivered at: Cairns

Delivered on: 24 December 2010

REPRESENTATION

Counsel for the Applicant: Mr Betts

Solicitors for the Applicant: Macrossan & Amiet

Counsel for the Respondent: Mr Hanlon

Solicitors for the Respondent: SR Wallace & Wallace

ORDERS

Children’s Matters

1. The parents have equal shared parental responsibility for the child [X] born [in] 2004 (“the child”) in relation to major long term issues including :-

   (a)Education;

   (b)Health;

   (c)Religion;

   (d)The name by which the child is ordinarily known;

   (e)Any changes to the child’s living arrangements which make it significantly more difficult for the child to spend time with either parent.

2. The Mother and Father are to consult with one another about decisions to be made in the exercise of their equal shared parental responsibility in relation to the child as follows:

   (a)They shall inform the other parent about the decision to be made;

   (b)They shall consult with each other on terms that they agree;

   (c)They shall make a genuine effort to come to a joint decision.

3. The child live with the Mother.

In the event the Father remains living in [A]

1. The child will live with the Mother and spend each alternate week with the Father in a shared living arrangement with the handover to occur after school each Friday. 

2. That both parties communicate with the child when the child is in the other party’s care at all reasonable times.

3. That during the school holiday periods the child spend the first half of school holiday periods with the Mother and the second half of school holiday periods with the Father in odd numbered years and the second half of school holiday periods with the Mother and the first half of the school holidays periods with the Father in even numbered years.

4. During Christmas the Mother spend time with the child from 2:00 pm Christmas Eve to 2:00 pm Christmas Day and the Father spend time with the child from 2:00 pm Christmas Day to 2:00 pm Boxing Day in odd numbered years and the Father spend time with the child from 2:00 pm Christmas Eve to 2:00 pm Christmas Day and the Mother spend time with the child from 2:00 pm Christmas Day to 2:00 pm Boxing Day in even numbered years.

5. On the child’s birthday in the event it is a school day, the parent with whom the child is living will spend time with the child from after school until 7:00 pm and in the event it is not a school day, for half the day.

6. On the parent’s birthday in the event it is a school day and the child is not living with that parent from after school until 7:00 pm and in the event it is not a school day, for the whole day.

7. That the Mother spend time with the child on Mother’s Day from

   
   

   9:00 am to 5:00 pm.

8. That the Father spend time with the child on Father’s Day from 9:00 am to 5:00 pm.

In the event the Father relocates to Brisbane

1. The child live with the Mother.

2. The child is to spend time with the Father as follows:-

   (a)During school holiday periods for the first half of the school holidays in even numbered years the second half of school holidays in odd numbered years.

3. The Father is to pay all costs of and incidental to the child travelling to and from [A] to Brisbane.

Property

1. The Husband is to pay to the Wife a sum equivalent to 24% of the net asset pool calculated as follows:

   (a)Asset Pool being $1,367,335.00 multiplied by 24% which equals $328,160.00.

   (b)Deducting the assets already in her possession of $74,965.00.

   (c)Which totals the sum of $253,195.00.

2. The Husband is to pay the sum of $253,195.00 to the Wife within

   
   

   45 days of the date of this Order.

3. Upon payment of this sum to the Wife, the Wife is to relinquish all further interest both legal and equitable in the assets currently held in the name of the Husband.  The Husband is to be solely responsible for all liabilities and debts of whatsoever kind in relation to the assets he retains.

IT IS NOTED that publication of this judgment under the pseudonym Huang & Darling is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MACKAY

TVC 1154 of 2008

MS HUANG

Applicant

And

MR DARLING

Respondent

REASONS FOR JUDGMENT

1. The parties in this matter met in Shanghai around 2001 when the father, who was working in China as a [omitted], and the mother, a [occupation omitted], worked together.  Their relationship concluded in January 2008 in Australia.  In that time there were two periods of separation totalling around 2 years.

2. The parties initially lived in Brisbane and during the relationship they each moved to [A] which is where they were living when their relationship ended.

3. They are unable to agree about the division of property and child arrangements following the breakdown of their marriage.

4. The father (also known as “Mr Darling”) was born [in] 1956 and was aged 53 at the time of trial.  He is 16 years older than the mother.  The mother (who is also known as “Ms Huang”) was born [in] 1972 and was aged 37 at trial.  The father was born in Australia and the wife was born in China. The parties have one child of their relationship, [X], who was born [in] 2004 and is now aged 6. 

5. Initially when this matter commenced, the mother wished to relocate to Brisbane and the father opposed her move.  At the trial in December 2009 the mother had decided she would remain in [A], however, the father had by that stage decided that he would move to Brisbane.  The trial did not proceed and further directions were made for the preparation of a Family Report addressing the new proposals together with further orders for disclosure.

6. The father’s response to the mother’s application is that he seeks to relocate with [X] to Brisbane to live and that both parents take steps during 2010 to relocate to Brisbane prior to the commencement of the 2011 school year.  The father says that from 2011 [X] is to be enrolled at the [W] School which is close to a new [omitted] College, a convenient option for the mother’s daughter [Y] to complete her secondary schooling.  The father says that both parents are to take steps to reside within a 10km radius of the school. 

7. If, in the transitional period, one parent remains in the Whitsunday region, [X] should spend each alternate weekend with that parent, flying from Brisbane to [P] on Friday and returning on Sunday, with each parent to share the cost.

8. However, if the mother fails to relocate to Brisbane, the father proposes that [X] live with him and his de facto and her children and spend all of the school holiday periods and Easter with the mother. The father is to meet the cost of travel for [X] from Brisbane to [P].  Time during the week is also proposed by way of webcam or Skype.  The father proposes that if the mother wishes to travel to Brisbane to spend time with [X], she is to give him one month’s written notice.  There are various specific orders set out in the fathers’ proposal.

9. In the event that the father is not permitted to relocate with [X], he seeks an Order that the current arrangement with [X] living in a shared arrangement between himself and his mother, on a week on week off basis, continue and that the holidays are shared.

10. Mr Hanlon of Counsel on behalf of the father contends that the father wants to relocate as he wishes to be closer to his investments in Brisbane and that he proposes to re-enter the work force in the construction industry in Brisbane and spend time with [X]. The investments at this stage are real estate.

11. The father says that the mother has friends in the Chinese and Church communities in Brisbane and that there are benefits for her moving.  The father puts forward reasons for the mother to move to Brisbane saying that she may have greater access to employment opportunities in Brisbane and greater opportunities for further education or employment.  The father proposes that the mother move to the south-east Bayside area of Brisbane, so that the shared care arrangements for a week on week off can occur with more ease.

12. The father says that whilst he was initially opposed to the mother’s application to relocate to Brisbane with [X], he nonetheless started making plans to relocate to Brisbane.  He contends that when the matter came on for a trial in relation to the parenting arrangements for [X], he had decided that he wished to relocate with [X] and that he always knew that the mother really did want to move to Brisbane.  The father, having been served with the mother’s affidavit when preparing his affidavit filed on 25 November 2009 says at paragraphs 109 and 110:

    “I am aware that Ms Huang intended to bring an application to be able to relocate to the Brisbane area with [X] and note that she is not pursuing this application in the material filed.  However, in light of the fact that I was well aware that she would prefer to be living in Brisbane I have considered this aspect fully and in fact, made at least one offer in the past that would have given her some opportunity to do so.

    I am in fact, at this time, prepared to agree to Ms Huang relocating to the Brisbane area with the other two children.  To move to Brisbane myself for the 50/50 shared care I will need to sell the management rights to [C] Apartments together with the unit.  I am prepared to make these changes and have checked the market for this purpose.  The unit at [C] Apartments together with the management rights, as the manager must have a residence on the premises for that purpose, have now been listed for sale.”

13. The father proposes that whilst ever the parties live in the same locality (Brisbane or [A]) that [X] live in an equal weekly shared care basis with each parent. The father has been in another relationship since separation and he has been co-habiting with his new partner Ms S for about 9 months.  Ms S has five children of her own aged between 20 and 10.  The four youngest (aged 17, 15, 12 and 10) live at home with her in [A].  It is the father’s plan that Ms S and her children relocate to Brisbane with him and that he and [X] will live as part of a blended family with Ms S and her children.

14. The mother opposes the father’s application to relocate [X] to Brisbane.  The mother contends that whilst she initially did bring an application to relocate to Brisbane, at the time she was distressed at the break up of her marriage but since then she and her children have settled.  The mother says that by the time the matter was listed for trial, she had decided not to proceed with her relocation application and, instead, sought parenting orders that [X] live with herself and the father in a shared arrangement in [A] and that the school holidays be shared between her and the father.

15. In the event the father lives in Brisbane the mother proposes that [X] live with her and spend the whole of the Easter, September/October holidays with the father, and one half of June/July and Christmas holidays.  In the event the father travels to [A], [X] can spend other week-ends during the school term with the father including week-ends with special days. 

16. The mother submits that she is enjoying life in [A] now; she has a church group and lifestyle that is not available in Brisbane.  She says she and the children can enjoy life without expensive outgoings, that the joys of nature are provided free and that they can go to beaches easily, go to the lagoon, and enjoy the fresh fruits of her own vegetable garden.  The mother says that her lifestyle is less stressful for her own health in [A] and she has decided to own less and spend less and that to stay in [A] is the solution. 

17. The mother says that when she lived in Brisbane previously with the father, there was stress for her associated living in the city and with needing to drive and the difficulty driving in the city.  Overall she considers that she and the children are now settled into [A] and that the move is unnecessary. She has all she needs to lead the lifestyle she wants for herself and the children living in [A].  The mother contends that everyone is settled in [A] including the father’s new partner in her career at [T], nobody is disadvantaged if they remain living in [A] and that there is no reason for her to change her decision and go to Brisbane to live.

18. The mother’s position is that if the father is successful in his application to relocate with [X], whilst it is a difficult question and she loves [X], she will remain living in [A] with her two other children and spend time with [X] during the holiday periods. 

19. In relation to property, the parties are agreed that the husband made an initial substantial direct contribution at the commencement of the marriage with various properties and businesses.  There is dispute as to the weight to be given to the husband’s initial contributions and the wife’s contributions during the marriage and post separation.

20. The father seeks property Orders in which the division of property is 10% to the mother and 90% to himself.  The wife seeks Orders for 35% distribution to herself and 65% to the husband.

Background

1. The parties have one child together, [X] aged 6.  [X] is a child of mixed racial heritage.  

2. The mother has two other children, [Y] (“[Y]”) born [in] 1997 now aged 13 a child of the mother’s first marriage to a Chinese husband which ended in divorce in 2001, and a new baby [Z] born post separation in Australia [in] 2009, a child conceived through a casual relationship in 2008.  Each of these children live with the mother and have always done so.

3. The father has a daughter from a previous relationship, [S], born [in] 1992, aged 17 at the time of trial.  [S] lives with her mother and the father says he pays $20.00 per week for her financial support.  The father says he spent some time with her during a holiday recently.

4. At the time they met and cohabited, the father had been working in China for 5 years as a [omitted] and the wife was working as an [omitted]. After initially meeting the father in September 2001, in December 2001 the mother moved into the father’s rental apartment in Shanghai which was provided for him as part of his work in China.  [Y] lived with the parties for about three months.

5. The mother agrees that during this time she spent living in the father’s apartment, she didn’t pay rent.  She says she spent her earnings supporting her parents, herself and [Y], her brother and her brother’s family.  The father describes the period of their co-habitation not as a de facto relationship, but rather more like having an affair.

6. When the father was leaving China in 2002, he invited the wife together with her daughter [Y], to come to Australia on a spousal visa.  He said that a spousal visa gave the wife greater longevity than a visitor’s visa, which would have been a maximum of 3 months.  The husband said in his oral evidence that if the visa application had not been approved and the mother was not able to come to Australia, it wouldn’t have been the end of the world for me.[1]  He said that he realized it was an extreme step for the mother to come to Australia and said that she had never even been on a plane before. The father said he was offering the mother a better lifestyle and better opportunity for her and her daughter, though he was not looking to jump into another marriage.

   [1] Transcript, 14/5/10 p 166 line 35-40.

7. The husband says when the parties were together in Australia, he married the mother at her behest on 8 March 2003 and that the marriage was quicker than he would have liked it to happen. 

8. The parties lived together in Brisbane after their arrival in Australia from China. The husband returned to Brisbane in June 2002 and the wife and her daughter [Y] followed six months later in December 2002.  

9. They remained living and working in Brisbane for approximately three years until August 2005.  The parties separated in August 2005 until December 2006 (“the first separation”). 

10. At that time in August 2005 the father had purchased the management rights to [C] Apartments at [address omitted] in [A] North Queensland. As well as the management rights, the manager’s residence, a

    
    

    3 bedroom unit was purchased and this enabled the manager to work on site. The father left Brisbane and moved to [A] in North Queensland to commence running the newly purchased business, living and working on site. 

11. Whilst it had been the father’s plan that both he and the mother work the management rights, the mother, [Y] and [X], then aged two and a half, all remained living together in Brisbane, renting one of the father’s properties, a house destined for demolition.  The mother was the sole and primary carer of the children during this period of separation.  It seems that the father paid for the mother and children to visit once or twice during this period and the father visited the mother once in Brisbane.  There is no evidence that the father paid child support during this period.

12. The parties resumed their relationship in December 2006 for only

    
    

    3 months up to March 2007.  The father, mother and the two children all lived together at [C] apartments. They separated in March 2007, this time for four months (“the second separation”) up until August 2007.  The parties remained living in [A].

13. Once they resumed their cohabitation in August 2007, the parties remained living together for another 5 months up until January 2008 when they separated finally in [A] (“the final separation”).

14. In relation to property matters, the husband owned significant real estate and business interests at the time the parties commenced cohabitation in China, and further assets and business were acquired during and after the marriage. The mother had minimal assets at the time of marriage, and $3000 which was intended to pay for a ticket home if things didn’t work out.

15. At each of the separations, the children [Y] and [X] remained living with the mother.  At the final separation in January 2008 the parties agreed that [X] and [Y] would spend time with the father each Friday afternoon until Sunday morning before Church, and live with the mother for the balance of the time.

16. Post separation the father travelled to France for a month around August September 2008 and [X] and [Y] remained living with the mother.  After the father returned, the previous arrangement was resumed until October 2008. 

17. The mother commenced property proceedings on 20 November 2008.  At that time the father was pressing the mother to pay rent to him in relation to the apartment she and the children occupied.  On or around that time the mother contacted the day care centre where [X] attended and allegedly told them the father was not permitted to collect [X] from the centre on a Friday as it seems he had been doing.  The father nonetheless made arrangements with the day care centre to remove [X] and the father then retained [X], returning him to day care on Monday morning rather than to the mother before Church on Sunday, which had been the arrangement. The mother then removed [X] from the day care centre and did not return [X] to the Centre, and allegedly did not allow the father to spend time with [X] at all.

1. In November 2008 the father unexpectedly and without consultation with the mother, physically took [X] from the yard outside the mother’s residence whilst the mother was inside.  The father retained [X], then four years old, indefinitely. 

2. The mother then commenced proceedings for children’s orders on

   
   

   24 December 2008 by filing an amended application to include children’s orders. In that application the mother sought leave to relocate [X] with herself and [Y] to Brisbane on a final basis and on an interim basis she sought Orders that [X] live with the her and live with the father from Friday 5pm to 9am Sunday each alternate week along with other specified times at Christmas and with telephone communication each day between 5.30 and 6.30.

3. When the mother’s solicitor wrote to the father in relation to returning [X], he responded by proposing that [X] live with him and spend time with the mother two nights per week.  

4. The mother did not take up the father’s proposal and [X] remained living with the father it seems for three months from November 2009 when he was taken by the father up until 17 February 2009 when the matter was listed for an interim hearing. 

5. The father filed a response on 17 February 2009 seeking Orders that unless specified otherwise, both [Y], and [X] live primarily with him and spend time with the mother 5 nights a fortnight from after school on Wednesday until the following Monday. 

6. The parties reached interim Consent Orders of 17 February 2009 made by FM Jarrett which provide for a week on week off shared parenting arrangement in relation to [X].  The orders also provided for [Y] to spend time with the father each alternate Saturday and Sunday between 9.00 and 5.00pm although [Y] has not spent time with the father pursuant to these Orders.  The mother says that [Y] aged 13 at the time of trial, and 12 at the time of the Consent Orders, chose not to spend time with the father primarily for reasons associated with [Y]’s dislike of the father’s new de facto relationship and partner.

7. The Orders of 17 February 2009 provided for the appointment of a single expert to prepare a Family Report and Mr J was appointed.

8. The mother filed her material 1 November 2009 in preparation for trial on 1 December 2009. In that material the mother stated that she did not wish to proceed with the relocation part of her initial application.

9. On 25 November 2009 the father filed an amended response changing orders sought from both children living with him and spending specified time with the mother, to Orders in relation to [X], living with each parent on a week on week off basis and an equal shared responsibility for both [X] and [Y].  Other changes were made as shown on the amended response.  

10. The father’s trial material was also filed on 25 November 2009.  In it he acknowledges at paragraph 109 that he has read the mother’s trial material and notes that she is not pursuing her application to relocate to Brisbane.  The father says in that affidavit that he was well aware that she would prefer to be living in Brisbane. Acknowledging that he had read the mother’s material and knew that she no longer sought to relocate, the father composed his carefully worded affidavit to say he would agree to her going and that he intended to relocate too.

11. The father continues at paragraph 110,I am in fact prepared to agree to Ms Huang relocating to the Brisbane area with the other two children.  The father proposed that [X] stay living with him in [A] awaiting sale of the [C] Apartments, for a period no greater than 12 months, after which time the week about shared residence would continue in Brisbane. 

12. The trial set for hearing on 1 December 2009 did not proceed.  At the first day of the trial before me in December 2009 in Mackay, Counsel for the mother advised the Court that in accordance with the mother’s position in her trial material, she no longer sought a relocation parenting order.

13. Counsel for the father advised the Court that the father now wished to relocate with his new partner and [X] to Brisbane and that it was the father’s wish that the whole family relocate to Brisbane, including his new de facto and her family.

14. Accordingly, Counsel for the mother, Mr Fellows, and Counsel for the father, Mr Hanlon, drew up Orders by Consent to facilitate: (a) the filing of documents by the father setting out his specific proposals for him and the child [X] to relocate to Brisbane and for the mother to respond; (b) the preparation of another Family Report to deal with the changed circumstance; (3) disclosure of specific financial documents.

15. The trial was allocated a 3^rd trial date of May 2010.

16. The position at the trial in May 2010 was that the father is seeking to relocate with [X] as his primary position and the mother is wishing to remain living in [A], a reversal of each of their earlier positions.

17. Post separation, the father has commenced living in a de facto relationship with Ms S and her four children, in [A].  The father and his de facto partner have been friends for years. 

18. The father has chosen to cease work as a manager at the [C] Apartments as he says he was finding it difficult to deal with people in the hospitality industry. The father says he was prescribed anti - depressants for a period post separation as he was feeling depressed and that he had ceased taking that medication in late 2009. The father has moved into the home of his new de facto partner, and is not working outside the home, rather he has become, according to Mr J, a “house dad” and he says that this has been good for the father’s mental health. 

19. The mother has also been suffering since separation, though she has kept working.  At the time of trial, the mother had door knocked to find work in her apartments [occuapation omitted]. She has also asked around to find more work and is [omitted]. Mr J described the separation as traumatic for each of the parties in different ways.[2]

    [2] Transcript, page 51, line 5. 12/5/10.

20. The father has a child support assessment of nil[3].

    [3] Paragraph 159 of Father’s affidavit 25 November 2009.

21. The rights for the management of [C] Apartments are for sale, the father having put them on the market some time in 2009.  The father, however, says that he is not up to dealing with tourists and has installed a manager at the [C] Apartments to take on the role of manager and is paying him a percentage of the rentals.   The father says the two homes in Brisbane were listed for sale in April 2010 and there has been no particular interest from prospective buyers.[4]

    [4] Affidavit filed by leave on 11 May 2010, paragraph34 (g).

22. The father gave evidence that it is his intention to move into the Property O property in Brisbane.

The Law

1. This application is governed by the principles set out in Part VII of the Family Law Act 1975.  In making parenting orders, the best interests of the child are the paramount consideration.  The act provides two primary considerations described by Justice Brown in Mazorski and Albright [2007] FamCA 520 as “twin pillars”. Her Honour stated: “The first is the importance to the children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B (1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC (1).”

2. When I determine the best interests of [X] I must consider the primary considerations referred to and additional considerations set out in s.60CC. If an Order for equal parental responsibility is made, I must consider equal time and if not equal time, significant and substantial time. When doing so I must have regard to s.65DAA (1) which is expressed in imperative terms. It obliges me to consider both the question of whether it is in the best interests of the child to spend equal time with each of the parents and also the question of whether it is reasonably practicable that the child spend equal time with each of them. It is only when both questions are answered in the affirmative that consideration may be given to the making of an Order. If such findings cannot be made, those considerations are applied to determine whether spending substantial and significant time with each parent should occur. Being reasonably practicable includes reference to the parties ability to put such an arrangement in place, their ability to communicate and how far apart the parents live from each other geographically. MRR v GR [2010] HCA 4.

3. I note that in this matter the parties agree that they should equally share the parental responsibility for [X]. This is a matter I will take into account when considering whether such an Order should be made.  The father conceded at the trial that the mother should have sole responsibility for [Y].

4. This case involves relocation.  There is a long line of authorities to guide me in my approach including the High Court decision in AMS v AIF (1999) 92-852 where Justice Kirby set out the general principles to be followed; A and A Relocation Approach (2000) FLC 93-035; U & U [2002] FLC 93-112 a High Court decision; and KB & TC (2005) FLC 93-224.

5. More recently there is the Full Court decision in Taylor and Barker [2007] FamCA 1246 a decision handed down after substantial amendments were enacted to the Family Law Act 1975 under the Family Law (Shared Parental Responsibility) Act 2006 and particularly McCall & Clark [2009] FamCAFC 92. I have also had regard to Sampson and Hartnett (No.10) [2007] FamCA 1365 and a decision of Justice Warnick in Porter and Byrne [2009] FamCAFC 8.

6. Cases involving relocation are difficult cases and inevitably and unfortunately, one party will be disappointed with the outcome.

Evidence

1. The mother gave evidence and was cross examined.  She relied on her case outline and the list of documents listed therein. 

2. The father gave evidence and was cross examined.  He relied on his case outline and the list of documents listed therein. 

3. The father had two supporting witnesses.  One was his new partner

   
   

   Ms S who the father has known for around 5 years since first moving to [A]. The other was Ms S’s friend of ten years Ms R. Ms R befriended the mother on the mother’s arrival to [A], some 18 months after the father, following the parties’ first separation, and describes herself as an acquaintance of the father.

4. An Order was made by consent for the parties to appoint a privately funded single expert Mr J. All of Mr J’s reports were relied on consisting of 2 reports, an addendum and a further oral report received during the trial.  The latter was organised at my request in relation to his observations with the father’s new partner and children and [X], given that this had not been organised by the parties prior to the trial.

5. I have had regard to the documents filed on behalf of each witness as indicated on the parties’ case outlines, the exhibits and the submissions made on behalf of each party.  In these reasons, statements of fact constitute findings unless indicated otherwise.

6. The parties were each represented by Counsel.  In my view nothing further could have been said or done by either Counsel in representing each of the parties respective cases.

Witnesses

The Mother

1. When the mother gave evidence her Chinese accent sometimes meant that her answers needed to be repeated. However, I considered that she was articulate and intelligent and that she expressed herself with clarity and carefully chosen words.  I am satisfied that the mother answered questions and gave evidence honestly and candidly.  

2. The mother told of her coming to Australia with her daughter [Y] with hopes and aspirations of a marriage for life, leaving her close knit family in China to live in a foreign country with the father.  It was evident from the mother’s testimony and her distress at recounting how her marriage had ended abruptly, that in her view, the intrusion of Ms S lead to the end of her marriage.  The sudden end to her marriage was unexpected and the mother gave evidence that in China a family works together for the good of the family and the husband and wife would have worked out the difficulties, not just have the husband announce the marriage was over and then leave.

3. My impression was that the mother genuinely appeared sad at the loss of her relationship and future life as wife and mother. The mother said that she believed her marriage had been undermined by those around her including Ms S and Ms R.  The mother gave evidence that her marriage came to an abrupt end after the family were awoken by a phone message, it seems late in the night.  The mother later checked on the father’s mobile phone and the message was “Can we talk now. [Ms S],” The mother asked the father to go back to the caller.  The father agreed to do that.  The mother’s evidence continued That afternoon when I went home, I said “have you ever talked to this person?”.  He said, “yes, I did”.  I said, “what’s the answer?”. “People said” - he even wont’ mention she or he - “People said they are drunk”.  All right.  You are social with some drunk”.  Because I want this relationship, I really want it madly.  I feel…. Marriage.  I put everything together to make it work, so I put up with it.  And then three days later he…. Said, “I think the relationship is over, I’ll move out”.  That’s it.[5]

   [5] Transcript p 42, line 15-20.  12/5/10.

4. The mother has undergone profound changes in her life since meeting the father and those changes involved leaving China and the loss of interaction and support of her own family, friends and culture.  The father said when he invited the mother to come to Australia, she had not even been on a plane. Ms R was for a time a significant person in her day to day life, providing assistance on the mother’s arrival in [A] back in 2006 when she needed clothes and blankets.  The mother at that stage took up the offer of free accommodation with Ms R for several weeks and through the Church, furniture and other necessities were organised for the mother and father. 

5. Mr and Ms R took on the role of support to the mother and grandmother to the children.  The mother was understandably shocked and dismayed at finding Ms R reporting her to the Department of Communities for a raft of poor parenting allegations prior to the trial, undermining her role as mother to [Y] in giving [Y] a mobile phone without reference to the mother, insisting that [Y] spend overnight time at Ms R’s house, and discussing with [Y] how she could move out of home and receive financial support. Ms R was, according to the mother’s evidence, quietly carrying information about the mother’s home life from her household to her friend of ten years, Ms S, the father’s now de facto.

6. The mother believed that Ms R was continuing to intrude into her life in contacting the Family Report writer and informing him of a myriad of allegations to show that the mother was an inadequate parent, and then ultimately turning up at the mother’s Family Law trial to give evidence against the mother and in support of the father.  I accept that the mother experienced a sense of betrayal from those who had been so significant to her support financially, socially and emotionally in Australia, ranging from the husband to her previous church friend

   
   

   Ms R and Ms S who seamlessly replaced the mother at the end of the parties’ marriage as the father’s new partner.

7. I considered the mother to be a competent and committed parent who had provided emotionally, physically and financially for two and then three children post separation, without child support from the father. Post separation she has been isolated and estranged from those who had earlier supported her.  In my view she has shown a strong character, tenacity and commitment to her own survival and that of her children through this most difficult period. To this extent I consider her to be an excellent role model for the children.

8. I accept she has a commitment to assisting her children strive for excellence academically.

The Father

1. The father is an intelligent man who has a particular acumen with financial matters which he was quite intense about and which was, it seemed to me, his main focus and interest. 

2. The father is now in his fourth significant relationship in his life.  He was married for about ten years and then had a short de facto relationship which produced his other daughter aged around 17.  He says he pays $20.00 per week child support for [S]. The mother in this matter was his second marriage and that has been fairly short lived.  The father is now in another de facto relationship.

3. The father appeared to me to be very self confident and self assured and clearly felt proud of his achievements in building up a portfolio of property. He accepted that he was asset rich income poor. His business affairs seemed to me to be a large part of his life and identity. Whilst maintaining a pleasant demeanour for some of his cross examination, at times the father demonstrated impatience, and arrogance in the witness box. He had a tendency to use business jargon and he spoke in an impersonal and detached manner about both children and property issues as if he was providing commentary from a third party perspective, rather than answering questions at a personal level. I had the impression some answers had been pre -prepared and that he wanted to say set pieces, rather than respond to questions.

4. In relation to bringing the mother out to Australia on a spouse visa, the father he wasn’t looking to jump into another marriage. The father said that whilst he had feelings for the mother at the time he made her an offer to come and live with him in Australia I felt at the time  when I left China that it was not an irreversible relationship - that a commitment to marriage had not definitely been made.  The father said that the purpose of the spousal visa was that they would have nine months before they had to make the decision to marry and that in hindsight, he would have preferred to take the nine months rather than three.   He said Ms Huang was quite forceful or adamant in her desire shortly after arriving that would she fulfil that obligation sooner rather than later.  

5. The basis of the parties’ marriage and their respective expectations were on each of their own versions, quite different.  The father spoke of his marriage in a clinical manner.

6. The father said he had struggled coping with the separation and the legal proceedings though he obtained much emotional support from

   
   

   Ms S post separation.

7. In relation to the veracity of the father’s evidence, I found that following his cross examination by Mr Betts of Counsel for the mother, that the father’s evidence on various important financial issues and other matters was less than candid. 

8. I refer to issues including:

   a)The father’s failure to comply with Orders in relation to providing evidence from his accountant and to provide his 2009 tax return until requested to do so by the wife’s Counsel when it became apparent that he had suffered losses which would offset an alleged capital gains tax liability.  Up to that time he was content to leave the liability listed in his material as a debt. In my view this was an attempt to overstate his own liabilities for his own advantage. 

   b)The father’s admission that he had twice instructed his former solicitors to write and inform the mother’s solicitors he had spent $50,000 on gambling[6] when he had not spent the money gambling at all or at the [omitted] Race Track as was stated in his then solicitors letters.  The statements contained in letters sent by the husband’s former solicitors on behalf of the husband, were in fact completely untruthful.

   c)The father’s admission that he and not the mother, had lead Mr J to wrongly believe, had sent the email which read Please proceed with your original plan and relocate back to Brisbane.  I will follow only that I can continue the 50/50 care of [X]”.  Mr J relied on this email to draw adverse inferences about the mother’s intentions as seen in the comment by Mr J that the mother would be prepared to relocate even though she states in an email to the father the following day that she will never relocate.  I believe that this is worthy of the court’s attention.  

   d)The father’s conduct in sitting in the Court room listening to his own Counsel Mr Hanlon put evidence to the mother at the trial, suggesting she allegedly sent the email to the father and that she was prepared to go to Brisbane to continue the shared care arrangement[7].  Similarly the father was content to watch his own Counsel put the same proposition to Mr J the single expert, knowing that it was wrong. 

   e)The father’s explanation in relation to failing to alert Mr J that the email was wrongly attributed as being sent by the mother.  The particular email referred to at paragraph 7.2.36 of the second Family Report refers to an email that Mr J believed was sent by the mother to the father. The father was asked by Mr Betts of Counsel in cross examination about this obvious misunderstanding by Mr J.  Mr Betts suggested to the father that he had read all three Family reports very carefully.  The father replied:  I didn’t read the second one very carefully because the report was taken on 19 February.  It was written up and distributed, I think, by 23 or 28 March or something, just prior to Easter.  My solicitor received it, I think on the Thursday prior to Easter.  I did not even receive a copy until after Easter, right, at which point, Mr J had already contacted me by phone after receiving the conversation, or taking the conversation with Ms R. 

   He said, “Have you received the report?”.  I said, “No, I believe my solicitors have it in their possession”.  He said, “Even though I’ve made recommendations in that report, based on the information from Ms R, I will need to consider amending my recommendations”.  From that point forward, I paid little attention to the second report because he said “I will need to speak with Ms R further at length” and so on and so forth.  So to me, the second report, as it stands, bore less importance, based on the fact that it was due to be updated within days[8]. 

   The father then said that he had read the second report “in general” before the trial.  When asked about reading the paragraph misquoting the author of the email the father replied I probably have, sir, but I’ve read, you know, pages and pages and pages and pages of documents.  If you’re asking me to suggest or to accept that I read and found that it was incorrect, I did not[9].

   [6] Transcript, page 149, 14/5/10, line 25-30

   [7] Transcript, 12/5/10, page 101,  line 0-5 and 25-30: page 102 and page 102 line 20.

   [8] Transcript p 148 14/5/10 lines 15 onwards.

   [9] Transcript page 148, lines 35 to 40, 14/5/10.

1. I do not accept this evidence as truthful.  The father showed signs all through his testimony of having detailed knowledge of all Family Reports and all aspects of the documents and events which occurred in this litigation. 

2. I note also the father sent an email to Mr J on the morning of Wednesday 14 April 2010 which is part of a bundle of emails attached to Exhibit F2.  In that email the father says he has just received a hard copy of the second Family Report the day before and that he had mentioned to his solicitor that the report writer had already phoned him saying that some things in the current report may be changed, that the report writer wanted to have more discussions with Ms R and future input from her.  The father says he hopes that can take place soon.

3. The father then engaged in a detailed critique of the second Family Report in which he raised no less than seven issues. The father adopted Mr J’s numbering where appropriate, and made detailed comments clarifying or responding to Mr J’s observations or opinion. The father having dealt with the content of the report, then moves on to note spelling mistakes in the report which can easily be changed, suggests that perhaps Mr J should meet his new partner and her children, and asks if further input from the children would be useful in determining his final recommendations.  The father concludes his email by noting that the report incorrectly states that the location of the interviews was in Mr J’s rooms in Brisbane. 

4. The suggestion of the father that he had scant regard to the second report as he knew there was up update coming, is plainly false.  The father gave this false evidence under oath.  

5. The father did not, prior to the commencement of the trial or his own evidence, attempt to correct the misunderstanding of Mr J.  The mother denied sending the email, which was clearly true.[10] 

   [10] Transcript p 102, 12/5/10 lines 5-10:  that page and page 103 in particular line 25.

6. In relation to the father’s evidence, wherever it is inconsistent with the mother’s evidence, and in the absence of any independent evidence, I prefer the evidence of the mother.

7. Overall I found the father to be lacking in candour, and most strategic in his approach to this litigation.

Ms S

1. Ms S has been a friend of the fathers for around 5 years since he moved [A] by himself, at a time when the mother and children remained living in Brisbane.  Ms S says she had been in a committed relationship with the husband for 8 months at the time of trial.  The father has moved into her home with four of her five children and he has become a house dad, remaining at home whilst Ms S goes to work.

2. Ms S seems to be a sensible and experienced parent of her own large family and she has a solid work history with [T] in [A].  She believes that if she put in for a transfer to Brisbane, she would likely get it.

3. Ms S says she entered into a business partnership with the father in November 2008, ten months after the father separated from the mother.  It involved the establishment of a [business] in [A].  Unfortunately, by November 2009 that [business] had closed and Ms S has been left with a debt of $60,000.00. I understand this represented borrowings against her house to invest in the venture.  

4. I was surprised to hear Ms S give evidence that although she was in a partnership with the father, she had no idea how much money the father had put in, did not know how much capital it took to set up the business and whilst she accepted that he put up most of the money, she was not able to comment on the amount of money the father had lost[11]. 

   [11] Transcript page 197, 14/5/10  line 0-25.

5. Ms S says that in mid 2009, which is prior to the [business] closing,  she and the father discussed the possibility that they might relocate to Brisbane in order to help the father maintain the current 50/50 care of [X][12].  

   [12] Paragraph 6 of her affidavit filed by leave 11/5/10.

6. Ms S owns a house in [A]. She said that the discussions with the father to move to Brisbane which occurred twelve months ago were all hypothetical but that they thought it would be better to occur in 2011 which would fit in better with her children’s schooling years.  She accepted however, that twelve months ago the father wanted [X] to stay in [A], and added obviously I would have thought that he’d want to go[13] and stated that she needed to think about such a move as she had been a single mum and independent and I wasn’t going to jump into a relationship[14].   When it was suggested to Ms S that it was a huge jump to make to go to Brisbane, with all her children, she replied Well, we haven’t made that jump yet, though, have we?[15]

   [13] Transcript page  198 14/5/10 line 20.

   [14] Transcript 14/5/10  page 198, line 20.

   [15] Transcript, 14/5/10, page 198, line 25.

7. My impression of her position in relation to the proposed relocation is that she is still considering her options and is undecided about moving to Brisbane. She seems well settled in [A] with her family, a house and long term employment. There are many significant issues involved for her which include selling or leaving her house, the prospect of relocating four children of her 5 children (two aged 15, 17 at high school and two at primary school aged 12 and 10 and noting Mr J’s comments that not all of them are keen to move) and leaving her eldest child aged 20 who lives independently in the [A] area. This is in addition to obtaining a transfer with [T] to a location in Brisbane such that she can live where the father wants to live.  Ms S also seemed hesitant to commit to a marriage type relationship. These are weighty decisions for Ms S who, as she said, has been an independent single mum for some time.

Ms R

1. Ms R describes herself as a part time [omitted], as being a leader in the [omitted] Baptist Church with her husband Mr R, surrogate grandmother to the [X] and [Y], mentor and friend of the mother.

2. Ms R fails to mention in her affidavit that she is a friend of some ten years with the father’s new partner, Ms S.  She describes Mr Darling, the father, as an acquaintance only.[16]

   [16] Paragraph 2.

3. She describes how when she first met the mother on her arrival in [A] she provided the mother with warm ugg boots when the mother first attended church in the midst of winter, and provided clothes for the mother and children.  Ms R says that she had the mother and her two children living in her home for 4 or 5 weeks to provide housing support.  Other donations have been made to the mother including food, clothing, baby equipment, baby sitting, doing household repairs etc.

4. Ms R says that she and her husband have had the children ([Y] and [X]) over to their homes and they have loved the children.

5. Having set out all of her acts of kindness extended to the mother, Ms R then deposes in her affidavit, that the mother has become bitter and hateful towards the father, and refused to accept the breakdown of her marriage.

6. Ms R’s affidavit then descends into a litany of criticisms and complaints about the mother and her mothering techniques.  Ms R, who was present when Mr J the single expert conducted his interviews with the mother and children, explained that after the interview she felt that Mr J had been grossly misled about the situation so she felt she had to inform him of the truth and that she was going to report what she believed was abuse of [Y] to the Department of Child Safety.  Ms R contacted Mr J after obtaining the phone number from Ms S and having discussions with her and the father about her proposed allegations. It was the discussions that Ms R had with the single expert Mr J that resulted in Mr J preparing a further report. 

7. Ms R’s allegations detailed in her affidavit were reported to the Department who concluded that there was no substantiated risk of harm.  Ms R expresses her own views about the mother’s treatment of her daughter [Y] in the following terms:

   “I believe Ms Huang’s treatment of [Y] is based in the Chinese culture where girls seem to be considered of no value.  For example the killing of female babies at birth, with the 1 child per family rules in China.  I have observed something similar in

   
   

   Ms Huang’s treatment of [Y] in that it is very obvious that

   
   

   Ms Huang puts greater importance on her sons than on [Y].”

8. In stark contrast to her views of the mother, Ms R concludes her affidavit with positive affirmations as to the father and his new partner saying:  I can only say that Mr Darling and Ms S in their interactions with Mr R and I have always treated us with respect, kindness and considerations with our dealings with them. 

9. In my view Ms R’s dealings with the mother and [Y] became intrusive and undermining of the mother’s role in relation to her children, [Y] in particular. It is difficult to accept that a friend and grandmother figure would express such racist views about the mother which are so grossly offensive.  Her alliance to the father and Ms S is well displayed in her affidavit. 

10. It is a poor reflection on the father that he relies on Ms R’s evidence to support his application.  I do not accept the evidence of Ms R that her concerns regarding the mother’s parenting were a separate issue entirely to the Family Law matters before this Court.

11. Ms R is one of several of the father’s acquaintances who clearly hold a very poor opinion of the mother.

Mr J - the single expert

1. At the outset I note the evidence of the father’s ongoing private dialogue with Mr J, is quite troubling.  The father’s solicitors have also entered into private correspondence with Mr J.  The father has offered up emails allegedly from unbiased acquaintances during the reporting process under cover of a note which forms part of the exhibits in this trial.  Mr J has phoned the father to discuss the second report and his contact with Ms R.  I am not sure why he dealt directly with the father as opposed to his solicitor on the record.  I note also letters sent to Mr J by the father’s solicitors with persuasive commentary in support of the father’s case, some of which has been uplifted and put into the reports[17]. I consider that as a single expert, all instructions, correspondence and documents provided to a single expert ought to be with the agreement and knowledge of all parties as is stipulated in the Family Court single expert rules.

   [17] 3 letters attached to annexure Exhibit F1.

2. The first report was dated the 12 May 2009 (“the first Family Report”).  Mr J recommended that [X] live equally between the parents and that they have equal shared responsibility.  He recommended that the mother have sole parental responsibility for [Y], which the father’s Counsel conceded at the trial as being proper.

3. Mr J was highly critical of the mother in the first report for not encouraging a relationship between both children and the father.  Much of his view was based on the mother’s outburst which occurred in response to Mr J’s direction to the mother that [Y] would be going with him for an interview and assessment with the father despite the mother’s position that [Y] did not want to see the father.  The mother openly displayed her anger and annoyance at this direction in front of the children. Mr J had announced to the mother that he would be taking both children, not only [X], to be interviewed with the father. His report gives an overview of what lead to the mother’s outburst.  Mr J wrote When I advised the mother than [Y] would be spending time with the father, I observed the most overt display of parental denigration that I have seen in a long time . The mother later apologised for her reaction. In his report Mr J described Ms Huang as regarding

   
   

   Mr Darling as “the devil incarnate” and if there is anything worse than the devil, it would have to be his partner. 

4. At the first interview the father explained to Mr J that in the past he has been something of a “workaholic” and that when he moved to [A] to take on the management responsibilities, it was on the full understanding that the mother would be moving there with him to work as a team.  The father acknowledged that his current work was very demanding, though he was able to have some flexibility and took [X] to his sporting engagements and took the children shopping. He said he felt somewhat defrauded by the mother because as soon as she qualified for social security, she left him.  The father said it was unacceptable for the mother to relocate to Brisbane as this would sever any opportunity he has to develop and maintain long term, meaningful relationships with the children.  The father also considered the mother to be emotionally unstable, erratic, vindictive towards him, and that he could provide financial security for the children, and that he was much more stable.

5. The issue of family violence is referred to in the first Family Report in relaying the mother’s reports of violence perpetrated by the father upon her which included insults, grabbing the mother around the throat and shaking her, pushing the mother against a wall in January 2007 and causing an injury to her right arm, pulling her hair and grabbing her around the neck with both hands in 2008.  The father also reported that he had a Domestic Violence Order against the mother.

6. In taking up this issue with the father Mr J noted that the father agreed that the marriage was marked by many loud and boisterous physical arguments.  The father admitted that he had lost his temper with the mother and described her as being ridiculously jealous and frequently tried to control his business arrangements.[18] 

   [18] Paragraph 3.11.2.1.

7. Mr J spoke with [Y] and having heard her eye witness accounts of the father hurting the mother, Mr J queried whether [Y]’s recollections were accurate given what he regarded as blatant denigration of the father by the mother.  [Y] is however, otherwise described as a mature and very capable student who is expected by her current principal to likely achieve an OP 1 at the conclusion of her high school years.

8. [Y] also gave a clear account which Mr J accepted of her and [X] being bored when they spent time at the fathers.  She described herself and [X] having very limited opportunities at the father’s and said they ate, played board games, watched television and played computer games.  [Y] told the father that he does not engage in enough fun activities with them. Mr J refers to the father being involved in swimming, and enrolling [X] soccer at the same club as his de facto’s children.  The mother enrolled [X] in Auskick. 

9. A second report was prepared at the request of the parties and that report is dated 29 March 2010 (“the second Family Report”).  Again the recommendation was for equal shared parental responsibility and that [X] live on an equal shared time arrangement if the parties live in the same geographical region.  In the event that the father moved to Brisbane, the recommendation was that [X] remaining living with the Mother and spend time with his father for all of the school holidays, long weekends, plus additional weekends that the parents agree upon. In relation to [Y], she should be free to spend time with Mr Darling if she expressed a wish to do so.

10. Mr J notes that the mother’s proposal has the advantages of not separating [X] from his siblings, as well as maintaining his link with his Chinese heritage, his understanding of Mandarin would be fostered, which would be enhanced if the mother’s hope of her parent’s visiting materialised.

11. The advantage in [X] living with the father in Brisbane, is said to be by Mr J that his relationship with the father will likely develop in a positive fashion without any pervasive negative influence from his mother. Mr J believes that the best arrangement is one where the parents remain living in close proximity and on balance [X]’s greater interests will be served if he is given the opportunity to maintain and develop close relationships with his siblings.  .

12. He says that the sibling relationship is lifelong, the ages in the children is not so great as to negate the benefits that they will gain from growing up together and that this is a critical issue in this matter.

    
    

    I accept this. Mr J recommends that [X] spend the entirety of the school holidays with the father, given that the mother has difficulties in supporting the father’s relationship with [X].

13. Mr J includes in his single expert report a long paragraph noting how disappointed the father will be with this recommendation because of the implications for him.  I am uncertain why this is included.

14. The report concludes with the writer raising a matter he believes is worthy of the Court’s attention.  He refers to an inconsistency between the email sent by the mother on 16 February saying she will never relocate, and an email the mother sent the day before saying Please proceed with your original plan and relocate back to Brisbane.  I will follow only that I can continue the 50/50 care of [X].  Mr J suggests that if the Court decided that the father ought to be permitted to relocate, that the mother would be prepared to relocate even though she has stated that she never would. As the evidence unfolded at the trial, it became apparent this email was not, as Mr J was led to believe, an email from the mother to the father, rather it was an email from the father to the mother.

15. In addition to the documents listed as being provided to the Report writer, it was revealed after questioning of Mr J that other emails had been provided to Mr J by the father.  Those emails are attached to a handwritten letter from the father to Mr J and are part of Exhibit F2.  Mr J produced some of the emails from his own file.

16. The father has given to Mr J three emails from people who the father describes as friends and acquaintances who had known both himself and Ms Huang (the mother).

17. In a note addressed to the report writer the father says: 

    “Mr J, I am sure it must be a difficult task for you to assess couples in our situation where your appraisal can have such an impact on the lives of those affected by such family separations.  Some months back as Ms Huang commenced her applications, I did write to a number of friends and acquaintances who had known both Ms Huang and I in the hope of getting a few unbiast [sic] replies.”

18. The father concludes that the replies may assist you to form your opinion of Ms Huang and I as individuals and why I sincerely believe I can provide [Y] and [X] a more stable and secure future.

19. In my view the emails contain fairly scathing and negative views about the mother, and positive opinions of the father.

20. Interestingly and unusually in my view, the second Family Report concluded with a bold typed and underlined notice stating “Please note that my opinions may change if I am provided with further information relevant to the best interests of the children” .

21. Co-incidentally and within days of the release of that report, the report writer was provided with more information.  It came from Ms R, who rang the father twice, the first on 6 April and again on 22 April 2010.  Ms R was a witness of the father’s at the trial, an alleged friend of the mother’s and long time friend of the father’s partner, Ms S. 

22. As a result of issues raised by Ms R, Mr J decided to prepare an addendum to the second report (“the addendum”) comprising two and half pages of single line spacing of Ms R’s allegations of poor parenting by the mother, including the mother providing inappropriate school lunches, the mother ranting and raving about the father, the mother smashing Easter eggs given to the children by the father and his new partner to the children, the mother not observing [Y]’s birthday, the suggestion that [Y] would like to live with Ms R and only see her mother on the week-ends, but only if someone else is present.   

23. Ms R included details of an incident where she says she had arranged for another lady from the Church to visit the mother to see if she was ok.  Ms R told Mr J what that lady told her about what [Y] had told the lady about what the mother had told [Y]. It was said that [Y] needed to make a decision as to whether she lives with Ms S or the mother, and that if she chooses Ms S, that the mother will never have anything to do with her again.  Mr J notes that this is clearly hearsay which I regard as somewhat of an understatement, give that it is hearsay four times over.  

1. Ms R is also a former foster parent and she had already reported the allegations to the Department.  Mr J concluded his addendum report saying that his second report was very finely balanced and he would be prepared to re-consider his opinion if Ms R was regarded by the Court as a credible and reliable witness and stated that in particular his recommendations with respect to [X]’s living arrangements may need to be revisited.  I do not regard Ms R as a credible and reliable witness.

2. At the time of the final trial Mr J said he accepted that it was unlikely that the allegations would be substantiated. The addendum was ultimately of little assistance consisting as it did of the unsubstantiated allegations of Ms R. I do not consider that Ms R’s evidence was credible.  Rather, it seemed quite contrived. 

3. I accept the mother’s evidence given in relation to her denials of each of the matters raised. As to the involvement of the father in having

   
   

   Ms R contact Mr J, the father said he and Ms S received a phone call from Ms R and they were told that that the mother had organised an impromptu birthday celebration for [X] at the second interview by Mr J and Ms R viewed this as being only organised for the purpose of Mr J’s visit[19].  The father said he felt this information was pertinent and that Mr J should know this as the mother sometimes creates things for appearance, and that this was just effectively one of those circumstances where she had arranged things to appear in a certain way[20].  The father said that he believed that this would have been the case as that coincides, based on my experience in other areas. 

   [19] Transcript 14/5/10 - p 178, line 30-35.

   [20] Transcript p 178, 14/5/10 line 45 and over the page.

4. The father said this and other issues raised by Ms R were discussed between Ms R, the father and Ms S.  Mr J’s telephone number was handed on to Ms R.

5. The father says that Mr J phoned him prior to the father receiving the second report, to inform the father of his discussions with Ms R and to say he going to reconsider his recommendation[21]. 

   [21] Transcript 14/5/10 page 177.

6. Once the father received the hard copy of the report, he wrote an email on 14 April 2010[22] to Mr J with many comments and suggestions and corrections regarding the second report.   The father suggested Ms R will be able to attest to Mr J to confirm his own belief that the gathering convened by the mother was simply for the benefit of Mr J.  

   [22] Exhibit F2.

7. At the trial Mr J gave a further oral report pursuant to my request, given that at the commencement of the trial it was apparent that Mr J had not been requested to interview the father’s new de facto partner or her children. 

8. Arrangements were made for Mr J to meet with Ms S and children in Mackay whilst the trial was in progress.  Mr J then gave oral evidence at the trial in Mackay.  He said that some time prior to the trial, he referred to the other day, he spoke to the school principal by telephone.  It was not clear to me why this had occurred or who had requested it.   Mr J also said that he has spoken to the child [Y] by phone on Monday prior to the trial.  Again it is not clear who requested this additional interview with the child by phone or why it occurred.  Mr J said in his oral evidence that he received an email from the father about the Easter Eggs and rang the child [Y] and raised with her the topic of the Easter Eggs.  [Y] explained to Mr J that the mother was angry because the money that the mother pays to the father was, in her view, wasted on Easter eggs and that they were thrown in the bin. 

9. The oral report of Mr J provided a very positive account of Ms S and her children. Whilst conceding that Ms R’s allegations about the mother would not be substantiated he also gave evidence that out of all the complaints made about the mother by Ms R, the big one for me was the issue of the Easter Eggs[23].   

   [23] Transcript p61, 12/5/10 - lines 0 to 20.

10. Mr J said that he thought the mother had been controlling herself better, had done a parenting orders program and was no longer angry with Ms S.  He continued  And then I hear, a month after I did the updated report, that she has thrown Easter eggs out the window, I am not sure of the circumstances of that.  I think, according to information I received in an email from Mr Darling, she had thrown the - one Easter egg - one or two Easter eggs -out the window, or down the drain, I think were the words that were used, driven off swearing and other Easter eggs had been thrown in the bin.  That was confirmed to me by [Y] when I spoke to her this week, that did happen and I read Ms. Darling’s affidavit where she confirmed that she had done that but offered no reason for doing it in her affidavit.”   

11. He acknowledged the significant age difference between the parties, and very wide cultural differences.  He accepted that the mother felt very much abandoned when the father left her, having invited her to come out from China.  He accepted that the father’s application to have [Y] live with him for ten out of fourteen days was a radical idea though contemplated that the father was in his own mind feeling justified on the basis of his concerns about the mother’s mental health. I note that it was the father who was prescribed medication for depression, and that is the only evidence of any mental health issue before me.

12. I accept the observations and recommendations of Mr J about the separation of siblings and the impact that separating [X] from his two siblings will have on their long term relationship.  I regard the sibling relationships between [X] and [Y] and [Z] as most important and significant as [X] progresses in life. 

13. I also accept Mr J’s view about the importance of [X] continuing to be exposed to his Chinese culture and Mandarin language through living regularly with the mother and with his siblings. 

14. I disagree with Mr J’s views about the mother being unlikely to promote a relationship between [X] and the father if the child lived primarily with the mother.  I consider that Mr J has not made sufficient allowance for the overarching context in which the mother responded angrily to Mr J’s direction that [Y] was to go the father’s for an interview.  Mr J said he did not administer a PAI test as he felt that it may not have translated well given the cultural issues with the mother. In my view Mr J has given little allowance to the significant issues and pressures the mother was dealing with, or the cultural issues and differences to do that may be involved in the mother’s responses and reactions in his presence.

15. The mother’s post separation difficulties have been ongoing and difficult and include lack of emotional and financial support in a new country, disloyalty on the part of former close friends, sadness and loss at being left by her husband after the discovery of what appeared to be a relationship occurring towards the end of the marriage. I do not consider that Mr J made sufficient allowances for the mother’s emotional responses particularly in light of cultural differences nor do I consider that Mr J has fully understood the depth of the mothers despair and loneliness and financial difficulties and the hurdles she faced post separation.

16. I do not regard the Easter Egg incident as a seminal moment in this matter as Mr J does.  I accept that the mother would be frustrated at the father and his girlfriend buying eggs for the children when the mother is out searching for work to put food on the table and the father is a millionaire.  At that time the mother had been assessed to pay child support to the father but was struggling to keep up with all of her commitments. Mr J has shown considerable sympathy for the father’s difficulties in dealing with the separation which in my view were not nearly at the same level that the mother endured.  Mr J acknowledged the father’s possible disappointment at his second recommendation.  I consider that Mr J has given insufficient regard to the mother’s personal struggles in all of the separations and after the final separation.

17. Mr J notes that the father was not denigrating of the mother[24]. I do not agree with this view.  I consider that the father holds a very poor view of the mother but that he has been much more covert about expressing his poor opinion of the mother.

    [24] 4.18.2 - second Family Report.

18. The emails the father gave to Mr J from his acquaintances were in my view highly critical of the mother and the father adopted all of their opinions as his own.  The most he can say about good aspects of the mother is that she “tries hard”. The father was not able to articulate any other positive attribute of the mother.  Nevertheless he has been more than content for [X] and [Y] to live with mother for the duration of the relationship including lengthy periods during all of the separations and he now proposes equal time.  The father told Mr J that the mother was emotionally unstable, erratic, and vindictive.  The father has relied on evidence of the mother’s poor parenting from Ms R, which has been discredited.  I do not accept Mr J that the father has not denigrated the mother which is the view held by Mr J.  I consider the father has been highly critical of the mother and that he has a low opinion her.

19. The allegations raised by Ms R have been discounted by the Department of Child Safety, by Mr J and by this court. The recommendations of Mr J made in the second report remain unaltered.  The issues referred to in that report were again referred to in oral evidence by Mr J. 

20. He re-stated the critical importance of [X] remaining living with his siblings and the detrimental effect that would likely flow from separating [X] from [Y] and [Z] and him living a vast distance away, seeing his siblings several times a year, rather than regularly and physically as would occur in a shared care arrangement.  The other significant issue is the continuation of [X] remaining in a shared residence arrangement so that he continues to be educated in his mother’s native language Mandarin, and his heritage, and be exposed to the Chinese culture as part of his heritage. I agree with Mr J’s views on these issues.

Evaluating the competing proposals – s.60CC factors

1. I will now turn to discuss those factors which are relevant to the competing applications set out in s.60CC.

The benefit of a child having a meaningful relationship with both of the child’s parents

1. The mother submits that her proposal of [X] living in [A] with herself and the father on a week on week off basis is the proposal which best suits everyone.  The mother says, that there are advantages in [X] moving regularly between her home and the father’s which provide for a meaningful relationship between [X] and each parent and his siblings, as opposed to living with one parent and seeing the other several times a year.

2. The father has previously maintained that if the mother relocated to Brisbane with [X] he would not be able to have a meaningful relationship given the distance and the infrequency with which he would spend time with [X].  The father now proposes that if he relocates with [X], and the mother does not also relocate to Brisbane, [X] will live in Brisbane and spend all of the holidays with the mother and his siblings.  He also proposes that [X] remain in touch with his mother and siblings via skype during the week. If the mother travels to Brisbane, the father says she can spend time with [X], on notice.  His preference though is for the mother to move as well.  The father states that he will not move to Brisbane if [X] is to remain living in [A] as he wants to maintain a shared living arrangement.  The father does not accept that he would have a meaningful relationship with [X] if he lived elsewhere, though he does propose that [X] would have a meaningful relationship with the mother if [X] visited his mother and siblings during all of the holidays.

3. The mother has given evidence that she and two other children are not going to move to Brisbane if the father is permitted to relocate with [X].  She says it is a difficult decision but she considers the lifestyle for her and the children who live with her is superior in [A].  As part of her consideration is the importance she has placed on [Y]’s continuity at high school and maintaining [Y]’s friendships given she is now 13.

4. The father has given evidence that he will not go to Brisbane if it means he does not have a shared residence arrangement.  Once I have had regard to all of the relevant s.60CDC factors, I will make Orders that will provide for [X] to have a meaningful relationship with each party.

Need to protect children from physical or psychological harm - abuse, neglect or family violence

1. The mother has deposed to evidence of family violence being perpetrated upon her by the father in her material and in her interviews with Mr J.  Mr J notes that the relationship appears to have been fraught with arguments and frustrations but has not regarded the history of the mother as precluding an equal shared arrangement.

2. In this matter, it seems to me that [Y] has been exposed to family violence as recalled by her to Mr J.

3. Neither party nor Counsel raises the issue of the alleged history of Family Violence as being currently relevant to the proposed plans of the parties or the capacity of either parent.  Each of the parties have has a Domestic Violence Order.  I am not aware of the allegations that supported the Father’s Order.   Each Counsel submits that once the litigation has concluded it is likely that the resolution will assist the parties to move on and that the Family Violence is historical.

4. There is no evidence of abuse to either child.

5. There is no allegation of physical violence post separation.

6. In terms of neglect, I note the allegations of Ms R and the mother’s denials.  I accept the mother’s evidence and consider that Ms R was intent on discrediting the mother in this litigation.

7. The father has also made allegations against the mother in his material including: once [X] went missing for a period at the [omitted] Festival and he attributes blame to the mother; the father being “appalled” at the sight of the leftover bread and crackers in [X]’s lunch box saying [X] obviously found the lunch unpalatable (with accompanying photograph of the said lunchbox); an incident back in 2005 when [Y] was burnt with hot water containing noodles. This incident was investigated by the Department of child Safety as shown in the subpoenaed material.  The Department of Child Safety accepted the incident was an accident and both parents had acted appropriately by seeking medical attention.  The Departmental notes report what poor conditions the mother and children were living in, that mum had no car and no licence, and that the children were very well cared for by the mother.

8. I note that these issues were not pursued at the trial by the Father’s Counsel.  As I have previously noted, I regard the mother as a competent and caring mother.  That the father raises issues such as the state of the leftover scraps of a lunchbox and the incident wherein a child has been temporarily missing at a function is illuminating to me both in terms of his willingness to be highly critical of the mother’s parenting and in terms of his lack of hands-on parenting experience.

Additional considerations:

Any views expressed by the children

1. [X] is younger aged only six and was considered by Mr J to be a little shy.  He seems to have a solid interest in computer games and other electronic games.  His interest in ball sports seems to be increasing.  He is, however, aware that the parties have had a troubled relationship saying sometimes mummy is angry with daddy and sometimes daddy is angry with mummy.  He expressed a wish to spend more time with Mummy and Daddy.  Mr J considers that [X] is happy with the shared care arrangement.  His expressed wishes were to have a toy, to have a very new computer and to have a new racing toy car which appear to be an age appropriate response.

2. I will have regard to the views of [X] appearing to indicate that he is happy with the current arrangement, noting that he is six years of age.

3. Whilst the father no longer seeks Orders about [Y], this concession was not made up until the trial.   I regard the evidence gathered by Mr J as helpful in providing information and context of the children’s experiences. 

4. [Y] was interviewed and made it very clear that she was bored spending time with her father and that when they spent time with him all he did was work.  She said that there were limited activities for them at the father’s and that whilst she had enjoyed a recent outing with the father, the only down side was that the father’s partner and her children were there, and she had felt embarrassed in front of her other friends that she met at the outing. [Y] made it clear to Mr J that she was ambivalent about spending time with Mr J and queried why she had to.  

5. [Y] expressed no desire to have ongoing contact with the father or

   
   

   Ms S.  Given the shortness of the relationship, the fact the [Y] knows of the existence of her real father for whom she clearly frets, the cultural differences and the awareness of [Y] as to the unhappy ending to her mother’s marriage and the involvement of Ms S who has replaced her mother as the father’s partner, coupled with her own memories of their conflict and family violence, her decision, in my view, is reasonably based and ought to be respected.

Willingness to promote a relationship

1. The parties have been operating on the terms of the Consent Order since February 2009 and there is no suggestion that either the mother or father acted in breach of those orders.  Each parent is content to have [X] live with the other parent in a shared living arrangement if the other parent lives in the same geographical area.

2. I accept that the father and mother have demonstrated an ability to comply with orders.

3. The mother said in her oral evidence that she accepted that [X] should have a relationship with the father.  I accept her evidence. Mr J has expressed concerns about the mother’s ability to promote a relationship between the children and the father.  Mr J said in his own report that she appears somewhat more willing to allow [X] to spend time with his father.  When questioned on this point, she indicated that this was because [X] is Mr Darling’s biological child. However, I believe if she were given the choice, she would not allow [X] to spend time with the father.  Clearly this was the case in October 2008, when she withheld [X] from father for no apparent good reason. 

4. His evaluation does not appear to make reference to the father’s conduct which followed the mother’s.  He unilaterally removed [X] from the mother’s backyard without her knowledge and withheld him from the mother indefinitely.  The father told Mr J that once he took [X] from the mother, he made offers that the mother could spend time with [X] if she agreed to [X] living with the father and spending two nights with the mother, which represented a reversal of [X]’s living arrangements.  The mother did not agree with the father’s proposal, and [X] remained with the father from November 2008 until February 2009, when the matter was listed before FM Jarrett. 

5. I have commented elsewhere that I consider that Mr J has made little allowance for any cultural issues which may have been a factor in the mother’s presentation and response during this litigation process.  Mr J told the mother that it was necessary for her daughter [Y] to go with him to see the father.  [Y] is the daughter of the mother and her first husband.  [Y] had told the mother she did not like Ms S and her children and had little interest in seeing her father.  The father had an application for [Y] to live with him, for ten out of fourteen days.  This application, which in my view, was doomed to fail was an added pressure for the mother along with all of the other pressures. I note that the mother had no objection to [X] being interviewed or spending time with the father.  Her response was to the direction that [Y] was to visit the father.  [Y] subsequently made it very clear to Mr J that she had no interest in pursuing an ongoing relationship with the father. 

Asset Pool

1. The husband organised an advance of $170,000.00 around December 2009 allegedly in anticipation of the trial occurring and an Order being made for him to pay out the wife.  $138,000 of that facility has been drawn down by the husband and is now reflected in the overall liabilities of the husband as shown in the agreed list of liabilities.  The husband has accounted for some of the funds used by him towards paying his ongoing liabilities however his evidence about the remaining $90,000.00 was confused and confusing.  The father used the funds quite quickly and admitted that he has spent $132,000.00 in

   
   

   5 months[29].   The husband has directed some of those funds towards his other loans however I found his explanations unsatisfactory and imprecise.  It was difficult to understand or make sense of the husband’s evidence.  In all aspects of the financial matters, the husband has been fastidious in pursuing the wife for rent and other charges.

   
   

   Mr Betts submits that the $77,000 should be regarded as an add back to the property pool. 

   [29] Transcript 14/5/10 page 155, 10-15 and page 154, line 5-10.

2. I am not prepared to regard the $77,000 as an add back, as an add back is the exception rather than the rule in determining a property pool and I am not fully satisfied as to the evidence, however I am satisfied that the husband has borrowed the funds and he has been solely responsible for their expenditure.  If those funds remain as a liability in the asset pool, which they do, effectively the wife is sharing in that liability.  To the extent that this occurs, I regard it as diminishing the value of the husband’s post separation financial contributions, about which he has placed great emphasis during the trial.  His references to paying the wife’s rent are a consistent theme in his material but those contributions are now to be seen in light of the husband’s additional borrowings, which have been included in the asset pool.   

The length of the marriage

1. I rely on the history of the parties as set out earlier in these reasons.

2. This is a 5 year marriage. The actual physical cohabitation amounted to just on 3 years.  The earlier separations were from August 2005 until December 2006, a period of 16 months and the second period was from March 2007 until August 2007, a further five months.

3. In relation to their cohabitation period in China, the parties lived in an apartment provided through the husband’s employment, have kept their respective earnings for their own purposes during that time with the mother assisting other members of her family from her earnings and paying for care for [Y].  [Y] lived with them for about 3 months.  The husband says that the wife remained rent free in the apartment for

   
   

   3 months after he left to return to Australia.  I do not give that period of their relationship any great weight in terms of contributions or in adding to the length of their relationship.  The husband left China in June 2002 and returned to Australia.  The wife and her daughter six months later in December 2002. 

Financial and non-financial – the husband – contributions

1. The husband says in his affidavit virtually all of the property which exists today was brought by me into the relationship and Property which has been acquired during the relationship was acquired via the capital base that I brought into the relationship as indicated in the table[30]  I accept this. 

   [30] Paragraph 9 and 10 of the husbands’ affidavit 25/11/09.

2. The husband has set out a Time Line of his Investment Properties dating back to 1972, which is 27 years prior to meeting the wife. 

3. The husband has set out the assets and liabilities as at December 2002 when the parties were living together in Australia[31].  There is no dispute that the husband bought in considerable assets which according to the table provided, were worth approximately $777,000.00 as at December 2002.  The husband had an interest in eight properties, a share portfolio, two businesses, [J] and [P] [omitted] businesses, minimal furniture, and some superannuation.

   [31] Paragraph 13, husband’s affidavit 25/11/09.

4. The father has worked in or running the businesses he acquired or established throughout the relationship. Following the acquisition of the management rights to [C] around July 2005, the husband took up that position in [A] in August 2005, and in doing so, the parties separated.  The wife, [Y] and [X] remained or were left in Brisbane.   The husband has, it seems to me, directed much time and energy into managing his property portfolio which he owned at the commencement of the marriage. He has offered some assistance with parenting when he has had the opportunity; however, the wife was the primary homemaker and carer of [X] and [Y].

5. The husband has assisted by driving children to and from school and day care. He says he did the shopping, shared the cooking and did the laundry regularly.  I accept he did this when he could.  

6. After separation he worked on two of the Brisbane properties to prepare them for sale and incurred costs in doing so.  He has continued to manage the parties assets post separation.  The mother, [X] and [Y] occupied one of the units of the marriage for a period the wife paid rent as requested by the husband.  After the interim consent orders the wife and children remained in the unit rent free, but the wife was still responsible for other charges.  The husband may have had to more of a contribution to the mortgage given that the apartment was not tenanted, however the wife received no child support or spousal maintenance, and I am satisfied that she has had been struggling financially after the separation and that the husband has been in a much stronger financial position both before, during and after the marriage. 

7. The husband says he has contributed financially towards the mother’s daughter [Y].  I accept that the father has provided for [Y] however I regard the mother as also contributing to the family finances in this regard. 

8. Post separation, the father has undertaken borrowings and undertaken an advance of funds which has increased the liabilities in the property pool.  I have dealt with this elsewhere in these reasons.

Wife’s contributions - financial and non-financial

1. The parties are agreed that the wife bought in no assets, other than around $US 3000 which was her emergency money in the event that she had to unexpectedly return to China.   

2. Once the wife had a visa to do so, she obtained work at various pursuits.  The wife sold [omitted], doing letter box drops with catalogues, studied for a diploma of [omitted], studied to sell [omitted] but found the difficulty of not having a licence and driving in Brisbane problematic. The mother had in my view worked tirelessly to pull her weight in the marriage, at times working 3 or 4 jobs at once at a variety of unskilled work which she was most conscientious in finding.  The mother showed an aptitude for hard work, and a preparedness to do anything to generate an income which she did during the marriage, and which she was forced to do post separation.  She managed both working outside the home and mothering two children and is now continuing to do this with three children. 

3. The wife worked at a [omitted] amongst other pursuits up until it became ineffective given the overtime requirement and the cost of child care. The wife also [worked] at [T] at night.  The wife said that a lot of employment needed a licence, she arrived in Australia without the ability to drive.  At various times in the wife’s evidence she said how difficult it was for her to learn to drive, then drive in and around Brisbane as she found this quite daunting.  The mother also set herself up as a day care mother caring for up to four children, plus her own.  At one stage in the marriage in [A], it seems the wife held down three if not four jobs at the same time, including [working] at [T].

4. The wife says that she used to help with invoicing and general office duties at [C] Apartments and that she was unable to be paid with the work because she did not have residency status.  I accept that the wife assisted in this business, but my impression is that the husband was the primary worker in this business. 

5. The wife was the primary carer of [X] up until February 2009.  Following that she has been responsible for [X] for one half of the time.  After separation, the mother contributed half the cost of [X]’s private school fees and the father paid the other half.  The mother assisted primarily assisted [X] with his educational endeavours, and the father has assisted to a lesser extent. Since the final separation, the father who was in a much stronger financial position that the wife, has not paid child support to the mother as he has his very low, nil or at a loss. The father says it is likely to stay that way.  The mother however as been assessed to pay the father child support.  This assessment clearly is made without any regard to the financial resources of the father. 

6. I accept that the wife was primarily responsible for the parenting of [X] and the running of the household. 

7. I consider that the parties have each worked hard and to the best of their ability to generate an income during the marriage.  The husband has it seems to me, directed much time and energy into managing his property portfolio which he owned at the commencement of the marriage. He has offered assistance with parenting when he has had the opportunity. 

8. Similarly, I consider the mother has been primarily responsible for parenting [X] and [Y].  She has been committed to ensuring that their day to day routines and educational aspects of each of the children’s lives have been attended to and she has managed to do this whilst at the same time earning income from various sources.   I accept the wife’s statement that she did not wish to be a financial burden on the husband.

The introduced assets - use - value

1. I have had regard to value of the assets the husband introduced to the marriage, the increase in value of those assets by the time of trial and the use of those assets.   I make the following observations. 

JJJ maintenance

1. In September 2002, after the parties formed their relationship, but before the wife arrived in Australia in December 2002, the husband purchased a business known as [J] Pty Ltd for $130,000.00 in which the husband was the sole manager and director of the company. The business provided [omitted] services.

2. The business was sold at a loss in July 2005 for $90,000.00.  The husband says that the business was progressing into Melbourne and Brisbane until Ms Huang’s constant complaints and arguments in regard to the business undermined my confidence and ability to perform.  He says the original sale price was $160,000.00, which would represent a profit as it was purchased for $130,000.00, however, the father says the purchaser was given vendor finance and failed to make the final payment of $70,000.00, allegedly as the business had run down.  I note that the annexure[32] is not his own document and it does not provide evidence of a sale at $160,000.00.   It is a letter to the purchaser of the business, Ms C, the former book keeper of the husband, from her own solicitors’ O’Reilly Lillicrap handling the purchase.  It confirms that the settlement for the purchase of [J] was affected on 1 May 2005 and continues:  We confirm that you have paid the sum of $90,000.00 to the Seller being the purchase price payable in relation to the business.  Reference is made to the stamp duty payable on the contract.  There is no evidence that:

   (a)there was an additional payment of $70,000.00 to be paid or that the vendor failed to pay the balance of $70,000;

   (b)that the business ran down;

   (c)that the husband lost confidence due to the wife’s criticisms of the husband or that the business ran down due the husband’s stress caused by the wife[33]. 

   [32] ASD 2, husband’s affidavit 25/11/09

   [33] Husband’s affidavit par 37.

3. The sale proceeds of [J] business were used to reduce debt, albeit that the business sold at a loss. 

Property M

1. The husband says he purchased a block of land in July 2001 in Property M whilst he was living and working in China and before he co-habited with the wife.  The contract annexed is only page 1 and does not show who purchased the property. The purchase price is $72,000.00 with a $5,000.00 deposit and the balance to be financed.   Whilst he was still in China, the husband borrowed funds and built a house on that block which he moved into with his sister on his return from China in June 2002. The husband shows the value of that house at $295,000 in December 2002[34].  The value of the house has increased during the marriage to $460,000.00. This represents an increase of $165,000.00 approximately during the marriage.

   [34] Paragraph 13 affidavit 25/11/09

“[P]”

1. In September 2002 prior to the wife’s arrival in Australia, the husband purchased an 11 metre sailing catamaran “[P]” which included a [omitted] business trading as “[F]”. The husband says the total purchase price of the yacht and business was $205,000.00.  [F] operated primarily on [location omitted] during the summer months.  The husband had staff to run the [business] if he was unavailable to himself and he also answered quotes and enquiries on the website and otherwise ran this business.   Five years later, in October 2008, the “[P]” was sold for $227,678.00[35].  The husband says, There was no value left for the business known as “[F]”. 

   [35] Paragraph 39, husband’s affidavit.

Property W

1. In December 2004 when the parties had been married for 21 months, a half interest was purchased in a house at [W], Property W. The half share was worth $190,000.00. [36]  The proposal was that the land be subdivided into two allotments, the original house would be demolished and a new house built on that lot in replacement. Ultimately four years later in 2008 the plan was finally completed as described by the husband in his material.[37]  The husband says he used his project management skills to assist with this project.  The net proceeds from this entire project were $140,466.71.  From that sum the husband’s share of CGT, estimated at $20,000.00, is to be paid.   According to the husband’s figures, (original cost price $190,000.00, final net proceeds $140,466.71) despite much effort on the part of the husband in organising the sub division as outlined in his material, the overall position seems to be a loss of around $50,000.00.

   [36] Paragraph 26.

   [37] Paragraph 26-33 husband’s affidavit 25/11/08.

2. In the period that the parties separated in August 2005 for sixteen months, the wife moved into the old original house at Property W which as I have said was destined for demolition, with both children.  The husband says the wife was interested to “rent” the house for $200.00 per week as advertised.  The wife’s says that the husband insisted that she pay rent and she had no choice but to agree.  The husband says he could have let the property to others and annexes what are alleged to be copies of letters from prospective tenants who would have paid advertised rent of $200.00 per week.  The wife paid the rent when she first moved in, but stopped after a period as friends from her Church said that she should not have to pay rent on a house in such poor condition.  The husband had a one half interest in this house.  He submits he should have been paid rent by the wife.  His half would amount to $100.00 gross per week.  I do not regard this rent free period for the wife as a significant contribution in the context of this matter.  During this time the wife remained the primary carer of [X] and she was left to generate income for her own support.  The wife was the sole carer of [X] and [Y] for sixteen months.  The husband played no role in the parenting of [X] during this period. 

3. The father paid for the wife and children to visit him on two occasions in [A] and he travelled to Brisbane once.  Any child support would have been minimal, given his low incomes.  The husband was earning an income from [C] during this entire period and he had his investments.  He was in a much stronger financial position that the wife and his son [X]. 

4. The wife’s poor financial situation was apparent when members of her local church assisted the wife when she first arrived at [A]. The local pastor and his wife provided the wife and children accommodation for a few weeks on the wife’s arrival. They donated warm clothes, Ugg boots and helped her to get into a house, providing furniture and other matters. The husband described at one point, speaking to the pastor and he acknowledged that donations of furniture were made to them.

[C] Apartments Management Rights and Unit - Sale of Property U and Property G

1. The major acquisition during the marriage was the purchase of the management rights of [C] Apartments and the accompanying home unit.  The parties had been married for just over two years at the time of purchase in 2005. [C] Units was purchased just on or around the parties’ first separation.  The total outlay for was just on $600,000.00, the unit was $360,000.00 and the management rights were $240,000.00.  The agreed value for the apartment is now $400,000.00 and the management rights are listed at $200,000.00.  This venture generates an income of $1,500.00 per week or more, subject to the rentals.     

2. Assets owned by the husband prior to cohabitation were sold to fund this purchase namely Property G and Property U.  Looking at the schedule at paragraph 13 of the husband’s affidavit, the sale price less the mortgages on each of those properties ($429,000 and $275,000 less their mortgages $152,459 and $135,600.00) resulted in around $412,000.00 of the husband’s pre-existing assets being used to acquire the management rights and accompanying home unit, costing a total of $600,.000.00.

3. The husband did work to the properties prior to listing the homes for sale.

Sale of “[omitted]”

1. Around this time the husband also sold his interest in a yacht “[omitted]” to the other half owner for $25,000.00 being less than he paid for it and resulting in a loss of $5,000.00. 

Property E and Property B real estate

1. All of the land introduced to the marriage at [Properties E & B] has increased significantly during the period of the marriage.  The block of land at Property E remains in tact having a value of around $50,000.00 at December 2002 and a value agreed at trial of $250,000.00;

   
   

   Property B was valued at $50,000.00 in December 2002 and the agreed value at trial was $150,000.00; . Lot 208 valued at $50,000.00 had an agreed value for the trial of $250,000.00. In consideration of the value of this real estate at the commencement and conclusion of the marriage, the increase in value alone is around $500,000.00 which increase forms a considerable part of the existing property pool.

Post Separation  

1. It seems that the husband provided no direct financial assistance to the wife post separation. At final separation the husband told the wife she could occupy one of the units that he owned but he requested rent and bond. The rent was set $315.00 per week which the husband put up to $325.00 before the Consent Order which provided for the wife to remain with the children without paying rent. The wife paid rent for about
   12 months, the husband says she paid for about 6 months. This is at a time when the wife was struggling to earn any funds and was paying her half for the children, and in particular [X] to go to a private church school.

2. After the Consent Orders which permitted the wife to occupy a unit rent free along with [X] and [Y], the husband has been persistent in requesting the mother to pay various charges and fees even some that were outstanding at the time the Consent Order was entered into. 

3. The husband did not make voluntary payments of cash to support his wife or child to help put food on the table each week.  The wife has door knocked to find employment and work [omitted].  Recently she has found extra work [omitted]. 

1. By comparison after separation, the husband took a trip to France for a few weeks.  He says he suffered depression following the separation and was prescribed anti depressants by his doctor and went off them at the end of 2008.  He has had the financial security to be able to give up working at [C].  He says he is not up to dealing with tourists and he has come to an arrangement with a paid a manager to work in his role for a percentage of the rentals.  He has now moved in to his new partner’s home.  He says Ms S provides him with emotional support, assistance with the care of [X] when [X] lives with him, lending the father funds to pay legal fees and she has been a partner in a new business venture, which unfortunately failed.[38]  The husband says he is enjoying staying at home and helping Ms S and her children and being a stay at home Dad. 

   [38] See the affidavit of Ms S.

2. The husband has made much in his material about the mortgage commitments he has had to pay given that the wife occupied one unit thus preventing it being rented out, and the other two properties have not tenants as they are for sale. I note that the husband has paid the mortgage on the wife’s apartment and the other two homes post separation.

3. I am satisfied that post separation the wife has had a most difficult time in all respects, including financially. 

Evaluation of the parties respective contribution

1. In relation to the initial contribution of the husband I have discussed elsewhere that there seems to be no dispute that the value of those assets as set out by the father in his material, was approximately $777,000.00. 

2. Of the current net assets of approximately $1.3 million, adding together the collective total of the increased values of the husband’s property he introduced to the marriage property pool, I consider that this equates to just over $1m of the current pool.  The wife of course has been making her own contributions in a myriad of ways during the marriage and I have regard to those contributions. 

3. There are many contributions by the wife during the marriage which I have had regard to in terms of child rearing and supporting the child [X]. In evaluating the wife’s contribution to the to the matrimonial assets I have had regard to her varied and constant endeavours to generate income or assist the husband in his business endeavours throughout the relationship, her financial difficulties and child rearing[39]. I note the length of the marriage. Apart from the husband’s initial contributions, I consider that the parties contributions during the 5 years are equal. However, I regard the post separation contributions of the wife to have been made in much more difficult circumstances than the husband experienced.

   [39] See Spiteri (insert reference)

4. I do not regard the proposed percentage as suggested by Mr Hanlon of Counsel for the father of 5 to 10% to the wife as giving the wife sufficient acknowledgement of her contributions during the marriage or the two separations and after the final separation. 

5. I consider that giving the wife’s contributions both financial and non-financial the appropriate weight and allowing for the husband’s significant direct financial contribution to the current property pool, that the appropriate percentage which adequately reflects the wife’s contributions during the marriage is 14%.

Relevant s.75(2) factors – adjustments

1. The father is aged 53 and the mother is aged 36. 

2. Neither party has evidence of any health issue which will preclude them from continuing to work.  The husband is hopeful of rejoining the [omitted] industry if he returns to Brisbane.  If not, his asset position is such that he is able to generate a very healthy income. 

The husband

1. In examining the respective income earning capacities and financial resources, the father describes himself as being a qualified [omitted] by trade, an investor in property, small business owner and also an experienced [omitted]. The father currently owns the [C] management rights and has an income of at least $1,500 per week.  The father’s financial resources are listed at $2,815,557.00 plus superannuation of $26,046.00 with total liabilities of $1,479,753.00[40].  When the father applied for a loan of $170,000 post separation the loan application form, based on information provided by the father, shows the following:

   (a)Monthly salary or wages - $14,000;

   (b)Rental income x 70% - $4,731.99;

   (c)Total gross monthly income - $18,731.99;

   (d)Total commitments per month -  $11,857.99;

   (e)Total income per annum $224,784.00.       

   [40] Financial Statement filed by leave 11 May 2010

2. It is clear from these figures that the husband’s income could be over $200,000 per annum.  It is certainly higher than $1,500 per week as shown on his sworn Financial Statement.

3. The answers the father gave under cross examination on this issue was similar to the evidence he gave in relation to how he spent the money drawn down on the facility from the Commonwealth Bank. It was confusing and given the father’s focus and particularity on financial matters I do not accept that the husband was attempting to give a clear and accurate account of his income. It is however clear to me that the husband earns a greater sum than $1,500 per week and I note the commitments as shown on the loan application (loans and credit cards) amount to $11,857.99 per month, which is $142,284.00 per annum. This amount does not include the husband’s personal and other expenses. In comparison to the wife, I regard the husband as having a much higher ability to earn an income from either his investments and current occupation.

4. The father said his taxable income for 2009 was in the negative.

The wife  

1. In examining the wife’s income earning capacity and financial resources, the mother completed her schooling and university studies in [omitted] and she holds a qualification from the [omitted] University of a [omitted] degree.  She is in my view very conscientious about obtaining work and I have no doubt that some time in the future she will obtain higher paid employment during school hours.  She is however, faced always with the difficulty of having English as her second language and while speaking mandarin is an asset, unless she can obtain work utilising that talent, I consider that she will be largely doing work in fields such as she has already shown a capacity to do.  She estimates that she will one day earn an income $40,000 or so, and I accept this.  I accept also that she wishes to remain a home based mother for the time being whilst [Z] and [X] are so young and that she has decided that it is time for settling down. 

2. The wife’s income is shown as $762.00 per week made up as follows:

   (a)Salary - $242.00;

   (b)Single parent payment - $284.00;

   (c)Family Tax Benefit - $235.00. 

3. The wife’s superannuation is $1,595.00.  The value of the property owned by her is listed at $27,100 and her liabilities are $22,388.00. 

4. I consider the husband will always have a low taxable income as he has himself suggested. He has a nil taxable income at the time of trial. This is however, completely out of line with the income he has stated he earns when applying for loans. The husband pays $20.00 per week for his
   17 year old daughter which I regard as further evidence of the husband’s likely future conduct in terms of arranging his taxable income to keep his child support low. The husband does not appreciate the true cost of raising children and it seems to me his priority is his investments.

5. The wife has an obligation to continue to support [Y] with little to no support from the biological father and also [Z] her youngest child, only just over 12 months whom it appears she receives no financial assistance.

6. I am satisfied that the wife has made significant sacrifices in leaving her country of origin China and coming to Australia. Her qualifications so far have not led to her obtaining highly paid work.  She has left her family and her work which the husband says she was highly paid for in China.  Whilst she speaks English sufficient to understand, it is her second language.  I am satisfied that there has been an impact on the wife’ earning capacity as a result of the marriage and her move to Australia to marry the husband. 

7. The wife will continue to provide for in [X] until he is 18 and as I have said, I am satisfied that she will receive little to no support in this regard and there are many years of parenting and providing for [X] ahead of her.

8. Overall I consider that the father is fairly mean spirited when it comes to financial support for [X] and that he has regarded the wife as a commercial tenant without any regard to his obligations to support her. 

9. In weighing up the s.75(2) factors and noting the significant disparity in income, the significant disparity in financial resources and the lack of child support for [X], the age of the husband, and noting the size of the asset pool, the length of the marriage and the wife’s contributions in the marriage and beyond, I am satisfied that it is appropriate to allow an uplift for the s.75(2) factors in favour of the wife of 10%. This brings the wife’s total percentage to 24%.

10. The final step is for me to evaluate whether the percentage transferred into actual dollar terms is just and equitable in all of the circumstances.  The total percentage to the wife is 24% or a figure of $328,160.00.  From this figure there needs to be deducted the assets which are already in the wife’s possession of $74,965.00, totalling a payment to the wife of $253,195.00. 

11. Having regard to the wife’s inferior financial position, I consider it appropriate that the husband be solely responsible for the payment of the expert’s reports in this matter.  Particularly in view of his own witnesses creating additional work in relation to the unfounded allegations against the mother. 

Stage 4 – are the Orders just and equitable

1. The percentages I have determined reflect the wife’s contributions during and after the marriage, both financial and non financial.  It recognises the husband’s significant financial contribution.  It provides for the husband to retain significant assets and over $1 million out of a property pool of $1,367,335.00.  Allowing for the property in the wife’s possession, the payment to the wife based on the current property pool will be $253,195.00. 

2. Importantly, the husband has had the entire benefit of any draw down included in the pool and this effectively diminishes the value of his earlier claims for post separation contributions as the wife is in effect sharing the costs of those expenses by having the liability of the draw down included in the assets and liabilities containing in the property pool.

3. In all of the circumstances I am satisfied that the percentage division is a just and equitable division of the property and I intend to make Orders accordingly. 

I certify that the preceding three hundred and twenty-eight (328) paragraphs are a true copy of the reasons for judgment of Willis FM

Date:  24 December 2010