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

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.
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.
The child live with the Mother.

In the event the Father remains living in [A]

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

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Huang and Darling

Details

AGLC: Huang and Darling [2010] FMCAfam 1400
Case: [2010] FMCAfam 1400
Decision Date: 24 December 2010

CaseChat Overview and Summary

Huang and Darling was a matter in the Family Court of Australia concerning the resolution of parenting arrangements and property distribution between the parties. The dispute centred on the best interests of the child, [X], born in 2004, and the equitable division of the couple's assets following their separation. The court had to decide on the allocation of parental responsibility, living arrangements, and the division of property between the parties.

The legal issues before the court included determining the appropriate parenting arrangements that would best serve the child's welfare, the division of parental responsibility for major long-term decisions, and the fair distribution of the net assets between the parties. The court had to consider the primary and secondary considerations outlined in section 60CC of the Family Law Act 1975, including the benefit to the child of having a meaningful relationship with both parents and any other relevant factors.

In delivering the judgment, the court found that equal shared parental responsibility was in the child's best interest, with both parents required to consult and make joint decisions regarding major long-term issues. The court ordered that the child live primarily with the mother but spend alternating weeks with the father, with specific arrangements during school holidays and special occasions. The court also mandated communication between the child and the non-residential parent at all reasonable times. Regarding property, the court ordered the husband to pay the wife a sum equivalent to 24% of the net asset pool, less any assets already in her possession, to be paid within 45 days of the order date.

The court's final orders detailed the parenting arrangements, including the equal shared parental responsibility, specific living and visitation schedules, and communication provisions. Additionally, the court mandated the husband to pay the wife a specified sum within a set timeframe, upon which the wife would relinquish any further interest in the husband's assets. The husband was to assume sole responsibility for any liabilities related to the retained assets.

Orders

Orders of the court

Children’s Matters

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;

(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.

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;

The child live with the Mother.

In the event the Father remains living in [A]

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.

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

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.

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.

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.

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.

10.

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

9:00 am to 5:00 pm.

11.

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

12.

The child live with the Mother.

13.

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.

14.

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

Property

15.

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.

16.

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

45 days of the date of this Order.

17.

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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