LUXTON & LINDSAY
[2011] FMCAfam 1332
•9 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LUXTON & LINDSAY | [2011] FMCAfam 1332 |
| FAMILY LAW – Parenting and property settlement – young child – high conflict – parental responsibility - equal time arrangement or primary care with one parent – assessment of contributions – cash gifts contributed by each of the parties’ parents. |
| Family Law Act 1975, ss.4(1), 4(1AB), 4(1AC), 60B, 60CA, 60CC, 61DA, 65D, 65DAA, 65DAB, 65X(1), 65Y, 75(2), 79 Family Law (Child Abduction Convention) Regulations 1986, Schedule 2 |
| Goode v Goode [2006] FamCA 1346, (2006) 36 Fam LR 422, (2006) FLC 93-296 P & P [2005] FamCA 1032, (2005) FLC 93-239, sub nom. P & P, (2005) 34 Fam LR 340 |
| Applicant: | MS LUXTON |
| Respondent: | MR LINDSAY |
| File Number: | PAC 214 of 2011 |
| Judgment of: | Halligan FM |
| Hearing dates: | 26, 27, 28 September 2011, 7 October 2011 |
| Date of Last Submission: | 7 October 2011 |
| Delivered at: | Parramatta |
| Delivered on: | 9 December 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Gillies |
| Solicitors for the Applicant: | Matthews Folbigg Pty Ltd |
| Counsel for the Respondent: | Ms Winfield |
| Solicitors for the Respondent: | Barwick Boitano Lawyers |
ORDERS
Any prior parenting orders in relation to the child [X] born [in] 2009 are discharged.
The wife shall have sole parental responsibility for the child.
The child shall live with the wife.
Until the child’s third birthday, the child shall spend time with the husband as follows-
(a)Each Saturday from 8.00 am until 8.00 pm; and
(b)Each Tuesday and Thursday from 6.00 pm until 8.00 pm.
From the child’s third birthday and until the child’s fourth birthday, the child shall spend time with the husband as follows-
(a)Each alternate weekend from 8.00 am Saturday until 8.00 pm Sunday; and
(b)Each Tuesday and Thursday from 6.00 pm until 8.00 pm.
From the child’s fourth birthday and until the child commences school, the child shall spend time with the husband as follows-
(a)Each alternate weekend from 6.00 pm Friday until 8.00 pm Sunday; and
(b)Each Tuesday and Thursday from 6.00 pm until 8.00 pm; and
(c)On three occasions, each including three consecutive nights, provided that-
(i)the husband gives the wife not less than 28 days written notice of his intention to exercise the time; and
(ii)the time shall not be taken consecutively with any other time; and
(iii)the occasions shall be not less that four months apart; and
(iv)each period shall conclude on the day that is the third day after the day it commences; and
(v)each period shall commence and conclude at the same hour of the day unless the parties otherwise agree.
On the child commencing school, the child shall spend time with the husband as follows-
(a)Each alternate weekend during school terms from after school Friday, or after school Thursday if the Friday is a public holiday, until before school Monday, or Tuesday if the Monday is a public holiday; and
(b)During school terms from after school each Wednesday until before school Thursday; and
(c)For half of all school holidays as agreed between the parents, and failing agreement for the first half in 2015 and each alternate year thereafter and the second half in each other year.
Notwithstanding the preceding orders-
(a)The child shall spend time with the parent with whom he is not otherwise spending time or living on the child’s birthday from 6.00 pm to 8.00 pm or, if the child’s birthday falls on a weekend or a public holiday, from 2.00 pm to 8.00 pm.
(b)The child shall spend time with each parent on that parent’s birthday, if the child is not otherwise spending time or living with that parent on that day, from 6.00 pm to 8.00 pm or, if the parent’s birthday falls on a weekend or a public holiday, from 2.00 pm to 8.00 pm.
(c)If the child is not otherwise spending time with the husband on Father's Day, the child shall spend time with the husband as follows-
(i)
Until the child’s third birthday, on Father's Day from
8.00 am to 8.00 pm;
(ii)After the child’s third birthday, on the weekend on which Father's Day falls for the time the child is then spending alternate weekends with the husband.
(d)If the child is not otherwise living with the wife on Mother's Day, the child’s time with the husband shall be suspended on the weekend on which Mother's Day falls for the time the child is otherwise to spend with the husband on that weekend under these orders.
(e)The child shall spend time with the parents each Christmas as follows-
(i)Until the child’s third birthday, with the husband from 9.00 am to 2.00 pm on Christmas Day, and otherwise on Christmas Day with the wife;
(ii)From the child’s third birthday-
A.In 2012 and each alternate year thereafter, with the husband from 6.00 pm Christmas Eve to 6.00 pm Christmas Day and with the wife from 6.00 pm Christmas Day to 6.00 pm Boxing Day; and
B.In 2013 and each alternate year thereafter, with the wife from 6.00 pm Christmas Eve to 6.00 pm Christmas Day and with the husband from 6.00 pm Christmas Day to 6.00 pm Boxing Day.
(f)The child shall spend time with the parents each Easter as follows-
(i)Until the child’s third birthday, with the husband from 9.00 am to 2.00 pm on Easter Sunday, and otherwise on Easter Sunday with the wife;
(ii)From the child’s third birthday-
A.In 2012 and each alternate year thereafter, with the husband from 6.00 pm Easter Saturday to 6.00 pm Easter Sunday and with the wife from 6.00 pm Easter Sunday to 6.00 pm Easter Monday; and
B.In 2013 and each alternate year thereafter, with the wife from 6.00 pm Easter Saturday to 6.00 pm Easter Sunday and with the husband from 6.00 pm Easter Sunday to 6.00 pm Easter Monday.
The parties shall forthwith do all things and sign all documents necessary to redeem the Australian Scholarship Fund investment and to divide the proceeds equally between them.
The wife shall pay to the husband within 60 days the sum of $80,682 (the sum).
Simultaneously with the payment referred to in the preceding order, husband shall transfer to the wife his interest in the property at Property R, being all the land in Folio Identifier [omitted] (the property), the husband shall vacate the property, and the wife shall secure the discharge of the mortgage presently secured on the property.
In the event the wife does not pay the sum to the husband within 60 days, then both parties shall forthwith do all things and sign all documents necessary to cause the property to be sold, and after payment of the reasonable costs of sale and the amount necessary to discharge the mortgage presently secured on the property, shall cause the proceeds of sale to be divided as to 32.3% to the husband and the balance to the wife.
Pending payment of the sum to the husband or the settlement of the sale of the property, each of the parties shall pay half of all mortgage payments, rates, property and contents insurance, and utility accounts as and when they fall due.
On payment of the sum to the husband or the sale of the property, the husband shall be entitled to retain from the property the following items-
(a)Dryer.
(b)Two seat sofa.
(c)Desk in the husband's room.
(d)Double bed in the husband's room.
(e)Wardrobe in the husband's room.
(f)Two chairs in the husband's room.
(g)Tea table.
(h)CD player.
(i)Record and video tape player.
(j)Two seat sofa.
(k)Microwave.
(l)Single bed.
That otherwise than as specified in the preceding order, the wife is entitled to retain the remaining contents in the property.
The wife shall, within seven days of being requested by the husband to do so, do all things and sign all documents, other than paying the costs of the transfer of registration, to transfer to the husband all her interest in the Kia motor vehicle registration number [omitted].
The husband shall, within seven days of being requested by the wife to do so, do all things and sign all documents, other than paying the costs of the transfer of registration, to transfer to the wife all his interest in the Toyota motor vehicle registration number [omitted].
Otherwise, each party shall retain to the exclusion of the other all personal property in his or her respective possession, custody or control.
Otherwise, all outstanding applications are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Luxton & Lindsay is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 214 of 2011
| MS LUXTON |
Applicant
And
| MR LINDSAY |
Respondent
REASONS FOR JUDGMENT
Introduction
These are contested proceedings for parenting and property settlement orders under the Family Law Act 1975.
The applicant wife seeks orders to the effect that-
a)The wife have sole parental responsibility for the parties’ two year old son;
b)The child live with the wife;
c)Until the child turns five, the child spend time with the husband for two hours each Tuesday and Thursday, for seven hours each alternate Saturday, and at Christmas time and on Father's Day and the child’s birthday;
d)When the child turns five, the child spend time with the husband each alternate weekend from Saturday morning to Sunday evening, for about four and a half hours each Wednesday after school, for three and a half days in each short school holidays and for three and a half days in each alternate week during the Christmas school holidays, and on the Father's Day weekend;
e)The husband be restrained from removing the child from Australia;
f)The husband transfer his interest in the former matrimonial home at [R] to the wife and that she refinance the mortgage secured on the property and pay the husband $75,200;
g)The wife transfer to the husband her interest in the Kia motor vehicle and the husband transfer to the wife his interest in the Toyota motor vehicle; and
h)The contents of the matrimonial home be divided in specie by the husband retaining specified items and the wife retaining the balance.
The husband's primary position in relation to parenting was set out in 30 separate orders he sought. The first was an order for equal shared parental responsibility. The extent to which many of the subsequent orders sought to regulate aspects of parental responsibility must raise serious doubts that he believes he and the wife can exercise equal shared parental responsibility. Nonetheless, in broad outline the husband seeks orders that-
a)The parents have equal shared parental responsibility for the child;
b)While the parties continue to live under the one roof, the child spend equal time with the parents during weekdays and weekends, with no indication how the time is to be divided, and that the parents “assist each other equally in caring for” the child on a day to day basis;
c)The parents immediately cause the child to be enrolled in long day care five days a week;
d)When the parties cease to live under the one roof, the child live with the parents on an equal time basis, with the husband Friday afternoon to Monday afternoon each alternate week and from Tuesday afternoon to Thursday afternoon each week, and otherwise with the wife (giving a split of each 14 days between the parents of 3/1/2/5/2/1);
e)The child spend half of each “day care holidays” with each parent;
f)Upon commencing school, the child spend equal time week about with each parent during school term and half of each school holidays with each parent;
g)The child spend Christmas and Easter time equally with each parent;
h)The child spend Father's Day and the husband's birthday with the husband and Mother's Day and the wife's birthday with the wife;
i)The child communicate with the parent with whom he is not then living each evening;
j)The child spend time with each parent on the child’s birthday;
k)Restrict, control or regulate the exercise of parental responsibility in relation to the child’s education, health care, extra curricula activities and overseas travel;
l)The parties sell the matrimonial home at [R] and divide the proceeds of sale 75% to the husband and 25% to the wife;
m)The husband be declared the owner of the Kia motor vehicle and the wife be declared the owner of the Toyota motor vehicle, the husband to transfer his interest in that vehicle to the wife.
The husband sought an order that otherwise than specifically provided in the property settlement orders he sought, each party retain all property in their respective possession at the date of the order. However, the parties are separated under the one roof. It is therefore questionable whether either of them has sole possession of the contents of the home. There is attached to the Minute of Orders sought by the husband a schedule of items headed “Husband's List of Household Items”, although this list is not referred to in any order he sought. As there is only one difference between the list attached to the husband’s Minute or Orders and the items the wife proposes the husband retain, I infer the list attached to the husband's Minute of Orders is a list of personalty he seeks to retain from the contents of the matrimonial home.
Despite seeking an order for the sale of the matrimonial home, the husband had no objection to the wife buying out his interest in it for an appropriate sum.
Background
The wife is 32 (born [in] 1979), the husband 31 (born [in] 1980). The husband came to Australia from China in March 2002, the wife two months later. They met in Australia and commenced cohabitation in October 2002 according to the wife, or December 2002 according to the husband. They married [in] 2003. Both gained permanent residency in Australia in 2004. The parties’ child, [X], was born [in] 2009. They separated on 5 November 2010.
The husband's parents, the child’s paternal grandparents, were in Australia from 17 November 2009 to 31 October 2010, and lived with the parties. The parties met their living expenses in Australia, including meeting the cost of a trip to the Gold Coast, day trips around Sydney, and gifts to take back to China. The paternal grandparents cared for the child while both parents were at work from January 2010. They returned to Australia on 10 September 2011, apparently on twelve month visitor visas, and remained in Australia at the time of the hearing. Since returning to Australia, they have lived in rented premises provided for their use by the husband. They do not have the right to remain permanently in Australia.
The wife's mother, the child’s maternal grandmother, has come to Australia four times. She was in Australia from 27 July 2004 to
5 September 2004, from 2 December 2007 to 6 September 2008, from 1 November 2008 to 28 April 2009, and from 22 August 2010. She remains in Australia, and has the right to remain here permanently. She has lived with the parties for all of her time in Australia, except for the first six months of her 2007/2008 visit. The parties have met the maternal grandmother’s living expenses while she has lived with them. The maternal grandmother has cared for the child when both parents have been at work from about November 2010.
The evidence
I had concerns about the reliability of the evidence of all three witnesses – the wife, the maternal grandmother and the husband – at different points in their evidence, however I am not satisfied the credit of any of them has been destroyed generally. I am satisfied a degree of caution is appropriate when assessing the evidence of all three. I will otherwise deal with my findings on contested issues of fact, as are relevant and necessary to be articulated, later in these reasons.
The evidence traversed a number of incidents and issues that ultimately do not assist the court to determine the appropriate parenting or property orders. Evidence about some of the arguments or incidents involving the parents and/or the paternal grandparents or maternal grandmother is of little consequence. Evidence attempting to show that a party offended, or was offended by, the other party or his or her parents, or that a party’s in-laws were unduly intrusive into the parties’ relationship, is of little or no consequence in the decisions I must make.
Suffice to say I am satisfied there is a poisonous relationship between the parents, between the husband and the maternal grandmother, and between the wife and the paternal grandparents, and that both parents have shown themselves incapable of separating issues concerning the child’s welfare from their mutual personal animosity.
The parties have separated, albeit they remain under the one roof. They will very soon establish independent households and their contact with each other and with their respective in-laws will significantly reduce. That hopefully will reduce the opportunity for the parent’s mutual animosity to be openly displayed.
However, while some of the matters raised by the parties are trivial or petty in the sense in which the party raised them, they may in fact have an entirely different, and more significant, relevance. That is, they may say more, relevantly and adversely, about the party raising the allegation than about the party against whom the allegation is made.
Cohabitation
As noted, there is an issue as to the date cohabitation commenced. There is no issue that by about December 2002, the parties were cohabiting. The wife bears the onus of proof of cohabitation before that date.
The wife said the parties met on 3 June 2002, commenced a relationship in August 2002 and “commenced to reside together” in October 2002. She said that some nights the parties stayed at her home and “on the other nights of the week” they stayed at the husband's home. The husband denied that the parties cohabited before occupying the same rented premises at [B] in about December 2002.
In cross-examination, the wife said that until the parties both moved to the [B] property, each party was meeting her and his own living expenses, using money provided to each party by her or his parents. It seems that until both parties moved to [B], there was no intermingling of the parties’ financial affairs or sharing of expenses.
I am not satisfied the wife has discharged the onus of proving it is more likely than not that the parties were cohabiting from October 2002. I therefore find that the parties commenced cohabitation in about December 2002.
Assets at cohabitation
The wife said when she came to Australia she brought US dollar denominated traveller’s cheques and cash that her mother gave her to pay her education expenses and living expenses. She gave evidence of cashing the traveller’s cheques in Australia and converting some of the US dollar denominated cash into Australian dollars in Australia, in June 2002. She did not say what she did with the balance of the US dollar denominated cash.
She said that by October 2002, when she said the parties commenced cohabitation, she owned a new computer she had bought for $2995, and has savings of $14,825. She said that by June 2003, she had savings of $2,679.
The evidence does not enable me to determine what savings the wife had at the date I am satisfied the parties commenced cohabitation, December 2002, as the wife did not put her bank statements for that period into evidence. However, the inference I draw from the evidence is that her savings in December 2002 were not less than her savings at June 2003.
I therefore find that at the commencement of cohabitation, the wife had a near new computer bought about two months previously for $2,995, and savings of not less than $2,679.
There is no evidence the husband had any assets at the commencement of cohabitation.
Cash gifts from the wife's mother
In 2004, the wife received a total of $US80,000 in two amounts belonging to her mother, which she placed in a bank safety deposit box. Over the ensuing years, with her mother's permission, she took various amounts from the safety deposit box, which the wife converted to Australian dollars and expended for the benefit of the parties’ household. In addition, the wife's mother gave the wife sums of money at different times.
The wife's evidence of the moneys she said she received from her mother, either directly or from funds in the safety deposit box, was generally corroborated by the maternal grandmother. The husband accepted that the wife received the funds she said she received from her mother in 2003 and 2004, and a large sum received on
1 August 2007 used for the permanent residency application for the wife's mother. As to the remaining sums the wife said she received from her mother, I am not satisfied the wife’s evidence was seriously challenged or called into question, and I accept it.
I therefore find that the wife received the following amounts from her mother-
a)$6,000 on 22 July 2003;
b)$3,000 on 7 August 2003;
c)$2,000 on 15 August 2003;
d)$2,840 on 16 June 2004;
e)$3,000 on 27 July 2004;
f)$23,700 on 30 May 2007, sourced from cash in the safety deposit box;
g)$34,227 on 1 August 2007, sourced from cash in the safety deposit box;
h)$3,100 on 5 May 2008, sourced from cash in the safety deposit box;
i)$10,400 on 13 October 2008, sourced from cash in the safety deposit box;
j)$5,600 on 20 November 2008.
As mentioned, the $34,227 received by the wife on 1 August 2007 was used for the permanent residency application for wife's mother, as follows-
a)$10,000 was drawn as a bank cheque and deposited in the husband's name as security for the permanent residency application. This security remains. It is an asset in the husband's name that he failed to disclose in his financial statement. The wife believed the bond may not be redeemed until 8 August 2017, while the husband believed it could not be redeemed until 2012. There was a $10 fee incurred by the parties for the bank cheque.
b)A further $27,860 was paid by the parties for the permanent residency application.
After meeting the cost of the permanent residency application, there was a balance of $6,357 remaining from the $34,227 the wife's mother provided to the wife. Thus, the parties contributed some of their own funds, $3,643, towards the $10,000 security for the permanent residency application, and committed those funds for the period required by the security. The net amount of $6,357 from the wife's mother after meeting the cost of the permanent residency application was similarly committed to the security, and thus has not been available for the parties’ use, although on maturity in 2012 or 2017 it will accrue to the husband. The wife’s unchallenged evidence, which I accept, is that the security deposit attracts interest at the annual rate of 3.55%.
Apart from the savings the wife had at the commencement of cohabitation, which I am satisfied were provided by the wife's mother, and excluding the net amount of $6,357 held as security for the permanent residency application, the wife said she received and had the use of a total of $59,640 from her mother during the parties’ cohabitation. I accept this evidence.
The maternal grandmother said that on returning to Australia in 2010, she gave the wife $US3,000 for the benefit of the child. The wife gave no evidence of receiving this amount, although she disclosed in her financial statement that she held $US3,000 cash, which seems more likely than not to be the amount the maternal grandmother said she gave the wife for the child. In the circumstances I am satisfied the wife received and currently retains $US3,000 from her mother. It was agreed this should be brought to account as the equivalent of $A3,012.
Cash gifts from the husband's parents
It was common ground that the husband's parents gave the parties a total of $80,000, used in the purchase of the former matrimonial home, and two sums of $10,000, in April and November 2009, respectively.
However, in addition to the $100,000 from his parents that the wife acknowledged in her evidence in chief, the husband said he received further cash from his parents as follows-
a)$6,000 on 27 July 2004;
b)$US3,800 on 9 August 2005 (he gave no evidence of converting this to Australian dollars, or the amount on conversion if he did); and
c)$8,700 on 9 November 2006.
That is, the husband said he received a total of $A114,700 plus $US3,800 from his father during the parties’ cohabitation. This evidence was unchallenged, and I accept it. However, in the absence of any evidence from the husband as to what he did with the $US3,800 he received on 9 August 2005, I am not satisfied this was contributed in any relevant sense by the husband.
I am therefore satisfied the husband contributed a total of $114,700 in cash received from his parents.
Parties’ work history
It seems both parties entered Australia initially to undertake tertiary studies. The husband obtained a master’s degree in mid 2003 and the wife obtained a master’s degree about six months later.
While studying, and until they obtained permanent employment, the parties worked in various part time positions. I accept the husband's evidence that during this period, both parties had part time jobs from time to time, and sometimes one had a job and the other did not.
Both parties secured permanent fill time employment in about late 2005 or early 2006. At times the husband has earned more than the wife, and at other times the wife has earned more than the husband. Both have continued in full time employment to the present, subject to the wife taking three months off work after the child’s birth.
The wife said she contributed her income to the support of the parties’ household. When it was put to the husband in cross-examination that the parties helped each other pay the bills, he responded “not really”. He denied the wife gave him her share of the rent every week, saying she contributed to the groceries and generally but not always contributed her share of the bills. He said that after both parties commenced full time work, both contributed to household expenses, but said he did not know what the wife otherwise did with her income as she deposited it into her own separate bank account until 2007. Thus, the husband is not in a position to dispute the wife's assertion that she contributed her income to the support of the parties’ household.
I am satisfied both parties contributed their earnings throughout their cohabitation to meet joint household expenses and their own reasonable personal expenses.
Acquisition of assets
In December 2005, the parties acquired a Toyota motor vehicle for $23,500 using savings and a vehicle lease to cover a shortfall of about $16,000. The lease was paid out in August 2007.
In July 2007, the parties purchased the matrimonial home at [R] for $358,000 with a mortgage of $286,000. The husband's parents gave $80,000 towards the purchase.
In October 2007, the home loan for the matrimonial home was split so that part of the loan was at a fixed interest rate and part at a variable interest rate.
In 2010, the parties bought a Kia motor vehicle for $26,500, using savings.
Other financial matters
The wife's brother lived with the parties for a time in the rented premises at [B] and in the matrimonial home.
The wife asserted that her brother paid $120 to $140 per week at [B] and $110 per week plus an additional $10 if he ate a meal at the matrimonial home when he lived there. The husband said the wife's brother paid $100 per week.
The wife's evidence is that her brother paid his contribution while living at the matrimonial home direct to the husband, and thus she cannot say of her own knowledge what he paid, and I therefore accept the husband's evidence it was $100.
As to the wife's assertion her brother paid $120 to $140 per week at [B], I cannot accept the wife's evidence over the husband's, and therefore she has failed to satisfy me of this fact.
I therefore find that when the wife's brother lived with the parties, he contributed $100 per week.
At separation, the parties had about $80,000 in savings. Each withdrew $40,000 from their savings. The parties agreed that these sums should be brought to account in full in the pool of divisible assets.
Since separation, the parties by agreement have each contributed half the mortgage repayments and all other payments except electricity. There was a relatively short period after separation when the husband asked the wife to pay two thirds of the electricity bill because the maternal grandmother was living in the home, and the wife did so. That arrangement ceased, and the parties have been equally sharing the cost of electricity in recognition of the maternal grandmother’s contribution in caring for the parties’ child while they are at work.
The wife said that during cohabitation and since separation the parties have each contributed to an education fund for [X]. The parties agreed to surrender the policy and divide the funds received equally.
Child care
Before separation
The wife asserted and the husband denied that before separation, the wife was the child’s primary carer and attended to most of his needs.
In the first three months of the child’s life, the wife did not work outside the home. The husband returned to work about four weeks after the child’s birth. When he did so, the paternal grandparents were living with the parties. Even though he was at work and had no direct knowledge of the care arrangements for the child during the day, he denied that the wife attended to the child’s needs while he was at work and before she returned to work. The wife said she did attend to the child’s needs at this time. The husband failed to call his parents as witnesses in his case, even though they were available. He did not explain that failure, I infer their evidence would not assist the husband's case on this issue.
I therefore accept the wife's evidence and find that for the first three months of the child’s life, the wife attended to most of the child’s needs.
From the time the wife returned to work in January 2010 until the paternal grandparents left Australia in late October 2010, the paternal grandparents cared for the child during the day each week day while the parents were at work.
From January 2010, the wife said she continued to be primarily responsible for meeting the child’s needs when she was not at work. The husband denied this and said that after the wife returned to work, “she would not even make any efforts to look at or talk to (the child)”, and “just walked past no matter how (the child) looked at her”. In effect, he asserted that the wife completely abrogated her parenting role to the paternal grandparents. Yet he failed to call his parents as witnesses to corroborate his evidence even though they were available.
I found the husband's evidence on this issue unconvincing for several reasons-
a)He maintained his assertion the paternal grandparents and not the mother cared for the child after he returned to work but the wife had not, despite acknowledging that as he was not present, he could not say who cared for the child.
b)He asserted that after the child was born and until he returned to work four week later, having given the child his first bath and first feed (the baby being bottle fed from birth), he “did most of the daily care including feeding, changing nappies, bathing, story telling and playing”. Yet after he returned to work, he did not assert he did these things when he was home, rather he said that he assisted his parents in doing these things. This is more consistent with the wife's evidence that on occasions the child was meant to be with the husband, he would leave the care of the child to his parents.
These matters, with the unexplained failure to call his parents to corroborate his evidence and the consequent adverse inference that their evidence would not have assisted his case, lead me to be satisfied it is more likely than not that the wife, from January 2010 to separation in November 2010, was the child’s primary carer when she was not at work, and that the husband, as he himself asserted, assisted his parents care for the child when he was home and the wife herself was not doing so, and thus the husband at no stage assumed the primary responsibility for any aspect of the child’s care.
After separation
It was agreed that since separation the wife has been the child’s primary carer and has attended to most of his needs when she has not been at work, and that the maternal grandmother has cared for the child while both parents have been at work.
It was agreed that the wife gives the child all his meals and that the child sleeps in the wife's bedroom. The husband’s unchallenged evidence, which I accept, is that he has requested the wife several times to give the child some of his meals and for the child to sleep with him on occasions and the wife has refused every request.
Whilst it was common ground that the child sleeps in the wife’s bedroom, it is unclear on the evidence whether the child sleeps in the same bed as the wife, or whether he sleeps in his cot in the wife's bedroom. The wife gave inconsistent evidence that the child sleeps in his cot in her bedroom, that the child’s cot is in the maternal grandmother’s room, and that the child needs to sleep with her because he is a restless sleeper and she is fearful of him falling out of bed, so that she places pillows around him in the bed to prevent him falling out.
Since separation, with the parties continuing to reside under the one roof, the arrangements for the care of the child have been that the wife and maternal grandmother attend to the child in the early morning and on weekdays, the child spends a short time with the husband before he goes to work, and for about an hour to an hour and a half when he returns home from work, then the wife gives the child his evening meal at around 7.00 pm, the parties jointly bathe the child at about 8.00 pm, and the wife puts the child to bed and attends to him as required during the night. On Saturdays, the husband has the child for a period before the wife gives him his breakfast, then during the morning after breakfast for about two and a half hours, for about an hour and a half in the afternoon before his evening meal, and the parties jointly bathe the child. Otherwise, the child is in the wife's care on Saturdays. On Sundays, the child is in the husband’s care during the afternoon, the parties jointly bathe the child, and otherwise the child is in the wife's care.
The maternal grandmother takes the child to two separate play groups, one on Monday and one on Friday.
The child usually has a day time sleep of about two to two and a half hours around the middle of the day.
The wife usually arrives home from work at about 6.00 pm, and the husband around 5.45 pm to 6.00 pm.
The wife’s unchallenged evidence, which I accept, is that the husband is required to travel interstate and overseas from time to time, and had been away for a total of two weeks in July and August 2011. She said that so far in 2011 the husband had travelled interstate and overseas. She did not indicate whether this was a reflection of the husband's usual travel commitments. The husband did not address this issue in his evidence.
The husband does not have a good relationship with the wife or the maternal grandmother. He and the wife do not have amicable conversations. The husband contended that the wife and maternal grandmother have excluded him from the care of the child, which disappointed him. He said that since separation the wife had not been communicating with him about decisions concerning the child, but he conceded this was not solely her fault. He said that he did not know the wife had cancelled the child’s place on the waiting list at one of the child care centres the parties agreed to apply for before separation until he heard the wife give evidence of doing this during the hearing.
The husband denied in cross-examination that the mood in the matrimonial home since July 2011 had been quite tense, even though in July 2011 there was an incident in the home between the husband and the maternal grandmother as a result of which an interim AVO was made against the husband for the protection of the maternal grandmother. He agreed he dose not talk to the wife and they do not remain together in the same part of the residence.
When asked in cross-examination if the child had a good relationship with the maternal grandmother, the husband said he did not know. When it was put to the husband in cross-examination that the child had a very good relationship with the wife, the husband, after a long pause, professed not to know that, either.
This evidence is deeply troubling. It speaks either of such deep distrust, animosity and resentment by the husband towards the wife and the maternal grandmother that he would not make the concession, and thus lied, or it speaks of a father who, despite living in the same house as his son, his son’s mother and his son’s maternal grandmother, is so lacking in perception and understanding of his son’s relationships and needs that he cannot say if the son has a good relationship with his maternal grandmother or a very good relationship with his mother. I am reluctant to find that the husband was lying when he gave this evidence. If he genuinely does not know these things, he can hardly expect the court to accept him as someone who can understand and thus meet his child’s needs, and he cannot seriously put himself forward as able to meet those needs.
Child’s attendance at day care
In early 2010, the parties placed the child’s name on the waiting lists at two child care centres close to the matrimonial home, [D] Child Care and [S] and [G] Child Care. The parents intended that if there was a vacancy, the child would attend full time child care from November 2010 when the paternal grandparents’ visas expired. At the time the child’s name was placed on the waiting lists, the parents were unaware they would have the assistance of the maternal grandmother when the paternal grandparents needed to leave Australia.
In about April 2010, the parties became aware they would have the assistance of the maternal grandmother to care for the child when the paternal grandparents had to leave Australia.
The husband said that after separation the wife objected to the child attending child care, the maternal grandmother then being available to care for the child.
After separation, the wife unilaterally cancelled the child’s entry on the waiting list at the [S] and [G] Child Care Centre, but maintained his place on the other waiting list.
The wife said she intended the child to attend child care one day a week when a place became available. She said she had cancelled the place on the [S] and [G] waiting list because the other centre was closer to the matrimonial home. She said the [D] centre was a two minute walk away, whereas the [S] and [G] centre was a five minute walk away.
When it was put to the wife that she had cancelled one waiting list over a mere three minutes, she changed her evidence and said the [S] and [G] centre was ten minutes away. The wife could not remember when she last followed up with the [D] centre about when a place may become available, commenting there was no urgency as the maternal grandmother was available to care for the child.
The wife said in cross-examination that she can see benefit to the child attending child care in relation to language.
The husband said he sought an order that the parties immediately enrol the child in long day care five days a week because he believed attending childcare will allow the child to prepare himself much better for school later, through speaking English at childcare as well as intermingling with other children. The child will not attend school until 2015.
Despite seeking an order that the child immediately attend long day care five days a week, the husband had made no enquiries about available long day care places, not even of the two child care centres he believed had the child on their waiting lists. And despite the child being on those two waiting lists, as the husband believed, for over 18 months without a place becoming available, he suggested in evidence that he thought that if the order he sought for the child to attend long day care was made, the child may well be attending long day care before Christmas 2011, that is within about three months. This was but one example of the husband putting forward care proposals for the child that appeared to lack any due consideration or forethought on his part.
Wife's criticisms of husband's care of child
The wife raised several incidents that she suggested showed that the husband was neglectful of the child’s welfare or that he had otherwise acted inappropriately in relation to the child’s care or safety. Most of these matters are petty in the extreme, and raise no justifiable concern for the child with the husband. I will relate all of them, including the petty matters, as in my view some of them speak tellingly and relevantly not of the husband's inability to care for the child, but of the wife's hostile and dismissive attitude to the husband and his role in the child’s life. That is not to say all the wife's criticisms are baseless, as will appear.
When husband had a cold
Shortly after separation, when the husband had a cold, a runny nose, and a cough, the wife asked the husband not to kiss the child and to stay away from the child “for a few days”. She said the husband replied that the child was his son, and kissed him “on the face and lips”. She said the child became ill with a cough and a cold. The wife did not suggest the child needed any medical attention. The husband agreed the wife asked him to stay away from the child for three days, but denied he kissed the child during the exchange with the wife.
In cross-examination, the wife said she herself remained away from the child for only a few hours when she had a cold, because she had to care for the child. However, ever since the child was three weeks old, the wife has had first the paternal grandparents and then the maternal grandmother available to care for the child. I do not accept that there was any necessity for the wife to continue to care for the child while she had a cold despite the risk, clearly implicit in the wife's criticism of the husband, of her continuing to do so.
This is an example of what I alluded to earlier – a criticism that says more about the person making the criticism than it does about the person against whom the criticism is made. In my view, the wife's criticism of the husband for not withdrawing from involvement with the child in circumstances where she herself did not do so is more than merely a case of hypocrisy by the wife.
The wife's evidence suggests an attempt by the wife to block the husband’s involvement with the child for no good reason, and suggests the wife will use any petty excuse to criticise the husband in support of her efforts to significantly restrict his time with the child under the orders she seeks. It suggests the wife lacks any proper appreciation of the benefit to the child of a close relationship with the husband or of the necessity for close involvement of the husband in the child’s routine to forge a strong parent/child bond, especially in the child’s early years.
Attending to child during storm
The wife said there was an occasion in September 2010, shortly before separation, when there were significant storms during the night with loud thunder. She said the husband remained watching TV downstairs with his parents, and she was with the child to reassure him and care for him “as I thought that [X] would be very frightened by the loudness of the storm”. The maternal grandmother corroborated this event, which she said occurred on 15 September 2010.
There was no evidence from the mother suggesting the child was in fact frightened, or in fact needed any reassurance. The maternal grandmother did not suggest the child was anxious or distressed, but said she observed the wife settling the child for the night and comforting him “so that he would not be frightened by the storm”.
This in my view is another example of pettiness on the wife's part. There clearly was a strained atmosphere in the parties’ household by this time, less than two months before separation. The wife said she did not have a good relationship with the paternal grandparents, and the wife and the maternal grandmother said the husband had seriously offended the maternal grandmother. Both parties, the paternal grandparents and the maternal grandmother as well as the child were all living together in a three bedroom residence.
The wife was with the child, and it is unclear why she is critical of the husband continuing to watch TV. Had he intervened, he would have appeared not to trust the wife to be able to afford the child any reassurance the child may have needed, not that there is any evidence the child needed any reassurance, and the risk of a dispute arising between the parents had he done so was significant.
This criticism of the husband by the wife was totally unwarranted and again demonstrates a most worrying attitude by the wife towards the husband.
Taking the child out in hot weather
The wife recently accompanied the husband and child when the husband took the child on an outing when she said she was worried about the husband taking the child out as she felt it was too hot for such a young child.
How the wife's accompanying the husband and child could have reduced the temperature or otherwise affected the weather or its impact on the child was not explained.
The wife did not suggest she asked the husband not to take the child out or otherwise expressed her concerns to him. Nor did she give any evidence about the temperature or other weather conditions at the time to attempt to demonstrate that it was in fact inappropriate for the child to go outdoors.
This is another example of the wife's pettiness in many of the criticisms she raised against the husband.
Husband dangling his feet over the edge of the lounge
The wife said the husband often lay on the lounge dangling his legs over the edge at the level of the child’s face. She said she did not think the husbands feet “should be on [X]’s head” and asked the husband to sit properly on the lounge or at least put his feet down, but he refused.
There is no evidence the wife expressed concern to the husband about his feet being “on [X]’s head”, nor did she give evidence of the husband's feet ever being “on [X]’s head”. Yet she relied on this incident as among those she said justified her expressed concern “as to the father's capacity to care for and protect [X]”.
As with many of her criticisms of the husband, her counsel did not cross-examine the husband about this incident.
Lack of care with “eye infection”
The wife said on one occasion the child was suffering from “an eye infection”, his eye was closed and “he seemed to me to be sensitive to the light”. She said that the father, while talking to his parents on Skype, held the child “up to the computer screen which place (sic) his face in the light”. She said she asked the husband not to do so as it will irritate his eye further, but the husband did not stop. She said that this “caused further irritation to his infected eye”.
There is no evidence the wife sought any medical treatment for the child for an eye infection or any other condition affecting his eye, there is no evidence beyond the wife's assertion that the child had an infected eye or any other medical condition affecting his eye, and there is no evidence beyond the wife's assertion that if the child had an infected eye or any other medical condition affecting his eye that exposure to light, including light from a computer screen, could have exacerbated the condition.
The husband was not cross-examined about this incident.
In light of the tenor of the wife's other criticisms of the father's care of the child, I am not satisfied this incident raises any concerns about the husband’s ability to care for the child, or his attitude to the child, or his ability to meet the child’s needs.
Showing child how to turn light switch on and off
The husband admitted the wife's contention that he had shown the child how to turn the light switch on and off. He conceded that the child might, when out, try to switch a power point on and off, but contended that power points are different to a light switch, and he did not see that teaching the child to turn a light switch on and off was a problem.
In my view, this was a careless and potentially dangerous thing for the husband to do. A child under two would not appreciate the difference between a light switch and a power point, nor would such a child appreciate the dangers of playing with a power point. It suggests a lackadaisical attitude by the husband towards protecting the child from potential dangers around the home.
Showing child how to turn heater on and off
The wife said that on 8 May 2011 she saw what she perceived to be the husband showing the child how to turn a heater on and off. The wife's unchallenged evidence, which I accept, was that when she asked the husband not to do that, he replied that it was not connected.
This incident, which I am satisfied occurred as the wife asserts, is another example of the husband encouraging the child in activities that could be potentially quite dangerous and harmful to the child, and that prudent parents would assiduously deter their young children from. A two year old child cannot differentiate between a heater that is connected and one that is not. If the child turned the heater on when it was connected, he could be seriously burnt or cause a fire. It seems the husband is oblivious to these obvious risks.
Letting child play with medicine box
In January 2011, the wife entered the room where the husband had the child and observed the husband watching as the child sat on the floor playing with a medication box. Despite the wife denying in cross-examination that the child was playing with an empty medicine box, she gave no evidence that she observed anything in the box. There is thus no evidence that satisfies me there was any medication in the box.
When the wife challenged the husband about permitting the child to play with the medication box, he replied that he was watching the child.
The husband's counsel stated that her instructions were that the husband conceded that letting the child play with medicine in a box would have been inappropriate, even under adult supervision, but that letting the child play with an empty medicine box under adult supervision was not inappropriate. There was within the husband's position as explained by his counsel an admission that the husband had permitted the child to play with an empty medicine box under his supervision. It was certainly not put to the wife in cross-examination that this did not occur.
The child at that time was about 15 months of age, and would not understand the difference between a full or empty medicine box, or the difference between playing with the box and its contents, or the difference between playing under parental supervision or not.
Hence, the presentation of the husband's case on instructions on this point raises concerns about the husband's proper appreciation of the risks to the child of playing with medication, and hence the husband's ability to provide a safe environment for the child.
This is particularly telling against him, as it arises not from any evidence in the wife's case about which there may be controversy, but from the position of the husband himself put on instructions by his counsel.
Thus, I am satisfied that in three different respects – showing the child how to turn the light switch on and off, showing or permitting the child to turn a heater on and off, and permitting the child to play with a medication box – the husband has failed to show a prudent appreciation of risks to the child from household dangers, that he has in fact encouraged and facilitated the child engaging in potentially dangerous play, and hence there is a real concern as to his ability to meet the child’s needs, in particular in keeping safe around the home.
Leaving child unattended in kitchen when oven on
On 2 May 2011, the husband turned the oven on in the kitchen to prepare his evening meal and then went upstairs. There is a gate to restrict the child’s access to the kitchen. The maternal grandmother a short time later ushered the child away as he approached the hot oven in the kitchen.
It was the wife's case, corroborated by the maternal grandmother, that the child was in the kitchen with the husband when he turned the oven on, and the husband left the child there when he went upstairs, thus exposing the child to danger from the hot oven, which the maternal grandmother then intervened to protect the child from.
It was the husband's case that the child was not with him in the kitchen, but was in the dining room, when he turned the oven on and went upstairs, and that he was not responsible for what ensued.
The wife's evidence about this incident cannot be accepted. Despite asserting in evidence in chief that she saw the father leave the child in the kitchen without supervision and then saw the child approach the oven, and asserting in cross-examination that she saw the child follow the husband into the kitchen, saw the husband leave the child unattended in the kitchen, and saw the maternal grandmother quickly help the child away from the oven, she ultimately admitted that she was in the lounge room and could not see what happened in the kitchen. Similarly, her evidence denying that it was the maternal grandmother who let the child into the kitchen cannot be given any weight as the wife simply could not see what happened in the kitchen. It appears the wife constructed her elaborate evidence of what she saw based solely on having heard the maternal grandmother say “[X], stay away from there”.
The maternal grandmother’s evidence in cross-examination that she did not see how the husband left the gate into the kitchen when he went upstairs, and that when she came into the kitchen the child was there by himself, also raises doubts in my mind about whether she was in fact in a position to see the husband with the child in the kitchen and to see the husband leave the child in the kitchen alone.
The husband said the incident occurred around dinner time when the child was in the care of the wife and the maternal grandmother. He said he went to prepare his evening meal, placed it in the oven, then went upstairs to prepare the child’s bath, closing the gate into the kitchen. He said that when he went upstairs, the child was in the dining area. He was not shaken in this evidence in cross-examination.
The maternal grandmother said the incident occurred at or after
7.00 pm. It was the wife's case that this is the time at which the child is in her care for his evening meal, and not in the husband's care. Thus, this is consistent with the husband's version of this incident, at least to the extent that the child at the time would usually have been in the wife's care, not the husband's care.
I am not satisfied on the evidence that the husband inappropriately left the child alone in the kitchen on this occasion.
Other non-financial contributions
The wife said that initially she did all the housework, including doing the washing by hand for a time as the parties did not have a washing machine. She said that subsequently the parties shared household duties, although at times she did more than the husband, and when she was pregnant the husband did more than she did.
The wife said that during the almost 12 months that the husband's parents lived with the parties (from 17 November 2009 to
31 October 2010, when they returned to China), she did the majority of the housework, cleaned the house, both parties shopped, she prepared the meals for the child, she did the washing, but the husband prepared the evening meal. In cross-examination, she said the paternal grandmother prepared meals until the maternal grandmother arrived but did not do so after the maternal grandmother arrived. She denied the paternal grandparents did housework, saying she did it.
The husband did not address this aspect of contributions in his evidence in chief. In cross-examination he denied that up to separation the wife did most of the housework. He denied that the wife alone did the washing, cleaned the bathroom and kitchen, and cooked. He said the parties had a washing machine for the entire period of their cohabitation since the wife's cousin moved in with them. He denied the wife did most of the housework after his parents came to live with the parties. He admitted that since separation, the wife and the maternal grandmother have done all the cleaning except of his bedroom and bathroom.
This is another factual issue where the husband could have, but did not, call his parents to corroborate his evidence as to whether it was the wife or his parents who did most of the housework in the nearly twelve months they lived with the parties.
On balance, whether there was a period when the parties did not have a washing machine or not, I am satisfied that the wife made the greater contribution in relation to household tasks, although the husband also contributed to them, albeit to a lesser extend, and his parents also rendered some assistance in the performance of some tasks when they lived with the parties.
Family violence
On 19 July 2011, an argument occurred between the husband and the maternal grandmother when the husband asked how the child sustained two scratches on his face that day while in the maternal grandmother’s care while the parents were at work.
The maternal grandmother gave evidence that as the verbal exchange between them became more argumentative, the husband became very angry, kicked and broke a child barrier on the stairs, kicked the child’s pram several times, pushed his finger into her nose, and when she pushed his hand away, he used both his hands to push her in the chest, causing her to reel back and nearly fall over. The maternal grandmother said she was frightened and asked the wife, who she said she then saw standing on the stairs holding the child, to call the police.
The wife said she saw the husband kick the child barrier, kick the child’s stroller, and push her mother in the chest with both hands.
An application for an AVO was then made, and a provisional ex parte AVO was made against the husband for the protection of the maternal grandmother in the early hours of the following morning. The husband was arrested and charged with common assault. The AVO application and the criminal charge had not been determined at the time of the hearing.
The maternal grandmother was not cross-examined about her version of this incident. The husband gave no evidence about it.
It was submitted on behalf of the husband that I should not draw any inference from the husband's failure to give evidence about this incident, inter alia because it was said affidavits in reply were not permitted and the husband thus had no opportunity to put evidence in chief about it before the court.
This submission is disingenuous and simply incorrect. The husband's counsel sought and was granted leave to adduce oral evidence in chief from the husband, including oral evidence in reply to aspects of both the wife's affidavit and the maternal grandmother’s affidavit. She did not seek leave to adduce evidence in reply to the evidence in the wife's case concerning the incident on 19 July 2011. There was an opportunity for the husband to seek to give evidence about this incident if he wished to. He did not seek to do so.
The fact there are pending AVO and criminal proceedings pending against the husband in relation to this incident may provide one possible explanation why the husband chose not to give evidence about it. I will proceed on the basis that I should not draw any adverse inference from the husband's failure to give evidence about the incident. Nor do I find it necessary to draw any adverse inference from the failure of the husband's counsel to cross-examine the maternal grandmother about this incident. Her evidence about the incident is simply unchallenged and uncontradicted.
The fact AVO and criminal proceedings are pending in relation to the incident of 19 July 2011 in no way inhibits the right, and in fact the obligation, of this court to make such findings of fact about the incident as are supported by such evidence as is placed before it and as are necessary to discharge its obligation to consider all the relevant matters under s.60CC, in particular s.60CC(2)(b) and (3)(j) and (k).
There is no basis on which I could not accept the maternal grandmother’s evidence when it remains unchallenged and uncontradicted. I accept her evidence and find that on this occasion the husband displayed violent anger, kicked and broke the child barrier, kicked the child’s pram or stroller, struck the maternal grandmother on the nose with his finger, and when the maternal grandmother pushed his arm away he used both his hands to push the maternal grandmother in the chest. I accept the maternal grandmother’s evidence that she was frightened.
The maternal grandmother is the husband’s mother-in-law, and hence is a member of the husband's family within the meaning of that term when used in the definition of family violence (see definition of “member of the family” in ss.4(1), (1AB) and (1AC), Family Law Act 1975). I am satisfied that this incident was an incident of family violence as defined in the Family Law Act 1975 (see definition of “family violence” in s.4(1)) as I am satisfied that-
a)the husband engaged in conduct, namely striking the maternal grandmother, a member of his family, on the nose and pushing her with both his hands in her chest, causing the maternal grandmother to fear for her personal safety; and
b)that fear was reasonably held, considering the preceding actions of the husband in kicking and damaging the child barrier and kicking the child’s pram or stroller, and then in striking the maternal grandmother on the nose and pushing her in the chest.
There were various allegations made by the husband about the maternal grandmother’s behaviour towards himself and towards the wife. The allegations are disputed by the wife and the maternal grandmother, and even if true, cannot amount to family violence. Similarly, there were a number of other allegations by the wife against the paternal grandmother, which were denied by the husband, but which in the terms alleged cannot amount to family violence. None of these matters in my view are of assistance in determining what parenting arrangement is best for the child.
The one incident that is of concern occurred on 12 December 2010, shortly after separation, and as the husband describes it, in effect involved a tug of war over the child between himself and the wife and maternal grandmother. The relevance of this incident in my view is to illustrate that on the husband's own evidence, he was prepared to physically dispute possession of the child without regard for the effect of his actions on the child.
On the husband's version of this event, the wife and maternal grandmother were similarly culpable. However, the wife denied the husband's version of this event, was not shaken in cross-examination about it, and the maternal grandmother was not cross-examined about this incident at all. I therefore cannot prefer the husband's version of the event over that of the wife and maternal grandmother, and I am left with a situation where on the evidence, I can only be satisfied that the husband acted inappropriately and without proper regard for the child’s welfare on this occasions.
The parties’ current circumstances
Both parties are in full time employment, working five days a week. Currently, the wife arrives home from work at about 6.00 pm and the husband arrives at around 5.45 pm or 6.00 pm.
The wife's income from her employment is $985 per week. She has no other income. She has no property, financial resources or liabilities other than as included in the pool of divisible assets listed below.
The maternal grandmother receives an income from China, the amount of which was not disclosed in the evidence. The wife's assertion in her financial statement that the maternal grandmother’s income was nil is incorrect. The wife acknowledged in cross-examination that she was aware her mother received income from China.
The maternal grandmother has no property in China, having sold her property in China in 2007.
The husband earns $1,441 per week, including $6 per week interest.
Neither party pays the other any child support at this stage. The husband said both parents share the costs of supporting the child. There was no evidence as to how or in what amount they did this, although the husband stated in his financial statement that he has average weekly expenses of $50 in relation to the child, evidence that was unchallenged.
The parties’ proposals
The wife
The wife ultimately sought parenting orders that she have sole parental responsibility for the child, that the child live with her, and that the child spend time with the husband until he turns five each Tuesday and Thursday from 5.30 pm until 7.30 pm, each Saturday from 10.00 am until 5.00 pm, and for specified times at Christmas, on Father's Day, and on the child’s birthday. Thus, until the child turns five, the wife proposed that the child not spend any overnight time with the husband.
On turning five, the wife proposed that the child spend time with the husband each alternate weekend from an unspecified time on Saturday morning until 6.00 pm Sunday, each Wednesday from after school until 7.30 pm or, if the child has not commenced school or is not at school, from 3.00 pm until 7.30 pm, during school holidays at the end of Terms 1, 2 and 3 from 9.00 am on the first Thursday until 6.00 pm on the following Sunday, during the Christmas school holidays from 9.00 am on the second Thursday and each alternate Thursday thereafter until 6.00 pm on the following Sunday and on the Father’s Day weekend and on the child’s birthday. Thus, even when the child commences school, the maximum continuous period she proposed the child spend with the husband was three nights.
The wife sought an order restraining the husband removing the child from Australia.
The wife did not articulate any orders in the alternative if the court did not make the parenting orders she sought.
By way of property settlement, the wife sought orders that she pay the husband $75,200 and he transfer his interest in the matrimonial home to her, in default of payment the home to be sold and the net proceeds divided as to $75,200 to the husband and the balance to the wife. Pending the orders being carried into effect, she proposed that the parties equally share the outgoings on the property. The wife further proposed that she transfer her interest in the Kia motor vehicle to the husband and he transfer his interest in the Toyota motor vehicle to her. She proposed that the husband retain specified items from the matrimonial home, and that otherwise she retain its contents.
Thus, despite the incident of family violence in July 2011, the wife's proposal is that both parties continue to occupy the matrimonial home until the property settlement is carried into effect.
The wife wishes to retain the matrimonial home as part of the property settlement and remain living there with the child and her mother, who she proposes will continue to care for the child when she is at work.
The wife said she had made enquiries of “child care centres” and anticipated that if her mother is not available to assist in the care of the child, child care would cost about $75 - $89 a day, before the Government rebate. What “child care centres” the wife approached was not stated.
The wife said that the child sleeps with her. She said she proposed the child having his own bedroom when he was five. She said she did not think the child was capable of sleeping on his own before then as he is unsettled getting to sleep and while asleep, and he could fall out of bed if on his own.
The maternal grandmother is part of the wife's long term care plans for the child. The wife said that while she and her mother had had “some disagreements” from time to time, they have a close relationship, and the maternal grandmother is supportive of her and the child.
Despite the attempts of the wife and the maternal grandmother to suggest that the reason the maternal grandmother had left Australia early in the wife's pregnancy had nothing to do with an argument they had shortly before the maternal grandmother left, I am satisfied this is the reason the maternal grandmother left. In evidence in cross-examination about this, both the wife and the maternal grandmother sought to suggest that the reason the maternal grandmother left was because the husband had offended her. Yet neither advanced that reason in their evidence in chief. The maternal grandmother’s evidence in chief in fact fully supports the husband's contention that the dispute between the maternal grandmother and the wife was the reason for the maternal grandmother leaving.
Despite this, the evidence of the wife and the maternal grandmother is that their rift has been healed. The maternal grandmother has been living in the matrimonial home and caring for the child for the past twelve months. The husband gave no evidence of disputes between the wife and the maternal grandmother during that time.
I accept the evidence of the wife and the maternal grandmother that their relationship is now strong and supportive, and that the maternal grandmother will remain in the long term to assist the wife as she needs in the care of [X]. As mentioned, the maternal grandmother has permanent residency in Australia.
The maternal grandmother is aged 62, and in good health. She has two children, both of whom live in Australia.
The wife said that that she believes attending child care will help the child with English, and said that because of the child’s age, she believed the child should attend child care one day a week. However, it was clear the wife was in no hurry to arrange for the child to attend child care at all.
The husband disagreed with the wife's proposal that the maternal grandmother care for the child while the child is in the wife’s care and the wife is at work. He contended it was not in the child’s best interests as “attending childcare will allow (the child) to prepare himself much better for school later, which includes speaking English at childcare as well as intermingling with other children”. He also based his objection on the contention the maternal grandmother was likely to return to China “anytime”. I am not satisfied on the evidence that this is so.
The wife speaks English and Mandarin to the child at home, and the maternal grandmother speaks Mandarin apart from some single English words.
The husband
The husband ultimately proposed that the parents have equal shared parental responsibility and that there be an equal time care arrangement for the child. He proposed that from when the parties ceased to reside together in the matrimonial home, each fortnight be divided between the parents, commencing with time in his care, in the pattern 3/1/2/5/2/1. That is, the child in each fortnight would spend periods of 3, 2 and 2 days and nights with him, and periods of 1, 5 and 1 days and nights with the wife. The husband also proposed that the child spend half of each day care holiday period or, when the child commences school, half of all school holidays, with each parent as block time. He also proposed specific arrangements for Christmas, Easter, Father's Day, Mother's Day, each parent’s birthday and the child’s birthday.
As already mentioned, the husband sought an order that the parents immediately enrol the child in a day care centre to attend long day care five days a week. The order he sought did not state the hours of attendance at long day care the husband proposed.
Despite seeking an equal shared parental responsibility order under his primary proposal, the husband sought numerous orders seeking to regulate and control the way in which the parents would exercise parental responsibility.
If the court did not order an equal time arrangement, the husband ultimately, on the final day of the hearing, sought sole parental responsibility, that the child live with him, and spend time with the wife each alternate weekend from 6.00 pm Friday or, when the child commences school, from after school Friday, to 5.00 pm Sunday or, when the child commences school, before school Monday, each Tuesday and Thursday from 3.00 pm or after school until 7.00 pm, and for half of all child care closure periods or, when the child commences school, school holidays. He also proposed that the child spend time with the wife on the child’s and the wife’s birthdays, but made no proposals for Mother's Day, Father's Day, his birthday, Christmas or Easter. Being articulated for the first time after the close of the evidence, the husband was not cross-examined on this alternative proposal.
As eventually articulated on the final day of the hearing, if the court decided the child should live primarily with the wife the husband sought mirror image orders of those he sought if the child was to live primarily with him.
The husband sought by way of property settlement that the matrimonial home be sold and that he receive 75% of the net proceeds and the wife the balance, and that pending sale the parties jointly be responsible for all mortgage payments and other outgoings on the matrimonial home. He sought to retain the Kia motor vehicle and that the wife retain the Toyota motor vehicle. Despite seeking a sale of the matrimonial home, the husband raised no objection to the wife buying out his interest in the home for an appropriate sum.
In cross-examination about what he proposed if the court did not order an equal time arrangement, which preceded the articulation of the first alternative to his primary position as set out above, the husband said he wanted the child to live with him and spend time with the wife as many nights as possible each fortnight. When it was pointed out that this may entail the child spending 14 nights a fortnight with the wife, he said he was not suggesting that. He then said if the child lived primarily with him, the child should spend time with the wife from around 6.00 pm each Wednesday until 8.30 am or 9.00 am the following day, and each weekend from 1.00 pm Saturday to around 5.00 pm Sunday. In addition he said the child should spend time with the wife from 3.00 pm to 6.00 pm each Tuesday. When challenged on the time he was proposing for Tuesdays, he agreed that as the wife would be at work at this time this would not be time the wife could spend with the child.
He sought to excuse this error by suggesting that he had not had sufficient time to think about an alternative arrangement, even though he said he was aware that the court might not order what he wanted as his preferred outcome. He then proposed that there be one day of midweek time only, each Thursday from 6.00 pm to bedtime.
This is a further illustration of the husband failing to think through his proposals for the child. The husband's proposals from the outset suggested a lack of proper consideration and reflection on them.
As part of his primary proposal, the husband sought orders that until the parties cease to reside in the same residence, the child spend equal time with each parent and that the parents assist each other equally in caring for the child on a day to day basis including feeding, bathing and putting the child to bed. The husband said in cross-examination that at present while the parents jointly bathe the child, the other mentioned activities are not done together and he was not proposing that the parents do them together, contradicting his application. When asked how the parties were to work out who was to feed the child or put the child to bed, the husband then said the parents were to do these activities together.
The husband then conceded that in circumstances where he said the wife will not talk to him, the arrangement he was proposing was not good for the child. In light of that concession, with which I entirely agree, I will not further consider this option.
When cross-examined about his proposal that the child spend half of child care holidays with each parent, the husband said this was a period of either two or four weeks at Christmas time when he understood child care centres closed. Although he had made no enquiries about the availability of a child care place for the child, he said he contemplated that if an equal time order was made, the child may be in long day care before the end of 2011. He conceded that thus his proposal may entail the child spending a block period of two weeks in his care and two weeks in the wife's care around Christmas 2011, when the child would be aged about two years and three months. He said he considered such an arrangement appropriate for the child, even though he conceded the wife had attended to the majority of the child’s care since the child was about one, the child had never before been away from the wife overnight, and he could not say whether the child had a very good relationship with the wife.
The husband said that when he leaves the matrimonial home, he proposes to move to another residence in or near the suburb where the matrimonial home is situated. He is currently renting a two bedroom unit under a 12 month lease. His parents occupy this unit. It seemed that he intended to move to those premises on vacating the matrimonial home. He said at the end of the lease of those premises, he would either buy another property or seek to extend the lease.
It remained unstated in the husband’s case how he proposed he, the child and the paternal grandparents would occupy this two bedroom unit when the child was with him. However, I note that the wife's evidence is that the chid sleeps with her, and hence I infer a two bedroom unit would be adequate, at least until the child turns five on the basis of the wife's own proposals.
The husband said he prefers to send the child to child care and “eventually” intends to work from home one day a week, allowing him “the flexibility to look after (the child) also”. This raised doubts that the husband proposed to send the child to long day care on any day he could work from home.
Despite this, the husband maintained his proposal that the child commence attending long day care whether in the wife's care or his care, despite the availability of both the maternal grandmother and the paternal grandparents to assist with child care when the parents are at work.
If an equal time order was implemented immediately, the husband does not have a child care place for the child when he is at work, and he would rely on the paternal grandparents, who, like the maternal grandmother, speak very little English, to care for the child when the child is living with him and he is at work. However, he was clear that if a child care spot was available, he would put the child in long day care even if his parents remained available to care for the child.
The husband agreed that the child had never been out of the wife's care at night, but that the child had spent nights out of his care when he was travelling on work commitments. He had not sought advice from anyone on the impact of his proposals on the child.
The only problems for the child the husband said he foresaw under his primary proposal of equal time were that the child would not be familiar with his flat and might not be comfortable in the cot he would buy for him. Further, the husband said that he had considered whether an equal time arrangement may cause problems for the child because of the lack of communication between the parents. He said the problem he foresaw was that the child’s condition may not be communicated between the parents, but he professed not to see this as in fact being a problem.
The husband simply did not recognise there might be an issue separating his two year old son from his primary carer at night for the first time in his life. When taken with the husband's professed ignorance whether or not his son has a very good relationship with the wife, I have serious doubts that this father has any proper understanding of the needs of his young son. If he does not understand those needs, he can hardly be expected to meet them. It is equally troubling that the husband could not foresee that the risk he said existed under an equal time arrangement of the parents not communicating with each other about the child’s condition could have significant adverse impacts on the child’s health and welfare.
Overseas travel
The wife said she was seeking to restrain the father removing the child from Australia as she was worried he would attempt to take the child to China.
She said she did not enjoy a good relationship with the husband's parents, having argued with the paternal grandmother on a number of occasions. The wife said that during an argument with the paternal grandmother shortly before the paternal grandparents returned to China, the paternal grandmother threatened to sell her property in China, migrate to Australia and live with the parties to protect the husband and fight with the wife every day. Of course, this threat is the exact opposite of what the wife says she fears, the husband taking the child to China to be with his parents, not the husband's parents coming permanently to Australia.
The wife said the husband said to her that his parents would care for the child after the parties are divorced. She said the paternal grandmother told her she keeps the husband's work position open for him in China and pays the insurance for him there.
In cross-examination, the husband said he had no intention of returning to China.
While they are currently in Australia, the paternal grandparents, who are the husband's only close relatives, have no right to remain permanently in Australia. The husband is their only child. The only family the husband has in Australia is one male cousin, and all the rest of his family live in China.
Parenting issues
The applicable law
The determination of the appropriate parenting orders is governed by Part VII of the Family Law Act 1975. The objects of Part VII and the principles underlying them are set out in s.60B.
The Court may make such parenting order as it sees fit, subject to ss.61DA (presumption of equal shared parental responsibility) and 65DAB (parenting plans) (s.65D). Because of my finding that there has been family violence by the husband, the rebuttable presumption as to equal shared parental responsibility under s.61DA does not arise (s.61DA(2)). There have been no parenting plans about these children, so s.65DAB is not relevant.
The child’s best interests are the paramount consideration in deciding what parenting orders should be made (s.60CA). The child’s best interests fall to be determined by reference to the s.60CC.
The synthesis of ss.60B and 60CC in the decision making process is explained by the Full Court of the Family Court of Australia in Goode v Goode [2006] FamCA 1346 at [10], (2006) 36 Fam LR 422 at 428, (2006) FLC 93-296 at 80,888-9, as follows:
“10. Thus, in deciding to make a particular parenting order, including an order for parental responsibility, the individual child’s best interests remain the paramount consideration (as they did prior to the amending Act – see B v B: Family Law Reform Act 1995 (1997) FLC ¶92-755 at paragraph 9.51) and the framework in which best interests are to be determined are the factors in ss 60CC(1), (2), (3), (4) and (4A). The objects and principles contained in s 60B provide the context in which the factors in s 60CC are to be examined, weighed and applied in the individual case.”
If the court is to make an equal shared parental responsibility order, the court must consider the children spending equal time with each parent, and if such an order is not to be made, must consider the children spending substantial and significant time with each parent (s.65DAA). In relation to each of these options, which the court must consider sequentially, not concurrently, the court must consider whether such an arrangement would be in the children's best interests (s.65DAA(1)(a) and (2)(c)) and then consider whether such an arrangement is reasonably practicable (s.65DAA(1)(b), (2)(d) and (5)). If so satisfied on both these matters, the court must consider making such an order (s.65DAA(1)(c) and (2)(e), and see MRR v GR, [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC 93-424).
As to the court’s power to consider options other than those presented by the parties, and the need to afford procedural fairness if doing so, see U & U, [2002] HCA 36, (2002) 191 ALR 289, (2002) 29 Fam LR 74, (2002) FLC 93-112, KB & TC, [2005] FamCA 458, (2005) 33 Fam LR 471, (2005) FLC 93-224, P & P, [2005] FamCA 1032, (2005) FLC 93-239, sub nom. P & P, (2005) 34 Fam LR 340.
Assessment of primary considerations (s.60CC(2))
(a) The benefit to the child of having a meaningful relationship with both of the child’s parents
There is no issue that the child can benefit from a meaningful relationship with both parents. The issue is how this can optimally be facilitated in the care arrangements for the child, taking all the other relevant considerations into account.
(b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Despite my finding of family violence by the husband towards the maternal grandmother, and the strained atmosphere in the matrimonial home which both parties and the maternal grandmother continue to occupy, it is significant in my view that the wife has not sought to exclude the husband from the home, as she could have done in these proceedings had she thought it appropriate after the family violence incident in July 2011.
While exposure to even one incident of family violence may be harmful to the child, I am satisfied that the risk of exposure to further family violence in the future is relatively small. The parents have been jointly bathing the child every night since separation and there is no evidence of any open displays of hostility between them while they have been doing so. They will soon cease to occupy the same residence, and in my view tensions between the parents will somewhat reduce when that happens.
I am not satisfied this is a significant issue for the future care of the child.
Assessment of additional considerations (s.60CC(3))
(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
The child is too young to express any views.
(b) The nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)
I am satisfied that the child has a good relationship with both parents and with the maternal grandmother. I am also satisfied the child has or will quickly regain a good relationship with the paternal grandparents, who provided significant care for the child in his first year of life.
I infer from the fact the wife has been the child’s primary carer since birth that the child is more likely than not to have a considerably stronger bond to the wife than to the husband. He has never been away from the wife overnight, but has spent nights away from the husband.
(c) The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
and
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Sections 60CC(4) and (4A) are relevant to both these considerations, which I will consider together.
I have some serious concerns about the wife's willingness to facilitate and encourage the child’s relationship with the husband. Her hypocritical and hypercritical complaints about the husband's care of the child, including wanting him to remain away from the child for three days simply because the husband had a cold, and her unilateral action in cancelling the child’s name on the waiting list of a child care centre both parents had previously agreed on, suggest the wife has a dismissive attitude towards the husband and his significance in the child’s life.
However, I also have concerns about the husband's attitude towards the child and the responsibilities of parenthood by having engaged the child in potentially dangerous activities, namely playing with light switches, playing with switches to heaters, and playing with medicine boxes.
(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
Whatever parenting orders the court makes, there will be a significant change for this child when the parents cease to occupy the same residence. The child will cease to have both parents as fixtures in his daily life, and there is no order the court can sensibly make to prevent that.
While the husband's primary proposal will ensure that the child spends equal time with each parent, it involves the child passing to and fro between the parents’ households six times each fortnight, it involves the child at just over two years of age spending blocks of two and three nights at a time, and could involve a block of fourteen nights at a time by Christmas, away from the wife from whom he has not previously been separated at night, and it involves placing the child in the care of a father who I am concerned has limited appreciation of the needs of a child of this young age. Further, it is a proposal requiring good communication and cooperation between the parents for it to have any chance of working effectively, and communication and cooperation are conspicuously absent in the parents’ relationship. In my view these disadvantageous consequences are fatal of the husband's primary proposal.
The husband's first alternative proposal would have even more profound adverse effects on the child. It would limit the child’s contact with his primary carer to two nights a fortnight, except during day care holidays and school holidays, and commit the child’s primary care to a parent who I am satisfied lacks proper insight into and understanding of the child’s needs and of the significant adverse impacts of his proposals on his son.
The wife's proposal on the other hand, while ensuring the child continues to receive his primary care from his primary carer, would deny the child the opportunity of spending any overnight time with the husband until he turns five, and would restrict the child’s time with the husband until he turns five to a total of only eleven hours a week. This is considerably less than the time the wife currently permits the child to spend in the husband’s care, and would have the effect of preventing the continued development of a close parent/child bond between the child and his father.
(f) The capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
I am satisfied that the wife has and will continue to well meet the child’s needs, with one significant qualification.
The wife's dismissive attitude to the husband and his role and place in the child’s life demonstrates a failure to appreciate the child’s need for and potential to benefit from a close and loving relationship with both parents. This is further exemplified in the wife's proposals for the child’s time with the father until he turns five, a mere eleven hours a week. This in my view further illustrates the wife's failure to understand that now in this child’s life and until the child is four or five is the critical time for the development of close and enduring parental bonds which will, other things being equal, be of great benefit to the child throughout his life.
However, despite my criticisms of the wife's dismissive attitude to the husband’s role in the child’s life, there is no evidence of the wife openly disparaging the husband to the child or otherwise attempting to influence the child against the husband.
The husband has shown himself to lack the capacity to meet the child’s needs in a number of respects, including allowing or actively engaging the child in potentially dangerous play, his failure to appreciate the potential distress to the child of his proposals to separate the child from his primary carer and hence the absence of any strategy to address any such distress, and his inability to assess the strength and nature of the child’s relationship with the wife, his primary carer. These speak of a parent lacking a child focus, lacking insight into the needs of the child, and lacking therefore the ability to meet those needs at a quite fundamental level.
(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The child is still quite young with, I am satisfied, a strong primary bond with the wife. This is a relevant consideration in determining the appropriate parenting arrangements for him, especially in the short and medium term.
(j) Any family violence involving the child or a member of the child’s family
and
(k) Any family violence order that applies to the child or a member of the child’s family, if the order is a final order or the making of the order was contested by a person
I have previously dealt with the evidence of family violence, the interim AVO, and my findings as to the risk of further family violence. The present AVO is not a final one or one made after a contested hearing.
(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
It is not readily apparent to me that any of the orders proposed is less likely than any other to lead to further litigation between these parents. The level of hostility between them does not bode well for the risk of further litigation.
The remaining additional considerations are not relevant in this case.
Assessment of competing proposals and other options
Of the relevant considerations canvassed above, in my view the most important for this child, because of his present age and hence stage of development, is the effect of change under the respective proposals. The wife's past failure to facilitate the child’s relationship with the husband can in my view be addressed through appropriate orders regulating the child’s time and hence activities with each parent.
As I have indicated, there are fatal disadvantages under the husband's primary and first alternative proposals, but there are also significant disadvantages under the wife's proposals, which do not recognise that as the child grows and develops, he can both better manage separation from her, including overnight, and can better be instructed about safe play. Further, the wife's proposals fail to recognise the critical stage of development the child is currently in, and the fact that without regular and significant involvement with the husband, the child will be denied an opportunity to develop a close and enduring parent/child bond with the husband.
Decision on parenting issues
The wife sought a sole parental responsibility order, while the husband sought an equal shared parental responsibility order as his primary position, but in is first alternative proposal sought sole parental responsibility.
I am satisfied that the level of animosity and distrust and the lack of effective communication between the parents would render an equal shared parental responsibility order unworkable. I am satisfied it would simply provide further occasions for disputation and point scoring between the parents, and I am not satisfied either would use it as a genuine opportunity to consider the child’s needs in a child focussed way. I am satisfied it is in the child’s best interests that the parent with whom the child spends most of the time should have sole parental responsibility.
In my view it is clearly in the child’s best interests to remain in the wife's primary care. For the reasons canvassed already, I am satisfied she is clearly better able to appreciate and meet the child’s needs than the husband.
The time the child should spend with the husband, however, is far more problematic. I am satisfied the child should progress to spending overnight time as soon as the child is able to comfortably manage separation from the wife overnight. I am not satisfied that the child will not be able to do this until he is five.
I am satisfied that from the age of three, the child should commence spending overnight time with the husband, and that the length of his overnight time with the husband should be gradually increased so that by the time he commences school, he is ready to commence spending half of the school holidays with the husband. That would mean that when he is five, he would be spending up to a week at a time with the husband during school holidays, but would not commence spending half of the Christmas school holidays, about three weeks, with the husband until he is six.
I therefore propose to order that the child spend one full day each weekend and two evenings a week with the husband until the child turns three, then progress to one overnight a fortnight plus three evenings a week until he is four, then until he commences school for two nights each alternate weekend and one night each week plus two periods of three nights of the husband's choosing. When the child commences school, I am satisfied he should spend time with the father on alternate weekends for three nights, one night each week, and half of school holidays. I will also make orders in relation to the child’s birthday, each of the parent’s birthdays, Christmas and Easter. I note neither parent sought orders in relation to Chinese New Year, and I will hence make no specific provision for it.
In relation to the order the husband sought that the child immediately be enrolled in long day care five days a week, I am not satisfied this would be in the child’s best interests at his young age and when there are direct family members available to care for him when his primary carer is at work. I accept that it would not be inappropriate for him to attend child care or a pre-school before commencing school. However, I am not satisfied there is any real need for that at present, when he will not commence school for a little over three years.
In relation to the order sought by the wife to restrain the husband taking the child out of Australia, on the making of parenting orders concerning the child, it will be a criminal offence for either parent to take or send the child from Australia to a place outside Australia, or for any other person acting on behalf of or at the request of either parent to do so without the authenticated consent of the other parent or an order of a court (ss.65Y and 65X(1), Family Law Act 1975).
The parents have permanent residency in Australia but not Australian citizenship. The paternal grandparents do not have the right to remain permanently in Australia. The paternal grandparents are the husband's only immediate family. The wife's unchallenged evidence was that the paternal grandmother told her she is keeping the husband's work position open for him in China, but there is no evidence the husband had a work position in China before coming to Australia to study for a master’s degree over nine years ago at the age of 21.
The Hague Convention on International Child Abduction applies to the Special Administrative Regions of Hong Kong and Macau but otherwise does not apply to China (Family Law (Child Abduction Convention) Regulations 1986, Schedule 2). There was no evidence where in China the husband's parents live.
If the child was taken unilaterally to China by the husband, there would clearly be profound adverse effects on the child, being denied contact with the wife, his primary carer. And as I have noted, there is evidence of the husband being blind or indifferent to the effect on the child of being removed from the wife's care. The fact recovery of the child in a non-convention country may be difficult in the extreme is another relevant consideration.
However, in assessing the risk to the child absent the order the wife seeks preventing removal of the child from Australia, there must be some assessment of the extent of the risk of unilateral removal in the first place.
The mere fact a person could do something does not elevate the risk they may do it from hypothetical to real. The mere fact that the child could be taken out of Australia by the husband or by his parents on his behalf without the wife's consent does not of itself establish there is any real risk this may happen. In fact, on the wife's evidence it is as likely that the paternal grandparents may seek to move permanently to Australia rather than the husband and his parents return to China and take the child with them.
While it could never be said there is no risk of unilateral removal, I am not satisfied the risk in this case could be said to be real rather than hypothetical, especially when unilateral removal would involve the commission of a criminal offence, and there is no evidence of either the husband or his parents showing any disregard for the law previously.
Hence I am not satisfied the wife has demonstrated sufficient reasons to make the order she seeks to restrain the husband removing the child from Australia.
Property settlement issues
The applicable law
Property settlement proceedings fall to be determined by reference to s.79. The court may make such order as it thinks appropriate (s.79(1)), but must not make an order unless satisfied it is just and equitable to do so (s.79(2)). In deciding whether to make an order, and if so what order, the court must have regard to those of the considerations in s.79(4), including s.75(2), the provisions of which are incorporated into s.79(4) by reference, as may be relevant in a particular case.
In Hickey & Hickey; A-G for Commonwealth (Intervener) [2003] FamCA 395; (2003) FLC 93-143; (2003) 30 Fam LR 355, the Full Court explained the preferred approach in determining property settlement proceedings under s 79, as follows (FamCA at [39]; FLC at 78,386; Fam LR at 370):
“39. The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s.79. That approach involves four inter-related steps. Firstly, the Court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Secondly, the Court should identify and assess the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Thirdly, the Court should identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g), (“the other factors”) including, because of s.79(4)(e), the matters referred to in s.75(2) so far as they are relevant and determine the adjustment (if any) that should be made to the contribution based entitlements of the parties established at step two. Fourthly, the Court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case: Lee Steere and Lee Steere (1985) FLC 91-626; Ferraro and Ferraro (1993) FLC 92-335; Davut and Raif (1994) FLC 92-503; Prpic and Prpic (1995) FLC 92-574; Clauson and Clauson (1995) FLC 92-595; Townsend and Townsend (1995) FLC 92-569; Biltoft and Biltoft (1995) FLC 92-614; McLay and McLay (1996) FLC 92-667; JEJ and DDF (2001) FLC 93-075 and Phillips and Phillips (2002) FLC 93-104.”
Where the parties or either of them have superannuation interests as well as property, the majority of the Full Court in C & C, [2005] FamCA 429, (2005) 33 Fam LR 414, (2005) FLC 93-220, said (at [63])-
“… we consider that the preferred approach to the determination of property settlement cases must be to prepare in addition to the list of items of property (which would clearly fall within the definition of that term in s 4(1)), a separate list containing any superannuation interest or interests (valued according to the Regulations if a splitting order is sought in any application before the Court, or if no such order is sought, valued either according to the Regulations or otherwise).”
However, their Honours in the majority also said (at [61])-
“61. Nothing we have said in this judgment would prevent a Court in the exercise of its discretion from including a superannuation interest as an item of property in the list of property which is drawn as “the first step” in the determination of proceedings under s 79, whether or not a splitting order is sought in those proceedings. This approach could be adopted where the parties agree that it should be adopted, or where the Court is satisfied that the superannuation interest is indeed property within the meaning of the definition of property contained in s 4(1), or if the interest is not within that definition, but is of relatively small value in the context of the value of the other assets in the case, or there are features about the interest which leads the Court to conclude that this would be an appropriate approach.”
The pool of divisible assets, liabilities and resources
It was agreed by the parties that there should be a single pool of divisible assets, liabilities and resources, and that the parties’ superannuation interests should not constitute a separate pool. In my view, it is appropriate that I adopt this course because the parties agree to it and the superannuation interests of the parties are of relatively small value, representing less than 10% of the net value of a combined pool of assets, resources and liabilities.
The only issue raised concerning the pool of divisible assets was a submission on behalf of the wife that the husband's Mastercard debt was not a joint debt, and the husband should be solely responsible for it. It was put there was no evidence to show why it should be included. However, all the parties’ property and liabilities are prima facie to be taken into account, and it is for the wife to show why this debt should be excluded. She has failed to do so, and I will included it.
The parties agreed that an Australian Scholarship Fund account that had been set up for the child should be redeemed, the parties should divide the proceeds equally, and that otherwise this item should not be taken into account or otherwise affect the property division.
I therefore find the pool of divisible assets to be as follows-
Item Description Title Amount 1 Matrimonial home at [R] Joint $490,000 2 Kia motor vehicle Husband $20,000 3 Toyota motor vehicle Wife $7,500 4 Immigration security deposit Husband $10,000 5 Savings written back Husband $40,000 6 Savings written back Wife $40,000 7 Cash held by wife in USD Wife $3,012 8 Husband's [1] Superannuation Husband $17,000 9 Husband's [2] Superannuation Husband $8,931 10 Wife's [3] Superannuation Wife $11,000 11 Mortgage on matrimonial home Joint -$240,000 12 Husband's Mastercard Husband -$6,000 Total $401,443
The assessment of contributions
It was the wife's case that contributions overall should be assessed as 55/45 favouring her while it was the husband’s case that contributions favoured him 75/25.
I am satisfied both parties worked for most of their cohabitation and contributed their incomes. Each has worked full time since separation and made appropriate financial contributions to the expenses of the household.
I am satisfied that both have attended to child care and performed household tasks, but I am satisfied the wife's contribution in this regard has been significantly greater than the husband's since the child’s birth, both before and after separation. In making this assessment, I have taken into account the contribution on behalf of the husband by his parents in caring for the child when the parties were at work from January to October 2010 and a like contribution by the maternal grandmother on behalf of the wife since November 2010. On the other hand, the husband's parents and the wife's mother have each received free board and lodging at the parties’ expense when performing this valuable task.
At the commencement of cohabitation, the wife had savings of not less than $2,679 and a near new computer that had cost her $2,995. The husband had no assets at cohabitation.
The parties received the benefit of a total of $69,009 in cash from the wife's mother and $114,700 from the husband's parents, of which $80,000 was directly used in the purchase of the matrimonial home.
Since separation, the parties have generally equally shared the expenses of the home, apart for a short period when the wife paid two thirds of the electricity expenses.
I am satisfied that apart from the capital contributions sourced from their parents, the contributions slightly favour the wife, because of her albeit modest unmatched financial contribution at the commencement of cohabitation and her greater non-financial contribution since the birth of the child.
Taking into account the greater financial contribution sourced from funds provided by the husband's parents compared to those sourced from funds provided by the wife's mother, and the fact that a significant proportion of the funds from the paternal grandparents provided a significant part of the purchase price of the matrimonial home, I am satisfied that contributions overall now favour the husband 52.5/47.5.
The assessment of non-contribution considerations
It was submitted on behalf of the wife that if she had the primary care of the child, she should receive an adjustment to her contribution based entitlement to the property pool of 10%, taking her share to 65%. On behalf of the husband it was submitted that if the wife had the primary care of the child, her contribution based entitlement should be adjusted by 10%, taking her share to 35%.
Both parties are relatively young, in good health, possess tertiary qualifications, and have full time, apparently secure employment. The husband's income is somewhat higher than the wife's. While the wife provides board and lodging to her mother and the maternal grandmother is an integral part of the wife's care arrangements for the child, the maternal grandmother has an independent income which the wife failed to disclose, and the amount of which remains undisclosed.
Of relevance in considering any adjustment for non-contribution considerations is that the husband will retain as part of his share of the property pool superannuation that he cannot access for many years to the present value of $25,931, while the wife will retain superannuation she cannot access for many years of $11,000. Further, part of the husband's share will include the security bond for the maternal grandmother’s permanent residency, which he cannot access, on his understanding, until 2012, or on the wife's understanding, until 2017. On the other hand, he will retain the interest accruing on this sum, which has not been quantified at any date or otherwise brought to account.
Nonetheless, the wife will have the ongoing primary care of the child, who is still quite young, with a not insignificantly lower income, and I am satisfied an adjustment in her favour of 10% of the asset pool is warranted.
A just and equitable order
The result is that the wife should receive 57.5% of the asset pool and the husband should receive 42.5% of the asset pool.
As mentioned, the wife wishes to have the option of buying out the husband's interest in the matrimonial home and the husband does not object to this.
If the husband is to receive 42.5% of the assets, he must receive property worth $ 170,613 net (42.5% of $401,443). He retains assets, resources and liabilities in his sole name to a net value of $89,931. Thus, he must receive a further $80,682 from the wife if she is to retain the matrimonial home, or if the matrimonial home is sold, he is to receive 32.3% of the net proceeds.
In relation to the contents of the home, as mentioned there is one difference between the items the wife proposed the husband receive and the items it seems the husband sought, namely the wife proposed the husband receive a two seat sofa while the husband sought a three seat sofa. There is no evidence in relation to this matter at all, and it was not addressed in submissions. In the circumstances, I will make the order as proposed by the wife.
I certify that the preceding two hundred and fifty-four (254) paragraphs are a true copy of the reasons for judgment of Halligan FM
Date: 9 December 2011
0
7
2