Mulvany and Lane
[2008] FMCAfam 473
•22 May 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| MULVANY & LANE | [2008] FMCAfam 473 |
| FAMILY LAW – Children – relocation – property. |
| Family Law Act 1975, ss.60CA, 60CC, 61DA, 65C, 75(2), 79 |
| NHC & RCH (2004) FLC 93-204 Ely & Ely [2006] FMCAfam 512 Hickey & Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC93-143 M & M [1998] FamCA42 |
| Applicant: | MR MULVANY |
| Respondent: | MS LANE |
| File number: | BRC 805 of 2007 |
| Judgment of: | Howard FM |
| Hearing dates: | 17 & 18 March 2008 |
| Date of last submission: | 2 April 2008 |
| Delivered at: | Brisbane |
| Delivered on: | 22 May 2008 |
REPRESENTATION
| Counsel for the Applicant: | Mr Baston |
| Solicitors for the Applicant: | Wiltshire Lawyers |
| Counsel for the Respondent: | Ms Hogan |
| Solicitors for the Respondent: | Barry & Nilsson |
ORDERS
I direct that the parties file and serve a proposed final order to reflect these Reasons for Judgment by no later than 4.00 p.m. on 29 May 2008.
I direct that in the event that the parties are unable to reach agreement as to the terms of the proposed final order the matter shall be relisted for further mention.
IT IS NOTED that publication of this judgment under the pseudonym Mulvany & Lane is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 805 of 2007
| MR MULVANY |
Applicant
And
| MS LANE |
Respondent
REASONS FOR JUDGMENT
Background
The Applicant is Mr Mulvany. He was born in 1954 and is presently aged 53 years.
The Respondent is Ms Lane. She was born in Hong Kong in 1961 and is presently aged 46 years.
The parties commenced cohabitation in August 1997. The parties married in 1998.
The parties separated finally on 4 November 2006.
The parties cannot agree on parenting orders concerning S (born in 2002). Furthermore, the parties are unable to agree on how to divide their property.
Parenting issues
The mother seeks parenting orders that will enable her to relocate with the child to live in Hong Kong.
The father seeks parenting orders that would see the child remain living in Australia.
The child currently lives in a week about shared care arrangement with both parties on or near the Gold Coast, Queensland.
A paternity test conducted at the request of the mother revealed that the Applicant was not the biological father of the child. The first time that the Applicant became aware that there was a possibility that he was not the child’s biological father was when the Respondent’s solicitors forwarded a letter to the Applicant’s solicitors in December 2007. The Applicant submitted to a DNA test on 21 December 2007. I note and accept the following evidence contained in the father’s Affidavit filed by leave on 17 March 2008:-
“27.In response to Ms Lane’s requests, I submitted to a DNA test on 21 December 2007. On or about 3 January 2008 I received results from DNA Queensland on 3 January 2008. The results of the DNA test excluded me from being the biological father of Ms Lane [sic].
…
29.Whilst I am upset about S’s paternity and the fact Ms Lane has lied to me for so long, this has done nothing to change the way I feel about S. As far as I am concerned he is still my son and I love him dearly. I intend to proceed with my original application, that is, that S remain living here in Australia with me.”
The applicant’s standing – section 65C
Given that the Applicant is not the biological father of the child his standing to bring the Application seeking parenting orders exists pursuant to s.65C(c) of the Family Law Act 1975 (hereinafter the Act). That subsection states:-
“65C A parenting order in relation to a child may be applied for by:
…
(c) any other person concerned with the care, welfare or development of the child.”
The child does not know that the Applicant is not his biological father. I accept that the child, in all respects, considers the Applicant to be his father.
There can be no doubt that the father (up until the time that the paternity test results became known to him) considered that he was the father of the child. Furthermore, he acted accordingly by loving, nurturing and caring for the child. I accept that the Applicant continues to love, nurture and care for the child. The Applicant has the requisite standing to obtain a parenting order under Part VII of the Act.
Section 61DA
Anthony Dickey QC in the fifth edition of his text, “Family Law” states, inter alia, at page 55:-
“The primary meaning of the term ‘parent’ is the natural father or mother of a child. In other words, the primary meaning of the term ‘parent’ is a biological parent. It thus does not include a person who simply stands in loco parentis to a child, even if he or she has acquired parental responsibilities for the child under the Family Law Act. However, if a child has been adopted, the term ‘parent’ ordinarily signifies the child’s adoptive parent, and not his or her natural parent.”
The Applicant is not a “parent” as that term is defined or used in the Act.
Accordingly, I accept the submission made by Ms Hogan of counsel (on behalf of the Respondent) that the presumption of equal shared parental responsibility should not be made under s.61DA of the Act – as that section relates only to the child’s “parents”.
Best interests of the child
This case is to be determined primarily by reference to the best interests principle. Section 60CA of the Act states:-
“60CA In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
Section 60CC(1) of the Act states:-
“60CC(1) [Determining child’s best interests] Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).”
Section 60CC(2) of the Act states:-
“60CC(2) [Primary considerations] The primary considerations are:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”
I accept the following submission of Ms Hogan of counsel obtained in her, “Brief Outline of Submissions on behalf of the Respondent Mother” handed up on 2 April 2008:-
“However, it is further submitted that, in determining such orders, the Court would not fail to recognise that parliament specifically has not included in s.60CC(2)(a) of the primary considerations to which the Court must have regard, the benefit to the child of having a meaningful relationship with persons other than the child’s parents – parliament’s intention, it is submitted, remains to distinguish between parents (in respect of whom a meaningful relationship is accorded a status of a primary consideration) and persons other than parents (within which category the applicant in the present case falls).”
In this case the only “parent” who is a party to the proceedings is the mother (the Respondent). As noted earlier, the Applicant is not a “parent” within the meaning of that term as used in the Act.
It follows that the only “relevant” primary consideration is the benefit to the child of having a meaningful relationship with the mother.
It should be noted at this point that the mother says the child’s biological father:-
a)is an American whom she met in Hong Kong;
b)has not been made aware that he is S’s father;
c)has not been made aware of S’s existence;
d)is not aware of these Court proceedings; and
e)is not contactable – having apparently left Hong Kong.
What outcome will best ensure that S has a meaningful relationship with his mother?
The mother gave evidence that she will return to live in Hong Kong irrespective of the outcome of this case.
I find that the mother is desperately unhappy living in Australia. The reasons for this are no doubt many and varied. I find or infer from the evidence that the main reasons for wanting to return to Hong Kong are as follows:-
a)following the breakdown of her marriage to the Applicant the mother feels alone and socially isolated in Australia; and
b)this has led to a very strong desire on the mother’s part to return to her native Hong Kong in order to live with or near her extended family.
I accept that the mother may have told Denise Britton that she would remain in Australia if S was ordered to stay here.
On the face of it the mother’s comments to Ms Britton are in direct contrast to her stated intention at the trial. The mother is clearly torn on this issue. She wants to return to Hong Kong but would obviously not be happy to do so if S was ordered to remain living in Australia. I do not consider that the mother has yet truly made up her mind as to what she would do if S were ordered to remain in Australia.
I accept the following evidence of the mother contained in her Affidavit filed 13 March 2008:-
“MY PROPOSAL TO LIVE IN HONG KONG
Reasons why I have decided to live in Hong Kong
267.At the conclusion of these court proceedings, I will relocate to Hong Kong. My proposal is that S also live in Hong Kong with me.
268.In summary, I feel I am unable to live in Australia for the following reasons:-
A. I have no emotional support
- I do not have any family that live in Australia and have very few friends. I am very close to my family in Hong Kong. I also miss Chinese culture and the cosmopolitan way of life in Hong Kong. I feel isolated and lonely in Australia and do not feel that I have integrated well to the Australian way of life. I would not be happy if I was to remain in Australia and I am concerned that my emotional health would deteriorate and negatively impact upon S.
B. I am unable to financially support myself or S
- I currently receive no child support or any other financial assistance from Mr Mulvany.
- Furthermore I receive minimal government benefits.
- Currently, I am solely reliant on my family for my financial support.
- As previously deposed to, I have not worked in Australia other than for Mr Mulvany’s business. I did not receive a wage for the work I did whilst I was working for Mr Mulvany. I have no other experience in the Australian workforce and limited qualifications.
- Whilst my English is considered to be of a high quality in Hong Kong, it is considered poor by Australian standards and would limit my employment opportunities.
- I am aged 46 years.
- Taking into account my age coupled with my limited work experience, qualifications and English I am doubtful whether I would be able to obtain work in Australia sufficient to support myself and S.
- By comparison, I have already been offered two positions in Hong Kong as deposed to earlier in my affidavit and have a number of contacts in Hong Kong who can assist me find work.
- Furthermore my family has indicated to me that they will assist with my financially support me (sic) if needed when I live in Hong Kong. My family have indicated that they are reluctant to financially support me should I remain in Australia after the conclusion of the Court hearing and are unable to financially support me on an ongoing basis. I refer and rely on the Affidavit of my Father and sister B filed in these proceedings.”
I also note and accept the evidence of the mother contained in paragraphs 285 – 296 inclusive (of her Affidavit filed 13 March 2008). I note in particular that the mother proposes that she and S will live in an apartment block known as, [X] in Hong Kong. I note that the mother’s parents as well as her brother and her sister (A) and their families also live the same complex. The mother’s sister (B) lives only a short distance from the complex.
I also accept the mother’s evidence that she will be able to obtain employment in Hong Kong. I accept the mother’s evidence contained in paragraphs 297 – 311 inclusive in her Affidavit filed 13 March 2008.
I accept the evidence of the mother concerning family support and cultural issues contained in paragraphs 322 – 333 of the mother’s Affidavit filed 13 March 2008. However, I specifically note that I do not accept the contents of paragraph 331. My impression of the Applicant is that he has encouraged and will encourage S in aspects concerning S’s Chinese heritage.
I find that in order for the mother to fully and properly discharge her obligations as a parent she will need to be living in a country where she is happy and well settled.
I find that the mother is only going to be happy and well settled if she is living in Hong Kong. The mother has no family in Australia, apart from S. The mother has not formed any close friendships in Australia.
For the child to have a meaningful relationship with the mother I consider that the child will have to live with the mother in Hong Kong.
Section 60CC(3) – The additional consideraitons
I will include here relevant subsections from s.60CC(3). Many of the subsections in s.60CC(3) refer to “parents”. Because of the nature of the relationship between the Applicant and the child I consider it appropriate in the special circumstances of this case to consider the relevant subsections within s.60CC(3).
Section 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
I consider that S is too young for any weight to be given to his wishes.
Section 60CC(3)(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 close and loving relationship with the Applicant and the Respondent. I am also satisfied that the child has a good relationship with the mother’s extended family living in Hong Kong.
Section 60CC(3)(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
The “bombshell” news concerning the child’s paternity has undoubtedly had an adverse impact upon the parties’ ability to communicate. However, having listened to the evidence of both parties I am satisfied that, given time, both parties are both willing and able to facilitate and encourage a close and continuing relationship between the child and the other party. The Applicant is not a “parent” but the mother recognises the reality of the situation. S considers that the Applicant is his father and I am satisfied that the mother is willing to promote a close ongoing lifelong relationship between S and the Applicant. If the mother and S are living in Hong Kong the mother (with the assistance of her family) is willing to put a substantial amount of money into a trust fund in Australia in order to fund travel and accommodation costs for the Applicant to visit Hong Kong three times each year and for S to visit Australia three times each year.
I accept the evidence of the mother’s sister that the mother’s family (on behalf of the mother) will deposit $50,000.00 into the said trust fund. The mother’s original proposal concerning the trust fund (during the course of the trial) was that the sum of $50,000.00 would be deposited and the trust fund would then be maintained at that level (i.e. $50,000.00). I consider that proposal to be appropriate. This proposal was one of the strongest factors leading me to my conclusion that it is in the child’s best interests to return to live in Hong Kong with the mother. This is so because by maintaining a trust fund in the amount of $50,000.00 the relationship between S and the man whom he considers is his father (the Applicant) can be maintained. I find that this is in S’s best interests.
Section 60CC(3)(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
If the child moves to live in Hong Kong with the mother then, clearly, there will be periods of separation from the Applicant.
This will be alleviated by the fact that the child will come to Australia on three occasions each year (during school holidays). Furthermore, the Applicant will visit Hong Kong at least three times per year. These six trips will be funded from the said trust fund. If the Applicant chooses to pay for further trips to Hong Kong each year then he will be able to see the child more often.
Section 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficult or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
I have already considered and referred to the difficulties and expenses of the child spending time with the Applicant if the child lives in Hong Kong with the mother.
Section 60CC(3)(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 both of the parties have the ability to provide for the needs of the child including both emotional and intellectual needs.
Section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and other characteristics of the child that the Court thinks are relevant.
The mother was born in Hong Kong and is of Chinese heritage. By living in Hong Kong with the mother the child will be able to fully enjoy and participate in Chinese cultural traditions. This is especially so having regard to the fact that the mother’s extended family also live in Hong Kong.
Section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
I consider it appropriate to refer to this subsection even though the Applicant is not a “parent” as that term is used in the Act. The Applicant has conducted himself at all times as would a responsible and loving parent. I am satisfied that both parties have a good and positive attitude to the child and also have accepted the responsibilities of “parenthood”.
Section 60CC(3)(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
In this case I make no finding in relation to subparagraph (l).
Section 60CC(3)(m) – any other fact or circumstance that the Court thinks is relevant
The mother is to be commended for recognising the importance to the child of the child maintaining a close and loving relationship with the Applicant. The mother has accepted this even though the paternity test showed that the Applicant is not the child’s biological father. The fact that the mother (with the assistance of her family) is willing to establish a trust fund in order to pay for the Applicant’s visits to Hong Kong and the child’s visits to Australia is a significant matter which I have taken into account. The trust fund will need to be established before the order allowing the mother to return to Hong Kong becomes operative.
Furthermore, the mother will also need to make an application in Hong Kong for so called “mirror orders”. Such an application will have to be made by the mother and “mirror orders” will need to be in place before the order allowing the mother to return to live in Hong Kong with the child becomes operative.
In relation to the report of Denise Britton dated 14 March 2008 I note and I endorse her comments contained in paragraph 9.2.4:-
“Although on the face of it, S’s situation at the moment is untenable, it seems to me that if the dispute between the parents is handled creatively, he is poised to have a wonderful life with cross-cultural experiences and should become a true ‘child of the world’ with a sense of belonging in two countries and at least two households.”
Furthermore I note Denise Britton’s comments contained in paragraph 9.2.8 and in particular I note the following:-
“B.Should the parents both maintain their current official stances then there are many possibilities. It is my view that whatever happens, S should continue in Prep at [X] – at least until September 2008, which is reportedly the start of the Hong Kong school year.
· One option, considering the mother’s offer of three return trips to Australia from Hong Kong each year for S and three return trips each year to Hong Kong for the father as well as accommodation for the father in Hong Kong, is for S to go to live with his mother in Hong Kong and for the father to take the mother up on her offer for the visits to Australia for S – approximately 47-49 days each year during Hong Kong school holidays – as well as the offer to see S in Hong Kong on a regular basis and use the accommodation pledged by her family. If this option were chosen it would perhaps be possible for the father to spend up to three or four months living in Hong Kong in three segments, during which S could live with him, attend school and his other activities and spend time with his mother say, every second weekend for two days and two nights. (This would perhaps depend on the father being creative with his business and running it from Hong Kong for part of the year with the assistance of a partner or employee.)
…”
For the reasons that I have stated earlier herein I take the view that the option which is in S’s best interests is for S to return with his mother to live in Hong Kong. Accordingly some appropriate variant of the first option noted by Denise Britton in the above quoted passage must be formulated.
I do accept (in particular from the evidence from Ms Britton and the comments made to Ms Britton by the Applicant) that the Applicant does have a somewhat negative attitude towards the mother’s parenting of S. However, over time, I am satisfied (having observed him give his evidence in the witness box) that the Applicant will overcome any such attitudes.
On the question of informing S of the result of the paternity test I accept the evidence of Ms Britton that the child needs to be told sooner rather than later. Indeed Ms Britton said “the sooner the better”. I also note Ms Britton’s comments (which I accept) that in cases such as these, “truth will out”. She considers it would be more traumatising for S if he was told at an older age of the result of the paternity test.
It seems to me that S should be told of the result of the paternity test by both parents at the same time at least three months before he leaves Australia. Furthermore, he should be told in the presence of both parents with the assistance or guidance of a child psychologist. The final orders to be pronounced in this case will include an order to that effect.
I also accept that S should remain living in Australia in a week about shared care arrangement until September 2008, (that is apparently the start of the Hong Kong school year).
This will ensure there is time for mirror orders to be obtained in Hong Kong; a trust fund to be established and a child psychologist to be engaged for S to be informed of the result of the paternity test.
I reiterate that S must be informed of the paternity test results (in the manner outlined above) at least three months before he leaves Australia to move to Hong Kong with the mother.
It is apparent from the report of Denise Britton that the relationship between the Applicant and the child is a very close and loving one. I have formed the view that the shared care arrangement should continue if the Applicant decides to and is able to live permanently in Hong Kong. The Applicant provided evidence at the hearing of a preliminary internet search which he had conducted to investigate the possibility of him being able to migrate to Hong Kong. He may have an increased chance of being able to migrate to Hong Kong once the mirror orders are in place. The decision whether or not he makes an attempt to migrate to Hong Kong is solely a decision for the Applicant.
If the Applicant migrates to Hong Kong the trust fund must still be maintained until S turns 18 years of age in case, for one reason or another the Applicant does not or is not able to remain living in Hong Kong permanently until S turns 18 years of age. If the Applicant is able to spend several months living in Hong Kong at a time there should be flexibility in the orders to allow him to spend more time with S in Hong Kong.
I would like to hear submissions from the parties as to whether or not they seek a declaration concerning the paternity of S.
Property
The well know four step process needs to be followed[1] -
a)What is the net asset pool of the parties?
b)How did each party contribute to that pool?
c)The parties’ current financial and family circumstances and what are their needs both now and in the future? and
d)The requirement that the order be just and equitable.
[1] These four main issues to be determined by the Court reflect the well known four step approach in cases concerning s.79 of the Family Law Act 1975. In particular note Hickey & Hickey and A-G for the Commonwealth of Australia (Intervener) (2003) FLC 93-143. Also note that this summary of the four step approach has been adapted from a decision of Mead FM in Ely & Ely [2006] FMCAfam 512.
The net property pool
There are only three outstanding issues concerning the property pool. There is a National Australia Bank Mastercard debt incurred by the husband in the amount of $3,356.30. Furthermore there is an American Express credit card debt incurred by the husband in the amount of $1,200.00.
I accept the husband’s evidence (given during cross examination) that those debts were incurred to pay for day to day living expenses.
The Full Court in NHC & RCH (2004) FLC 93-204 cited with approval the following passage from M & M [1998] FamCA 42, 1 May 1998:-
“Neither the Family Law Act nor the Case Law require that parties go into a state of suspended economic animation once their marriage breaks down pending the resolution of their financial arrangements Parties are entitled to continue to provide for their own support. Whether any expenditure so incurred is reasonable or extravagant is a matter that can be determined by the Trial Judge. (M & M [1998] FamCA 42, 1 May 1998, per Baker, Kay and Chisholm JJ).”
The amounts in question are not by any means extravagant. I accept that these were necessary living expenses incurred by the husband and there is no reason why these debts should not be included in the property pool.
The wife contends that the amount of $83,638.22 paid by the husband to his solicitors in respects of legal fees on 11 September 2007 should be added back into the property pool.
The husband confirmed during cross examination that the money in question ($83,638.22) was “Dad’s money”. I am able to infer from the other evidence in the case that this forms part of the inheritance received by the husband from his late father. This inheritance was received post separation. I note the Full Courts stated in NHC & RCH (supra):-
“58. If funds used to pay legal fees have been generated by a party post separation from his or her own endeavours or received in his or her own right (for example, by way of gift or inheritance), they would generally not be added back as a notional asset; …”
I conclude that the legal fees paid by the husband should not be added back as a notional asset into the pool.
Accordingly I find that the property pool (including superannuation by agreement between the parties) is as follows:-
DESCRIPTION
ESTIMATED VALUE ($)
ASSETS
Property A
$715,000.00
Mitsubishi
$10,000.00
1974 Motor Vehicle
$2,000.00
Household Furniture & Effects
$10,000.00
[R] Pty Ltd
$Nil
Superannuation (Husband)
$32,850.24
Shares
[1]
$2,606.00
[2]
$3,414.00
[3]
$38,718.00
[4]
$69,342.00
[5]
$6,561.00
[6]
$13,596.00
[7]
$1,672.00
Bank Accounts
Bank of Queensland, Ultimate Account (A/C: [9])
$168.66
Bank of Queensland, Business Cheque Account [M](A/.C: [5])
$117.52
Bank of Queensland, Business Cheque Account with Overdraft Facility [R Pty Ltd] (A/C): [0])
$963.58
ANZ Account in the name of [K]
$5,578.87
Sub-total of Identifiable Assets
$912,587.87
LIABILITIES
Bank of Queensland, Line of Credit Facility (A/C: [1])
($534,887.92)
Bank of Queensland, Unsecured Personal Loan (A/C: [2])
($13,914.52)
Bank of Queensland, Visa Card
($17,883.74)
NAB MasterCard
($3,356.30)
American Express
($1,200.00)
Sub-total of Identifiable Liabilities
($571,242.48)
PROPERTY AVAILABLE FOR DISTRIBUTION
$341,345.39
Ms Hogan, counsel appearing on behalf of the wife, contended that the wife had contributed 25% to this pool of property.
I accept that the wife contributed by providing home maker duties and caring for S. I also accept that she provided some labour and assistance in the running of the business.
The evidence discloses that the inheritance received by the husband from his father (post separation) substantially accounts for the property pool. The wife acknowledges the superior financial contributions made by the husband.
In my view the contributions based entitlements of the parties should be assessed as 80% contributions made by the husband and 20% contributions made by the wife.
Is it appropriate for any adjustment pursuant to section 75(2)?
I do not propose to go through each subparagraph in s.75(2) but only those which I consider relevant in this case.
Section 75(2)(a) – the age and state of health of each of the parties
The husband is 53 years of age and the wife is 46 years of age. Both parties are in good health.
Section 75(2)(b) - The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment
Both parties are able to earn an income. I accept that the wife will have a greater chance of obtaining gainful employment in Hong Kong. Indeed I find that it is highly probable that the wife will obtain gainful employment in Hong Kong.
Section 75(2)(c) – whether either party has the care or control of a child of the marriage who has not attained the age of 18 years
It should be noted that the wife will have the care and control of S living with her in Hong Kong (subject to those occasions when the husband is visiting or spending extended periods of time in Hong Kong and subject to those occasions when S is visiting the husband in Australia).
Section 75(2)(o) – any fact or circumstance which, in the opinion of the Court, the justice of the case requires to be taken into account
It should be noted that the wife (with the assistance of her family) is to establish a trust fund in Australia with a minimum balance of $50,000.00 in order to fund visits to Hong Kong by the husband and isits to Australia by S. This trust fund is to remain in place until S turns 18.
It should be noted that the parties commenced cohabitation in approximately August 1997 and separated in November 2006. Hence the relationship lasted more than nine years.
In my view there should be an adjustment pursuant to s.75(2) and the adjustment should be in the amount of 15% in favour of the wife.
Justice and equity
In my view an order whereby the husband receives 65% of the net property pool and the wife receives 35% of the net property pool is, in the circumstances of this case, both just and equitable.
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Howard FM
Associate: J Witenden
Date: 22 May 2008
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