NIU & ZHAI - [2015] FamCA 599

FAMILY COURT OF AUSTRALIA

NIU & ZHAI

[2015] FamCA 599

FAMILY LAW – CHILDREN – Interlocutory Application – Best Interests – Parental Responsibility – Where the children each have meaningful relationships with both parents – Children to live with the husband – Children to spend substantial and significant time with the wife – Where such an arrangement has been consensually occurring for the past 12 months – Parties to have equal shared parental responsibility

FAMILY LAW – PROPERTY SETTLEMENT – Interlocutory Application – Where it is just and equitable for an order to be made providing for either the husband to transfer his title in one of his motor vehicles to the wife, or alternatively, pay her a monetary sum to enable her to buy her own car

FAMILY LAW – PROPERTY SETTLEMENT – Spousal Maintenance – Where there is little or no dispute about the wife’s need for maintenance – Where the husband, by reason of the financial resources available to him, has the capacity to pay spousal maintenance – Husband to pay the wife $1,400 per week by way of spousal maintenance

Family Law Act 1975 (Cth), ss 60B, 60CA, 60CC, 61DA, 62B, 65AA, 65DA, 65DAA, 65D, 65LA, 72, 74, 75, 77, 79, 114, 117
Family Law Rules 2004 (Cth), rr 9.08

Moroni & Moroni [2014] FamCA 664
Strahan & Strahan (interim property orders) (2009) 42 Fam LR 203

APPLICANT:

Ms Niu

RESPONDENT:

Mr Zhai

FILE NUMBER:

SYC

8031

2014

DATE DELIVERED:

16 July 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Austin J

HEARING DATE:

16 July 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Cummings SC

SOLICITOR FOR THE APPLICANT:

Barkus Doolan

COUNSEL FOR THE RESPONDENT:

Mr Campton SC

SOLICITOR FOR THE RESPONDENT:

Kells The Lawyers

Orders

Parenting

The parties shall have equal shared parental responsibility for the children:
a.   B, born … 2003;
b.   C, born … 2005; and
c.   D, born … 2010.
The children shall live with the father.
Each of the parties shall take all reasonable steps to ensure that the children spend time with the mother as follows or as otherwise agreed:
a.   during school terms, on a fortnightly basis:
(i)in week one, commencing from Friday 17 July 2015, from after school on Friday until 11:00 am on Sunday;
(ii)in week two, commencing on Friday 24 July 2015, from after school on Friday until 7:30 am on Monday;
b.   for the first half of the autumn, winter and spring school holidays; and
c.   during the summer school holidays, on an alternating week about basis commencing in the first week of the holidays in the years when the holidays commence in an odd numbered year and commencing in the second week of the holidays in the years when the holidays commence in an even numbered year.
Orders 2 and 3 hereof are suspended during the following periods:
a. from 3:00 pm on Christmas Eve until 3:00 pm on Boxing Day each year during which period the children will spend time with…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

AGLC: NIU & ZHAI [2015] FamCA 599
Case: [2015] FamCA 599
Decision Date: 16 July 2015

CaseChat Overview and Summary

The case involved an interlocutory application before Austin J in the Family Court of Australia concerning parenting arrangements, interim property settlement, and spousal maintenance between the husband and wife. The dispute centred on the children's living arrangements and time with each parent, the division of a motor vehicle, and the husband's capacity to provide financial support to the wife.

The court was required to determine the best interests of the three children, B, C, and D, in establishing their living arrangements and the time they would spend with each parent. Additionally, the court needed to make orders regarding an interim property settlement, specifically concerning a motor vehicle, and to assess the wife's entitlement to spousal maintenance, considering the husband's financial capacity to pay.

In relation to parenting, the court found that an arrangement where the children live with the father and spend substantial and significant time with the mother had been consensually occurring for the past 12 months and was in the children's best interests. The parties were ordered to have equal shared parental responsibility. For property settlement, the husband was ordered to either transfer his interest in a specific motor vehicle to the wife or pay her $30,000 to purchase her own vehicle. The husband was also ordered to pay the wife $1,400 per week by way of spousal maintenance, acknowledging her need and his capacity to pay. The court also made orders regarding litigation funding and imposed injunctions on the husband concerning various corporations and trusts.

Orders

Orders of the court

Parenting

The parties shall have equal shared parental responsibility for the children:

a. B, born … 2003;

b. C, born … 2005; and

c. D, born … 2010.

The children shall live with the father.

Each of the parties shall take all reasonable steps to ensure that the children spend time with the mother as follows or as otherwise agreed:

a. during school terms, on a fortnightly basis:

(i) in week one, commencing from Friday 17 July 2015, from after school on Friday until 11:00 am on Sunday;

(ii) in week two, commencing on Friday 24 July 2015, from after school on Friday until 7:30 am on Monday;

b. for the first half of the autumn, winter and spring school holidays; and

c. during the summer school holidays, on an alternating week about basis commencing in the first week of the holidays in the years when the holidays commence in an odd numbered year and commencing in the second week of the holidays in the years when the holidays commence in an even numbered year.

Orders 2 and 3 hereof are suspended during the following periods:

a. from 3:00 pm on Christmas Eve until 3:00 pm on Boxing Day each year during which period the children will spend time with the mother from 3:00 pm on Christmas Eve until 3:00 pm on Christmas Day and with the father from 3:00 pm on Christmas Day until 3:00 pm on Boxing Day in odd numbered years with the same arrangements in reverse in even numbered years; and

b. between 9:00 am and 5:00 pm on each Mother’s Day and Father’s Day during which periods the children shall spend time with the mother on Mother’s Day and with the father on Father’s Day.

For the purposes of the implementation of orders 2, 3 and 4 hereof, the children shall be exchanged between the parties at the mother’s residence on all occasions other than when children are collected from or returned to school.

Each party is restrained from:

a. denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other; and

b. discussing the evidence filed in any proceedings between the parties.

The parties shall forthwith enrol themselves to commence and thereafter participate in and complete a post-separation parenting program.

Each party shall forthwith inform the other and keep the other informed, in writing, of their respective current residential address, mobile telephone number and email address.

Pursuant to s 65DA(2) and s 62B of the Family Law Act, the particulars of the obligations that these orders create and the particulars of the consequences that may follow contravention of these orders and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

10.

Any and all other outstanding applications for interim orders pursuant to

Part VII of the Family Law Act are dismissed.

Interim property settlement

11.

By way of interim property settlement, the husband shall within seven (7) days hereof do all acts and things reasonably necessary to either:

a. transfer to the wife all his right, title and interest in, and his possession of, the German motor vehicle registration …; or

b. pay to the wife the sum of $30,000 in lieu thereof, in which event the wife must apply such funds to the purchase of a motor vehicle within a further seven (7) days thereafter and refund any remaining balance to the husband.

Spousal Maintenance

12.

The husband shall pay to the wife the sum of $1,400 per week by way of spousal maintenance upon the following conditions:

a. the first payment is due seven (7) days from the date of these orders; and

b. payments shall be made by way of direct deposit to the banking account nominated by the wife to the husband in writing within 48 hours’ hereof.

Litigation Funding

13.

Pursuant to s 117(2) of the Family Law Act:

a. within seven (7) days after any future payment by or on behalf of the husband of any money in payment of account rendered by his solicitors including in relation to expenses associated with the preparation of his case (save and except for the payment of joint single expert fees for which the husband is completely liable), the husband shall pay or cause to be paid the same sum of money to the solicitors for the wife whilst ever the wife remains legally represented in these proceedings;

b. within 24 hours after the payment by or on behalf of the husband of any money referred to in the preceding sub-order, the husband shall cause to be given to the wife’s solicitors a memorandum stating the amount or amounts so paid to the solicitors;

c. all money paid to the solicitors for the husband including on his behalf pursuant to this order shall be held in trust by the solicitors for the husband and not applied in payment of the husband’s solicitors until such time as the same amount has been paid by or on behalf of the husband to the solicitors for the wife;

d. in the event that the payment referred to in sub-order (a) hereof is not made within seven (7) days thereafter, the husband is to direct his solicitors to pay 50 per cent of whatever sum is received by them to the solicitors for the wife; and

e. The amounts paid pursuant to this order to the solicitors for the wife are to be applied by them in payment of the costs and disbursements incurred by the wife in the conduct of these proceedings.

Injunctions

14.

In respect of:

a. the following corporations and trusts:

i. E Pty Limited;

ii. E Family Trust;

iii. Either F Unit Trust or G Unit Trust;

iv. H Pty Limited;

v. H Family Trust;

vi. Either I Family Trust or J Family Trust;

vii. G Enterprises Pty Limited;

viii. K Pty Limited

ix. L Pty Limited;

x. M Pty Limited;

xi. G International Unit Trust.

b. the husband is restrained, so far as is within his power in his capacity as director, secretary, shareholder, appointor, trustee or beneficiary, from:

i. resigning his office;

ii. causing or permitting the appointment of more officers;

iii. causing or permitting any change to existing shareholdings;

iv. causing or permitting any change to existing trustees;

v. causing or permitting any change to existing beneficiaries; or

vi. causing the disposal, encumbrance or further encumbrance of any asset other than in the ordinary course of business.

Costs of the Interim Hearing

15.

The parties shall bear his and her own costs of and incidental to the interim hearing conducted on Wednesday 15 and Thursday 16 July 2015.

Notation

A. The parties do not require the publication of reasons in respect of Order 15 hereof as to costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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