NONG & LOH
[2013] FCCA 1394
•20 September 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| NONG & LOH | [2013] FCCA 1394 |
| Catchwords: FAMILY LAW – Parenting – inability of the parties to communicate – difference in parenting styles – airport watchlist – application to travel to Korea – property –initial contributions– overseas property and superannuation. |
| Legislation: Family Law Act 1975 (Cth) ss. 60B, 60CA, 60CC, 61AB, 61DA, 65D, 65DAA, 65DAB, 75(2), 79(4). |
| Aleksovski & Aleksovski (1996) FLC 92-705 Weir & Weir (1993) FLC 92-338 |
| Applicant: | MS NONG |
| Respondent: | MR LOH |
| File Number: | SYC 4110 of 2011 |
| Judgment of: | Judge Kemp |
| Hearing dates: | 8, 9 and 10 April 2013 |
| Date of Last Submission: | 15 July 2013 |
| Delivered at: | Sydney |
| Delivered on: | 20 September 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Givney |
| Solicitors for the Applicant: | Goldrick Farrell Mullan |
| Counsel for the Respondent: | Mr Friedlander |
| Solicitors for the Respondent: | Kim & Associates |
THE COURT ORDERS THAT:
(1)The parenting orders made by this Court on 10 April 2013 stand, together with the following orders.
(2)X born (omitted) 2009 (“the child”) shall live with the wife and, additionally, at the following times:-
2.1From 9.00am Mother’s Day until before day care/ preschool/school on the next day Monday.
2.2From 2.00pm Christmas Eve until 2.00pm Christmas Day in years ending in an odd number.
2.3From 2.00pm Christmas Day to 2.00pm Boxing Day in years ending in an even number.
2.4Have telephone time between the hours of 6.30pm and 7.00pm each Tuesday and Sunday when the child is with the husband pursuant to these Orders for 5 days or more.
(3)The child shall have time with the husband and such time shall include the following:-
Until 1 January 2015
3.1From after day care/preschool/school Friday to before day care/preschool/school Monday each alternate week.
3.1AFrom 9.00am to 6.00pm on Thursday falling immediately prior to the Friday of the time contained in Order 3.1 (provided the child is not at school).
3.2From after day care/preschool/school on the Wednesday after the weekend in 3.1 herein until 6.00pm on the next day Thursday.
3.3From 9.00am on 28 December 2014 until 6.00pm on 2 January 2015.
3.4That the child not be registered and/or enrolled to attend pre-school and or day care on the Thursdays when the child is living with the husband.
Father’s Day
3.5In the event Father’s Day falls during the time the child is with the wife then from 9.00am Father’s Day until before day care/preschool/school on the next day Monday.
Christmas Day
3.6From 2.00pm Christmas Eve until 2.00pm Christmas Day in years ending in an even number.
3.7From 2.00pm Christmas Day to 2.00pm Boxing Day in years ending in an odd number.
3.8When time is spent pursuant to 3.5 above, then for each alternate Chinese/Korean New Year from 4.00pm on the eve of the New Year until 5.00pm on New Year’s Day.
As and from 1 January 2015
During school terms
3.9Each alternate weekend from after school Friday (or Thursday in the event of it being an Easter break) to before school Monday (or Tuesday in the event of it being a long weekend) commencing on the first weekend of each new school term.
3.10From after school Wednesday, immediately following the weekend time [in 3.9] to before school Friday.
During School Holidays
3.11For the first half of the first, second and third term school holidays in even numbered years commencing from after school on the last day of the school term until 6.00pm on the midpoint day and for the second half of the first, second and third term school holidays in odd numbered years commencing at 9.00am on the midpoint day and concluding on the first day of the school term.
3.12For the first half of the Christmas school vacation in the years December falls in an odd numbered year commencing in 2015 and the second half of the Christmas school vacation in the years December falls in an even numbered year, and continuing thereafter.
3.13In the event that the child is with the wife on his birthday then the husband shall be entitled to telephone and speak to the child between 7.30pm and 8.00pm on his birthday.
3.14In the event that the child is with the husband on his birthday then the wife shall be entitled to telephone and speak to the child between 7.30pm and 8.00pm on his birthday.
Husband’s Parents or Siblings visiting Australia
3.15In the event the husband’s parents and/or siblings visit the husband in Australia [outside of school holidays] from 9.00am or from after school [if a school day] on the day of the arrival of the relative until 6.00pm [or before school if a school day] on the fourth day and thereafter for periods of 4 days and 3 nights after the wife has had 2 nights with the child until the relative leaves the husband’s residence for periods of no longer than 21 days in each calendar year. This Order is subject to the husband providing to the wife at least 3 weeks written notice of the relative’s arrival and departure dates.
Effect of Orders
(4)To give effect to these Orders the following shall apply:-
4.1In the event that the delivery and/or collection cannot take place before or after day care and/or school then changeovers shall take place at McDonalds at Property A at 9.00am in the morning and 6.00pm in the afternoon as the case may be.
4.2For the purposes of calculating school holiday periods the parties shall calculate the period of time of the school holidays by counting the number of nights including the night of the last day of the school term and the night before the next school term commences [including pupil free days].
4.3.In the event there are 2 midpoint days the husband’s time shall commence or conclude, as the case may be, on the second midpoint day.
(5)The husband’s application to remove the child from the Airport Watch List be dismissed.
(6)Each party shall ensure the child attends sporting or extracurricular activities that have been agreed to on the weekends when the child is in such party’s care pursuant to these Orders.
(7)Each party shall keep the other informed of their telephone number and email address.
(8)The husband’s application that the child be enrolled in an Australian Korean school be dismissed.
(9)The husband have telephone time with the child between the hours of 6.30pm and 7.00pm each Tuesday night and each Sunday night when the child is not with him pursuant to these orders.
(10)Both parties shall do all things necessary to attend family therapy with Mr N, Family Therapist or such other person as agreed upon and failing agreement as nominated by Dr R.
(11)The parties shall make available to the Family Therapist a copy of the Family Report dated 22 March 2013.
PROPERTY
(12)The parties shall forthwith do all things necessary to:-
12.1Pay to the wife from the proceeds of sale of the property at Property A (“the Property A property”) the sum of $345,221.54.
12.2Pay to the husband the balance of the sale proceeds of the Property A property of $280,258.46.
12.3Pay to the husband the sale proceeds of Property B [“the Property B property”] of $288,689.00.
(13)The husband shall transfer to the wife his right title and interest in the following accounts:-
13.1(omitted) Bank No.. (omitted);
13.2(omitted) Bank Account No.. (omitted);
(14)The wife be declared sole and beneficial owner of:-
14.1Deposit on Property C;
14.2(omitted) Bank Account No.. (omitted);
14.3(omitted) Bank Account No.. (omitted);
14.4(omitted) Bank Account No.. (omitted);
14.5(omitted) Bank Account No.. (omitted);
14.6(omitted) Bank Account No.. (omitted);
14.7(omitted) Bank;
14.8(omitted) Super;
14.9(omitted) Bank of (country omitted);
14.10(country omitted) Bank Account;
14.11(country omitted) Bank No.. (omitted);
14.12(country omitted) Bank No.. (omitted);
14.13(country omitted) Account;
14.14(country omitted) Bank Account;
14.15(omitted) Shares;
14.16Honda (omitted); and
14.17Household contents.
(15)The husband be declared sole and beneficial owner of:-
15.1(omitted) Bank Account No.. (omitted);
15.2(omitted) Bank Account No.. (omitted);
15.3(omitted) Bank Account No.. (omitted);
15.4(omitted) Bank Account No.. (omitted);
15.5(country omitted) savings;
15.6(omitted) shares;
15.7Subaru (omitted);
15.8(vehicle omitted);
15.9Household contents in his control and possession; and
15.10(omitted) Super Employer Plan.
(16)Both parties do all acts and things and execute all documents, authorities and writings as are necessary to give effect to all or any of these Orders.
(17)In the event that either party neglects or refuses to execute any deed, document or instrument to give effect to these Orders after seven (7) days of a request being made, the Registrar of this Court shall be appointed pursuant to section 106A of the Family Law Act to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
(18)If any party seeks costs, an appropriate written application may be made within 28 days of today’s date, (supported by any documentary material) to be filed and served within that time period and a copy forwarded to my chambers. The Court will then deal with that matter by way of written submissions, unless the parties wish to be heard orally. If no such application is made within the time period specified, there will be no order as to costs.
(19)All outstanding applications (save as to costs), otherwise, be dismissed.
(20)The matter be removed from the list of cases awaiting finalisation.
IT IS NOTED that publication of this judgment under the pseudonym Nong & Loh is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 4110 of 2011
| MS NONG |
Applicant
And
| MR LOH |
Respondent
REASONS FOR JUDGMENT
Introduction
These are property and parenting proceedings.
The parenting proceedings relate to a child of the parties’ relationship, being X, born (omitted) 2009 (the “child”), aged 3 years and 9 months, at the date of hearing.
By Amended Initiating Application filed 29 September 2011, as updated by a final minute of order, the applicant (hereinafter referred to as the “wife”) sought the following parenting and property orders (noting that proposed parenting order 2.1A (as underlined below) was, in fact, included only in the wife’s written submissions provided on 30 May 2013):
PARENTING
(1)The child shall live with the wife and additionally at the following times:-
1.1From 9:00am Mother’s Day until before school or preschool the following Monday.
1.2From 2:00pm Christmas Eve until 2:00pm Christmas Day in years ending in an odd number.
1.3From 2:00pm Christmas Day to 2:00pm Boxing Day in years ending in an even number.
1.4Have telephone time between the hours of 6:30pm and 7:00pm each Tuesday and Sunday when the child is in the care of the husband pursuant to these Orders for five days or more.
(2)The child shall have time with the husband and such time shall include the following:-
Until the child commences school
2.1From after preschool/day care Friday to before school Monday each alternate week.
2.1AFrom 9.00am to 6.00pm on Thursday falling immediately prior to the Friday of the time contained in Order 2.1.
2.2From after day care on the Wednesday after the weekend in 2.1 herein until 6:00pm on the next day Thursday.
2.3From 9:00am 28 December 2014 until 6:00pm 2 January 2015.
Father’s Day
2.4In the event Father’s Day falls during the wife’s residency from 9:00am Father’s Day until before day care/school on the next day Monday.
Christmas Day
2.5From 2:00pm Christmas Eve until 2:00pm Christmas Day in years ending in an even number
2.6From 2:00pm Christmas Day to 2:00pm Boxing Day in years ending in an odd number.
Upon the child attending school
During school terms
2.7Each alternate weekend from after school Friday to before school Monday commencing on the first weekend of each new school term.
2.8From after school Wednesday, immediately following the weekend time [in 2.7] to before school the next day Thursday.
During School Holidays
2.9For the first half of the first, second and third term school holidays in even numbered years commencing from after school on the last day of the school term until 6:00pm on the midpoint day and for the second half of the first, second and third term school holidays in odd numbered years commencing at 9:00am on the midpoint day and concluding on the first day of the school term.
2.10For one half of the Christmas school holidays commencing December 2015 to be exercised upon the basis of the Husband having each alternate week commencing at the conclusion of school to 6:00pm on the seventh day [then the child will then live with the Wife from 6:00pm to 6:00pm on the next seventh day], and each alternate week thereafter. The parties shall equally share the balance of the period at the conclusion of the end of the holidays equally.
2.11For the first half of the Christmas school vacation in the years December falls in an even numbered year commencing in 2016 and the second half of the Christmas school vacation immediately following December of 2017 and each alternate year thereafter.
Husband’s Parents or Siblings visiting Australia
2.12In the event the husband’s parents and/or siblings visit the husband in Australia [outside of school holidays] from 9:00am or from after school [if a school day] on the day of the arrival of the relative until 6:00pm [or before school if a school day] on the fourth day and thereafter for periods of four days and three nights after the wife has had two nights with the child until the relative leaves the husband’s residence for periods of no longer than 21 days in each calendar year. This Order is subject to the husband providing to the wife at least 3 weeks written notice of the relative’s arrival and departure dates.
Effect of Orders
(3)To give effect to these Orders the following shall apply:-
3.1In the event that the delivery and/or collection cannot take place before or after day care and/or school then changeovers shall take place at McDonalds at (omitted) at 9:00am in the morning and 6:00pm in the afternoon as the case may be.
3.2For the purposes of calculating school holiday periods the parties shall calculate the period of time of the school holidays by counting the number of nights including the night of the last day of the school term and the night before the next school term commences [including pupil free days].
3.3.In the event there are two midpoint days the husband’s time shall commence or conclude, as the case may be, on the second midpoint day.
(4)The husband’s Application to remove the child from the Airport Watch List be dismissed.
(5)The husband shall forthwith advise the wife of the inclusion of the child’s name on the Korean Family Register as being a national of the Republic of Korea.
(6)Neither party shall enrol the child in a regular sporting activity and/or regular extracurricular activity on a weekend unless such party has the consent of the other.
(7)Each party shall ensure the child attends sporting or extracurricular activities that have been agreed to on the weekends when the child is in such party’s care pursuant to these Orders.
(8)Each party shall keep the other informed of their telephone number and email address.
(9)The husband’s Application that the child be enrolled in an Australian Korean school be dismissed.
(10)The husband have telephone time with the child between the hours of 6:30pm and 7:00pm each Tuesday night and each Sunday night when the child is not in his care pursuant to these Orders.
(11)Both parties shall do all things necessary to attend family therapy with Mr N, Family Therapist or such other person as agreed upon and failing agreement as nominated by Dr R.
(12)The parties shall make available to the Family Therapist a copy of the Family Report dated 22 March 2013.
PROPERTY
(13)The parties shall forthwith do all things necessary to:-
13.1Pay to the wife from the proceeds of sale of the property at Property A (“the Property A property”) the sum of $516,207.00.
13.2Pay to the husband the balance of the sale proceeds of the Property A property.
13.3Pay to the husband the sale proceeds of Property B [“the Property B property”].
(14)The husband shall transfer to the wife his right title and interest in the following accounts:-
14.1(omitted) Bank No.. (omitted);
14.2(omitted) Bank Account No.. (omitted);
(15)The wife be declared sole and beneficial owner of:-
15.1Share of proceeds of sale the Property A property;
15.2Deposit on Property C;
15.3(omitted) Bank Account No.. (omitted);
15.4(omitted) Bank Account No.. (omitted);
15.5(omitted) Bank Account No.. (omitted);
15.6(omitted) Bank Account No.. (omitted);
15.7(omitted) Bank Account No.. (omitted);
15.8(omitted) Bank;
15.9(omitted) Super;
15.10(omitted) Bank of (country omitted);
15.11(country omitted) Bank Account;
15.12(country omitted) Bank No.. (omitted);
15.13(country omitted) Bank No.. (omitted);
15.14(country omitted) Bank Account;
15.15(country omitted) Bank Account;
15.16(omitted) Shares;
15.17Honda (omitted); and
15.18Household contents.
(16)The husband be declared sole and beneficial owner of:-
16.1(omitted) Bank Account No.. (omitted);
16.2(omitted) Bank Account No.. (omitted);
16.3(omitted) Bank Account No.. (omitted);
16.4(omitted) Bank Account No.. (omitted);
16.5(country omitted) savings;
16.6(omitted) shares;
16.7Subaru (omitted);
16.8(vehicle omitted);
16.9.Household contents in his control and possession; and
16.10(omitted) Super Employer Plan.
The Respondent (hereinafter referred to as the “husband”) in his Amended Response filed 16 November 2011 and as amended by a minute of proposed order sought his own final parenting and property orders as follows:
Parenting Orders
(1)That the child live with the husband as follows:
Until the child commences full-time schooling
1.1Each alternate weekend from after pre-school on Friday (or Thursday in the event of it being an Easter break) until return to pre-school on the following Monday (or Tuesday in the event of it being a long weekend) commencing the first Friday after the date of these orders and each alternate weekend thereafter.
1.2Each Thursday from 9.00am until return to pre-school on Friday morning.
1.3On weekends and days when the child is not attending pre-school such as during holiday breaks the party collecting the child shall collect him from the residence of the other party.
After commencement of full-time schooling
1.4Each alternate Wednesday after school until return to school on Friday morning.
1.5In the alternate week to the week referred to in order 1.4 above, Thursday from after school until return to school on the following Monday morning (or Tuesday in the event of it being a long weekend).
1.6Subject to Orders 1.9 and 1.10 below for one half of each school holiday period commencing in December 2014 with the husband for the first half and each alternate year thereafter and with the husband for the second half commencing December 2015 and each alternate year thereafter.
1.7The child shall be collected from school on the last school day preceding the commencement of school holidays by the parent with whom the child is living for the first half of the school holidays and returned to the residence of the other parent at 5pm on the last day the child spends with the parent.
1.8For each alternate Chinese/Korean New Year from 4pm on the eve of the New Year until 5pm on New Year’s Day commencing 2014 provided that the child shall live with the wife from 4pm on the eve of the New Year until 5pm on New Year’s Day commencing 2015 and every alternate year thereafter.
1.9From 23 to 28 December 2013 and each alternate year thereafter.
1.10From 28 December 2014 to 2 January 2015 and each alternate year thereafter.
1.11That in the event that member(s) of the husband’s immediate family visit Australia from Korea and/or (country omitted) the above orders are suspended or varied as follows:
The child shall spend the first 7 nights of their visit consecutively with the husband and during the following three-week period, if they should remain in Australia, then the weekend on which the child lives with the husband shall be extended to return to pre‑school or school on the following Wednesday morning.
(2)That the child live with the wife at all other times.
(3)That each party have sole responsibility for the day to day care, control and welfare of the child whilst he is in his or her care.
(4)That notwithstanding any other Order herein contained the parties ensure that the child is with the husband each year for Father’s Day from 5.00pm Father’s Day Eve until delivery to pre-school or school on the Monday after Father’s Day and with the wife each year for Mother’s Day from 5.00pm Mother’s Day Eve until delivery to pre-school or school on the following Monday after Mother’s Day.
(5)In the event that the child is living with the wife on his birthday then the husband shall be entitled to telephone and speak to the child between 7.30 and 8pm on his birthday.
(6)That each parent keep the other informed in advance as to all sporting, religious, cultural and educational events in which the child is or will be from time to time involved and (or which relate to activities of the child although they themselves might not be involved for example parent teacher interviews) at which parents may attend and each party be so at liberty to attend.
(7)That each parent ensure that the child attend all sporting and other extracurricular activities in which he is enrolled and at which attendance is required during the period of time that each parent has the child in his or her control.
(8)That the party with whom the child is currently spending time inform the other party when and where the child spends three or more nights away from that party’s home.
(9)That each party keep the other informed at all times of his or her then current address and telephone number and keep current a normal non-mobile service at all times connected to their respective place of residence.
(10)That the child be removed from the Airport Watch List and by agreement with the wife, the child shall be permitted to travel to Korea with the husband for a holiday with his paternal grandparent for a maximum of three weeks and a maximum of two trips per year.
(11)That the husband do all things necessary to provide a bond or security in the amount of $50,000.00 to secure and guarantee the return of the child to Australia at the conclusion of any trip overseas.
(12)That in order to facilitate order 10 above, the parties apply for a passport for the child.
(13)That the child commence full-time schooling in 2015.
(14)That whichever parent the child is living with on Saturdays take the child to the Australian Korean School at (omitted) High School every Saturday during school term from 9.30am to 12.30pm in order for the child to learn the Korean language until the child attains 12 years age.
(15)In the event that the child is away from either parent in excess of three days then each parent shall do all things necessary to facilitate the child having telephone or other electronic communication with the parent with whom the child is not living between 7.30 and 8pm on the third evening.
(16)That the child shall be entitled to speak to the parent with whom he is not currently spending time as often as he reasonably wishes and for the purposes of this order, each parent shall facilitate such telephone communication.
(17)That the child not be registered and/or enrolled to attend pre-school and or day care on the Thursdays when the child is living with the husband.
(18)That both parents do all things necessary to enrol in and attend for separate individual counselling in relation to how to best cope with their and the child’s situation and that a copy of the Report of Dr R dated 22 March 2013 be provided to the respective counsellors.
(19)That each parent be restrained from using any physical punishment or illicit drugs or alcohol when the child is spending time with that parent.
(20)That the wife forthwith provide to the husband true coloured copies of all photo albums received by her from the child’s day care centre during the period commencing 1 January 2010 to 31 December 2012.
Property Orders
(1)That the parties do all things necessary to cause to be paid to the husband the whole of the net proceeds of sale of the Property A property and the Property B property within 7 days of this order or within 7 days of settlement of the respective sales, whichever is the later date.
(2)That in addition to the monies referred to in Order 1 hereof the wife pay to the husband $100,000.00 within 28 days of this Order. This figure was reduced to $58,399.30 in the husband’s final written submissions dated 2 July 2013.
(3)That within 14 days of this Order, the husband and wife do all acts and things and sign all documents necessary to cause the funds in their joint accounts at (omitted) Bank and (omitted) Bank to be transferred to the husband.
(4)The parties shall use the (omitted) Bank account (omitted) for the purpose of their contributing to and paying of school fees, day care fees and extracurricular fees relating to the child’s education. Each party shall contribute equally towards such payments. This account, however, was subsequently amended to the (omitted) Bank account (omitted) given that the husband submitted in his final written submissions that the (omitted) Bank account referred to had been closed following the hearing due to “high account keeping fees and lack of activity”.
(4)As between the husband and the wife, subject to these orders, the husband and the wife shall each respectively retain all interest in and entitlement to:
4.1All personal property including motor vehicles in his or her respective ownership, possession or control.
4.2All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his or her sole name respectively.
4.3All interests in life insurance policies and superannuation funds standing in his or her sole name respectively.
4.4All interests in any business in which either party has an interest.
(5)Except as specifically provided for by these orders to the contrary, the husband hereby indemnifies the wife and in respect of all actions, claims, suits and demands as may be made against the wife in relation to all liabilities in the name of the husband.
(6)Except as specifically provided for by these Orders to the contrary, the wife hereby indemnifies the husband and in respect of all actions, claims, suits and demands as may be made against the husband in relation to all liabilities in the name of the wife.
(7)Except as specifically provided for by any order compromised in these orders to the contrary, each of the husband and the wife release the other from all debts owing from one to the other.
(8)Both parties do all acts and things and execute all documents, authorities and writings as are necessary to give effect to all or any of these Orders.
(9)In the event that either party neglects or refuses to execute any deed, document or instrument to give effect to these Orders after seven (7) days of a request being made, the Registrar of [this Court] shall be appointed pursuant to section 106A of the Family Law Act to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
(10)That the wife’s Initiating Application be dismissed.
(11)That the wife pay the husband’s costs of and incidental to these proceedings.
Proposals
The parties seek the various competing orders as set out above.
On 17 November 2011, this Court made, inter alia, the following orders pending further order:
(1)There be no order as to parental responsibility.
(2)The husband shall spend time with the child as follows:
2.1Each alternate Tuesday from after day care or 5.30pm if no day care operating, until 5.30pm on Wednesdays, commencing Tuesday 22 November 2011;
2.1ABy consent, each alternate Wednesday from 9.00am until 5.30pm commencing Wednesday 30 November 2011.
2.2By consent, each alternate Friday commencing at 5.30pm on 18 November 2011 until 6.00pm Saturday 19 November 2011 and each alternate Friday thereafter;
2.3Each alternate Sunday commencing 9.00am 26 November 2011 until 9.00am Monday 27 November 2011 at day care;
2.4By consent, orders 2.1–2.3 are suspended between 24 December 2011 and 3 January 2012. In lieu of those Orders, the husband shall spend time with the child as follows:
2.4.1from 12.00 noon Saturday 24 December 2011 until 2.00pm Sunday 25 December 2011;
2.4.2from 9.00am until 5.30pm Wednesday 28 December 2011;
2.4.3from 9.00am Friday 30 December 2011 until 5.00pm 31 December 2011.
(3)By consent, the child shall otherwise live with the wife.
(4)By consent, the parties shall communicate by email or SMS if for any reason a party is unable to meet any deadline for changeover.
(5)By consent, changeovers shall occur at (omitted) Daycare Centre, (omitted) on days the child is attending that Centre. On other days changeover shall be McDonald's (omitted).
(6)By consent, neither party shall denigrate the other party in the presence of or hearing of the child.
(7)Omitted.
(8)On and from 7 February 2012, Orders 2.1 and 2.1A shall cease to have effect and in lieu thereof the child shall spend time with the husband each Tuesday from after day care or 5.30pm if no day care until 5.30pm each Wednesday.
(9)Omitted.
On 27 January 2012, this Court made orders by consent and pending further order which provided for the sale of the Property A property and the Property B property and the placing of any net proceeds of sale in a controlled monies account pending the determination of final property orders. The Court also made orders for the parties to sell the (omitted) vehicle motor vehicle, registration (omitted), whereupon the net proceeds of sale shall be distributed solely to the husband and for the husband to forthwith do all things necessary to transfer his one half interest in the Honda motor vehicle (“the Honda”) to the wife and the wife shall thereafter be fully responsible for all expenses associated with the Honda, including insurance and E-tolls.
The parties have had the benefit of attending upon a family consultant in a child dispute conference and child inclusive conferences which were held on 21 September 2011, 15 February 2012 and 29 February 2012.
The Court had provided an interim decision on 28 May 2012, out of which orders provided for the child to live with the husband each alternate weekend from Friday after day care until the following Monday before day care, commencing 1 June 2012 and from Tuesday after day care until the following Wednesday at 5.30pm in each alternate week commencing 5 June 2012 and that, otherwise, the child was to live with the wife (“the current orders”). Changeovers were to occur when the child was at day care at the relevant day care centre and, on any other day, at McDonalds, (omitted) unless the parties were able to agree with the said day care centre to implement a changeover there, even though the child may not be actively attending on that day.
There were various other consequential orders made by consent at that time which provided as follows:
(1)That until further order, the wife and the husband and their servants and/or their agents be and are hereby restrained from removing or attempting to remove and or causing and/or permitting the removal of the child from the Commonwealth of Australia.
(2)That the Australian Federal Police place the name of the child on the Airport Watchlist in force at all international points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the said Watchlist until further order.
(3)That the husband shall do all acts and things necessary so as to obtain a separate and appropriate bed for the child and he shall ensure that the child sleeps in the bed, during all over night visits between the husband and the child.
(4)Each parent is to notify the other as soon as possible and within twelve (12) hours, of any serious injury or illness suffered by the child whilst with that party.
(5)Each party is to notify the other, not more than twenty-four (24) hours after any change to their email address and/or mobile telephone number.
(6)The parties are to authorise the child’s day care and/or school to provide notices, newsletters and reports directly to each party.
(7)Each party shall facilitate the child being involved in the Korean and Chinese cultures.
(8)Each party shall provide the other with any medication prescribed for the child whilst he is in their care, along with information as to how that medication is to be taken and each party is to ensure that the child takes his medication as prescribed.
(9)The parties are to refrain from denigrating the other party or members of the other party’s families in the presence of, or hearing of the child and will take reasonable steps to ensure that other people do not denigrate the other party or members of the other party’s family in the presence of or the hearing of the child.
On 2 August 2012, the Court ordered that a family report be prepared. This was ultimately prepared by Dr R (“the family report writer”). The report was released to the parties on 27 March 2013 and has become Exhibit “Court 1” in the proceedings.
Evidence
The wife relied, subject to all proper claims as to admissibility, on:-
a)Her affidavit sworn on 12 March 2013 and filed on 13 March 2013;
b)Her financial statement sworn on 25 March 2013 and filed on 25 March 2013.
The husband relied, subject to all proper claims as to admissibility, on:-
a)His affidavit affirmed on 20 March 2013 and filed on 21 March 2013;
b)His affidavit affirmed on 3 April 2013 and filed on 4 April 2013;
c)His financial statement affirmed on 20 March 2013 and filed on 21 March 2013.
The following documents were placed into evidence as follows:
Exhibit No
Document
Date
Tendered by
Court 1
Family report of Dr R
22 March 2013
Court
Court 2
Agreed list of assets and liabilities signed by the parties
Court
A
The address of the wife in an envelope with a notation on the envelope “Not to be opened without order of the Court”
Applicant wife
B
2 (omitted) Bank Statements of Account
Applicant wife
C
Email exchange between Ms Loh and Ms Nong
22 January 2013
Applicant wife
D
1 page from the ‘(omitted) Preschool and Long Daycare Centre’
Applicant wife
E
Statement of costs for the wife
9 April 2013
Applicant wife
F
Letter from Kim & Associates to Humphreys & Feather
8 November 2012
Applicant wife
G
Email exchange between Ms Loh and Ms Nong
28 December 2012
Applicant wife
H
Financial Statement of the husband sworn 15 November 2011 and filed 15 November 2011
Applicant wife
J
Statement prepared by the husband showing monies paid to his father in Korea for the period 15 July 2003 to 3 March 2013
Applicant wife
1
Application – Apprehended Domestic Violence Order protecting Ms Nong and X
4 October 2010
Respondent husband
2
Action plan for Anaphylaxis for the child
28 May 2010
Respondent husband
3
Photograph album referred to in the husband’s affidavit
Respondent husband
4
Bundle of tax returns and schedule and Notices of Assessment
Respondent husband
5
3 certificates of the husband’s attendance and completion of courses
Respondent husband
6
Handwritten list of legal fees paid by the husband
Respondent husband
7
Photograph of various children, including the child, in the bath on night of alleged domestic violence incident
Respondent husband
The parties gave oral evidence and were the subject of cross‑examination.
On the hearing, Mr Givney of Counsel appeared for the wife and Mr Friedlander of Counsel appeared for the husband.
Principles to be applied and procedure to be followed
Section 65D(1) of the Family Law Act 1975 (“the Act”) provides that this Court may make such parenting orders as it thinks proper, subject to the provisions of s.61DA and 65DAB of the Act.
Section 61DA of the Act requires the Court to apply a presumption before it makes any parenting order in respect of a child (and this is the case whether or not a party has sought a specific order for equal shared parental responsibility) that it is in the best interests of a child for a child’s parents to have “equal shared parental responsibility” for the child.
Section 65DAB of the Act requires the Court to have regard to any parenting plans entered into between the parties. This is not relevant on the facts of this case.
The presumption, however, does not apply if there are reasonable grounds for the Court to believe that the child concerned has been subject to abuse or family violence (s.61DA(2) of the Act) or in the case of an interim hearing the Court considers it inappropriate (s.61DA(3) of the Act) or the presumption may be rebutted by evidence which satisfies the Court that it would not be in the best interests of the child for his/her parents to have such equal, shared parental responsibility (s.61DA(4) of the Act).
The making of an order for equal shared parental responsibility is, however, not of itself, determinative of the amount of time that a child is to spend with his/her parents, but goes to the parent’s decision making responsibilities. It does, however, trigger the operation of s.65DAA(1) and (2) of the Act.
By virtue of s.65DAA(1) and (2) of the Act, the Court must positively consider whether orders should be made which result in the child concerned spending either “equal time” or “substantial and significant time” with both of his parents.
“Substantial and significant” time is defined in s.65DAA(3) of the Act as:
(a)the time the child spends with the parent includes both:
i)days that fall on weekends and holidays; and
ii)days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
i)the child's daily routine; and
ii)occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
To determine what time orders should be made under s.65DAA(1) and (2), the Court must look to determine whether the actual spending of “equal time” or “substantial and significant time” is in the best interests of the child and, as a separate and distinct matter, whether the actual spending of such time is reasonably practicable. The Court must affirmatively answer both of these questions for it to have the power to make a time order of that nature. See the High Court of Australia’s decision in MRR v GR [2010] HCA 4. If it cannot do so, the Court must consider making such “other” time order as is, otherwise, in the best interests of the child.
The best interests of a child remain the paramount consideration: s.60CA of the Act.
The best interests of a child are to be determined by an examination of the factors as set out in s.60CC of the Act. These factors are to be examined, weighed and applied against the facts of each case within the ambit of the objects and their underlying principles as set out in s.60B of the Act, as follows:
“(1)The “objects”…are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The “principles” … are … :
(a) Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never been married or have never lived together; and
(b) Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) Parents should agree about the future parenting of their children; and
(e) Children have a right to enjoy their culture (including a right to enjoy the culture with other people who share that culture).”
Section 65DAA(5) of the Act provides that the Court must have regard to certain specific matters, to determine whether the actual spending of either “equal time” or “substantial and significant” time is reasonably practicable.
The Full Court of the Family Court of Australia in Goode & Goode [2006] FamCA 1346 set out a number of procedural steps to be followed on an interim application, but which may also be usefully examined here, namely:
“(a) Identifying the competing proposals of the parties;
(b) Identifying the issues in dispute;
(c) Identifying any agreed or uncontested relevant facts;
(d)considering the matters in s.60CC that are relevant and, if possible, making findings about them (in interim proceedings there may be little uncontested evidence to enable more than a limited consideration of these matters to take place);
(e)deciding whether the presumption in s.61DA that equal shared parental responsibility is in the best interests of the child applies or does not apply because there are reasonable grounds to believe there has been abuse of the child or family violence or, in an interim matter, the Court does not consider it appropriate to apply the presumption;
(f)if the presumption does apply, deciding whether it is rebutted because application of it would not be in the child’s best interests;
(g)if the presumption applies and is not rebutted, considering making an order that the child spend equal time with the parents unless it is contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;
(h)if equal time is found not to be in the child’s best interests, considering making an order that the child spend substantial and significant time as defined in s.65DAA(3) with the parents, unless contrary to the child’s best interests as a result of consideration of one or more of the matters in s.60CC, or impracticable;
(i)if neither equal time nor substantial and significant time is considered to be in the best interests of the child, then making such orders in the discretion of the Court that are in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC;
(j)if the presumption is not applied or is rebutted, then making such order as is in the best interests of the child, as a result of consideration of one or more of the matters in s.60CC; and
(k)even then the Court may need to consider equal time or substantial and significant time, especially if one of the parties has sought it or, even if neither has sought it, if the Court considers after affording procedural fairness to the parties it to be in the best interests of the child.”
Factual Matters
There appear to be a number of relevant uncontested facts, as follows:
a)The husband was born on (omitted) 1973 and is currently 40 years of age.
b)The wife was born on (omitted) 1973 and is currently 40 years of age.
c)The parties met in Korea in 2002.
d)The husband states that the parties commenced cohabitation on (omitted) 2003 and the wife says that such cohabitation commenced on (omitted) 2003, being the date that the husband settled permanently in Australia.
e)The parties married on (omitted) 2006 and the child was born on (omitted) 2009 and was aged 3 years and 9 months at the date of hearing.
f)The parties separated on 15 July 2011.
g)The husband’s occupation is as a (occupation omitted) for (employer omitted).
h)The wife’s occupation is as a (occupation omitted) for (employer omitted). She holds an (omitted) degree.
i)The husband lives at (omitted).
j)The wife lives at an address disclosed only to the Court (see Exhibit “A”) in the (omitted) area. The wife works from her home.
k)Given the working histories of both parties, the child has been in child care since about (omitted) 2010, when the child was approximately 8 months of age and when he was then attending child care 4 days per week. His child care increased to 5 days per week in about (omitted) 2011 and, currently, the child attends child care some 9 days per fortnight.
l)The child has multiple food allergies (dairy/nuts/wheat/egg and gluten) and suffers from some eczema.
m)On 7 July 2011, the wife commenced proceedings in this Court.
Expert evidence
The family report writer’s report provided the following observations and opinions:
a)The wife presented as a well dressed woman of Asian background. There was no abnormality of perception. Her affect was reactive. She was pleasant and cooperative throughout the interview. There was no cognitive disturbance. There was no significant depression or psychosis.
b)The wife reported being stressed about the court issues and becoming anxious at times. She admitted to being “a little obsession [read “obsessive”] in nature”.
c)The wife reported that the husband was critical of her including stating that: “He said my breastfeeding wasn’t good enough.”
d)The wife also reported verbal threats from the husband which she, subsequently, came to consider as domestic violence. She asserted that the husband punched and kicked her. However, she indicated that the worst experience for her was that she felt undermined by him and stated: “I broke down.” She said that she believed she had been subjected to some social isolation with the child being used as leverage against her in that the husband would not permit the child to be taken to events outside the home, like birthdays and excursions, particularly in the 3 months prior to separation, and that she had found this uncomfortable. The husband disputed this assertion. The wife conceded in cross-examination that she had attended some activities and social outings outside the home, as referred to by the husband. However, the wife’s evidence concerning their attendance at the Easter Show in 2011 was to the effect that the husband had decided to cancel that outing, notwithstanding that she and the child had queued for some considerable time and both were planning to meet friends inside the show. The husband asserted that he had decided to go home rather than attend the show due to the heat and crowd numbers and that they would then return on another day. If the husband had decided this, he did not appear to communicate this position clearly to the wife, when on her evidence she had queued for some 40 minutes to obtain tickets and he knew her friends were waiting on the inside to greet them. The husband’s decision appeared somewhat high handed even on his own version of events. He said he wouldn’t have been embarrassed by his actions and did not know what the wife’s feelings were or whether she would have felt embarrassed. The husband said the wife never told him, at the time, of her feelings and that she could have gone to the show but not with the child. That “retaining” of the child was clearly seen by the wife as impacting on her freedom of movement and she considered that the child was being used by the husband as leverage against her. The wife also said that the husband’s physical violence was negatively impacting on the child as “he was pinching kids. He saw lots of shouting.”
e)The wife reported that the husband had threatened to take the child out of day care and had previously threatened to go back to Korea.
f)The wife reported that there was poor cooperation and communication between her and the husband. The husband agreed with this.
g)The husband was seen with an interpreter but his communication in English was excellent. The interpreter was only used briefly when needed when the husband and the child were communicating. The husband’s cognitive function was normal. There was no abnormality of perception. His affect was reactive. There was no evidence of anxiety, depression or psychosis or of a personality disorder.
h)The husband has an interest in (hobby omitted).
i)The husband agreed that one of the parties’ main relationship issues concerned him wishing to return to Korea and the wife not wanting to do so.
j)The husband also agreed that he had broken a laptop screen but, otherwise, denied any violence. He said that he was shocked that he had been accused of domestic violence.
k)The husband said that he had found it somewhat confusing that an Apprehended Violence Order (“AVO”) had been taken out against him at a time when he and the wife were trying to have a chid by In Vitro Fertilisation (“IVF”).
l)The husband said that when the AVO was taken out he had simply accepted it and signed it stating: “I didn’t realise. I never hit her. She hit me when I held her when she was crazy. I signed just to keep the peace.” He said that there was no current AVO although he believed the wife had wanted to extend the AVO and would try and provoke him to achieve that.
m)In December 2011, the wife was arrested for leaving the child in her motor vehicle for 30 minutes. The husband said that he had only become aware of this in April 2012 and the Court accepts that evidence. The wife claimed that she was under stress at the time. The Court also accepts that the wife had commenced these proceedings at that time and was, clearly, concerned about the potential impact of this for her in the proceedings.
n)The husband confirmed that he would like the child to visit Korea to see members of his extended family and for the child to attend the Korean school in (omitted).
o)The child did not speak any English at the interviews. There was some interaction in Cantonese. He was active and interested. There were sensitive interactions between the wife and the child.
p)The child was observed to be very interested in the husband. The child was relaxed and happy to be with the husband. Weight is attached to this observation.
q)The child appeared equally attached to both parents. Weight is attached to this observation.
r)The husband accepted that handovers could be a problem and the child could get stressed.
s)The wife said that she wanted there to be better communication between the parties and that emails had been a problem because of their nature. Telephone calls could occur every day but these could also be difficult. The wife said that the husband did not like her to call when the child was with him but he wanted to call every day when the child was with her. The husband suggested that they communicate by email but stated: “she won’t answer them.”
t)Both parties had each done a number of parenting courses.
u)The wife has perceived and interpreted the relationship difficulties between her and the husband as domestic violence. The report writer believed that as the wife was quite obsessional she had at times found the parties’ conflict overwhelming. Despite these problems and difficulties, the family report writer believed that the wife supported a relationship between the child and the husband.
The child appeared to have a strong attachment to the wife and the family report writer considered her to be a capable and caring parent who was providing well for the child and the child was developing well in her care. Significant weight is attached to that observation.
v)The husband was also observed to have similar obsessional qualities to that of the wife. Nevertheless, the family report writer believed that he and the child appeared to have a strong relationship. The family report writer was of the view that the attachment between the child and the husband appeared to be as equally strong as the attachment to the wife.
w)The husband cared a great deal about the child and was providing well for him.
x)The child was 3 years of age and unable to express himself clearly. He spoke Korean and Cantonese and the family report writer was unable to elicit any direct dialogue with him. Nevertheless, the family report writer observed that the child’s interaction with both parents was loving and sensitive. The child appeared to be strongly attached to both parents and no clear preference for this attachment could be determined.
y)The family report writer concluded that the child had a strong attachment to both parents which appeared to be healthy. The child appeared to be developing well and did not appear to be adversely affected by the current circumstances.
z)As both parents were probably obsessional in nature they both found it difficult not to retain control and their dispute appeared to be a battle for control of the child.
aa)Both parties appeared to suffer from issues of abandonment. The wife in the case of her father with whom she now has no contact and the husband in his absence from Korea, his family there and indeed, from the wife, following their separation.
bb)The family report writer considered that the wife’s reaction to what she saw as the husband undermining her and denigrating her, given her obsessional nature and the differences in their opinions, which resulted from the parties’ conflict, was interpreted by her as domestic violence, notwithstanding a lack of any supportive objective reports. While the wife perceived that the husband’s conduct gave rise to a violent situation, the husband denied violence and perceived that he was acting more in a defensive manner with the wife. The family report writer did not regard either parent as being a particular victim or a particular aggressor but considered that the dominant issue related to the stress of the parental conflict between them. Weight is attached to that view.
cc)Despite the wife’s concerns about domestic violence, she did not appear to be fearful of the husband and was able to deal with him directly and assertively.
dd)Both parents appeared to support the other parent in relation to continuing a relationship with the child.
ee)“Points of confusion” could occur for the child when he became anxious when moving from one parent to the other. The parents did not appear to understand that the child’s separation anxiety at handovers would increase his distress. The distress was about leaving one parent not about going to the other parent.
ff)Under the current orders, the child lives with the wife and spends defined time with the husband. Under the current orders, the child has already established a strong relationship with both parents and a strong attachment. The child appears to be developing well under the current circumstances.
gg)There is a high degree of mistrust and conflict and alleged violence between the parents and it would, therefore, seem unlikely that a shared parenting arrangement would be successful where a high degree of sophisticated support is required between the parties for such an arrangement to be successful. Weight is attached to that.
hh)The husband is capable of being the child’s primary carer.
The family report writer provided the following recommendations:
a)The child should continue to live with the wife as she appears to have developed a steady arrangement with the child which is successful and allows the child to see the husband and is supportive of the child’s relationship with the husband.
b)The child’s fortnightly weekend time with the husband should continue from Friday to Monday and that there not be direct interaction between the parents, if possible. Where possible, contact and handovers should be done through a third party or day care facility as the child was likely to experience distress separating from either parent.
c)When the child reaches school age, the child could increase to 5 out of 14 nights with the husband. That is, from Friday to Monday and then on the alternate week from Wednesday to Friday as a possibility.
d)Telephone contact is often a point of conflict between parents. If the child is having 5 days a fortnight with the husband there probably needs to be minimal telephone contact on the alternate days so that the child doesn’t feel as though he is a point of conflict. At the child’s current age, he is not really able to interact meaningfully on the telephone and, at best, the telephone conversation could be very brief.
e)Both parents attend post-separation counselling courses to understand the stresses that relate to their respective situations.
f)Neither parent use any physical punishment or drugs or alcohol when with the child.
g)Neither parent denigrate the other parent in front of the child.
h)That shared parental responsibility would be appropriate.
Following release of the family report, the parties considered the same and revised earlier parenting proposals to those set out above but, unfortunately, settlement was not fully effected.
The Court has quoted extensively from the family report writer’s report as set out above. The family report writer was orally examined and his evidence was entirely consistent with the terms of his written report. His oral evidence was to the following effect:
a)The family report writer had read the parties’ updating affidavits and was provided with Exhibits “C” and “G” in these proceedings.
b)The family report writer confirmed that the wife’s affidavit material set out a number of allegations of violence and that those allegations were very specific as to times or periods of time.
c)The family report writer confirmed that both parties had agreed that there had been conflict in the relationship and that each party had asserted that the other was the aggressor. The family report writer also accepted that if the violence, as alleged by the wife, had occurred that she would have felt as though under a physical threat with a sense of humiliation and a potential for a loss in her self-esteem.
d)Relevantly, the family report writer said that he did not observe in the wife, at the time of the interviews, any outward appearance of any feeling of fear or of being under threat. The family report writer’s view was that, thereafter, the allegations of violence were not the dominant issue to determine what was in the best interests of the child. The wife’s clear evidence was that she did not express any fears for the child in the care of the husband and weight is afforded to that.
e)The family report writer was asked specifically about his views with respect to an equal shared parenting regime. The family report writer confirmed that that required a high degree of sophistication and support between the parents, with them having a “relatively settled” view on the child’s care arrangements and an ability to work together to agree on parenting issues. That, in turn, required a high level of flexibility and, indeed, an ability to understand the other party’s position, with a degree of mutual respect existing between them.
f)The family report writer agreed that the parties had a capacity to work together, in that there had been fewer problems at changeovers and the child would have observed the parents facilitating that together. The Court notes, however, that as at December 2012, the husband was expressing some concerns at changeovers and seeking to minimise face-to-face interaction with the wife, at those times.
g)The family report writer was taken specifically to the terms of Exhibit “C”, which related to the husband’s formal request for information from the wife. The husband subsequently conceded that this form was an inappropriate way to seek that information, namely by way of a “yes” and “no” and “please explain” format. The family report writer conceded that Exhibit “C” did not evidence communication at least from the husband’s perspective, at a sophisticated level, it being also an agreed fact that the wife had not responded to that communication.
h)The family report writer further considered that Exhibit “C” set out a very fixed view of matters by the husband and that in those terms it was inappropriate and evidenced a high degree of distrust of the wife. The family report writer was somewhat critical of the husband in seeking to obtain a “perfect” routine for the child. The family report writer’s views were that this demonstrated a somewhat naïve and unrealistic view of the husband’s parenting capacity.
i)The expression in Exhibit “C” of the husband’s upset again did not evidence the sophisticated level of communication that the family report writer thought was a necessary pre-condition to an equal shared time regime. His view, which the Court accepts, was that, at this stage, there was not a sufficient degree of cooperation between the parties to recommend an equal shared time regime. The family report writer, nevertheless, was of the view that there was a sufficient degree of communication between the parties for there to be an equal shared parental responsibility order and for there to be an expansion in the husband’s time with the child. The family report writer was of the view, however, that 5 nights in the fortnight was not appropriate now and significant weight is attached to that expert view.
j)The family report writer viewed both parties as being “somewhat fragile”. The husband was living away from his family support in Korea and there needed to be some time for the parties to stabilise into a parenting regime.
k)The family report writer gave favourable consideration to the husband’s proposal of having the child from Wednesday after day care, spending time with him on Thursday, given that the husband had arranged his work schedule to have Thursday off, and then to return the child on Friday morning to day care. Mr Givney was somewhat critical of that as, he submitted, it provided a potential “set-up” for a 5 night in a fortnight and then for an equal shared time regime somewhat quicker than that which was articulated by the family report writer and had been proposed simply to achieve that, by the husband’s choice of not working on a Thursday.
l)Mr Friedlander’s cross-examination of the family report writer elicited the family report writer’s views that there appeared to be an equally-strong attachment between the child and each of his parents and that each was capable of practically caring for the child.
m)The child had been spending 5 days in day care, Monday to Friday, when, otherwise, living with the wife. The family report writer’s evidence was that the child would benefit from a balancing of parental involvement and day care given the position that the child would benefit from having a mix of both parental care, and as the child matured, involvement with other children in a day care environment.
n)The family report writer was in favour of the husband spending every Thursday with the child provided that that did not increase the tensions between the parents, which would then potentially have a negative effect on the child. The family report writer was looking at that when considering a scenario of picking the child up from preschool on Wednesday evening, spending Wednesday evening with the husband and then returning the child to preschool on Friday morning; that is, having a Wednesday and Thursday night in each week.
o)The family report writer was of the view that one needed to deal with the child’s separation anxiety from each parent. If those matters were, otherwise, neutral, then the family report writer was of the view that it would be a positive for the child to spend that time with the husband. He, however, saw that as that expansion of time moved towards a more equal time regime, then that, in itself, could create a situation of tension and rivalry between the parents, which given their personalities, would be negative for the child. Weight is attached to that.
p)The family report writer was of the view that both parents were somewhat obsessional. The wife’s evidence was that the husband, whilst he had been involved in the child’s rearing, this involvement was, substantially, at her direction. Her evidence concerning the husband’s shopping was that it too had been very much orchestrated by her as to what he should buy. The husband in Exhibit “C” was looking to the wife to provide direction and this supports the wife’s version of her more dominant parenting role, particularly as it related to the child’s care and the maintenance of the home.
q)The family report writer’s recommendation concerning the expansion of time was, in his report, based upon when the child reaches school age. That matter was an issue of some dispute between the parties. The husband was of the view that the child should not commence school until 2015, given his size and age. The wife was of the view that 5 and a half years was likely to be more appropriate than 4 and a half years but that that issue could not yet be considered as she had not taken on board input from relevant experts, such as the day care centre, any educational adviser and, potentially, inquiries of the proposed school, after the parties had considered school preparation programs. The wife’s position was very much articulated and supported by the family report writer, who indicated that the question of whether the child started in 2014 or 2015 really needed some further information of a specialised nature before any answer could be given.
Given that the parties had agreed on an order for equal shared parental responsibility and given that that, in itself, relates to long-term education matters for the child, this is a matter which the Court will not make an order on, leaving that issue to the parents after receipt of appropriate information, as referred to by the family report writer, to consider further at the appropriate time.
r)The wife communicates with the child in both English and Cantonese, and the husband communicates with the child in both English and Korean. The family report writer was unable to elicit, from his interviews and involvement with the child, the child’s English language skill level. The Court has had tendered before it a relevant record of interview with the child from the day care centre which would appear, on its face, to show that the child was, otherwise, communicating at an appropriate level for his age in the English language. This appeared somewhat at odds with the husband’s observation that the child has little fluency or grasp of the English language. Indeed, a possible explanation may be that the child simply prefers to communicate with the husband without using English.
s)The family report writer was of the view that the expansion of the husband’s time, in accordance with his recommendations should not occur until the child was about 5 and a half years of age. Weight is attached to that view.
t)Of particular significance in this matter was an order that the husband sought that the child be permitted to travel to Korea, if this was agreed to by the wife. His proposed order also provided for a bond of $50,000.00 to be lodged. The wife gave clear evidence that she was not interested in agreeing to the child travelling to Korea, given that it was not a Hague Convention country and given her understanding that the courts there were “somewhat patriarchal” and given, further, her status as a non-Korean citizen, she believed that the Korean Courts would be unlikely to enforce orders in her favour. There is no material before the Court relevant specifically to the Courts and family law in Korea and no expert evidence has been called to assist the Court in that regard.
u)The wife was also concerned about the husband applying for Korean citizenship for the child, which she said could be acquired, notwithstanding that the child was not born in Korea, which could expose the child to military service.
v)The husband’s evidence was that he had no current intention of travelling to Korea given, as he understood the position, the political situation there, and, in particular, Korea’s relationship with Korea. Indeed, he quite frankly conceded that he would not travel, himself, there. In those circumstances, the order sought by the husband is somewhat moot. The Court will not make orders in a vacuum.
w)Nevertheless, further, it was clear that the wife was concerned by any thought that the child would travel to Korea and not be returned. The family report writer was of the view that providing for an order which sought the wife’s agreement as to travel would only add to the tension between the parties which was to be avoided in the best interests of the child. In those circumstances, the Court is of the view that no orders should be made referable to the child being permitted to travel with the husband, whether with the wife’s consent or not. That is a matter the parties can discuss further down the track when the issue can be more practically considered, given their agreement to equal shared parental responsibility. The airport watchlist order will remain as the wife asserted and the Court accepts this gave her a degree of comfort which would limit parental tension from her perspective.
x)The family report writer’s recommendation was that the child live with the wife. The family report writer was of the view that the wife appears to have developed a stable arrangement with the child which has been successful. The wife works from home a great deal although the child is spending substantial time in the day care centre, while she is working. The wife appeared supportive of the child’s relationship with the husband and appeared a capable, caring parent, who would continue to care well for the child.
y)A particular issue, so far as the wife was concerned, was identified as relating to the sensitivity of her feelings for being criticised or denigrated by the husband. The family report writer recommended that the fortnightly weekend contact continue from Friday to Monday with a minimisation of the direct interaction between the parents, where possible. He, again, recommended changeovers to be effected through the day care centre, where possible. The family report writer’s view was that when the child reached about 5 and a half years of age, time could be increased to 5 out of 14 nights with the husband, being from Friday to Monday and then on the alternative week from Wednesday to Friday. Significant weight is attached to that. Accordingly, such an expansion of the husband’s time will be ordered to be effected as and from 1 January 2015 which will, in turn, avoid the parties coming into further conflict over the date for the child’s commencement at school if that date was, otherwise, relevant to this issue.
z)The family report writer was also of the view that substantial time with the husband would be helpful for the child.
aa)In respect of telephone contact, the family report writer was of the view that as this had the potential to be a point of conflict between the parents, it should be minimised to the extent of providing that if the child was having 5 days a fortnight with the husband, there needed to be minimal telephone contact on the other days so that the child did not feel as though he was, otherwise, being a point of conflict. The family report writer further noted that at his age, the child was not really able to interact meaningfully on the telephone and, at the best, any telephone conversation would be extremely brief.
bb)The family report writer recommended that both parents attend post-separation counselling courses and, indeed, the wife and the husband indicated that they were agreeable to do so.
cc)The family report writer confirmed his recommendation that the parties exercise equal shared parental responsibility, as they had agreed to.
dd)The family report writer further recommended that neither parent use any physical punishment on the child or drugs or alcohol when with the child and that neither parent denigrate the other parent in the presence of the child.
Following the family report writer’s oral evidence and on the final day of the hearing, the parties were able to reach substantial agreement in respect of a number of parenting orders and those orders were made by consent on 10 April 2013 and were to the following effect:
(1)That the wife and the husband have equal shared parental responsibility for the child.
(2)That the child live with the husband at such times as agreed between the parties.
(3)Each parent do all such things, sign all such instruments, documents, document authorities and the like necessary to ensure that :
3.1Each party do all such things, sign all such instruments, documents, document authorities and the like necessary to ensure that each parent has the ability to communicate directly with the child’s pre-school, school teachers and other school authorities as to the child’s progress at pre-school/school and any problems being experienced by the child and to enable his pre-school/school records to show each parent as a person to be contacted in the case of an emergency and to ensure that each parent is on the mailing list for copies of pre-school/school reports and circulars as to upcoming events.
3.2Each parent receive a true copy of all documents and notices received from the child’s school/pre-school including each yearbook and school photographs.
3.3Each parent is able to communicate directly with any treating professional as to any health-related treatment being undertaken by the child without necessarily first referring to the other parent.
(4)Each parent at all times keep the other informed as to all medical, dental or health related treatment being undertaken by the child and the identity of the treating professionals and shall forthwith just give such authority whether written or oral, as is required to permit the other to communicate directly with that treating professional concerning the treatment of the child and shall notify the other of all appointments with any such treating professional forthwith after the appointment has been made and in the event of any emergency treatment shall notify the other parent at the earliest possible time.
(5)The parties shall consult with each other for the purposes of facilitating the child being involved in their respective Korean and Chinese cultures.
(6)Each party shall provide the other with any medication prescribed for the child whilst he is in their care, along with information as to how that medication is to be taken and each party is to ensure that the child takes his medication as prescribed.
(7)NOTED both parties shall use their best endeavours to ensure that the child sleeps in his own separate bed.
(8)Neither parent nor members of the other parent’s family shall denigrate the other parent in the presence or hearing of the child nor permit any other person to do so.
(9)Omitted.
(10)Omitted.
(11)Omitted.
(12)The parties shall within 21 days of delivery of judgment obtain an appointment with Mr N, the psychologist, for the purposes of attending family therapy and in respect of this order the following shall apply:
12.1 The parties shall attend not less than three sessions of counselling.
12.2 If so requested by Mr N, they shall arrange for the attendance of the child at counselling
12.3 Shall attend such further sessions as may be recommended by Mr N and
12.4 the parties shall equally bear Mr N’s fees.
The Court has had regard to the oral evidence of the family report writer which the Court accepts and which was consistent with the facts and consistent with his earlier report. Significant weight is given to his recommendations. The Court has had regard to the general observations set out by the Full Court of the Family Court of Australia in Hall & Hall (1979) FLC 90-713.
Parental Responsibility
The Court has ordered by consent, that the parties have equal shared parental responsibility for the child, which was in accordance with the recommendation of the family report writer. Further, under s.60CC(5) of the Act, the Court is not required to have regard to any or all of the matters set out in sub-section (2) or (3), when the Court is considering whether to make an order with the consent of all of the parties to the proceedings. The Court notes that without proper communication between the parties, issues such as those concerning the use of an Epipen Junior can arise. The husband’s understanding was that this pen had been prescribed by the child’s General Practitioner. The wife said that the General Practitioner had considered its use but decided against prescribing it. It is vital for the parents to communicate on such issues and both accepted that they had the capacity to do so and would do so into the future. Both parties wished to improve their level of communication and weight is attached to that.
The husband has been in employment since about May 2004 and contributed his income towards the parties’ living expenses and property expenses.
The husband concedes that, following the wife obtaining her (qualifications omitted), her income from her employment increased significantly compared to his.
The Court accepts that when the wife was not working between (omitted) 2009 and (omitted) 2010 (when she resumed part-time work) and (omitted) 2010 (when she resumed full-time work), she contributed her paid maternity leave and savings towards the parties’ joint living expenses.
Non-Financial Contributions
The Court accepts that the wife was primarily responsible for cooking for the family and caring for the child up until separation. Given the child’s specialist food needs, the Court accepts that the wife did most of the shopping and that that which the husband did was under her direction, as to a large extent conceded by him.
The Court accepts that the child has, for significant parts of his life, been in day care and that both parties, during the course of their relationship, funded such day care to enable them to, otherwise, maintain employment.
The Court also accepts that the wife was largely responsible for maintaining the Property A property and for organising and managing tradespeople to carry out any repairs and maintenance. The Court also accepts that the husband carried out various maintenance works with respect to the Property A property, including lawn mowing, deck maintenance, pool maintenance and the maintenance of the external gardens and outdoor areas.
The wife says that she sponsored the husband’s temporary visa to Australia and, subsequently, his permanent residence visa and provided $4,500.00 towards the costs of those visa applications. The husband also contributed monies towards the fees of the migration agent employed to assist him in his visa applications.
The wife did not concede that the husband had helped her out by making her studying for her (qualifications omitted) easier. The wife said that she completed her (qualifications omitted) course in some 9 months, having started it some 1 to 2 months after the husband had arrived in Australia. The Court finds that the husband did provide assistance during this period, given the wife’s concession recorded in paragraph 191 below.
The Court, in the circumstances of this matter, does not weigh the husband’s decision to migrate to Australia as a direct contribution made by him under s.79(4) of the Act. On the husband’s own evidence, he has now obtained well remunerated employment and is settled in Australia.
The wife conceded that the husband, when he was earning, put his earnings into a joint account and that those funds were also used to meet the parties’ day-to-day living expenses. Weight is attached to that.
The parties’ joint funds were used to repay monies owed with respect to the wife’s Higher Education Contribution Scheme (“HECS”) debt and to pay for the husband’s tonsillectomy and the wife’s IVF treatment.
The wife’s evidence was that when the child went on to solid foods she had prepared a restricted diet for herself and the child and the husband was welcome to eat what she had prepared. She said, however, he did not wish to eat these foods, preferring to buy his own Korean food. The Court accepts the wife’s evidence concerning shopping, namely that she did it or the parties did it together or the husband did it under her specific directions. The wife conceded that the husband had done some cleaning and meal preparation, particularly, at times when she was, otherwise, occupied in her post graduate study.
Post Separation
At the time of separation, the wife vacated the former matrimonial home, being the Property A property. The husband remained living in the Property A property up until it was sold. He also had the benefit of the furniture, whitegoods and chattels remaining in that property.
The Court accepts that the husband ensured that the Property A property was maintained in reasonable repair so that it could be sold.
The wife obtained rental accommodation following separation and has expended in the order of $37,000.00 on such rent. She also expended some $8,200.00 in re-establishment costs, including purchasing furniture, whitegoods and other chattels. The husband says that the wife took various household items in about December 2011 from the Property A property requiring him to replace those items to an approximate value of some $3,000.00.
On or about 25 November 2011, the husband withdrew $20,000.00 from the parties’ mortgage redraw facility. This facility was, subsequently, removed when the bank deposited $150,000.00 from the parties’ offset account into their home loan account. It is unclear what happened to the $20,000.00, however, it appears that the husband purchased a Subaru (omitted) motor vehicle by way of $4,000.00 from his savings and $20,000.00 from the said (omitted) Bank Account.
While both parties contributed to the child care fees and medical expenses it is unclear where medical and child care rebates have been paid.
The Court accepts that at the time of separation the wife had savings of approximately $97,000.00 which had increased to approximately $197,000.00 at the time of the hearing. The husband has made no post separation contribution to this increase in savings and weight is attached to that.
What were the parties’ contributions to the welfare of the family, including those in the capacity of homemaker or parent?
It is common ground that the husband has been actively engaged in the care of the child and, in particular, in engaging the child in play and physical activities. The wife was, however, primarily responsible for settling the child’s routines and in preparing the child’s meals. Both parties worked and availed themselves of long day care facilities to care for the child, when they were, otherwise, working. Access to this day care centre, to a large extent, enabled the wife to retain her high income producing employment.
Notwithstanding the wife’s criticisms of the quality of the parenting provided by the husband, the Court is satisfied that the husband did make contributions as a homemaker and parent during the period of the parties’ cohabitation and the parties’ contributions were largely equal in that regard.
The husband submits that his contribution entitlement should be assessed at 50 per cent to the wife’s 50 per cent over the total property pool. The Court does not accept this assessment based on the wife’s cocooned overseas assets, her greater initial financial contribution and her greater financial contribution during the course of the parties’ relationship.
The wife submits that her contribution entitlement should be assessed at 100 per cent with respect to the wife’s overseas assets (property and superannuation) of $329,643.00 and 65 per cent of the Australian net assets (property and superannuation) of $1,483,163.70 being $964,056.41 totalling $1,293,699.41. On this basis, the husband would receive 35 per cent of the Australian net assets being $519,107.30. This would mean that the wife would receive 71.4 per cent of the total property pool and superannuation and the husband would receive 28.6 per cent of that total.
Weighing all of the factors relating to contributions, both financial and non-financial, the Court accepts the wife’s assessment with respect to the overseas assets but assesses the wife’s contribution entitlement to the net Australian assets at 60 per cent and the husband’s at 40 per cent, being $889,898.22 and $593,265.48 respectively. The wife retaining $329,643.00 being the overseas assets. Accordingly, the wife would receive $1,219,541.22 and the husband $593,265.48.
Non-Disclosure
The Court must make findings with respect to a party’s non-disclosure, not just his/her credit.
As set out in the Full Court of the Family Court of Australia’s decision in Weir & Weir (1993) FLC 92-338:
“[O]nce it has been established that there has been a deliberate non-disclosure … then the Court should not be unduly cautious about making findings in favour of the innocent party…
[T]he Court’s jurisdiction to make an order going beyond the identified property arises once there is sufficient evidence to support a finding that the party has not made a full disclosure of his or her assets.
The Full Court of the Family Court of Australia in Weir and Weir (1993) FLC 92-338 held:
“This Court has pointed out in a line of cases leading up to the relevant decision of the Full Court in Black and Kellner (1992) FLC 92-287, that it is the duty of a party involved in property proceedings in this jurisdiction to make a full disclosure of their financial affairs.”
In the matter of Luciano (2000) FamCA 401 (non-reportable), O’Ryan J. included the following in his summary of principles emerging from this line of authority (at paragraph 373):
“The obligation [of each party to make a full and frank disclosure] arises because of the necessity for the court in such proceedings to consider all aspects of the financial circumstances of each party;…
If there is non-disclosure, in the relevant sense, then the failure to disclosure undermines the whole process of adjudication of the proceedings in relation to financial matters;
A finding of non-disclosure may, in appropriate cases, depending upon the circumstances, result in the other party being granted, without more, the relief sought.”
The wife asserts that the husband has not made a full disclosure of his property. The wife maintains that notwithstanding the husband has lived “rent free” since separation and having access to the parties’ belongings during that time without the ongoing costs associated with maintaining a joint household, he has not saved any monies. The husband maintains that he has sent substantial monies back to his father in Korea. The husband’s father did not file any affidavit evidence notwithstanding that it would have been important for him to do so. In these circumstances, the Court infers that the evidence of the husband’s father would not have assisted the husband, in that regard.
The husband was cross examined as to his financial statement of November 2011 (Exhibit “H”) which deposed to a weekly income of $2,853.00 with outgoings of $2,347.00, leaving an excess of $506.00. The husband confirmed that he had no mortgage expenses at the time. In those terms, given what was an elapse of some 84 weeks since that financial statement was prepared there would be excess savings of some $42,000.00. If the husband paid his father some $220.00 per week, which would have amounted to $18,400.00 there would be a differential of some $23,600.00. These monies are not disclosed. The husband’s financial statement filed 21 March 2013 provides for weekly expenditure of $3,247.00 which includes an item being total of all other expenditure of $1,719.00 as set out in Part N which is said to include the sum of $230.00 per week in financial support to the husband’s father together with $779.50 per week for legal costs. This revised financial statement then shows that his expenses exceed his income by some $530.00 per week. However, $500.00 of this appears to relate to an estimate for “future” rent. The husband has failed to provide any bank accounts referable to the receipt of monies allegedly sent to his father. At best his evidence was that he paid his father $220.00 per week “every now and then” and the figure of $230.00 was “an average”. He identified from a bank statement a payment of $1,500.00 made on 18 March 2013, and $2,000.00 made on 24 December 2012 to an account which he said was his father’s account. He simply asserted that he had sent some $46,150.00 over 8 years to his father (see Exhibit “J” being a summary document prepared by the husband), since the parties commenced living together. It was put to him that this equated to 416 weeks, or $110.00 per week. The husband did not give an adequate explanation as to what appears to have happened to the surplus monies available to him over the time between the provision of his financial statement in November 2011 and the hearing.
Exhibit J being the schedule of expenses relating to money allegedly sent by the husband to his father indicates that of $46,150.00 claimed to have been sent, $10,200.00 occurred post separation. This equates to approximately $115.00 per week (not $230.00), over that 88 week period.
Exhibit “6” indicates that the husband had expended some $67,544.00 on legal fees as at 19 March 2013 when his financial statement revealed he had no liabilities. Exhibit “6” records a further cost of $20,000.00 rendered by the husband’s solicitors on 8 April 2013. Exhibit “6” totals some $87,544.42 in legal fees. Deducting from this the figure of $20,000.00 being the most recent account for legal fees that equates to $67,544.42. Accordingly, as at the time of swearing his financial statement in March 2013 he claimed spending approximately $780.00 per week on legal fees, which over 88 weeks total approximately $68,640.00. This to an extent explains where any of the differential income exceeding his expenses has been expended over the period since separation. At the conclusion of these proceedings, the husband’s surplus of income over expenses, given that he has asserted no liabilities will give him the potential to fund his extended family to travel to Australia to see the child, if indeed they were unable to afford to do so. There is, however, no specific evidence (save his assertion of $15,000.00 plus per annum) in admissible form as to the costs that the husband could face, in those circumstances.
The wife’s legal expenses, which did not include the hearing, totalled $35,130.00 in accordance with a statement dated 9 April 2013, being Exhibit “E”.
While there is some inadequacy in the husband’s disclosure as to the transfer of funds overseas, the Court is not of the view that such a failure should, otherwise, be taken into account under s.75(2)(o) of the Act.
What is the effect, if any, of any proposed order upon the parties’ earning capacity?
The proposed orders do not impact on the earning capacity of either the husband or the wife.
The Court accepts that the wife has a greater earning capacity than the husband, as conceded by him.
Any adjustment under s.75(2) of the Act?
The husband and wife submit that adjustment should be made referable to the following factors in the percentages submitted.
a) the age and state of health of each of the parties;
The husband is 40 years of age and there is no evidence that he is not, otherwise, in good health.
The wife is 40 years of age and there is no evidence that she is not, otherwise, in good health.
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;
The husband works full time earning approximately $130,000.00 per annum before tax, being approximately $100,000.00 after tax. He receives a superannuation contribution from his employer of approximately $223.00 per week. The husband says that his income will fall to approximately $113,000.00 (including superannuation) per annum if he is allowed to work part-time, that is, with each Thursday off work. On his evidence, the husband was able to send monies overseas to his father and, further, asserted that he was able to afford to work part-time. There is no evidence that the husband experienced any adverse impact on his career or earning capacity in moving from Korea to Australia.
The wife works full time earning approximately $232,000.00 per annum and discloses income tax at $1,941.00 per week, totalling some $100,930.00 per annum.
The Court must have regard to any disparity in the parties’ capital positions as a result of the contribution based assessment. See Loude & Loude [2009] FamCAFC 52.
In considering this disparity, the Court notes that the wife will have access to some $329,643.00 in overseas assets largely cocooned from the parties’ relationship and some weight is attached to that (see Bishop & Bishop [2013] FamCAFC 138).
c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
The Court has had regard to the parenting orders which it proposes which will see the child spending 5 nights a fortnight with the husband after 1 January 2015 and, up until then, 4 nights a fortnight.
d) commitments of each of the parties that are necessary to enable the party to support:
i) himself or herself; and
ii) a child or another person that the party has a duty to maintain;
No relevant matter was put to the Court concerning this factor, save that each party has the obligation to support himself, herself and the child.
e) the responsibilities of either party to support any other person;
The husband asserted that he was involved in supporting his 75 year old father in Korea by forwarding money to him there. This support, he said, was in the order of $220.00 per week. The wife contested that the husband’s father was in any financial need and gave evidence that she had observed him attend work when she was in Korea and that he owned real estate there. The husband confirmed his father was in receipt of rental monies from tenants and was in receipt of a pension and had obtained some contract work within the last 3 to 4 months, but that that work had ended. There was no evidence from the husband’s father and the husband gave no explanation as to why he did not call such evidence, save that he had not asked his father as he believed his father did not want to talk about his difficulties. The husband’s own evidence was that his father had provided some $10,000.00 in cash and jewellery worth about $3,500.00 as wedding gifts in (omitted) 2006. At least, as at (omitted) 2006, this appeared somewhat inconsistent with the husband’s assertion that his father was in financial need for the period of some 8 years since the date of the parties’ cohabitation. In those circumstances, the only inference the Court can make is that any evidence, if obtained from the husband’s father, would be unlikely to have assisted the husband.
In Soblusky & Soblusky (1976) FLC 90 – 124 the Full Court of the Family Court of Australia (Demack, Watson SJJ and Fogarty J) held that this provision requires the Court
“in exercising its powers in respect of maintenance to have regard to the responsibilities of either party to support any other person. This provision is couched in wide terms and ought to be given a broad interpretation. … A court is required … to consider in a realistic way the fact that a party has assumed a responsibility to support another person and the weight to be given to that fact depends upon the circumstances of each individual case.”
This principle was discussed in Axtell & Axtell (1982) FLC 91-208 to the effect that it should be affirmed as a general principle capable of application to a multitude of different circumstances.
The Court was referred to the decision of Justice Nygh of the Family Court of Australia in Aroney & Aroney (1979) FLC 90 – 709 where the Court had held that an obligation whether legal or at least a strong moral one, to provide a parent with rent free accommodation could be taken into account under this factor. In that case, the obligation arose in the circumstances that unit accommodation had been acquired with the substantial financial help of the wife’s mother.
The Full Court of the Family Court of Australia in Brown & Brown (2007) FLC93 – 316 had the opportunity to refer to all three above mentioned cases and again held that the consideration contained within this provision is discretionary with the weight to be assessed against the facts of each individual case.
In light of the paucity of evidence concerning any real need of the husband’s father, the Court gives no weight to the husband’s assertion that he will have an ongoing need to provide funds to his father under this factor.
f) subject to subsection (3) the eligibility of either party for a pension, allowance or benefit under:
i) any law of the Commonwealth, of a State or Territory or of another country; or
ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia, and the rate of any such pension, allowance or benefit being paid to either party;
The Court accepts the wife’s superannuation is greater than that of the husband. The wife says that this could sound in a 3.5 per cent adjustment of the total net non-superannuation property pool ($1,439,523.70) in the husband’s favour of $50,383.33 (albeit the wife’s submissions referred to a sum of $51,818.00).
g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
No relevant matter was put to the Court concerning this factor.
h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
No relevant matter was put to the Court concerning this factor.
ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
No relevant matter was put to the Court concerning this factor.
j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
No relevant matter was put to the Court concerning this factor.
k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
No relevant matter was put to the Court concerning this factor.
l) the need to protect a party who wishes to continue that party's role as a parent;
No relevant matter was put to the Court concerning this factor.
m) if either party is cohabiting with another person, the financial circumstances relating to the cohabitation;
No relevant matter was put to the Court concerning this factor.
n) the terms of any order made or proposed to be made under section 79 in relation to:
i)the property of the parties; or
ii)vested bankruptcy property in relation to a bankrupt party;
No relevant matter was put to the Court concerning this factor.
naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
i)a party to the marriage; or
ii)a person who is a party to a de facto relationship with a party to the marriage; or
iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
No relevant matter was put to the Court concerning this factor.
na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
At present there is no child support assessment in place. The husband meets the support costs of the child when the child is with him and the wife meets those costs when the child is with her.
The wife says that she wishes the child to attend (omitted) School, for high school and is content to meet all of the fees associated with that, if the husband is not prepared to contribute. There is no evidence before the Court as to the costs of such schooling and the child has not yet commenced school, let alone high school. No other relevant matter was put to the Court.
o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
The husband says that he had left Korea (his friends and family) and his employment there and accepts that he must now stay in Australia in the best interests of the child. The husband, further, says that if he is permitted to travel to Korea with the child or must fund his family travelling to Sydney there will be a significant financial exposure to him which could include the lodgement of any bond to satisfy the wife’s concerns. The husband says that if he has to arrange for his father and sisters to travel to Australia for any face-to-face-contact with the child, then one such trip annually would cost him about $15,000.00.
In the circumstances referred to above, the wife asserts that the husband has not fully disclosed the funds available to him given the uncertain position concerning his evidence as to payments made to his father in Korea. The Court repeats the matters set out in paragraph 210 above.
While the Court was referred to the Full Court of the Family Court of Australia’s decision in Soblusky & Soblusky (1976) FLC 90 – 124 which referred to a party’s conduct in repudiating the role of the other party as a mother, the Court does not find that conduct in these proceedings was to anywhere near the degree necessary to provide any adjustment under this factor, given that to a large extent such a matter would be largely irrelevant to a financial adjustment issue.
The Court repeats the matters set out in paragraph 161 above under this factor.
p) the terms of any financial agreement that is binding on the parties.
No relevant matter was put to the Court concerning this factor.
q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
No relevant matter was put to the Court concerning this factor.
The husband submits that an adjustment of a further 10 per cent should be made in his favour if contributions are assessed as he submits at 50/50, so that the final adjustment to the matrimonial pot should be assessed at 60 per cent to him and 40 per cent to the wife.
The wife submits that if her contribution analysis is accepted by the Court, there should be no further adjustment. However, the wife says that if the Court is of the view that the husband’s contributions were greater than that asserted by the wife, then because of the wife having the greater care of the child then there should be an adjustment in her favour. No quantum for that adjustment was provided.
Considering then all of the above s.75(2) factors, the Court is of the view that there should be an adjustment of 5 per cent made in favour of the husband assessed as against both the wife’s overseas assets and the Australian assets to the effect that the husband would receive $16,482.15 out of the overseas assets and $74,158.19 out of the Australian assets being an adjustment in his favour of $90,640.34 to which the sum of $6,990.00 (see paragraph 161 above) should be added, totalling $97,630.34. This, the Court regards, as a proper adjustment given the parties’ age, current child support responsibilities, current earning positions and their capital positions. This outcome reflects the cumulative outcome of the findings made pursuant to s.75(2) of the Act. See Tomasetti & Tomasetti (2000) FLC 93-023.
Are the proposed orders just and equitable?
Section 79(2) of the Act provides that:
“The Court shall not make an Order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the Order.”
It is the justice and equity of the actual orders that the Court must consider. Russell & Russell (1999) FLC 92-877.
As the Full Court of the Family Court of Australia said in Dickson & Dickson (1999) FLC 92-843:
“Whilst it may, as a matter of individual circumstance, be correct to say that the mere existence of disparity of wealth ought not of itself justify a settlement of property to one party at the expense of the other, it may often, in the overall circumstances of a case, call for further adjustment beyond that assessed on contributions alone, so that the final order is just and equitable…”
Section 81 of the Act requires the Court, as far as practicable, to finalise the financial relationship between parties when making orders for property settlement.
Section 79(5) of the Act needs to be exercised very sparingly and only in appropriate circumstances. This is not one of those circumstances.
The wife says that she is hopeful of purchasing a suitable residence for herself and the child in the area extending from (omitted) to (omitted). No evidence has been led as to the value of any such proposed residence.
The husband says that he is hopeful of purchasing a suitable residence for himself and the child in the (omitted)/(omitted) area of Sydney. He is currently renting at $550.00 per week. He says that if he borrows the sum of $450,000.00 his repayments will be $580.00 per week and if he borrowed $300,000.00 his repayments will be in the order of $436.00 per week. He says that he continues to forward $220.00 per week to his father in Korea.
The wife and husband will therefore receive the property and be liable for the debts as set out in the following table:
Wife’s entitlement
(see paragraph 202 above) $ 1,219,541.22
Less s.75(2) adjustment
(see paragraph 249 above) 97,630.34
Wife receives:- 1,121,910.88
Deposit on Property C $ 35,500.00
(omitted) Bank Account
No. (omitted) $ 258.00
(omitted) Bank Account
No. (omitted) $ 39,772.00
(omitted) Bank Account
No. (omitted) $ 511.00
(omitted) Bank Account
No. (omitted) $ 680.00
(omitted) Bank Account
No. (omitted) $ 57,095.00
(omitted) Bank Account
No. (omitted) $ 103.00
(omitted) Bank $ 51,507.00
(omitted) Bank Account $ 161,021.00
(country omitted) Bank Account
No. (omitted) $ 6,275.00
(country omitted) Bank Account
No. (omitted) $ 81,915.00
(country omitted) Bank Account
Account $ 31,392.00
(country omitted) Bank Account $ 423.00
(omitted) Bank Account $ 54.34
(omitted) Shares $ 4,675.00
Honda (omitted) $ 12,000.00
Household contents $ 15,000.00
(omitted) Super $ 232,183.00
(omitted) Fund of (country omitted) $ 48,617.00
$ 778,981.34
Less the wife’s visa card debt $ 2,292.00$ 776,689.34
Plus Share of proceeds of sale
[Property A] 345,221.54 $ 1,121,910.88
Husband’s entitlement
(see paragraph 202 above) $ 593,265.48
Plus s.75(2) adjustment
(see paragraph 249 above) 97,630.34
$ 690,895.82
Husband receives:-
Proceeds of sale
[Property B] 288,689.00
(omitted) Bank Account
No. (omitted) 471.13
(omitted) Bank Account
No. (omitted) 2,933.31
(omitted) Bank Account
No. (omitted) 654.66
(omitted) Bank Account
No. (omitted) 256.26
(omitted) Bank 550.00
(omitted) Shares 400.00
Subaru (omitted) motor vehicle 16,000.00
(vehicle omitted) motor vehicle 200.00
Household contents 8,000.00
(omitted) Super Employer Plan 92,483.00
Balance proceeds of sale
[Property A] $ 280,258.46 $ 690,895.82
The Court is satisfied that in all the circumstances of this case, the orders proposed are just and equitable.
Injunction
The Court would not impose a restraint without clear evidence as to why the restraint should be imposed. The injunctive power is a discretionary one, “not to be exercised lightly” see the Full Court of the Family Court of Australia in Sieling & Sieling (1979) FLC 90-627.
The Court will not make the first order 4 as sought by the husband as it is in the nature of a child support issue and no relevant departure application is before the Court. Further, it would appear that each of the parties already pays one-half of the costs of child care and there is, as such, no need for an order.
The Court will not make the second order 4 as sought by the husband as it is to a large extent consistent with orders 15 and 16 as sought by the wife.
There is no evidence to ground the making of orders 5, 6 and 7 as sought by the husband.
The Court will make orders 8 and 9 as sought by the husband as consequential orders to implement the property orders made.
The Court will not make order 10 as sought by the husband in light of the property orders made.
The Court will not make order 11 as sought by the husband, given the matters referred to in paragraphs 265 to 267 below.
Costs
Section 117 of the Act sets out that each party shall bear his or her own costs, subject to the considerations in sub-section two.
Any order for costs must also be determined in light of the substantive judgment and the relative success or failure of the parties. This is naturally something that can only be addressed after judgment is delivered.
The Court proposes to make the orders and directions in relation to any application for costs that might be made as set forth above.
I certify that the preceding two hundred and sixty-seven (267) paragraphs are a true copy of the reasons for judgment of Judge Kemp
Date: 20 September 2013
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Jurisdiction
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Costs
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Remedies
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