Pung and Dinh (No 2)
[2020] FamCA 668
•3 August 2020
FAMILY COURT OF AUSTRALIA
| PUNG & DINH (NO. 2) | [2020] FamCA 668 |
| FAMILY LAW – CHILDREN – Undefended hearing – Where the father has left the country and disengaged from the proceedings – Where the mother seeks sole parental responsibility, that the children live with her and that they spend time with the father as agreed – Where the Court is satisfied that the orders sought by the wife are in the best interests of the children. FAMILY LAW – PROPERTY – Undefended hearing – Where the husband has left the country and disengaged from the proceedings – Where the husband took AUD$5 million out of the country and has retained it, despite an order requiring him to return it – Where the orders that the wife seeks sees her retaining all of the property that is within the Australian jurisdiction which represents between 13% to 21% of the matrimonial property pool – Where the wife is unlikely to be able to retain much of the property that is registered in her name overseas – Where orders are made as sought by the wife. |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Ms Pung |
| RESPONDENT: | Mr Dinh |
| FILE NUMBER: | BRC | 1243 | of | 2020 |
| DATE DELIVERED: | 3 August 2020 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Forrest J |
| HEARING DATE: | 3 August 2020 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Mr McCormack Thynne & Macartney |
| THE RESPONDENT: | No Appearance |
Orders
Parenting
Discharge of previous Orders
That the Orders made by this honourable Court on 27 April 2020 be discharged.
Parental Responsibility
That the children:
(a) X born … 2005;
(b) N born … 2007;
(c) Z born … 2013; and
(d) W born … 2018;
(“the children”) shall live with the Applicant.
That the Applicant shall have sole parental responsibility for:
(a) the major long-term decisions for the children;
(b) any decisions about taking the children outside Australia;
(c)any decisions about the children’s immigration status, immigration applications; or the issue of travel documentation by any country.
Short-term parental responsibility
That the Applicant and the Respondent shall each have responsibility for the day-to-day decisions in relation to the care of the children during the periods that the children are in their care.
Time
That the children shall spend time with the Respondent at all times as agreed and, failing agreement, as ordered by the Court.
Authority to provide information
That this Order is an authority for the Applicant and the Respondent to obtain from the children’s schools, copies of school reports, school photographs and any other document regarding the academic progress or achievements of the children and notification of events such as parent/teacher events, sports day and concerts.
That this Order is an authority for the Applicant and the Respondent to obtain information from any treating medical practitioner, hospital and/or health care professional concerning the health of the children.
That pursuant to s 121 of the Family Law Act 1975, leave is granted to the parties and their legal representatives to provide a copy of these Orders to:
(a) any school, education institution, or care provider;
(b) any treating medical practitioner, hospital, or health care professional;
(c) any government department or instrumentality;
that may seek or require to hold a copy of these Orders for the purpose of discharging any duties, legislative, or policy requirements on the condition that these Orders are not further published and are held by the relevant person or entity seeking them in accordance with the Australian Privacy Principles as set out in Schedule 1 of the Privacy Act 1988.
Civility in communications
That during the time the children are with either parent, that parent will:
(a)respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b) speak of the other parent respectfully;
(c)not denigrate or insult the other parent in the presence or hearing of the children; and
(d)not be complicit with others in denigrating or insulting the other parent and use their best endeavours to ensure that others do not denigrate or insult the other parent in the hearing or presence of the children.
Communication
That the parties do all things necessary to enable the children and the other parent to communicate at all reasonable times as the children may request.
Travel outside of the Commonwealth of Australia
That the Applicant be at liberty to travel with the children:
(a) X born … 2005;
(b) N born … 2007;
(c) Z born … 2013; and
(d) W born … 2018;
outside the Commonwealth of Australia in accordance with section 65Y of the Family Law Act 1975.
Conditional Prohibition on Travel with the Children by the Respondent
That subject to the authenticated consent of the Applicant under Part VII of the Family Law Act 1975, the Respondent, Mr Dinh born … 1964, his servants and/or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the children:
(a) X born … 2005;
(b) N born … 2007;
(c) Z born … 2013; and
(d) W born … 2018;
from the Commonwealth of Australia; AND IT IS REQUESTED that the Australian Federal Police give effect to this Order by placing the names of the said children on the Family Law Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the names of the children on the Watchlist until the day prior to the respective child’s 18th birthday, or until the Court orders the removal of a specific child, or with consent of all parties – whichever occurs first in time.
That for the purposes of Order 12 above, the relevant dates on which the children are to be removed from the Family Law Watchlist are set out below:
(a) X – … 2023;
(b) N – … 2025;
(c) Z – … 2031; and
(d) W – … 2036.
NOTATION
(A)That pursuant to s 65DA(2) and 62B of the Family Law Act 1975 (as amended), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties to adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
Property Orders
IT IS ORDERED
Discharge of previous Orders
That the Orders made by this honourable Court on 27 April 2020, save for the order as to costs made that day, be discharged.
Sale proceeds of Suburb D property to be retained by the Applicant
That upon the sale of the real property located at B Street, Suburb D, Queensland, and more particularly described as Lot … on Registered Plan … and contained in Title Reference … (the Suburb D property) the Applicant be entitled to retain 100% of the funds held to her credit in the Law Practice Trust Account of Thynne & Macartney Lawyers as and by way of alteration of property interests pursuant to section 90SM of the Family Law Act 1975.
Retention of property by the Applicant
That the Applicant retain as her absolute property the title to and possession of and the Respondent immediately relinquish, transfer and assign (if necessary) to the Applicant or relinquish all right, title, and interest (if any) in and to:
(a) the motor vehicle 1 registration number …;
(b) the motorcycle 1 registration number …; and
(c)the motor vehicle 2 registration number …;
(d)any bank accounts including any credit balance held solely in the Applicant’s name;
(e)any bank accounts including any credit balance held jointly in the name of the Applicant and the Respondent; and
(f)the articles and effects of a personal, domestic, household, garden use or ornament not otherwise specifically dealt with under these orders in the possession of the Applicant or located at the Suburb D property.
That the Respondent be responsible for and meet payment when due all tax owing, by him or by an entity in respect of which he is a director or other office bearer, to the Australian Taxation Office and indemnifies, and keeps indemnified, the Applicant.
Spousal Maintenance
That pursuant to section 90SE of the Family Law Act the Respondent pay to the Applicant by way of spouse maintenance the sum of $1,000 per week for a period of 3 years from the date of this Order.
That the spouse maintenance referred to in Order 5 above must be paid either:
(a)by cash or electronic transfer of cleared funds directly to a bank account nominated by the Applicant; or
(b)by remittance to Services Australia in discharge of any registrable maintenance liability that the Applicant has requested Services Australia to collect on her behalf under the provisions of the Child Support (Registration & Collection) Act 1988.
That the first payment of spousal maintenance be made on or before the date that is two business days from the date of these Orders and thereafter on Tuesday of each week.
Child Maintenance
That pursuant to section 66G of the Family Law Act the Respondent Father pay to the Applicant Mother by way of child maintenance in respect of the children, namely:
(a) X (dob: …2005);
(b) N (dob: …2007);
(c) Z (dob: …2013) and
(d) W (dob: …2018),
the sum of $1,000 per week per child until each child attains the age of 18 years.
That the child maintenance referred to in Order 8 above must be paid either:
(a)by cash or electronic transfer of cleared funds directly to a bank account nominated by the Applicant; or
(b)by remittance to Services Australia in discharge of any registrable maintenance liability that the Applicant has requested Services Australia to collect on her behalf under the provisions of the Child Support (Registration & Collection) Act 1988.
That the first payment of child maintenance to be made on or before the date that is two business days from the date of these Orders and thereafter on Tuesday of each week.
That the parties shall do all acts and things necessary and give all consents and execute all documents and writings to give effect to these Orders in the time periods prescribed.
That if the Respondent fails, neglects, or refuses to execute any deed, document or instrument necessary to give effect to these Orders, a Deputy Registrar of the Family Court of Australia at Brisbane is appointed pursuant to section 106A of the Family Law Act 1975 to execute any such deed, document, or instrument in the name of the Respondent and do all acts and things necessary to give validity and operation to the deed, document, or instrument upon the Deputy Registrar being provided with verification of such refusal or failure by way of affidavit.
That service of these Final Orders upon the Respondent be made by pre-paid post to:
R Street, S City, China
That service of these Final Orders upon the Respondent also be made by email to the following email addresses:
(a) ...;
(b) ...; and
(c) ...
That the Respondent pay the Applicant's costs of and incidental to these proceedings fixed in the sum of $10,000.00 with such payment to be made on or before a date that is three (3) months after the date of these Orders directly to the Solicitors for the Applicant as they may direct.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pung & Dinh has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 1243 of 2020
| Ms Pung |
Applicant
And
| Mr Dinh |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Before me today are proceedings in relation to parenting orders and financial orders, including property adjustment orders, spousal maintenance orders and child maintenance orders, as between two parties to a former de facto relationship, namely, Ms Pung and Mr Dinh, whose names will presumably lead the reader to understand that they are Chinese people. The applicant, Ms Pung (who I shall for convenience sake refer to as the wife), was born in the People’s Republic of China in 1980, making her now 39 years of age. The respondent, Mr Dinh (who I shall for the same convenience refer to as the husband), was also born in the People’s Republic of China but 16 years earlier than the wife, namely in 1964. That makes him in my calculation about to turn 56 on … .
Some Background
According to the evidence that has been filed in the proceedings and conveniently summarised by the legal representative for the wife in a chronology he includes in his Outline of Argument and Submissions filed on 30 July 2020 and relied upon before me this morning, the husband and wife met each other in China in the earlier part of this current century, namely 2002. The husband was at the time about 38 years of age and the wife was still a relatively young adult women of 22 years of age.
They commenced what the wife describes as a de facto relationship sometime not long thereafter. However, their relationship was unduly impacted upon by the husband marrying and commencing a de jure marriage in China with another woman in 2004. It seems that the husband, who the evidence suggests has been a successful businessman in China with business interests in China, N City and also in the United State of America, carried on a bit of a double life for a substantial number of years thereafter as a child, namely a boy, whose name is X, was born to the relationship of the husband and the wife in 2005, at a time when the husband was still apparently in a de jure marriage relationship with the woman he had married the year before. Apparently not content with that alone, another child, a second child namely a female, N, was born of the relationship between the husband and the wife in N City in 2007.
The wife and the husband however, whilst the husband was married, as I have said, still carried on their relationship throughout this time and in 2008 a property was purchased in C City, the capital of Q Province in the south-west of China, not very far from the city we know as N City. For those students of Chinese history of course, they would know the city of C City to be the city that was once known in western terms, at least, as F City.
They bought a house there and the wife moved into that property with the two children of the relationship who she was caring for by that time. The evidence suggests, and I accept, that the property was registered in the sole name of the wife though, apparently, and I do not think it is disputed by the wife, most of its purchase price, if not all, was sourced from funds that were provided by the husband.
The husband subsequently divorced the woman he had married in 2004. He did that in 2012, after an eight year de jure marriage with her. According to the evidence, again summarised in the chronology, the husband must then have moved in to live on a full time basis with the wife around that time. They continued in their de facto relationship then as a couple and living as a family with their two children in that property.
There is evidence to suggest that in May 2013 the husband asked the wife if she would “give up custody” of the eldest child to him to enable their de facto relationship to be formally or lawfully registered as a de facto relationship in China. I understand from the evidence that she did not agree to that and, consequently, their relationship was never formally registered as a de facto civil relationship in China. Then, a third child of the relationship was born to the parties in the United States of America in 2013.
In late 2014 the husband must have travelled to Australia and purchased a property in Suburb D in the Brisbane. That property was registered in his sole name. That was done with the intention of applying for visas that would permit the family of the husband, the wife and their three children at that stage, to move to live in that house in Australia and to establish lives for themselves here. In January 2015, the husband applied for those visas for the family. The particular type of visa that he applied for was a subclass 188C or the visa that would apply for “significant investors” in this country. The purchase of the Suburb D property settled and the property was registered in the name of the husband in February 2015.
In July 2016 the husband was invited by the Australian Department of Immigration and Border Protection to make complying investments in accordance with the conditions under which “significant investor” stream visas could be issued. In early December 2017, the husband and wife registered in Queensland a civil partnership pursuant to the Civil Partnerships Act 2011(Qld). I understand that by that time they were living here in accordance with their plan, though I may be mistaken about that.
In June 2018, the parties were obviously living here as a fourth child, another girl, W, was born of the relationship here in Brisbane, Australia, bringing their family cohort of children to four.
At some point, it is not mentioned in the chronology here, but sometime after the husband was invited by the Department of Immigration to make complying investments, he caused an amount equal to AUD$5 million to be transferred to Australia and invested in his name here in Australia in compliance with the request and the conditions that no doubt upon its being invested here led to the issue of the visas for the family to come and set up home in Queensland as they did.
Sadly, the relationship faltered. I have read evidence of the wife that the husband drank alcohol to a fairly significant extent and that, most particularly when he drank alcohol, he was rude, abusive and sometimes violent towards her and also sometimes towards the children. The relationship started to break down.
In December 2018 it appears that the husband commenced proceedings against the wife in a N City court in relation to parenting orders, “custody” as it might be referred to, of the children. In January 2019 the wife travelled to China for some reason, having learnt something from friends or relatives in China, presumably with respect to behaviour of the husband or something he was intending to do in respect of property or the children, and she took the child W with her, not taking the three older ones but leaving them in Australia. She had not realised that without obtaining a visa for the baby, W, she would not be able to return with her to Australia. Soon thereafter she went to return to Australia and found that she could not bring the child W with her.
In February 2019, one of the children apparently told the wife that the husband had apparently commenced proceedings against her in a N City court seeking custody, care and control of the four children of the relationship. In March 2019, the wife determined, from her perspective at least, that she considered the de facto relationship as irretrievably broken down.
Sometime in 2019, she left the child, W, in the care of a trusted friend or relative in China, but without informing the husband exactly where W was and she returned to Australia to take up care of the other three children again. I have to say that at this moment I am not entirely aware of where the husband was at that time, whether he was in Australia, but I do know that he travelled substantially, even after they had come to Australia those few years ago, to China and N City and even to the United States to carry on his business interests.
On 4 February this year, 2020, the wife commenced these proceedings in this Court. I have already outlined that these are parenting proceedings and financial proceedings relating to property, spousal maintenance and child maintenance; the property and spousal maintenance proceedings being brought pursuant to the de facto relationships provisions of the Family Law Act. Along with her application for final relief, the mother brought an application for interim relief where she was seeking an injunction restraining, amongst other things, the husband from transferring or causing to be transferred the $5 million that was invested in Australia out of the country pending hearing and determination of her application for final relief.
The matter was listed before the Court on 24 February 2020. On that day, the wife who has been consistently represented throughout since the beginning of her proceedings earlier this year by the firm Thynne & Macartney, had instructed Mr Murray Green of Counsel to appear on her behalf. The husband who was also in Australia at the time, instructed solicitors who were known as Ascent Lawyers, a firm of solicitors from Suburb V, an area known to be the residential area and business area of lots of Chinese Australians and Chinese immigrants to Australia. Indeed, I understand that the firm that was representing him at the time had Chinese language capacities, as I also understand does the firm still representing the wife. It has become clear during the course of the proceedings before the Court that neither the wife nor the husband are fluent in the written and spoken forms of the English language.
On that day, 24 February 2020, Ascent Lawyers instructed Mr Raymond Hii of Counsel, who appeared on behalf of the husband. Mr Hii is himself of Chinese ethnicity. I respectfully say I know nothing of Mr Hii’s background and I know nothing about his Chinese language capabilities but I certainly appreciate that his being admitted to practice here is testament his English language and legal capacities. I would be extremely surprised if he does not also have command of the Chinese language that is spoken by the wife and the husband.
On that particular day earlier this year, a whole lot of interim orders were made with the consent of the parties. Those were orders restraining the husband from selling, transferring, mortgaging or in any way encumbering or otherwise dealing with the Suburb D property registered in his sole name. They were orders requiring the husband to continue to pay $3,000 a month for the cost of the wife’s accommodation that she had secured for herself and the children, that is the three that were living in Australia at the time. They also included an order that permitted the wife to have exclusive use of the valuable motor vehicle 1 that the parties possessed here in Australia, though it was registered I believe in the joint names of the parties.
They restrained the husband and the wife and their servants or agents from removing or attempting to remove any of the three children from the Commonwealth of Australia and put them on the Australian Federal Police’s Airport Watchlist. Those orders provided for the children to continue to live with the wife on an interim basis and for the third child, Z, to spend some time with the father. It did not provide any orders for the older two children to spend any time with the husband at that time. If I recall, that was on the basis of evidence that they did not wish to. There was no parental responsibility order made other than each parent having responsibility for the day-to-day decisions in relation to the care of the children during the periods that the children are in their care.
There was an urgent spousal maintenance order made of $600 per week for the husband to pay the wife. There was an order charging the motor vehicle 1 with those spousal maintenance payments. There was an order that the husband pay maintenance for the children pursuant to s 66Q of the Family Law Act, it not being a case to which the Child Support legislation applied, given that both parties are not Australian citizens and were Chinese citizens at the time. That order provided for a total of $400 a week.
From memory, there was some further discussion taking place in respect of the injunction that the wife was seeking to restrain the husband from transferring the $5 million that was invested in Australia. I recall being told that while those discussions were still taking place that the husband had a panic attack and broke down and required paramedics to attend at the Court to treat him. He was taken away in an ambulance to hospital. After that, the court reconvened and the barristers made certain submissions to the Court and told the Court that no further orders than the ones that had already been agreed to between the parties could be made with the consent of the parties. So, as the orders of that day reflect, I heard submissions and I then went on to make orders restraining the husband from transferring or in any way otherwise dealing with by selling, mortgaging or encumbering, the $5 million worth of investments that he had in Australia.
The husband also had some money in the National Australia Bank in an account in his name and he was restrained by order from withdrawing or transferring any of that, save for the amounts required to meet the maintenance payments that were already ordered to be made by consent. I also ordered the appointment of an Independent Children’s Lawyer to represent the interests of the children and adjourned the matter back to a judicial duty list before me on 27 April 2020. The matters remaining for determination on that date included the wife’s application for exclusive use and sole occupation of the former matrimonial home at Suburb D and her ongoing applications for spousal and child maintenance.
The matter came back before the Court on 27 March. On that day Ms Di Muzio, solicitor from Thynne & Macartney who had been acting for the wife, appeared without counsel. Mr Michael Alexander of counsel on instructions of Ascent Lawyers appeared on behalf of the husband, but he did so effectively as a courtesy to the Court and sought leave on his own behalf and on behalf of the solicitors, Ascent Lawyers, to withdraw from these proceedings.
The evidence that was before the Court then on that day was that in fact on a date just a few days prior to 24 February 2020, fully conscious and aware of the fact that the wife had an application before this Court seeking restraining orders restraining him from withdrawing the $5 million and dealing with it in a way prejudicial to her interests pending the determination of her application, the husband caused the $5 million be withdrawn from the investments and sent overseas back to China or N City. That probably explains the panic attack that the husband had that I have referred to earlier on the first occasion when the matter was before the Court on 24 February 2020, when the subject of the $5 million and the restraining order the wife was seeking was being discussed. I am now satisfied that at the time the husband faced the Court and was here present before me with lawyers arguing against a restraining order on 24 February 2020, he had already sent the sum of $5,000,000 out of the country. He clearly breached his obligation of full and frank disclosure to the Court at the time.
So on that day, 27 March 2020, orders were made that within 7 days the husband transfer that sum of $5 million back to Australia and put it back, safely reinvested through his solicitors, Ascent Lawyers, in a way that was agreed between the parties in compliance with his visa obligations and otherwise. The orders also provided for the wife to have sole use and exclusive occupation of the Suburb D property. They provided for her to have sole use and exclusive possession of the motor vehicle 1 that she already had in her possession, the motor vehicle 2 registered in the husband’s sole name and the motorcycle 1 registered in the husband’s sole name. The respondent was restrained from selling or transferring or chattel mortgaging any of those items of personal property. He was ordered to make payments of outgoings on the property until further order.
He was also ordered to continue to pay the private health insurance for the wife and the children. All of these orders were ordered to be served on him electronically by sending them to three known email addresses that he was using. He was also ordered to deposit an additional $100,000 into his NAB account so that the spousal and child maintenance payments that he had previously consented to could continue to be paid. I also ordered a copy of those orders be sent to the email address of his former lawyers, Ascent Lawyers, as it was understood and expected that they would still have a contact address or email for him and they were directed to forward that sealed copy of the orders to that last known address that they had for him. Costs were reserved.
I also made an order that the wife have sole parental responsibility for the child, W, the youngest child who was born in 2018 who was still at that time, the Court was told, being cared for by the wife’s friend or relative in secrecy in the People’s Republic of China. There was some concern at the time the husband may have returned to China or N City and may be seeking to find W and take possession of her.
The matter was next before the Court on 27 April 2020. On that day further orders were made in default of appearance by the husband. They included interim orders that the wife have sole parental responsibility for the three older children as well as the sole parental responsibility I had already given her for the youngest child. I also made an order that W live with the mother pending the mother’s travel to the People’s Republic of China to try and re-take possession of W and return with her lawfully to Australia. I also put the child W on the Family Law Watchlist in Australia to take effect once she had been brought back to Australia by the wife.
I made interim spousal maintenance and child maintenance orders that increased the amount for the husband to be paying to the wife to $1,000 per week for herself and $1,000 per week per child in respect of the four children. Of relevance, notwithstanding having made those orders in April, I am told today that the wife has received no such maintenance during the period of time that has lapsed since 27 April to today, 3 August 2020.
I also made an interim order that the husband transfer the title in the Suburb D property to the wife and that if he did not do that then steps could be taken to ensure a Registrar of the Court could do it pursuant to s 106A of the Act. I also ordered that he take steps to transfer full ownership of the motor vehicle 1 to the wife, the motorcycle 1 and the motor vehicle 2 to the wife, with similar provisions in default of him signing the necessary documents that I just referred to in respect of s 106A and the house property.
I also made orders that it would be sufficient to send any necessary documents to an address that was provided to the Court by the wife as being the address she believed the husband was residing at in Q Province as well as the three email addresses that previously were being used to send documents to bring them to his attention.
I made an order that the NAB was authorised and directed to release the balance of the husband’s bank accounts that were held with them to the wife’s solicitors and I am told that there was no more than $10,000 in that account that was used up fairly quickly in the paying of maintenance and rental costs that the wife had in the period between the first orders on 24 February 2020 that the husband consented to, and my third order of 27 April 2020.
I also ordered that the husband pay the wife’s costs to this point in time fixed in the sum of $70,000 and I listed the mater for a final hearing on this day, 3 August 2020. I also made an order that the respondent husband had liberty to file any application in a Case seeking any further interim orders that he considered appropriate to file and any further affidavits or any other documents that he may consider appropriate to present his case in respect of the final orders to be a made in these proceedings. I made it clear in those orders that he should be aware that in default of appearance on this day, Monday, 3 August 2020, orders may be made in favour of the applicant as the Court considers appropriate.
The Court is informed and I accept that those orders were served on the husband in the same way as the others, that is to the address given to the Court by the wife as well as the three previously used email addresses, though it was no longer a requirement that Ascent Lawyers send any information to the husband at their last known address of contact for him.
On 10 July 2020 on the application of the wife through her solicitors, I made another set of orders that permitted the wife to file an Amended Initiating Application in which she set out clearly all of the final orders that she was seeking in terms of parenting and property and that was to be served by sending it in the post to the husband at the same address previously referred to, as well as the three email addresses that were previously used.
Mr McCormack who appears for the wife today as a consultant solicitor to the firm Thynne & Macartney has informed the Court that the Amended Initiating Application was served in accordance with those orders by sending an email containing them to the three email addresses and that no reply or response was received. They were sent to the physical address that the wife had provided that was in the orders and Mr McCormack tells the Court that they were not returned to him from that address in China. Although some documents relating to the transfers that had originally been sent over had been returned from that address unopened, the Amended Initiating Application was still sent to that address in late July, it has not been returned as of yet. Again, there is no suggestion simply by the return of the transfer documents unopened, that the husband was not aware and is not aware that these proceedings are going on.
At no time since the Court was told by the husband’s lawyers that they no longer acted for him in March of this year has the husband made any attempt to either contact the wife’s solicitors or this Court to ascertain any developments or to inform the Court of any on his part.
The matter is listed for default hearing today and for consideration is the wife’s Amended Initiating Application. I intend to make all of the orders as sought in two separate draft orders that have been handed to the Court by Mr McCormack today, namely one headed “financial orders” and one headed “parenting orders”. Mr McCormack explains that the reason there are two is because the parenting orders have an order pursuant to s 121(9) of the Act that permits an order to be made that the parties (the wife in this case) can show the schools that the children attend the orders that are made, just so it is clear she has sole parental responsibility for the children and that they live with her. There are also some orders that allow them to provide the husband with some information about the children, without there being any financial details in those parenting orders that would thereby be disclosed or seen unnecessarily by third parties. I accept that is a proper course and two sets of orders will issue.
Parenting
In respect of the parenting orders, the mother (as I will now call her in respect of the parenting orders) seeks that the previous orders made in her favour on 27 April this year be discharged and that final orders that the four children live with her be made and I note the Court has been informed that the mother has in the last several weeks successfully returned to the People’s Republic of China, collected the almost two year old W and returned her to Australia. They have both undergone the necessary COVID-19 related quarantining for the appropriate period of time in a hotel in Sydney and returned to Brisbane in recent days to re-join X, N and Z in the Suburb D property.
This order will ensure that those four children live pursuant to parenting orders of this Court solely with the mother. They will ensure that the mother has sole parental responsibility for the major long-term decisions relating to the children. That term is defined in s 4 of the Family Law Act. It includes any decisions about taking the children outside of Australia, any decisions about the children’s immigration status, immigration applications or the issue of travel documentation by any country. As an aside, the Court has also been told this morning that the mother’s current visa allowing her to be living in Australia expires in September and she is busily going through the process of trying to seek extensions or new visas for herself and her four children as she is very keen to remain living with the four of them here in Australia.
The orders that the mother seeks contain a similar order as the one I referred to earlier which is that each parent have responsibly for the day to day decision making in relation to the care of the children during the periods that the children are in their care. The orders also simply provide for the children to spend time with the respondent father at all times as agreed between the parents and failing agreement as ordered by this Court. In all the circumstances, I consider that to be appropriate and in the children’s best interests at this particular point in time, particularly given that the father has chosen not to honour the order to return $5 million that he took from the country and has not returned to the country and sought any time with the children in the period since he left earlier this year.
There is an order that the mother seeks in respect of what I referred to before, authorising each of the parents to be able to obtain from the children’s schools, copies of school reports, school photographs and any other documents relating to their academic progress or the achievements of the children. There is an order in the usual form providing authority for either parent or both parents to be able to obtain information from any treating medical practitioner, hospital or health care professional concerning the health of the children. A section 121 order as I referred to is included. There is an order requiring the parties to be civil in their communication with each other, to respect the privacy of the other parent, speak of the other parent respectfully, not denigrate or insult the other parent in the presence or hearing of the children and not to be complicit with others in denigrating or insulting the other parent. The communication order that the mother seeks is that the parties do all things necessary to enable the children and the other parent to communicate at all reasonable times as the children may request.
There is an order that provides for the mother to be at liberty to take the children out of the Commonwealth of Australia if she so desires. As an aside here as well, I was informed by Mr McCormack this morning that his instructions that he obtained this morning are that apparently the father commenced proceedings in China that have at this stage resulted in an order that the two older children who are currently living with the mother here in Australia are to be in his custody and the two younger children are to be in the mother’s custody. The mother, I am told, has appealed that in a Chinese court and that is yet awaiting hearing. It would seem therefore that if the mother was to take either of the older two children or all four children back to China, she might very well face a real risk of the two older ones being taken from her care and placed with the father.
I know nothing further about it, nothing about on what basis a Chinese court might have made such a decision. It would seem to me, prima facie, and I suppose I am only speculating, that it may be based on some traditional patriarchal notions deeply embedded in Chinese culture, because from what I understand of this case, particularly the fact that the children have been principally living with and being cared for by the mother since their birth, with only intermittent periods of time when their father was living full time with them, and even when he was, experiencing his absence on many overseas trip, I would not consider an order giving “custody” of them to the father to be in their best interests. I am also conscious of the fact that I made orders by consent earlier this year that the two older children not even have to spend any time with the father, reflecting and acknowledging on the part of the father at least, when he was legally represented and could have argued to the contrary, that those two children were not wishing to spend any time with him. He paid some respect to those wishes, it would seem, at least in this Court.
It would seem, prima facie, to me to be against the best interests of all four children that the two older ones be placed in the immediate “custody” or care of the father. I am conscious of that when I make these orders. The final orders the mother seeks also include the continuation of the restraint on the father removing them from Australia and their names being on the Airport Watch list at least until they are 18 years of age each, with the particular dates for each of them to come off that list at the age of 18 included in the order.
I am satisfied without the need to give any further particular reasons that these orders are in the best interests of these four children at this point in time. I have read the mother’s evidence and understood her to be acknowledging a need for the children to have some sort of relationship with the father and that she would take steps to ensure that they communicated with him. No doubt, she would be mostly motivated by protecting them and keeping them in her care at least in the foreseeable future. I am quite prepared to make those orders and I do in the exact terms that they are set out from paragraphs 1 through to 13 in the Amended Initiating Application which is I understand reflected in the draft orders that are handed up to me today by Mr McCormack.
Property
In respect of the property orders, the orders that the wife seeks are premised on the sale of the Suburb D property. She seeks to be able to retain all of the net sale proceeds of that property when that happens. She also seeks to be able to retain as her property the motor vehicle 1, the motorcycle 1, the motor vehicle 2, any bank accounts in her name; any bank accounts in her name and the husband’s (presumably that means here in Australia); the articles and effects of a personal, domestic, household, garden use located at the Suburb D property.
She wants an order that the husband be responsible for any tax owing to the Australian Tax Office, with an indemnity provided to her on an ongoing basis. She seeks an order pursuant to s 90SE, the property ones are pursuant to s 90SM of the Family Law Act. She seeks a spousal maintenance order of $1,000 a week for a period of three years from the date of this order. She seeks child maintenance orders pursuant to s 66G of the Family Law Act for $1,000 per week per child until each child attains 18 years of age. I am told that at least two of the children who go to school are going to private schools and that that is expensive. One of them is going to a state school.
I have had some discussion with Mr McCormack representing the mother this morning about the question of her reasonable weekly expenses pertaining to the maintenance of these children. I am conscious that I do not have precise evidence before me that it is costing her $1,000 a week to maintain each of these children and it seems a rather significant amount. However, I am also conscious of the fact that the evidence establishes that this family has been a reasonably wealthy family and that the lifestyle that the wife and the children have led has been consistent with that. Decisions pertaining to that, including sending at least two of them to expensive private schools, have clearly been joint until recently.
I am satisfied about making the orders for $1,000 per week spousal maintenance and $1,000 per week per child, child maintenance, particularly in circumstances where I made such orders earlier this year and the husband has chosen not to come before the Court at all or bring any documents before the Court and has simply chosen to act in disregard for the Court and most particularly its orders including the order for the $5 million to be returned to Australia. I am satisfied on the evidence that none of the spousal and child maintenance that I have ordered to date, save for that which could be paid out of the small amount of cash savings that were still in the husband’s bank account when he left the country, have been paid. I am reasonably satisfied at this juncture when I make these orders that notwithstanding the making of these orders, the wife is going to have grave difficulty in obtaining any payments pursuant to them. That said, I am still prepared to make the orders for spousal maintenance and child maintenance.
In respect of the property orders I will say this, I am satisfied on the evidence that the husband took AUD$5 million out of the country earlier this year and has retained that to his sole and exclusive benefit. There is also evidence that I accept, that comes from the husband himself, that he has a property registered in his own sole name in China in a district known as T District in Q Province. He says that property is worth the Australian equivalent of $1,638,000. He also says that he has another property in Q Province which is worth AUD$193,200 from which he has been receiving rental income. He does not say that he has any other properties but those three amounts – the cash that he took and the value of the two properties – total $6,831,200.
I accept for the moment for the purposes of this property settlement determination the evidence both parties have given that the Suburb D property is worth $1,250,000. The husband deposed to that in his affidavit that was filed on 22 February 2020. The three motor vehicles are worth $40,000 for the motor vehicle 2, $180,000 for the motor vehicle 1 and $6,000 for the motorcycle. I do not give any value other than a nominal amount to the furniture and household goods and personal possession that the wife will retain in Australia. She would be retaining property worth $1,476,000, not to mention the fact that the values of those things might very well be reduced by the costs of sale.
I am also informed that although I ordered the husband put $100,000 in the bank in March/April this year, he did not do that. Any money that he had in the bank is now dissipated through the payment of child support and spousal maintenance and rental money very early in the piece.
There is though, on the evidence, one other property situated in China in Q Province and that is the property that I referred to earlier in my reasons that the husband purchased earlier this century, around 2008 or even earlier. That is the property the wife and children moved into and into which he then later moved into himself. That property is in China and is registered in the sole name of the wife. The parties seem to agree that it is worth just over AUD$2,016,000.
The wife asserts, and I have no reason to disbelieve her, that it is the subject of some litigation that the husband has commenced in the civil courts in China because of the fact that their de facto relationship was never registered and recognised as a lawful de facto relationship which would lead to dispute being determined after the breakdown in presumably a family court equivalent in China. But where it is not a formally recognised de facto relationship and they have had some sort of relationship that the wife describes as an “illegal” de facto relationship proceedings in respect of any property dispute arising therefrom are, she says, litigated in civil courts in China.
The wife says, and again I have go no reason not to accept this evidence for the moment although there’s no expert evidence going to the issue, that the husband has claimed 98% of the value of that property in Q Province and she would expect him to be given that in the civil proceedings because he would be able to show the Court that the money that was used to buy the property was sourced from him or contributed by him. Accepting that proposition, that would give the husband $1,960,000 of the value of that property and the wife some $40,000 or thereabouts. That would take the husband’s total to $8,791,200 and the wife’s total to $1,318,000. The total of those two amounts would be $10,109,200. That would mean that the wife’s $1,318,000 would be the equivalent of only 13% of that total.
Now, I also mention just here that the husband said in an affidavit that he filed, the one that he filed that I have referred to, on 22 February 2020, that he actually owed friends AUD$3,780,000. Although he does not specifically link it, he said he borrowed against properties in China that amount or some amount to contribute to the $5 million cash that was needed to invest in Australia to get the visa status here. He would have had to have borrowed against a number of the properties to achieve a debt as high as $3,780,000 not just the one worth $2 million because that would not secure a debt of $3,780,000.
The wife in her material and her evidence says though she acknowledges that there was a mortgage over the property that is registered in her name that was taken out not long before they came to Australia. She said it was some sort of sham, something to do with getting the visas. I do not understand that entirely and I cannot say I immediately can see why there would be a need for some sort of sham even if the husband was borrowing the money to provide $5 million worth of investments in Australia. Even if the husband is telling the truth about that and he owes $3,780,000, that would bring his net value of the assets that he retains down to $5,011,200. That would mean that the wife’s share of the total pool of $6,329,200 would only rise to 21%.
I am quite satisfied on the evidence in this case that the wife’s contributions to be taken into account in these proceedings pursuant to s 90SM of the Family Law Act, particularly her contribution to the wellbeing of the relationship between her and the husband and their family that their relationship created through the birth of four children and the parenting that she has done in respect of those four children, that a just and equitable division to property settlement be it $10 million or $6.3 million would entitle her to at least 13% of $10 million or 21% of $6.3 million. I am satisfied of that even if she made no other contributions and even if all of the direct financial contributions came from the husband. Indeed I am prepared to say in these extemporaneous reasons that the wife is probably not receiving a totally just and equitable outcome by the orders she seeks that enable her to retain all of the property that is within the Australian jurisdiction, particularly in circumstances where she may not be able to retain very much at all of the property that is registered in her name in China.
Having said all that, the husband is not here when he could have been and he has not mounted a case to the contrary. He has not had any one appear on his behalf. It is all the wife asks for, too. Accordingly, I am perfectly satisfied in making the orders that the wife seeks today in respect of the property pursuant to s 90SM, that they are appropriate orders to make and I am prepared to make them in all these circumstances.
Costs
The wife seeks that the husband make a payment of a further $10,000 in respect of her costs of and incidental to these proceedings and that they be paid within three months of the date of these orders directly to the solicitors for the wife or as they may direct. I do not have any difficulty in accepting that that is a reasonable amount in the circumstances. It is likely to be an amount close to the actual costs which she has incurred and I will make that order as well.
I certify that the preceding sixty-two (62) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 3 August 2020.
Associate:
Date: 13 August 2020
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