Rong & Huan (No 4) - [2023] FedCFamC2F 1342

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Rong & Huan (No 4) [2023] FedCFamC2F 1342

File number(s): CAC 958 of 2021

Judgment of: JUDGE W J NEVILLE

Date of judgment: 19 October 2023

Catchwords: FAMILY LAW – parenting – two brothers one residing with the Mother in Australia and the other residing with the paternal Grandparents in Country N – Father unwilling and incapable of ensuring the return of his son who lives in Country N – Father has already spent time in prison because of his failure to comply with Court Orders – Mother effectively powerless to bring her older son home from Country N – expert evidence confirms very serious risk of complete alienation of older child from his Mother and even from his younger brother – paternal Grandparents have provided the Husband with very large sums of money to purchase real estate (including what became the former marital residence) and for the Husband to undertake various business ventures in the hospitality industry – the business ventures have all basically failed – Husband seeks to have the funds of approximately $2.6 million provided by his family characterised as a “loan” – finding that such funds not a loan together with Husband’s confirmation that he can and will never be able to repay such large funds – relatively short relationship – just and equitable considerations.

Legislation:
Family Law Act 1975 (Cth) Family Law Act 1975 (Cth), ss. 60CA, 60CC(3)(a) – (m), 65DAA, 75(2), 79(2) & (4), 106B, 121

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Part 6.1

Cases cited:
AMS v AIF (1999) 199 CLR 160

Bevan v Bevan (2013) 279 FLR 1; (2013) 49 Fam LR 387

Black & Kellner (1992) 15 Fam LR 343

Bondelmonte v Bondelmonte (2017) 259 CLR 662

Byrnes v Kendle (2011) 243 CLR 253

Chang v Su (2002) 170 FLR 244; (2002) 29 Fam LR 406

Chapman v Chapman (2015) 51 Fam LR 176

Collu & Rinaldo [2010] FamCAFC 53

Dickons v Dickons (2014) 50 Fam LR 244

Fields v Smith (2015) FLC 93-638; (2016) 53 Fam LR 1

Fox v Percy (2003) 214 CLR 118

Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422

Hall v Hall (2016) 257 CLR 490

Jones v Dunkel (1959) 101 CLR 298

In the Marriage of Kress (1976) 13 ALR 309

Mazorski v Albright (2007) 37 Fam LR 518

McCall v Clark (2009) 41 Fam LR 483

Moose & Moose (2008) FLC 93-375

AJO & GRO (2005) 33 Fam LR 134

Orr v Ford (1989) 167 CLR 316

Partington v Cade (No.2) (2009) 42 Fam LR 401

In the Marriage of Pierce (1998) 24 Fam LR 377

In the Marriage of R (2002) 169 FLR 243; 29 Fam LR 230

Sigley v Evor (2011) 44 Fam LR 439

Stanford v Stanford (2012) 247 CLR 108

U v U (2002) 211 CLR 238

Vontek & Vontek [2017] FamCAFC 28

Division: Division 2 Family Law

Number of paragraphs: 203

Date of last submission/s: 7 June 2023

Date of hearing: 21 – 23 November 2022 & 17 April 2023

Place: City J

Counsel for the Father Mr S Gardiner

Solicitor for the Father Mazengarb Family Lawyers

Counsel for the Mother Mr J Haddock
Dr S Leslie

Solicitor for the Mother Mark Hanna Lawyers

Independent Children’s Lawyer Legal Aid ACT
ORDERS

CAC 958 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR RONG
Applicant

AND: MS HUAN
Respondent

ORDER MADE BY:

JUDGE W J NEVILLE

DATE OF ORDER:

19 OCTOBER 2023

UNTIL FURTHER ORDER, THE COURT ORDERS THAT:
PARENTING
1.All previous Orders in relation to the children X born in 2017 and Y born in 2014 (“the children”) be discharged.

Parental Responsibility
2.The Mother have sole parental responsibility for the children.

Lives With
3.The children live with the Mother.

The Return of Y to Australia
4.Within 14 days of the date of these Orders, the Father shall sign all documents and do all things necessary to effect the return of the child Y to the Commonwealth of Australia by a time no later than six weeks from the date of these orders.
5.Within 72 hours of the date of these Orders, the Father is to advise the Mother’s solicitor in writing of the arrangements that have been put in place to ensure the return of Y to Australia.
6.Upon the return of the child Y to the Commonwealth of Australia he shall forthwith be provided to the Mother to live with the Mother.
7.Any costs referable to the return of Y to Australia pursuant to Order 4 shall be met by the Father.
8.The Father is to do all things necessary to communicate to the child Y and his Mother Ms O, including by way of writing, that:
(a)He wants Y to be returned to Australia;
(b)The Court has decided that a return to Australia is in Y’s best interests; an
(c)He expects Y to return to Australia.

9.The Father shall forthwith file a written undertaking with the Court outlining that:
(a)He understands his obligations under these Orders;
(b)He understands that it has been determined that Y’s best interests are that he be returned to Australia;
(c)He understands he is to take active steps to have Y return to Australia; and
(d)He understands that if he fails to do so he may be subjected to further imprisonment and financial penalty.

Airport Watchlist Orders
10.Forthwith upon the return of Y to the Commonwealth of Australia, each party, their servants and agents be restrained from removing or attempting to remove or causing or committing the removal of the child Y born in 2014, from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this Order by placing the name of the child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until the Court orders its removal.
11.Each party, their servants and agents be restrained from removing or attempting to remove or causing or committing the removal of the child X born in 2017, from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this Order by placing the name of the child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until the Court orders its removal.

Time with the Father During School Term
12.Following the return of Y to Australia to live with the Mother, the Father and the paternal family are to have no contact or communication, via electronic means or otherwise, with Y for a period of 6 months from the date of Y’s return.
13.The children will spend time with the Father during City J gazetted school term time as agreed between the parties but failing agreement as follows: -
(a)For a period of 12 months of the date of these Orders on each Sunday from 9:00am to 6:00pm; and
(b)Thereafter and upon the Father providing a certificate of his completion of a Men’s Behaviour Change Course and a Parenting Course to the Mother, from 6:00pm Saturday to 6:00pm Sunday in each week.

IT IS NOTED that only X will spend time with the Father in accordance with Order 13(a) initially. The Father’s time with Y will commence after a period of 6 months after his return to Australia. After a period of 12 months from the date of these Orders, the Father’s time with both children will progress in line with Order 13(b).
Time with the Father During City J School Holiday Periods
14.The children will spend time with the Father during City J gazetted school term time as agreed between the parties but failing agreement as follows: -
(a)For the first 4 Term Holidays from the issue of these Orders from 9:00am Monday to 5:00pm Wednesday in the first week of each holiday period;
(b)Thereafter for the next 4 Term Holidays from 9:00am Monday to 5:00pm Thursday in the first week of each holiday period;
(c)Thereafter for the next 4 Term Holidays from 9:00am Monday to 5:00pm Friday in the first week of each holiday period;
(d)Thereafter as follows: -
(i)For half of all Term 1, Term 2, and Term 3 school holiday periods being the first half in all years ending in an even number and the second half in all years ending in an odd number; and
(ii)On a week-about basis for the Term 4 school holidays with the Father to have the first week in all years ending in an even number and the second week in all years ending in an odd number.

15.For the purposes of these Orders, school holidays are deemed to commence at 3:00pm on the last day the children are to attend school and to conclude at 3:00pm on the Saturday prior to the first day upon which the children are to return to school. Half the school holiday period is to be determined by dividing the number of nights equally and in the event that there is an uneven number of nights the Father is to have the extra night in even numbered years and not in other years. Changeover shall occur at 3:00pm at the relevant mid-point.

Time on Special Occasions
16.Notwithstanding anything else in these Orders the children shall spend time between the parties as follows:
(a)On each child’s birthday, with the parent with whom they would not otherwise be living or spending time from 4:00pm to 7:00pm on the day of the birthday;
(b)With the Mother from 9:00am to 6:00pm on the Sunday which is Mother’s Day;
(c)With the Father from 9:00am to 6:00pm on the Sunday which is Father’s Day;
(d)With the Mother from 9:00am to 1:00pm on Christmas Day in years ending in an even number and from 1:00pm Christmas Day to 8:00pm Christmas Day in years ending in an odd number; and
(e)With the Father from 9:00am to 1:00pm on Christmas Day in years ending in an odd number and from 1:00pm Christmas Day to 8:00pm Christmas Day in years ending in an even number.

Changeover
17.For the purpose of these Orders, changeovers are to occur as agreed between the parties but failing agreement at Q Store, B Street, Suburb C.

Communication and Authorities
18.The parent with whom the children are not spending time is at liberty to communicate with the children by telephone or video call on Saturdays between 5:00pm and 5:30pm.
19.The arrangement for telephone or video calls pursuant to Order 18 is as follows:
(a)The parent with whom the children are not spending time is to initiate the call; and
(b)The parent with whom the children are spending time is to facilitate the call.

20.Except in cases of emergency concerning the medical health of the children or either of them the parents will communicate with each other in relation to issues concerning the child’s care, welfare, and development by use of the Our Family Wizard parenting application.
21.In the case of a medical emergency for the children or either of them the parents will communicate with each other in relation to issues concerning the child’s care, welfare, and development by text message.
22.This Order hereby authorises any school or educational facility attended by the children or either of them to provide information, notices, reports and other information and documents concerning the child/ren to each parent.
23.Each parent shall authorise any medical practitioner who provides treatment or diagnosis to the children or either of them to speak to the other parent and shall provide the other parent with the name and contact details of any treating medical practitioner within 24 hours of any child’s attendances upon a medical practitioner for treatment or diagnosis and inform each other of any medication or treatment recommended no later than 2 hours of any such appointment.
24.In the event of a medical emergency, serious health issue or injury concerning the children or either of them the parent with whom the children are spending time shall advise the other parent as soon as practicable and in any event within 2 hours of such medical emergency, serious health issue, or injury.
25.Both parents are at liberty to attend school events and any other such extra-curricular events to which parents are invited or permitted to attend, including but not limited to an assembly in which the child/ren is receiving an award, presentation nights, competitions, and performances.
26.Each parent shall do all things to ensure that the children attend their respective extra-curricular activities whilst they are in their care.

Other Matters
27.Each parent is restrained from denigrating the other parent or members of the parents’ family in the presence or hearing of the children or either of them and shall do all things necessary to ensure that no other person does so.
28.In the event either parent has a change to their contact details (mobile number) they shall provide those updated contact details to the other parent within 72 hours of that change occurring.
29.Without admissions each party is restrained from physically disciplining the children or either of them.

AND IT IS NOTED THAT:
A.The Mother has arranged English tutoring and F Centre attendances for Y to assist his transition back to Australia; and
B.The Mother has arranged assistance at F Centre for X concerning Y’s transition to Australia.

PROPERTY
1.Within 60 days of these Orders the Husband, at his election, must pay to the Wife the sum of $523,178.00 into a trust account nominated by Mark Hanna Lawyers on behalf of the Wife.
2.The Husband will indemnify the Wife and keep her indemnified against any liability he owes or purports to own to his parents or either of them.
3.Unless otherwise specified in these Orders and except for the purposes of enforcing payment of any money due under these or subsequent orders:
(a)Each party shall be solely entitled to the exclusion of the other to all property including choses-in-action as well as superannuation, pensions, entitlements, long service leave, employment benefits and insurance policies in the possession of or to the entitlement or benefit of such party at the date of these orders;
(b)For the purposes of these Orders, superannuation entitlements, pensions, insurance policies and entitlements of a like nature relating to or belonging to each party shall remain the property and/or entitlement of that party without splitting and/or flagging; and
(c)Each party shall be solely liable for and indemnify each other against any liability in the sole name of such party; and
(d)Any joint tenancy other parties in any real or personal estate is hereby expressly severed.

4.Subject to any Application being made within 14 days, each party is to pay their own costs.

AND IT IS NOTED THAT:
A.The costs Order made in the Respondent’s favour on 13^th October 2022 should be paid within 28 days of the date of these Orders, as agreed or taxed, failing which the matter may be re-listed, on the Court’s own motion, to determine whether the matter should be considered for an immediate enforcement Application/hearing (noting the Mother filed an Application in a Proceeding with respect to these costs on 11^th April 2023, and the Father filed a Response on 9^th May 2023).

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE
Introduction

This alarming case concerns two brothers, almost 9-year-old Y, who lives with his paternal Grandparents in Country N, and somewhat soon to be 7-year-old X (he will turn 7 in 2024), who lives with his Mother in City J. There is a discrete property aspect in the matter also.
There is an intractable and desperate impasse between the Mother, who seeks to bring Y back to Australia, and the paternal Grandparents (the Grandmother in particular), who keep Y in Country N. They provide for his every material need. He usually attends boarding school, which is paid for by the Grandparents. The Grandparents, together with the Father, contend that there was/is an “agreement” with the Mother whereby Y will continue and finish his primary education in Country N, and only then will he return to Australia. Unsurprisingly, given his life of significant interest and much more due to the more than ample resources of the Grandparents, Y wishes to remain in Country N. The Mother denies such an agreement and says that Y going to Country N was a contrived arrangement around the time of, or shortly after, the birth of X and that she was pressured into agreeing to Y going to Country N. In any event, she also says it was her understanding that Y would only be in Country N for a very short time. That is not how things have turned out given that it has now been a number of years that Y has lived in Country N and continues to have increasingly limited contact with either his Mother or his brother, X.
Any and every attempt to bring Y home to his Mother has been thwarted by either or both the Father and or his parents. The Mother denies any agreement of the kind asserted by the Grandparents.
Respectfully, the Father is next to useless in terms of his parenting especially of Y. He has done nothing, and will do nothing, to facilitate bringing his son home to Australia. He has already spent time in prison (gaoled by a different Judge) for non-compliance with Orders to bring Y home.
The excellent Report (Exhibit BJ1), and similarly very helpful oral evidence, of psychologist, Dr G, outlined the alarming, indeed appalling situation for the siblings and for the Mother. Put shortly, Dr G said that, regarding Y, it was a clear case of “alienation” of the child from the Mother (and in consequence, from his brother, X). He said that if Y stayed in Country N, this would be tacit endorsement of the end of his relationship with the Mother and his brother. I accept the detailed, informative and clear evidence of Dr G – written and oral – in its entirety.
Dr G also said that, in his view, the Father’s involvement in X’s life was/is quite perfunctory and superficial.
In my view, the evidence plainly establishes that the Father is completely supine to the wishes (and money) of his parents, his Mother in particular. He lives a life of relative ease, even though he has squandered more than $2 million of the funds his parents gave him to open and run a business in City J. It failed and the funds were lost. He now runs a small business in R Venue.
Short of the Mother going to Country N to retrieve Y (in my view, a completely fraught exercise if it were to be attempted, and utterly problematic, in my view, as to the prospects of success. I have little doubt that the paternal Grandmother would do all she could to thwart any such “rescue” attempt), there is almost no prospect of this child returning to Australia. I have little faith in the so-called “agreement” for Y to return to Australia after he completes his primary education. The Father will not assist or facilitate the return of Y to Australia one iota.

Alarmingly, no one addressed the situation of what happens to Y if something adverse were to happen to his Grandparents (and the Grandmother in particular) in Country N. Although I have raised this scenario multiple times, it has never been addressed, and certainly not by the Father. The Court is completely unaware of any contingency plan in the event that this scenario was to unfold.
Although they are not able to be completely satisfied in relation to the children, given the situation regarding Y, in my view, the Orders sought by the Mother are in the children’s best interests. Also based on the evidence before the Court, her Orders in relation to property similarly are just and equitable and should be made, with some relatively slight adjustments.
Father’s Order Sought
The Father’s Orders Sought were contained in his Case Summary Document filed 18^thNovember 2022; they were as follows (emphasis in original):
Parenting
[X]
1.Subject to Order 7, [X] born [in] 2017 live with the Mother.
[Y]
2.That the parties do all things necessary to ensure that the child, [Y], born [in] 2014 live with the paternal grandparents [Ms O] and [Mr S] in the city of [City T], in the country of [Country N], until [Y] completes his primary school education in [Country N] or for such other period of time as agreed between the parties in writing.
Notation: It is anticipated that [Y] will complete his primary school education in 2026.
3.The parties do all things necessary and sign all documents including visa applications and passport applications to permit [Y] to stay in [Country N] with the paternal grandparents in accordance with Order 2.
4.That within 30 days of [Y] completing his primary school education or such other time as agreed between the parties, the parties do all things necessary and sign all documents and pay all monies equally to secure the return of [Y] to Australia.
5.That upon [Y] return to Australia, he live with each parent week-and-week about and spend time with each parent during school holiday periods and on specified days as applies to [X] in accordance with these Orders.
Parental Responsibility
6.That the parties have equal shared parental responsibility for the children.
Time Spent
[X]
7.That the Father spend time with [X] from the commencement of this order as follows:
(a)For a period of 4 weeks from 9:00am till 4:00pm each Sunday.
(b)For a further period of 3 months:
(i)In week one, from 10:00am Saturday until 5:00pm Sunday.
(ii)In week two, from after school on the Wednesday until the commencement of school on the following Thursday.
(c)For a further period of 3 months:
(i)In week one, from after school Friday until the commencement of school on Monday.
(ii)In week two, from after school Wednesday until the commencement of school on Friday.
(d)Thereafter, week-and-week about with each parent with handover occurring after school on the Friday of each week.
8.Unless otherwise agreed in writing by the parties and commencing at the end of the third school term in 2023:
(a)For the term school holiday periods occurring at the end of the first, second and third school terms, for the first week of school holidays in even numbered years and the second week in odd numbered years.
(b)For the term school holiday period occurring at the conclusion of the fourth school term (Christmas holiday period), with each parent on a week-and-week about basis.
9.For the purpose of the preceding order, the school holidays are deemed to commence at the conclusion of the last day of school and conclude on the Sunday immediately prior to the resumption of the following school term.
10.Unless otherwise agreed between the parties in writing and notwithstanding any other Order:
(a)[X] will spend time with the Father from the commencement of this Order:
(i)On [X]’s birthday, if a school day, between 4:00pm and 7:00pm and on a non-school day for a minimum of 4 hours or as agreed between the parties and in the absence of an agreement from 10:00am until 2:00pm.
(ii)On Mother’s Day with the Mother from 9:00am to 6:00pm if the children are not otherwise living with the Mother;
(iii)On Father’s Day with the Father from 9:00am to 6:00pm if the children are not otherwise living with the Father;
(iv)With the Mother from 4:00pm on 24 December (Christmas Eve) until 2:00pm 25 December (Christmas Day) in odd numbered years and from 2:00pm 25 December (Christmas Day) until 10:00am on 26 December (Boxing Day) in even numbered years.
(v)With the Father from 2:00pm on 25 December (Christmas Day) until 10:00am on 26 December (Boxing Day) in odd numbered years and from 4:00pm 24 December (Christmas Eve) until 2:00pm on 25 December (Christmas Day) in even numbered years.
11.Both parents are at liberty to attend school events, extra-circular activities, parent teacher interviews, concerts or any other event that parents are invited and permitted to attend.
Changeovers
12.For any changeover that does not occur at school on a school day, or as agreed between the parents or failing agreement at [Q Store, Suburb C].
Communication & Information
13.For the purposes of discussing matters relevant to the children, the parties shall communicate using the Our Family Wizard or other parenting application as agreed.
14.That the parties can communicate by text message or telephone in the event of an emergency or other urgent matter.
15.That each parent shall advise the other as soon as practicable by telephone of any significant injury or illness a child/children may suffer whilst in their care.
16.That each parent shall provide such authorities as are necessary to a school or schools the children may attend to ensure that the other parent receives all school reports, school notices, all photographs and notification of school events that a parent may attend.
17.That each parent shall provide such authorities as are necessary to ensure that the other parent may communicate with any treating medical practitioners of a child or the children.
18.Each parent shall advise the other of any change in the telephone numbers and email addresses on which they may be contacted or a child’s place of residence within 48 hours of such change occurring.
19.That the parties not denigrate or say unkind things about the other parent or the other parent’s family within the presence or hearing of a child or children or cause any other person to do so.
While [Y] Continues to Reside in [Country N] – [Y] Travel to Australia
20.Unless otherwise agreed between the parties in writing, the Father will cause [Y] to spend a period of no less than 4 weeks in each calendar year in Australia at such time as agreed between the parties.
21.[Y] shall spend his time in Australia with the Mother for the first week and with the Father the second week and alternating weekly thereafter.
22.The Father shall book and pay for a return airfare for [Y] to travel between Australia and [Country N] for at least one occasion each year.
23.That the Father shall do all things necessary to facilitate the Mother and [X] visiting [Y] in [Country N] for at least 2 weeks in each calendar year at such time as agreed between the Mother and the Father, with the Father to pay for the Mother’s and [X]’s return airfares between Australia and [Country N].
PROPERTY
RETAINED PROPERTY
1.That unless otherwise specified by these or any other Orders the Father is, as against the other party, solely entitled to all other property that may be in his or her respective name, possession or control including, though not limited to the following:
a)   Real property at [U Street, Suburb D] in [City J];
b)   Real property at [P Street, Suburb W], in the [City J];
c)   Any monies standing in his credit in any financial institution or moneys held on her behalf by any person;
d)   Motor vehicles;
e)   Company shares;
f)   Household contents and personal chattels;
g)   All furniture and personal effects presently in his possession;
h)   His superannuation entitlements.
2.That unless otherwise specified by these or any other Orders the Mother is, as against the other party solely entitled to all other property that may be in their respective names, possession or control including, though not limited to: That expect otherwise provided for, the Mother shall retain:
a)   Any real estate;
b)   Any monies standing in her credit and in any financial institution;
c)   Motor vehicles
d)   Company shares
e)   Her business and all moneys generated by this business.
f)   Household contends and personal chattels:
g)   All furniture and personal effects presently in her possession;
h)   Her superannuation entitlements.
i)    Any other assets, property and financial resources held in her individual name, possession and control.
LIABILITIES
3.That unless specified in any other Orders, each party is solely responsible for the repayment of any debt or liabilities that may be their respective sole name, in joint names with a third party or that might otherwise encumber any property to which that party is entitled pursuant to these orders.
OTHER
4.That unless specified in any other Orders, the Father and Mother agree to irrevocably indemnify each other in relation to any debts, liabilities, taxes or otherwise that may have been in existence at the time of separation in their own names whether known or unknown and in the future.
5.Each party shall do all acts and things reasonably required by the other including the signing or execution of all necessary documents to give effect to the provisions of these Orders within 7 days of being requested to do so.
6.That in the event that either party refuses or neglects to execute any deed or instrument, the Registrar of the Court be appointed pursuant to section 106A of the Family Law Act 1975, to execute such deed or instrument in the name of such party and to do all acts and things to give validity to the operation to the deed or instrument.
Mother’s Orders Sought
The Mother’s Orders Sought were contained in her Amended Response, filed 11^th November 2022; they were as follows (emphasis in original):
CHILDREN
1.That all previous Orders in relation to the children [X] born [in] 2017 and [Y] born [in] 2014 (“the children”) be discharged.
Parental Responsibility
2.That the Mother have sole parental responsibility for the children.
Lives With
3.That the children live with the Mother.
The Return of [Y] to Australia
4.That within 14 days of the date of these Orders, the Father shall sign all documents and do all things necessary to effect the return of the child [Y] to the Commonwealth of Australia by a time no later than six weeks from the date of these orders.
5.Within 72 hours of the date of these Orders, the Father is to advise the Mother’s solicitor in writing of the arrangements that have been put in place to ensure the return of [Y] to Australia.
6.Upon the return of the child [Y] to the Commonwealth of Australia he shall forthwith be provided to the Mother to live with the Mother.
7.Any costs referable to the return of [Y] to Australia pursuant to Order 4 shall be met by the Father.
8.That the Father is to do all things necessary to communicate to the child [Y] and his Mother [Ms O], including by way of writing, that:
a.He wants [Y] to be returned to Australia;
b.The Court has decided that a return to Australia is in [Y]’s best interests; an
c.He expects [Y] to return to Australia.
9.That the Father shall forthwith file a written undertaking with the Court outlining that:
a.He understands his obligations under these Orders;
b.He understands that it has been determined that [Y]’s best interests are that he be returned to Australia;
c.He understands he is to take active steps to have [Y] return to Australia; and
d.He understands that if he fails to do so he may be subjected to further imprisonment and financial penalty.
Airport Watchlist Orders
10.That forthwith upon the return of [Y] to the Commonwealth of Australia, each party, their servants and agents be restrained from removing or attempting to remove or causing or committing the removal of the child [Y] born [in] 2014, from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this Order by placing the name of the child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until the Court orders its removal.
11.That each party, their servants and agents be restrained from removing or attempting to remove or causing or committing the removal of the child [X] born [in] 2017, from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this Order by placing the name of the child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List until the Court orders its removal.
Time with the Father During School Term
12.That the children will spend time with the Father during [City J] gazetted school term time as agreed between the parties but failing agreement as follows: -
a.For a period of 12 months of the date of these Orders on each Sunday from 9:00am to 6:00pm; and
b.Thereafter and upon the Father providing a certificate of his completion of a Men’s Behaviour Change Course and a Parenting Course to the Mother, from 6:00pm Saturday to 6:00pm Sunday in each week.
Time with the Father During [City J] School Holiday Periods
13.That the children will spend time with the Father during [City J] gazetted school term time as agreed between the parties but failing agreement as follows: -
a.For the first 4 Term Holidays from the issue of these Orders from 9:00am Monday to 5:00pm Wednesday in the first week of each holiday period;
b.Thereafter for the next 4 Term Holidays from 9:00am Monday to 5:00pm Thursday in the first week of each holiday period;
c.Thereafter for the next 4 Term Holidays from 9:00am Monday to 5:00pm Friday in the first week of each holiday period;
d.Thereafter as follows: -
i.For half of all Term 1, Term 2, and Term 3 school holiday periods being the first half in all years ending in an even number and the second half in all years ending in an odd number; and
ii.On a week-about basis for the Term 4 school holidays with the Father to have the first week in all years ending in an even number and the second week in all years ending in an odd number.
14.That for the purposes of these Orders, school holidays are deemed to commence at 3:00pm on the last day the children are to attend school and to conclude at 3:00pm on the Saturday prior to the first day upon which the children are to return to school. Half the school holiday period is to be determined by dividing the number of nights equally and in the event that there is an uneven number of nights the Father is to have the extra night in even numbered years and not in other years. Changeover shall occur at 3:00pm at the relevant mid-point.
Time on Special Occasions
15.That notwithstanding anything else in these Orders the children shall spend time between the parties as follows:
a.On each child’s birthday, with the parent with whom they would not otherwise be living or spending time from 4:00pm to 7:00pm on the day of the birthday;
b.With the Mother from 9:00am to 6:00pm on the Sunday which is Mother’s Day;
c.With the Father from 9:00am to 6:00pm on the Sunday which is Father’s Day;
d.With the Mother from 9:00am to 1:00pm on Christmas Day in years ending in an even number and from 1:00pm Christmas Day to 8:00pm Christmas Day in years ending in an odd number; and
e.With the Father from 9:00am to 1:00pm on Christmas Day in years ending in an odd number and from 1:00pm Christmas Day to 8:00pm Christmas Day in years ending in an even number.
Changeover
16.That for the purpose of these Orders, changeovers are to occur as agreed between the parties but failing agreement at [Q Store, B Street, Suburb C];
Communication and Authorities
17.That the parent with whom the children are not spending time is at liberty to communicate with the children by telephone or video call on Saturdays between 5:00pm and 5:30pm.
18.That the arrangement for telephone or video calls pursuant to Order 17 is as follows:
a.The parent with whom the children are not spending time is to initiate the call; and
b.The parent with whom the children are spending time is to facilitate the call.
19.That except in cases of emergency concerning the medical health of the children or either of them the parents will communicate with each other in relation to issues concerning the child’s care, welfare, and development by use of the Our Family Wizard parenting application.
20.That in the case of a medical emergency for the children or either of them the parents will communicate with each other in relation to issues concerning the child’s care, welfare, and development by text message.
21.That this Order hereby authorises any school or educational facility attended by the children or either of them to provide information, notices, reports and other information and documents concerning the child/ren to each parent.
22.That each parent shall authorise any medical practitioner who provides treatment or diagnosis to the children or either of them to speak to the other parent and shall provide the other parent with the name and contact details of any treating medical practitioner within 24hrs of any child’s attendances upon a medical practitioner for treatment or diagnosis and inform each other of any medication or treatment recommended no later than 2 hours of any such appointment.
23.That in the event of a medical emergency, serious health issue or injury concerning the children or either of them the parent with whom the children are spending time shall advise the other parent as soon as practicable and in any event within 2 hours of such medical emergency, serious health issue, or injury.
24.That both parents are at liberty to attend school events and any other such extra-curricular events to which parents are invited or permitted to attend, including but not limited to an assembly in which the child/ren is receiving an award, presentation nights, competitions, and performances.
25.That each parent shall do all things to ensure that the children attend their respective extra-curricular activities whilst they are in their care.
Other Matters
26.That each parent is restrained from denigrating the other parent or members of the parents’ family in the presence or hearing of the children or either of them and shall do all things necessary to ensure that no other person does so.
27.That in the event either parent has a change to their contact details (mobile number) they shall provide those updated contact details to the other parent within 72 hours of that change occurring.
28.That without admissions each party is restrained from physically disciplining the children or either of them.
AND IT IS NOTED THAT:
A.The Mother has arranged English tutoring and [F Centre] attendances for [Y] to assist his transition back to Australia; and
B.The Mother has arranged assistance at [F Centre] for [X] concerning [Y]’s transition to Australia.
PROPERTY
29.Within 60 days of these Orders the husband, at his election, must either:
a.Do all things necessary to transfer to the wife the [Suburb D] property Section […] Block […] on Deposited Plan […] unencumbered in any way OR
b.Pay to the wife the sum of $850,000 into a trust account nominated by Mark Hanna Lawyers on behalf of the wife.
30.The husband must indicate in writing within 30 days of these Orders which of the options in Order 29 he intends to elect.
31.If the husband elects to transfer the [Suburb D] property to the wife, the wife will do all things and sign all documents necessary forthwith upon being provided with them to facilitate the transfer.
32.The parties have liberty to seek to relist this matter in relation to the operation of Orders 29, 30 and 31.
33.The husband will indemnify the wife and keep her indemnified against any liability he owes or purports to own to his parents or either of them.
34.That unless otherwise specified in these Orders and except for the purposes of enforcing payment of any money due under these or subsequent orders:
a)   Each party shall be solely entitled to the exclusion of the other to all property including choses-in-action as well as superannuation, pensions, entitlements, long service leave, employment benefits and insurance policies in the possession of or to the entitlement or benefit of such party at the date of these orders;
b)   For the purposes of these Orders, superannuation entitlements, pensions, insurance policies and entitlements of a like nature relating to or belonging to each party shall remain the property and/or entitlement of that party without splitting and/or flagging;
c)   Each party shall be solely liable for and indemnify each other against any liability in the sole name of such party;
d)   Any joint tenancy other parties in any real or personal estate is hereby expressly severed;

The Father filed an Application in a Proceeding on 11 November 2022 seeking additional orders in relation to the property proceedings; they were as follows:
1.That indemnity costs awarded to [Ms Huan] by Judge Mansfield on 13 October 2022 in the contravention proceeding be included in the award paid to [Ms Huan] as part of her property settlement (adjusted from the portion awarded to [Mr Rong]).
2.That the sum to be adjusted total $21,719.20.
3.That should this Order not be possible on the pool as determined by the Court, that a Notation be made to the effect that the obligation to pay the costs remains on foot.
Independent Children’s Lawyers orders sought
The ICL’s Orders Sought were contained in a Case Summary Document filed 14^th November 2022; they were as follows (emphasis in original):
MINUTE OF ORDER SOUGHT BY THE INDEPENDENT CHILDREN’S LAWYER (ICL)
It is Ordered that: -
Lives With
1.The children [Y] born [in] 2014 and [X] born [in] 2017, (hereafter referred to as the children), live with the Mother.
Parental Responsibility
2.The Mother have sole parental responsibility for the children.
3.The Mother must communicate in writing to the Father any long-term decisions she makes for the children within 48 hours of making those decisions.
Time With
4.The children communicate and spend time with the extended paternal family as agreed between those persons and the Mother in writing.
5.Unless otherwise agreed in writing between the parents, the children shall spend time with their Father commencing in February 2023, if the Father is in no longer in the [Z Correctional Centre] as follows: -
a.For a period of six (6) months each Sunday for no less than six hours as times as agreed between the parents in writing, but failing agreement from 10:00am - 4:00pm.
b.Thereafter for a period of 6 months:
i)In week one 10:00am Saturday to 5:00pm Sunday.
ii)In week two from the end of school Wednesday to the commencement of school Thursday.
c.Thereafter:
i)In week one from after school Friday to 5:00pm Sunday.
ii)In week two from the end of school Wednesday to the commencement of school Friday.
6.Unless otherwise agreed in writing by the parents during school holidays commencing at the end of the Term 2 school holidays in 2024 as follows:
i)In the short school holidays for the first week of school holidays in even numbered years or years ending in zero and the second week in odd numbered years.
ii)In the long school holidays on a week about basis.
7.For the purpose of Order 6, the school holidays are deemed to commence at the conclusion of the last day of school and to conclude on the Saturday immediately prior to the children returning to school. In the event that the number of nights is an uneven numbered the Father will have the extra night in odd years and the Mother in even years.
8.Both parents are at liberty to attend school events, extra curricular activities, parent teacher interviews, concerts or any other event that parents are invited and permitted to attend..
Special Occasions
9.Unless otherwise agreed in writing between the parties and notwithstanding anything ese in these Orders, the children shall spend time between their parents as follows: -
a.On each child’s birthday with the parent they are not usually with, if a school day between 4pm and 7pm, if it is a non school day for a minimum of four hours a agreed, failing agreement from 10am to 2pm.
b.From 9am to 6pm with the Mother on Mother’s Day.
c.From 9am to 6pm with the Father on Father’s Day.
d.With the Mother from 9am to 1pm on Christmas Day in odd numbered years and from 1pm to 8pm in even numbered years or years ending in zero.
e.With the Father from 1pm to 8pm on Christmas Day in odd numbered years and from 9am to 1pm in even numbered years or years sending in zero.
Changeovers
10.For any changeovers that cannot occur at school, they will occur as agreed between the parties but failing agreement at [Q Store Suburb C].
Return of Y
11.The Father does all things necessary and sign all documents necessary to effect the return of [Y] to the Commonwealth of Australia by no later than 23 December 2022.
12.Within 14 days from the date of this Order, the Father is purchase a one way airfare ticket for [Y] to effect [Y]’s return to the Commonwealth of Australia and provide the Mother and/or her solicitor a copy of the airfare ticket.
13.Any costs associated to effect the return of [Y] to the Commonwealth of Australia be solely met by the Father.
14.Immediately upon [Y] returning to Australia he shall forthwith go into the Mother’s care and live with the Mother.
15.Immediately upon [Y] returning to Australia the Mother shall be provided and keep in her sole possession any passport issued to [Y] or [X] from the Commonwealth of Australia, or [Country N].
16.The Father shall forthwith file a written undertaking to the Court that: -
a)   He understands his obligations under these Orders;
b)   He understands the Court has determined it is in [Y]’s best interests to be returned to the Commonwealth of Australia;
c)   He understands [Y] is to live with his Mother;
d)   He understands he is to take active steps to have [Y] returned to Australia; and
e)   He understands that if he fails to comply with these Orders, he may be subjected to further imprisonment, a Good Behaviour Order and/or financial penalty.
Airport Watch List
17.That forthwith upon the return of [Y] born [in] 2014 to the Commonwealth of Australia, each party, their servants and agent be hereby restrained from removing or attempting to remove or causing or permitting the removal of the child [Y] from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order by placing the name of the child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the name of the child’s name on the Watch List until the Court orders its removal.
18.Each party, their servants and agent be hereby restrained from removing or attempting to remove or causing or permitting the removal of the child [X] born [in] 2017 from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order by placing the name of the child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the name of the child’s name on the Watch List until the Court orders its removal.
Communication and Authorities
19.The children are ale to communicate with the parent that they are not with each Saturday between 5pm and 5.30pm, or at any other time as requested by the child. The parents shall do all things necessary to facilitate the making and receiving of the call. The parent with whom the child is spending time shall initiate the call.
20.The parents shall communicate using the Our Family Wizard or any other parenting application as agreed, unless there is a medical emergency.
21.In the case of medical emergency the parents shall communicate by telephone or text message, providing sufficient information about the medical emergency including injuries, hospital admission and details of relevant hospital or medical facility the child is taken to.
22.This Order authorises any school, educational facility or extra curricular body to provide information to both parents including but not limited to notices, schedules, timetables, reports, newsletters, school photo forms or any other information that would usually be provided to a parent.
23.This Order authorises any medical practitioners, medical facility or health care provider who provides services to the children to provide information about the children to either parent as deemed appropriate by that medical practitioner, facility or health care provider.
24.Upon the Father commencing overnight time the parents will exchange information about the children while in their care, such as routines, health, appointments etc, the purpose of such communication is to ensure that both parents can address any issues in their time and ensure attendance at appointments and extracurricular activities.
Other matters
25.Both parents are hereby restrained by injunction from denigrating the other parent, members of the other parents family in the presence or hearing of the children and are not to discuss or involve the children in any disagreements between the parents.
26.The parents shall keep each other informed of any changes to their contact details and advise the other parent of any change within 72 hours of the change.
27.If either parent is unable to care for the children for a period of more than 48 hours then the other parent should be provided first option to care.
28.Both parents complete a parenting after separation course within 6 months from the date of this Order being made.
29.Pursuant to section 11 of the Australian Passport Act 2005 (Cth), the Mother has sole parental responsibility for the children sufficient to apply for a passport on behalf of the children without the Father’s signature and/or consent AND that the Australian Passports Office is requested to provide a passport for the children upon the Mother lodging the application For the purpose of this order the children are [Y] born [in] 2014 and [X] born [in] 2017.
30.The costs of the Independent Children’s Lawyer be paid equally by the parents, or as otherwise ordered by the Court
Father’s Oral Evidence
The Father gave evidence on the first day of the trial, with assistance from an Interpreter. The Father confirmed his name, address and that he was currently incarcerated at the Z Correctional Centre. He was shown his affidavit, sworn on 7^th November 2022, by his Counsel, and confirmed that it was correct.[1]
[1] T 19 – 22
Cross-examination commenced on parenting matters. The Father was asked to describe his weaknesses as a parent. He said that due to his work, he did not have enough time with his children. The Father had some difficulty describing any of the Mother’s parenting strengths. He said that he believed the Mother loved both children, although he thought that she loved X more. When asked by the Court why he thought this was the case, he said that she did not love Y as much because she did not encourage him to stay in Country N to complete his education. He confirmed that he believed a child’s education was more important than their relationship with their parents.[2]
[2] T 23 – 28
Attempts were made to try to understand why the Father had not mentioned a single positive thing about the Mother’s parenting in his affidavit. The Father said that he was confused and could not answer the question. He stated that the Mother could have ‘done better’ raising X, although simultaneously asserted that she does most of the work with him and cares for him. He confirmed that she cares for him, and not for Y.[3]
[3] T 28 – 30
When asked about his Orders Sought, namely equal shared parental responsibility, the Father clarified that he was seeking equal time with both children. How this could be achieved, or how this would “play out” with Y in Country N, was not explained. It was suggested to the Father that equal shared parental responsibility was not about time with the children, but that it required both parents to reach an agreement about long-term decisions related to them. The Father confirmed that his communication with the Mother was not very good. Despite having no remedy for this in his affidavit, the Father said that if he had a plan for the children about something he would discuss it with her. He asserted that this “plan” was to ‘just try’ to communicate with each other regarding their children, despite there being no communication at this stage, nor for some time. He confirmed that he understood why communication was important if a week-about arrangement was to occur.[4]
[4] T 30 – 34
The Father acknowledged that the Mother wanted Y to live with X in Australia. He confirmed that he did not want this to happen, as Y needed to finish primary school in Country N. Concerningly, he said he was not sure whether the Mother would be upset if Y was to stay in Country N.[5] Accepting a certain oddity about the Father’s evidence, in part I suspect because English is not his first language, the Father’s lack of insight with respect to the Mother’s desire to have her children live with her and for them not to be separated, together with the Father’s complete adherence to whatever his Mother proposed regarding Y, was patently obvious in the course of his evidence.
[5] T 32 – 35
Although the Father continued to assert that he wanted to spend more time with X, he confirmed that he had provided no detail in his affidavit as to how he would improve communication with the Mother, feed X, or any information as to his living or work arrangements while having X in his care.[6]
[6] T 35 – 37
The Father confirmed that he understood that the Court had made multiple interim orders for Y to return to Australia, which the Father had not arranged or followed through with, and that, because of his ongoing breaches of Orders, another Judge had determined that he should serve a term of imprisonment as a penalty. He again confirmed that it was better for Y to finish his studies in Country N than to come back to Australia to develop a relationship with his brother (and Mother), which (he said) he could do over the phone. When it was suggested that the brothers now spoke different languages, the Father said that he had not noticed any issue when they spoke on video chat.[7]
[7] T 37 – 39
The Father confirmed that, as he had no passport, any information that he had about Y came directly from the paternal Grandmother, as well as occasional video calls with Y. He said that Y had mentioned that he does not like speaking with his Mother, although he said that he always reassured Y of the importance of communicating with her.[8]
[8] T 39 – 40
The Father was asked about his relationship with his own Mother. He simply stated that his relationship was good, and that every week she would give both parents an update on Y, usually via Messenger. Despite the contents of the Mother’s affidavit, the Father stated that the Mother’s relationship with the paternal Grandmother was good. He then stated that the Mother’s affidavit included lies, which were not identified.[9]
[9] T 40 – 42
The Father confirmed that his intention was for Y to return to Australia following primary school, despite Orders in place for him to return now. He suggested that he had done his best to get him back, although he had been unsuccessful. It was suggested to the Father that the child may decide to stay in Country N following primary school, although the Father stated that this would be ‘impossible’ as there was an agreement in place that he would return after year 6.[10] He did not explain how this “agreement” would, or could, be enforced.
[10] T 42 – 43
It was then suggested to the Father that the paternal Grandmother had stated that Y will not return to Australia because he simply does not want to do so. Counsel for the Mother asked whether or not Y was old enough to make that decision. The Father responded that he was, and that he was also old enough to decide about whether or not he went to school, but not old enough to decide if he wanted to get a job. He confirmed that Y remaining in Country N was what he wanted, which happened to be the same as Y’s preferences.[11]
[11] T 43 – 46
When asked why the Mother should pay half the costs of Y coming back to Australia in 2026, if it is solely the Father’s preference, the Father was unable to answer. He denied that it was any form of punishment of her. The Father said that there was no possibility that his Mother would refuse returning Y to Australia, despite her refusal in 2022 to do so, as the agreement was to have him return in 2026. The Court sought to understand how or why this agreement took precedence over any Orders of the Court or the Mother’s opinions.[12] There was no relevant enlightenment.
[12] T 46 – 49
The Father was taken to page 63 of his affidavit, which showed a translation of an email sent to him from his Mother on 31^st May 2023, stating that Y’s wishes to continue to live in Country N would be respected as long as he wanted, until he was ready to return to Australia. The Father confirmed that this “agreement” was not earlier mentioned.[13]
[13] T 50
The Father contended that Y was unable to fly alone, despite being aware of unaccompanied minor services, and seemed to suggest that this was one of the things preventing him from returning home. It was suggested to him that he had only asked the travel agent to look into direct flights from Country N to Australia, which may have affected the availability of unaccompanied minor services.[14]
[14] T 50
The Father confirmed that when he got out of prison, he was seeking that X spend time with him from 9am until 4pm on Sundays. He confirmed that he had spent 3 hours of supervised time each Sunday prior to his incarceration, although denied that it would be an adjustment for X. He did not think it would be a big change for X to then spend two overnight periods each fortnight with him after four weeks passed, or then five nights a fortnight after three months. The Father suggested that this would be something of a slow process. He continued, saying that this was what he wanted, although when asked he quickly asserted that X wanted this too. When asked what might happen if X reacted poorly to separation from his Mother, the Father stated he would use a family communication app.[15]
[15] T 52 – 54
When asked about details of X’s bedtime, the Father said he was unsure, but was told by X that it was ‘very late.’ He confirmed that he had not asked X’s Mother of his bed time.[16]
[16] T 54
The Father was taken to his Minute of Orders Sought, in which he had stated (or sought) that Y would return to Australia for four weeks each calendar year as agreed. He explained that this would not be difficult to arrange, as he would simply ‘tell’ his parents. It was suggested to him that this method did not appear to have worked to get Y to move back to Australia permanently, let alone to comply with Court Orders. Somewhat confusingly, the issue that Y would be an unaccompanied minor and unable to fly, according to the Father, did not apply to these four-week holidays.[17]
[17] T 55 – 56
The Father was taken to his affidavit that was affirmed for the contravention proceedings, in which he had stated that he did not want Y to travel with an airline which required that he transit through another country, as he was too young. It was suggested to him that unaccompanied minor services were available on indirect flights, however he confirmed that he just did not want Y to take them. It was suggested that the Father had removed this paragraph from his trial affidavit, and the Mother’s Counsel simply said that he would make submissions on this point.[18]
[18] T 57 – 59
Questions then moved to the Mother’s offer for the Father to spend time with X every Sunday. The Father confirmed that he had refused this offer because it was not the amount of time that he had wanted. It was suggested that the Mother had stated that her parents had helped her take care of Y during the two years that he was in Australia, prior to him moving to Country N. The Father stated that this was a lie. He confirmed that he thought the Mother was the kind of person to lie to the Court. Despite this, he confirmed that he genuinely believed he would be able to cooperate with her regarding parenting decisions.[19] The obvious “disconnect” between the evidence given here by the Father was patent but attempts, here and elsewhere, to clarify matters were not successful.
[19] T 59 – 62

The Father was taken to the Mother’s affidavit at par. 20, where he had stated that it was ‘a female’s job to look after the children.’ He denied that he had said anything like this to the Mother, and that she had made it up. He confirmed that he said that following separation, the Mother would prevent him from spending time with X, and that he had stated in his affidavit at par. 22 that he had heard her say to the child ‘Dad is dead.’ Despite his affidavit outlining that this occurred on one occasion, the Father said that it had occurred more than once. When asked to explain why the Mother would say this, the Father simply turned to issues relating to some sort of “offer” relating to time between X and the Father later on.[20] Not for the first time, the Father’s evidence was quite opaque in many respects.
[20] T 63 – 67
It was suggested to the Father that the Mother had complied perfectly with all previous Orders, and that the only person who had not was the Father. The Father stated that he had tried to comply, but, and notwithstanding his earlier evidence about the relative ease to bring Y back for holidays, he confirmed that he was unable to bring Y back. He was then taken to his affidavit, in which he had stated that the Mother does not tell him about what was happening in X’s life; he was then directed to the previous paragraph in which he had said that the parents do not talk to each other during handovers.[21]
[21] T 67 – 70
The Father confirmed that he had not told the Mother through any parenting app or otherwise that Y had started boarding school in Country N. Despite him outlining it in his affidavit, he denied that his Mother had told Y’s Mother that she was not looking after Y properly, and to have him sent to Country N. He then explained that this part of his affidavit was untrue. He suggested that the confusing aspects of his affidavit was because his English was poor, and hence his lawyer got things wrong. Somewhat confusingly, he then said that it was true that the Mother was only concerned about money, and that at some point when the children grow up he intends to tell them. The Father did not see anything wrong with this, given it was ‘true.’[22]
[22] T 70 – 76
The Father then asked, rhetorically, for what purpose did the Mother want Y back in Australia. He suggested some ulterior motive, such as receiving Centrelink support. The Court then said (based on material before it) that the Father was currently in debt of approximately $6000 in child support owed to the Mother in relation to X. The Father confirmed that the Mother was probably spending a lot of money on litigation.[23] The connection or link between the child support debt and the cost of litigation was not immediately obvious.
[23] T 76 – 80
The Father was taken to pars. 30 and 31 on his trial affidavit, in which he spoke about discussions regarding Y moving overseas. He confirmed that he did not provide any detail about those discussions.[24]
[24] T 81
He was taken to par. 55 of his affidavit, in which he suggested that the Mother had thrown a kitchen knife at him while holding X in her arms. He confirmed that he did not describe any physical characteristics of the knife, where she was standing, how she managed to hold X while she smashed a chopping board in half on the floor, or how she then proceeded to make dinner following the latter events. The Father then confirmed that, somehow, the Mother had then taken an object from his hands and thrown it at his head, still with X in her arms. There was no explanation for this dexterity, other than the fact that English is not his first language.[25]
[25] T 81 – 84
He was then taken to par. 56 of his affidavit, in which the Father had said he would leave home early for work and return late in the evenings. It was suggested to him that this prevented him from spending any time with X. The Father confirmed that it did, but said that he avoided coming home due to his fear of the Mother.[26]
[26] T 85
The Father was shown par. 63 of his trial affidavit, where he said that he believed he had done everything he could to facilitate Y’s return to Australia. He confirmed that he had not made any attempts to contact his Mother to arrange Y’s return after he was incarcerated. He confirmed that he had booked tickets on the last day possible in accordance with the Orders in mid-2022, but found out on the following day that this airline did not offer unaccompanied minor flights. He confirmed that he had then taken 3 days to inform the Mother’s lawyers, and email his own Mother, about this situation.[27]
[27] T 86 – 87
The Father denied that his Mother was controlling the life of Y in Country N, and said that all of the decisions regarding his education were made by Y. These propositions were, in general terms, both bizarre as well as preposterous, given Y’s age and his circumstances. He confirmed that he had not asked his brother at any point to assist him in persuading their Mother to return Y to Australia. He said that he had encouraged Y, following the last Court Order, to return to Australia in the course of a telephone call.[28]
[28] T 87 - 89
The Father acknowledged that there was nothing in his affidavit to show that he knew X’s favourite things, friends, any involvement between him and X’s school, or whether or not he had considered the impact on X of Y living in a different country. He confirmed that there was nothing in his affidavit to indicate how he would financially support X, nor a single positive thing about X’s Mother, nor about the [likely or possible] impacts on her of Y residing in Country N.[29]
[29] T 89 – 90
The focus then moved briefly to the evidence of Dr G. The Father confirmed that he had said some negative things about the Mother, but that he was ‘just telling the truth’ when asked whether he had considered how reading that material might impact upon her. He confirmed that he knew that it might have an impact on X, given that he lives with the Mother. However, he said that he never speaks negatively about the Mother in front of the children. He was taken to the expert Report at par. 27, where his Mother had sought to understand how she could control Y given her lack of power. The Father denied that this might be concerning. He confirmed that he had never taken Y to a doctor, or that he had any knowledge of who his General Practitioner was.[30]
[30] T 90 – 93
The Father denied that he had ever heard his Mother call the Mother a “peasant, low quality person or a country person”, but confirmed that he had called the Mother the latter insult and told her that she was only interested in money. He said that she was lying about him telling her that if she took any of Y’s toys from the home, he would call the police [31]
[31] T 93 – 94
The Father was then shown par. 73 of the Mother’s affidavit, where the Mother had said that after asking for Y to remain in Australia, the Father had stated that his Mother had already purchased a ticket and that his business needed her financial support. The Father confirmed that his business had needed financial support from his Mother, and that he himself needed financial support.[32] One might reasonably think that the two were connected.
[32] T 95
Cross examination by the Independent Children’s Lawyer (“the ICL”) commenced on the second day of the trial. She commenced by asking the Father of his work hours, prior to incarceration. The Father said that they were usually Monday to Friday from 7am until 3pm, and occasionally on Saturdays. He confirmed that since the proceedings commenced, he had seen X for three hours every Sunday, as well as on one occasion just prior to him going to prison. He said that he had not requested to see X since he had been in prison, but had seen him once. He confirmed that he was due to be released soon, and that he sought to see X every Sunday for the whole day following his release, to progress to overnight time. He said that the last time he had X overnight was in mid-2022. [33]
[33] T 100 – 104
The Father confirmed that the DD Venue business was closed in 2019, and that he then worked at a business in R Venue until early 2020 until COVID, when he became unemployed. He confirmed that on the previous day he had said that in his evidence, the Mother did not allow him to spend any time with X. He confirmed that this was since mid-2021, on the day that she allegedly threw a knife at him.[34]
[34] T 104 – 105
When asked who would look after X if the Court were to make Orders for a week-about arrangement and the Father was at work, the Father responded that he might find some new staff. He confirmed that he did not currently have any definite plan.[35]
[35] T 105 – 106
The Father said that he did not make an Application for more time throughout the proceedings as he did not know who to speak to about that. Somewhat confusingly, he suggested that his lawyer had not given him that option or advice.[36]
[36] T 107
The Father confirmed that he had not spoken to X’s school very often, and that none of the emails from the school containing reports about X had raised any concerns. The ICL suggested that the Mother must consequently be doing a good job, to which the Father stated that she did not know how to educate children. He said that X is no longer able to speak much Language N. He said that Y can speak fluent English but could not offer any evidence of this other than that his Mother might be able to provide some. He confirmed that the paternal Grandmother does not speak fluent English, nor can she read in English, so only Language N is spoken in Y’s home in Country N. The ICL highlighted that despite the Father’s suggestion that education was of paramount importance, he had not outlined any of this information in his affidavit.[37]
[37] T 107 – 109
Despite the Father confirming that there was an agreement between himself, his Mother and Y’s Mother for Y to return at the end of primary school, the Father was shown an email written to him by his Mother in mid-2022, which stated that the parents would ‘talk about Y …going back to Australia’ once ‘Y is ready for junior school.’ He said that despite his Mother funding everything for Y, including any possible return flights to Australia, the Father was confident that he believed that his parents would agree to bring Y back after primary school. The Father was asked whether his parents would be willing to bring Y back to Australia if the Father requested that they do so now. The Father said that they want Y to finish primary school. He confirmed that their views would override his.[38] To state the obvious: this is a matter of the greatest concern, not least because, if the Court were to order that Y be returned (as it has done previously), the likelihood is simply that the decision of the paternal Grandparents will thwart any decision of the Court (or the parents).
[38] T 109 – 113
The Father confirmed that Y’s residence visa would expire in late 2023. He also confirmed that in order for Y to continue to stay in Country N until the completion of primary school, his visa would have to be renewed until 2026. He said that both himself and the Mother would have to fill out the paperwork.[39] As noted below, the Mother contends, probably with some accuracy, that a previous visa for Y was renewed via a forged signature. She expects something similar to happen again in late 2023.
[39] T 113 – 115
The Father was again taken to the Report of Dr G. The Father confirmed that the opinion of Dr G worried him, as he did not believe Y. He confirmed that Y was only seven years old, but denied that he was too young to understand that a decision made by the Court may affect his future. He said that he was not worried that Y had reported that he did not like his Mum. When asked whether or not he would be concerned if his sons said the same thing about him, he said that he treats them like friends and would find out why to address the problem. When asked if it concerned him that Y had stated to Dr G that his Mother does not love him and hence he ‘does not love her,’ the Father said that there ‘must be a reason for that.’ He then said that he had spoken to Y and told him that he could not treat his Mother in this way. The ICL noted that this conversation did not appear in the Father’ evidence.
The Father was taken to par. 32, where Y had said to the assessor that his Mother had cancelled his enrolment at boarding school. The Father did not see any issue with Y knowing this. The Father said that he knew this because the school teacher had called his Mother, who told him. He contacted the school but was unable to get any records. Again, his affidavit was silent on the matter. The ICL suggested that he could not get any evidence as it did not happen. The Father said that Y overheard the conversation between the Father’s Mother and the school.[40]
[40] T 115 – 120
The Father was next taken to par. 41 of the Report, in which the assessor had written that X would not cope well with immediately spending periods away from his Mother. The ICL said that Dr G recommended the Father spend four nights a fortnight with X. The Father acknowledged that he did not think his week about proposal was better, but that he wanted to spend more time with X. The Father confirmed that he agreed with the statement made by Dr G that Y was in the process of being “disaffected” from his Mother. The Father said that he disagreed that Y would not be able to have a meaningful relationship with his Mother if he remained in Country N. Why this was so was not explained. Further, he denied that Y and X’s lack of connection would have lifelong implications, as they ‘were brothers.’ The Father suggested that when Y returns to Australia, the Father’ parents would travel with him to allow him to adjust to his new life. He confirmed that he expected his parents to live with him. When asked what the Father might do if Y refused to spend time with his Mother, the Father said that he would encourage him to do so. The ICL sought to understand the efficacy of this proposal given Y had declared that he did not love his Mother.[41]
[41] T 120 - 127
The Father was also asked whether he was aware that his Mother had taken Y to see a psychologist in late 2022. The Father said that his Mother had not sought permission from him, due to communication difficulties while he has been in jail.[42]
[42] T 127 – 129
Matters relating to property were then addressed with the Father. He confirmed that he was seeking no property adjustment, and that each party should keep the debts that are already in their own name.[43] He confirmed that this meant that the Mother would keep her car, her superannuation, any savings that she has, and her personal items and furniture. He said that he had no idea of her liabilities, but if she had any they would be her responsibility. He also said that he was seeking that he did not pay the Mother any money. The Father confirmed that the couple started living together in 2014. He confirmed that he had more debt than the Mother, hence he owed more money than the assets he held, which were all of the things that he owned at the start of the relationship. He confirmed that he had two properties, at Suburb W and Suburb D, two cars, some personal items, and that he owed his parents $2.6 million. He confirmed that now, both Suburb W and Suburb D are worth $2.6 million.[44] Quite the coincidence.
[43] Simply for ease of reference, especially given the Applicant’s somewhat limited comprehension of English, I will not here revert to the usual description of parties as “Husband and Wife”, and will simply keep the references to “Father and Mother”.
[44] T 129 – 132
The Father was taken to par. 10 of his affidavit, outlining that at the commencement of cohabitation with the Mother, she was an employee of Rong Pty Ltd, and was a director and shareholder of the company. It was suggested to the Father that this was not true. He said that it was, and that prior to him registering the company he had been a sole trader. It was put to him that, because the company did not exist until 2016, he could not have been an employee of that company in 2014. This seemed to be a fair and straight-forward point. The Father was then taken to par. 77(j), where he had said that he had a one per cent shareholding in Rong Pty Ltd at the commencement of the relationship. The Father accepted that this could not be true either. The Father said that throughout their relationship, his income was lower than the Mother’s. He said that the Mother had done most of the parenting, but he had assisted by working six days a week.[45] How this directly assisted the Mother was not explained.
[45] T 132 – 136
The Father was taken to his Case Outline; he said that he had not seen this document prior to the first day of the trial. He confirmed his position that he had made 95% of the contributions throughout the whole relationship, and the Mother had made 5%. Yet he confirmed that at the start of their relationship, while the Father had debt the Mother owned various assets including super and savings. He confirmed further that throughout the relationship, as he had stated previously, the Mother had earned more than him and did more parenting and housework than he did. He said that his Mother had assisted with housework when she came to visit on holidays, which were up to 3 months in length. With this in mind, the Father denied that he had made up to 95% of the contributions. He said that he still believed that he had made more contributions than the Mother had, as his parents purchased the house that she was living in. He was unable to advise an accurate figure for the proposed property split.[46]
[46] T 136 – 142
The Father confirmed that he did not think there should be any adjustment to the Mother for any future needs. He said that once he was out of prison, he had the ability to earn income. He was again taken to his Case Outline, where had said that the parties would “gravitate” to a “shared care” arrangement of X, and that the paternal grandparents would have exclusive care of Y until he completed primary school education, and thereafter the parties would have shared care of him as well. He understood that there was no guarantee that the Court would make the Orders that he was seeking. The Father confirmed that if the Court made Orders that X and Y were to live with the Mother primarily, she would be doing the majority of the parenting.[47]
[47] T 142 – 144
The Father said that currently, his child support only included X. Although the Father said that he thought it was $1000 a month, his affidavit stated that he pays $170 per week. He confirmed that he was in the process of challenging the child support figure, and that he was in arrears of $5368 as of the end of October. He confirmed that he would not pay the arrears until the assessment was reviewed, as he had no income, but that he would not ask his Mother for financial assistance as she was already spending a lot on him.[48]
[48] T 144 – 147
The Father said that he had purchased the Suburb D property in 2009 for $400,000, noted at par. 77(e) of his affidavit. He confirmed that his parents had given him $40,000 for the deposit, and then paid off the extra $360,000 loan by 2010. He confirmed that he bought a house and land package in Suburb W in early 2011, at 77(f) for $700,000. He was unable to say how much the deposit was, but he confirmed that he had borrowed this from his parents. He said that he had borrowed $375,000 from AA Bank in early 2011. The Father was taken to some documents entitled ‘Statement of account home loan.’ He confirmed that these documents were copies from his mortgage account for the Suburb W property. He confirmed that the loan started in early 2011, and that in early 2011 $702.50 came into the account. The Father accepted that between early 2011 and mid-2011, there were three amounts of money that came into the account: $702.50, $17.30 and a sum of $204.95. The Father accepted that these amounts came to $960.75.[49]
[49] T 149 – 153

Both parents made generalised, and some more specific, complaints about various events during the marriage (e.g. alleged throwing of food, throwing of a knife on one occasion, constant arguments, and the like). On the evidence I cannot make any findings about such matters. Plainly matters were, at times, highly strained, and perhaps more so than usual in close or intimate relationships. What seems to be undeniable was the constant financial pressures of one kind or another that the parties endured during the relationship. This included the long hours of the Father working at the business (funded by his parents) but which failed, and various matters relating to keeping the various properties, mostly investment properties it would seem, afloat. The Mother described it more than once as a form of financial control noting how dependent the Father was on his parents to fund his various enterprises.
Strictly speaking, the considerations under sub-paragraph (g) relating to cultural matters are somewhat moot in the sense that it is not disputed that both parents are of Country N heritage. And it is plainly not disputed that Y is completely absorbed in that heritage living with the Grandparents in Country N and attending school there. Some attention is given to such matters for X with his language classes.
In the light of all the evidence and the findings of the Court, there remains an air of the surreal about making Orders that are in the best interests of the children. This is patently because whatever Orders the Court makes in relation to Y will almost inevitably never be implemented and will be actively thwarted by the Grandparents in Country N and the Father will do nothing to change Y’s situation. If this was to occur, at some stage, there will have to be very specific enforcement Orders. The legal consequences could be quite severe. Alarmingly, the personal consequences for many, including Y, could be extremely damaging. Orders in relation to X, on the other hand, are relatively straight-forward. Those proposed by the Mother and supported by the ICL will be made regarding X because they are plainly in his best interests.
Likewise, for the reasons set out in the ICL’s and the Mother’s submissions, there should be an Order for sole parental responsibility in the Mother’s favour in relation to both children.
But for Y, the question is: what can be done, if anything? The actions of the paternal Grandparents, and the supine compliance with them of the Father, makes a contemptuous mockery of Court Orders regarding Y.
For the reasons given, the Orders proposed by the Mother, which are reflected also in those sought by the ICL, should be made, with some slight “tweaking.” This simply involves stressing that, subject to further evidence and submissions, failure to bring Y home in accordance with these Orders could result in the Father being incarcerated, even for the duration until Y returns home.
Outline of principle: property
In Chapman v Chapman, the Full Court said, firstly at [19] – [21] (Strickland and Murphy JJ; Bryant CJ agreeing, at [1] – [9]):[137]
[19] Section 79 demands a consideration, separately, of all of its requirements without conflation. Provided a trial judge has done so, and the reasons demonstrate that this has been done, no error is demonstrated by a failure to follow a particular order in doing so. Further, the breadth and depth of the consideration of the s.79(2) issue, and the extent of an adequate exposition of it in the reasons, will vary from case to case. In that respect, the plurality in Bevan said, at [82], that the separate s.79(2) issue will, “...in many cases ... [be] ... effectively answered in the affirmative by the way the parties present their cases.”
[20] Each of those conclusions conforms entirely with what was said about those issues by the High Court in Stanford v Stanford (2012) 247 CLR 108.
[21] First, it is “...not possible to chart [the] metes and bounds” of the relevant discretion. Just as importantly, it was recognised specifically that the characteristics of individual marriage unions, in so far as they acquire, hold and deal with property, differ. In “many cases”, the union is underpinned by “...stated and unstated assumptions between the parties to a marriage that the arrangement of property interests, whatever they are, is sufficient for the purposes of the husband and wife during the continuance of their marriage” (Stanford, at [41]). And, in “many cases”, (but, not all) the “...just and equitable requirement is readily satisfied...” by the fact of separation: “[i]t will be just and equitable to make a property settlement order ... because there is not and will not thereafter be the common use of property by the husband and wife” (Stanford at [42]).
[137] Chapman v Chapman (2015) 51 Fam LR 176.
Regarding matters of “weight”, also in Chapman, the Full Court said, at [64]:
“...what is ‘plainly wrong’ will vary in the eyes of different beholders” and also the fact that the “...functions and purposes of the Court ... [involve] ... difficult and evaluative decisions...” such that “...any two decision-makers may, with complete integrity and upon the same material, often come to differing conclusions”. (CDJ at [186(2)], per Kirby J).
In AJO & GRO, at [46], subject to the matters outlined from Stanford and Bevan above from Chapman, the regular “four-step” process will be undertaken here.[138] That process begins with (i) the identification and value of the net property of the parties, (ii) assessment of the contributions of the parties under s.79(4), (iii) consideration of the factors under s.75(2), and finally (iv) consideration and determination of what Orders are just and equitable between the parties in all of the circumstances, having regard to all the evidence and in the light of the principles outlined.
[138] AJO v GRO(2005) 33 Fam LR 439.
“Contributions” were a vexed issue in this matter, albeit in a limited number of respects. It is important therefore to note the following from Fields v Smith, where the Full Court said (Bryant CJ and Ainslie-Wallace J; May J agreeing), at [75] and [168] respectively (emphasis added):[139]
[75] … As we have already said, there is no requirement to attribute different percentages to different periods in the relationship. Indeed the Full Court has cautioned against it: see Dickons & Dickons(2012) 50 Fam LR 244, Lovine & Connor and Anor (2012) FLC 93-515 and Bolger & Headon [2014] FamCAFC 27 where the Full Court said at [28], “[d]oing so ... is not consistent with a holistic assessment of the parties’ contributions which is what s.79(4) requires.” It is only if error can be demonstrated in the overall result that the appeal would succeed.
[168] … the task is to consider the contributions holistically over the whole period from the commencement of cohabitation to trial and the analysis requires the court to weight all of the contributions of all types prescribed by s.79(4) made by both parties across the entirety of the relationship until the time of hearing, including the post-separation period.
[139] Fields v Smith (2015) FLC 93-638; (2016) 53 Fam LR 1.
Because of the vagaries outlined in the troubled and often opaque evidence in this matter, I should note the further comments by the Full Court in Dickons v Dickons regarding the evaluation of “contributions.”[140] First, at [18] – [22], the Full Court said (emphasis added):
[18] Any and all such contributions, whether or not they sound in, or are directly linked to, the property available for distribution, should be considered and assessed together with the nature, form and extent of all other contributions of all types contemplated otherwise by s 79(4).
[19] That is true of assets or income generated within the relationship and it is equally true of assets or income coming from outside of the relationship (for example, as here, in the form of inheritances). In the same way, s 79(4) specifically requires the Court to take into account contributions made to the welfare of the family (and substantively and “...not in any merely token way...”; see, Mallett v Mallett (1984) 156 CLR 605 at 636 per Wilson J) notwithstanding that those contributions may not be, or cannot be seen to be, directly linked to the available property at trial, or any increase or decrease in the value of the property.
[20] Put another way, consistent with authority, the s 79 discretion involves as a necessary requirement that “... trial Judges weigh and assess the contributions of all kinds and from all sources made by each of the parties throughout the period of their cohabitation and then translate such an assessment into a percentage of the overall property of the parties or provide for a transfer of property in specie in accordance with that assessment.” (In the Marriage of Aleksovski (1996) 20 Fam LR 894 at 903). In Aleksovski, Kay J outlined the well-known “gold bar” analogy and said “[w]hat is important is to somehow give a reasonable value to all of the elements that go to making up the entirety of the marriage relationship” (at 83,443).
[21] Those same principles can be expressed as saying that the requirements of the section are met by approaching the assessment of contributions holistically and by analysing the nature, form, characteristics and origin of the property currently comprising that to which s 79 applies, and, in turn, analysing the nature, form and extent of the contributions (of all types) contemplated by s 79. That task is also undertaken by reference to the nature and form of the particular marriage partnership manifested by the particular circumstances of this particular marriage. Is it, for example, a relationship, as Deane J put it in Mallett at 640-641 “...where the parties have adopted the attitude that their marriage constituted a practical union of both lives and property...” or is it, for example, a union where parties lived very separate domestic and financial lives?
[22] The analysis just referred to might, obviously enough, also involve an examination of when contributions were made and the use made of contributions. But that is quite different to attributing to, or searching for, a necessary causal connection between contributions and the available property as a requirement for a particular contribution having significance in the overall assessment of what is just and equitable.
[140] Dickons v Dickons (2014) 50 Fam LR 244.
Regarding the dangers of attributing “percentages” to specific contributions, the Full Court forcefully noted, at [23] – [26] (emphasis added):
[23] We wish also to refer to the approach of the Federal Magistrate in attributing percentages to differing periods within the relationship, or types of contribution made. There is in our view little to be gained, and much to be said against, approaching the task of assessing contributions by attaching percentages to components of it. (The same, it might be said, applies to attributing a percentage to each of the relevant s 75(2) factors).
[24] There can be little doubt that the classification of contributions by reference to terms such as “initial contributions”, “contributions during the relationship”, and “post-separation contributions”, can be helpful as a convenient means of giving coherent expression to the evidence in a s 79 case and to giving coherence to the nature, form and extent of the parties’ respective contributions. However, the task of assessing contributions is holistic and but part of a yet further holistic determination of what orders, if any, represent justice and equity in the particular circumstances of this particular relationship. So much is clear from the terms of s 79 itself and, in particular, s 79(2). The essential task is to assess the nature, form and extent of the contributions of all types made by each of the parties within the context of an analysis of their particular relationship.
[25] Doing so is also consistent with the demands of authority that the ultimate assessment of contributions should be made without “...giving over-zealous attention to the ascertainment of the parties’ contributions...” (Norbis v Norbis (1986) 161 CLR 513 at 524) and the well-established recognition in the authorities (acknowledged specifically by her Honour in this case) that the process required of the Court by s 79 is the exercise of a wide discretion, not the performance of a mathematical or accounting exercise.
[26] The necessarily imprecise “wide discretion” inherent in what is required by the section is made no more precise or coherent by attributing percentage figures to arbitrary time frames or categorisations of contributions within the relationship. Indeed, we consider that doing so is contrary to the holistic analysis required by the section and, in the usual course of events, should be avoided.
As the Full Court noted in Dickons, the issue is less a matter of the “erosion” of initial and perhaps large contributions, and more about questions of “weight”. Likewise, regarding those early contributions being considered as a “springboard” for later financial matters, as set out in the extracts above, again the Full Court in Dickons said that the appropriate course is to look at all contributions in a “holistic” manner for the purposes of determining what Orders are ultimately “just and equitable.”
In accordance with multiple other, earlier authorities, in Chapman, at [39], the Full Court said (emphasis added):
The consideration of the relevant matters referred to in s.75(2) of the Act, pursuant to s.79(4), like the assessment of contributions, is holistic. Also, like the assessment of contributions, it is not an accounting exercise.
Next, although not discussed in any of the submissions, because the Court, in the first instance, is required to determine the property pool, it is important to have regard to the High Court decision in Hall v Hall regarding the distinction between “property” and “financial resource.” For example, at [54], the majority (French CJ, Gageler, Keane and Nettle JJ) said (internal citations omitted):[141]
The reference to "financial resources" in the context of s.75(2)(b) has long been correctly interpreted by the Family Court to refer to "a source of financial support which a party can reasonably expect will be available to him or her to supply a financial need or deficiency". The requirement that the financial resource be that "of" a party no doubt implies that the source of financial support be one on which the party is capable of drawing. It must involve something more than an expectation of benevolence on the part of another. But it goes too far to suggest that the party must control the source of financial support…
[141] Hall v Hall (2016) 257 CLR 490.
The Court went on to note, at [57] (internal citations omitted):
Section 75(2)(o) plainly extends to any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account as showing that a party to the marriage is or is not able to pay spousal maintenance or is or is not able to support himself or herself. The paragraph has accordingly long been correctly interpreted by the Family Court as permitting consideration by a court of "all of the financial matters which are relevant to [a] particular case". Nothing in the language or structure of s.75 prevents a fact or circumstance which falls within s.75(2)(o) being also a fact or circumstance which gives rise to a matter under another paragraph of s.75(2), including s.75(2)(b).
Although the facts of the matter in Hall related to a contest regarding spousal maintenance, the comments regarding s.75(2) are not confined exclusively to Applications of that kind.
Consideration and Disposition: property
Just as there were significant issues in relation to parenting Orders, there are not a few difficulties in relation to property. A principal issue relates to determining the property pool in the light of the largesse of the paternal Grandparents that has been generously provided to the Husband but with little attention to details, such as documentation. The Husband says that much of the financial largesse from his parents are “loans”. For the reasons set out in the Wife’s submissions, I have the most serious doubts that this is a proper characterisation of them. In my view, they are patently “gifts”. The Husband also acknowledged that he really had little or no prospect of ever re-paying the “loans” anyway! This was a “fair call.” He was also told by his parents simply to “try his best.” One would have to say that the results from the Father’s business ventures, thus far, are not encouraging.
I note in particular the multiple difficulties in relation to the purported “loan agreement” for the sum of $2.6 million. First, on the Husband’s rarely reliable evidence, he says that he received these funds prior to the time the loan agreement was entered into. Secondly, the said agreement is not properly witnessed, and there is no indication on the face of the document (or otherwise) that a translator was on hand to ensure that all parties knew and understood what was being signed. Thirdly, the imprecise wording of the document could also be understood to mean that it was intended to capture and include any other, later funds advanced to the Husband. Such imprecision alone would very likely make it completely unenforceable, in addition to the other matters recorded in submissions and noted here. In addition to these considerations, there remains the additional matter that, if anyone tried to enforce the “loan”, it would more likely than not be found to be statute-barred.
For the reasons set out in the Wife’s submissions, I accept the pool according to the table in the Wife’s Case Outline, filed 14^th November 2022.

Description Ownership Applicant’s value Respondent’s value

ASSETS

1 Suburb D Property (U Street, Suburb D) H $985,000 $985,000

2 Suburb W Property (P Street, Suburb W) H $1,275,000 $1,275,000

3 1% interest in Rong Pty Ltd H $5,157 $5,157

4 Motor Vehicle 2 W $31,000 $31,000

5 Motor Vehicle 3 H $30,000 $30,000

6 ANZ Bank Acc ending #...66 W $9,946 $9,946 (as at 28.10.22)

7 CBA Bank Acc ending #...80 (Term Deposit) W $14,000 $14,000

8 AA Bank Acc ending #...43 H $929 $929

9 Household contents and personal items W Not known $1,000

10 Household contents and personal items (includes games collections) H $4,000 $4,000

Assets subtotal $2,355,032 $2,356,032

LIABILITIES

11 Q Store Mastercard ending #...21 W $0 $variable (post separation not asserted should be included)

12 Loan from Husband’s parents H $2,600,000 contested

13 Director’s penalty H $29,136 $29,136

Liabilities subtotal $2,629,136 $29,136

SUPERANNUATION

Name of Fund Type of interest Member Applicant’s value Respondent’s value

14 Super Fund 2 Accumulation W $113,574.93 (@3.11.22) $113,574.93 (@3.11.22)

15 Super Fund 1 Accumulation H $32,981.53 (@14.7.21) $33,453 (asserted as current in affidavit) TBC

Superannuation subtotal $147,027.93 $147,027.93

TOTAL (assets – liabilities) ($274,104) $2,326,896

TOTAL (assets – liabilities + superannuation) ($127,076.07) $2,473,923.93

FINANCIAL RESOURCES

Description Ownership Applicant’s value Respondent’s value

16 Funds that are likely to be provided on an ongoing basis to the husband by his parents

In relation to “contributions”, I note the following. It is largely indisputable that at the commencement of the relationship, the parties had a modest inventory of goods and chattels (e.g. a car, some household goods, some savings and superannuation). The Husband had an interest in Rong Pty Ltd. Although precise details are difficult to come by, it also seems not disputable that prior to the relationship, the Husband had received funds from his parents that resulted in the purchase of the two properties, at Suburb W ($700,000) and at Suburb D ($400,000). In my view, the better way to consider these properties and the funds used to purchase them is that the funds plainly came from the paternal Grandparents as “gifts” and not “loans.”

It should also be noted (by way of further clarification) that, to the degree that there was any suggestion that further funds were provided by the Grandparents to assist in the set up and running of the DD Venue business, which should be included in the asset pool, it must be recalled that any funds advanced to Rong Pty Ltd, cannot and must not be included in the matrimonial asset pool.
The contribution by the Husband of the two properties (Suburb W and Suburb D) clearly allows the Court to find that the initial contributions (even those provided from the Grandparents) strongly favoured the Husband. Both parties worked throughout the relationship. The Husband’s brother (Mr BB) lived with the couple, rent-free, but presumably giving rise to extra general housework and meals, which were attended to by the Wife.
In the light of the circumstances, and again allowing a certain discretion in the light of the poor state of the evidence, in percentage terms I would allow the Husband 80% and the Wife 20% in relation to contributions.
Regarding “future needs”, in my view, the evidence again plainly points to the reality that the Husband is largely “missing in action” in terms of parenting responsibilities, which leaves the Wife overwhelmingly to carry the parenting load regarding X. What happens in relation to Y is pretty much anybody’s guess. If, by chance, Y does return to Australia, again the bulk of the parenting regarding the eldest son will also fall to the Wife.
While the Wife works and earns more than the Husband, her income is still relatively modest.
Further still, in the light of what might be called “family history”, the Husband will continue to have the benefit of any and all financial assistance from his parents. Historically and on the Husband’s evidence, this financial assistance has been very significant; when combined with the paternal Grandmother’s evidence, the Husband has received in excess of $6 million. In my view, his “future needs” can reasonably and safely be considered to be either non-existent or fully taken care of. In this regard, somewhat perversely one would think, as at the date of the trial, the Husband was approximately $5,000.00 in arrears in child support, which unfortunately, reflects the Husband’s priorities which are invariably on himself and clearly not on his children.
In all of the circumstances, in my view the future needs of the Wife and Mother are significant. In percentage terms, there should be an adjustment in the Wife’s favour in this regard of 14%.
One discrete matter can and should be noted here. Whether as part of the “justice and equity” considerations or otherwise, in my view the outstanding costs Order of 13^th October 2022 in the Mother’s favour from earlier contravention proceedings that led to the Father spending some time in prison, should be paid by the Husband here. Strictly speaking, because the costs Order is not formally part of the property proceedings, no Order can be made in relation to them. However, there will be a notation to the effect that the costs, which need to be agreed or taxed, they should be paid within 28 days of the date of these Orders, failing which the matter will be re-listed with a view, on the Court’s own motion, to inquire of both parties why the matter should not be considered for an immediate enforcement Application/hearing, especially since the Order was made so long ago.
Finally, the ultimate issue relates to the “fourth step”, namely, pursuant to s.79(2) of the Act, for the Court, in effect, to stand back and make an overall assessment regarding what the justice and equity of the situation requires in the Orders of the Court regarding the parties following their marriage of modest length (6 years). This is in circumstances where the Husband owns two unencumbered properties that were financed by his parents, plus (through a family company – Rong Pty Ltd) an interest in two investment properties, also apparently financed by his parents. In my view, the Husband’s contentions that the funding provided to him by his parents of some $2.6 million is a loan (which he acknowledges he cannot repay) in reality is a gift. The so-called “loan agreement” is little more than a form of inconclusive and unenforceable legal “window-dressing”, replete with various errors and omissions, noted earlier.
The Wife seeks a payment to her that equates to 35% of the net asset pool of $2,473,923.93. This would amount to $865,873.00. As the authorities recorded earlier in these reasons make plain, the assessment and determination of what is just and equitable is not a strictly arithmetical calculation or an accounting exercise. This is to say that it is not a simple exercise of the addition of the various percentages set out at each stage of the Court’s assessment regarding contributions, future needs, and the like. In many ways, boiled down to basics, the primary matters to be considered here may be described as (a) the overwhelming contributions by the Father and his family, primarily prior to the commencement of the marriage (almost regardless of whether the funds provided are characterised as either loans or gifts), (b) the disparate contributions of the parties during the modest-length relationship and the relative “weight” to be attributed to them, and (c) during and certainly after the relationship ended, the primary care of X that falls to the Mother. Certainly, on the evidence, the future needs of the Mother are greater than the Father, who has access, through his family, to significant funds as and when he requires them. Such is his clear family history recounted in these reasons.
On all the evidence, as contested as it was and as flawed as some of it was, in my view, the Wife/Mother should receive 28% of the net asset pool. This amounts to $692,698 (rounded down). When her current assets, which total $169,520, are removed from the assessed amount, she will receive as a payment from the Husband of $523,178. This sum is to be paid by the Husband within 60 days of the date of these Orders. Should it need to be stated, presumably enforcement proceedings would be taken against the Husband if this sum is not paid within the time prescribed.
Subject to any Application being made within 14 days, each party is to pay his or her own costs.

I certify that the preceding two hundred and three (203) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville.
Associate:
Dated: 19 October 2023

File number(s):	CAC 958 of 2021
Judgment of:	JUDGE W J NEVILLE
Date of judgment:	19 October 2023
Catchwords:	FAMILY LAW – parenting – two brothers one residing with the Mother in Australia and the other residing with the paternal Grandparents in Country N – Father unwilling and incapable of ensuring the return of his son who lives in Country N – Father has already spent time in prison because of his failure to comply with Court Orders – Mother effectively powerless to bring her older son home from Country N – expert evidence confirms very serious risk of complete alienation of older child from his Mother and even from his younger brother – paternal Grandparents have provided the Husband with very large sums of money to purchase real estate (including what became the former marital residence) and for the Husband to undertake various business ventures in the hospitality industry – the business ventures have all basically failed – Husband seeks to have the funds of approximately $2.6 million provided by his family characterised as a “loan” – finding that such funds not a loan together with Husband’s confirmation that he can and will never be able to repay such large funds – relatively short relationship – just and equitable considerations.
Legislation:	Family Law Act 1975 (Cth) Family Law Act 1975 (Cth), ss. 60CA, 60CC(3)(a) – (m), 65DAA, 75(2), 79(2) & (4), 106B, 121 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Part 6.1
Cases cited:	AMS v AIF (1999) 199 CLR 160 Bevan v Bevan (2013) 279 FLR 1; (2013) 49 Fam LR 387 Black & Kellner (1992) 15 Fam LR 343 Bondelmonte v Bondelmonte (2017) 259 CLR 662 Byrnes v Kendle (2011) 243 CLR 253 Chang v Su (2002) 170 FLR 244; (2002) 29 Fam LR 406 Chapman v Chapman (2015) 51 Fam LR 176 Collu & Rinaldo [2010] FamCAFC 53 Dickons v Dickons (2014) 50 Fam LR 244 Fields v Smith (2015) FLC 93-638; (2016) 53 Fam LR 1 Fox v Percy (2003) 214 CLR 118 Goode v Goode (2006) 206 FLR 212; (2007) 36 Fam LR 422 Hall v Hall (2016) 257 CLR 490 Jones v Dunkel (1959) 101 CLR 298 In the Marriage of Kress (1976) 13 ALR 309 Mazorski v Albright (2007) 37 Fam LR 518 McCall v Clark (2009) 41 Fam LR 483 Moose & Moose (2008) FLC 93-375 AJO & GRO (2005) 33 Fam LR 134 Orr v Ford (1989) 167 CLR 316 Partington v Cade (No.2) (2009) 42 Fam LR 401 In the Marriage of Pierce (1998) 24 Fam LR 377 In the Marriage of R (2002) 169 FLR 243; 29 Fam LR 230 Sigley v Evor (2011) 44 Fam LR 439 Stanford v Stanford (2012) 247 CLR 108 U v U (2002) 211 CLR 238 Vontek & Vontek [2017] FamCAFC 28
Division:	Division 2 Family Law
Number of paragraphs:	203
Date of last submission/s:	7 June 2023
Date of hearing:	21 – 23 November 2022 & 17 April 2023
Place:	City J
Counsel for the Father	Mr S Gardiner
Solicitor for the Father	Mazengarb Family Lawyers
Counsel for the Mother	Mr J Haddock Dr S Leslie
Solicitor for the Mother	Mark Hanna Lawyers
Independent Children’s Lawyer	Legal Aid ACT

CAC 958 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR RONG Applicant
AND:	MS HUAN Respondent

ORDER MADE BY:	JUDGE W J NEVILLE
DATE OF ORDER:	19 OCTOBER 2023