TRAN & LIANG
[2019] FCCA 2946
•17 October 2019
THE FEDERAL CIRCUIT COURT OF AUSTRALIA
| TRAN & LIANG | [2019] FCCA 2946 |
| Catchwords: FAMILY LAW – Parenting and property – young child – dispute about when overnights should start – short marriage – contributions – earning capacity. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 60B(1), 60B(2), 60CC(2), 60CC(3), 61DA(1), 61DA(2), 61DA(4), 64, 65D, 65DAA(1), 65DAA (2), 65DAA(3), 75(2),79, 79(2)106A Australian Passports Act 2005 (Cth), s.11 |
| Cases cited: Bilous v Mudaliar (2006) 65 NSWLR |
| Applicant: | MS TRAN |
| Respondent: | MR LIANG |
| File Number: | MLC 6235 of 2017 |
| Judgment of: | Judge Harland |
| Hearing dates: | 15, 16 and 17 July 2019 |
| Date of Last Submission: | 7 October 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 17 October 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hall |
| Solicitors for the Applicant: | Robinson Gill Lawyers |
| Counsel for the Respondent: | Mr Thompson |
| Solicitors for the Respondent: | Australian Family Lawyers |
ORDERS
Parenting Orders of the Court
That X born … 2016 (“the child”) live with the wife.
That the wife have sole parental responsibility for the child with respect to education and health provided that the wife consult with the husband about any proposed decisions with respect to major issues concerning education and health and:
(a)notify the husband in writing of any proposed decision;
(b)give the husband fourteen (14) days to respond before a final decision is made, except in the case of an emergency;
(c)take into consideration any views expressed by the husband in respect of such proposed decisions; and
(d)inform the husband in writing of the decision made.
That otherwise the parties are to have equal shared parental responsibility for the long term care and welfare of the child.
Both parties shall ensure that each other is kept informed of:
(a)any medical problems or illnesses suffered by the child while in the other’s care;
(b)any medication that has been prescribed for the child;
(c)any social, school or religious functions which the child is to attend;
(d)the residential address of each party and particulars of the others who may reside with the child; and
(e)any other matter relevant to the child’s welfare.
The wife shall ensure that the husband is listed on all emergency contacts for the child.
That from the date of these Orders until 16 November 2019 the child continue to spend time with the husband in accordance with the interim orders:
(a)from 9.00am until 4.00pm each alternate Saturday commencing on 19 October 2019;
(b)from 9.00am until 4.00pm each alternate Sunday commencing on 27 October 2019; and
(c)from 8.30am until 2.30pm each Monday and Wednesday.
That from 16 November 2019 until the end of Term 1 of 2021, (noting the time continues during school terms and holidays) the child spend time with the husband:
(a)In week 1:
(i)each Monday from 8:30am to 2:30pm;
(ii)each Wednesday from 8:30am until Thursday 2:30pm; and
(iii)each Saturday from 9:00am to 4:00pm.
(b)In week 2:
(i)each Monday from 8:30am to 2:30pm;
(ii)each Wednesday from 8:30am until Thursday 2:30pm; and
(iii)each Sunday from 9:00am to 4:00pm.
That from Term 2 of 2021 during school terms, and each school term thereafter:
(a)From 3:30pm or afterschool on Friday until 4:00pm on Sunday in week 1; and
(b)From 3.30pm or after school on Wednesday to before school on Thursday in week 2.
During school term holidays in 2021 the two week cycle continue but with week 1 to extend to Monday at 4:00pm.
During the long summer holidays in 2020 and each even numbered year thereafter:
(a)In week 1 from 9:00am Monday until 4:00pm Thursday; and
(b)In week 2 from 9:00am Wednesday until 4:00pm Thursday.
During the long summer holidays in 2021 and each odd numbered year thereafter:
(a)In week 1 from 9:00am Wednesday until 4:00pm Thursday.
(b)In week 2 from 9:00am Monday until 4:00pm Thursday; and
Spend time with Orders by consent
The child spend time with the father on the following special occasions in 2019 and 2020:
(a)From 10:00am until 4:00pm on 24 December in 2019;
(b)From 10:00am until 4:00pm on 25 December in 2020;
(c)On X's birthday:
(i)If the birthday falls on a weekday when the child is not with the husband, from 5:30pm until 7:30pm;
(ii)If the birthday falls on a weekend when the child is not with the husband, from 2:00pm until 6:00pm.
(d)For such further or other periods as may be mutually agreed.
The child spend time with the father on the following special occasions from 2021:
(a)On X' s birthday:
(i)from 4:00pm on her birthday until 4:00pm the following day in the year 2020 and each alternate year thereafter; and
(ii)from 4:00pm on the day preceding her birthday until 4pm on her birthday in the year 2021 and each alternate year thereafter.
(b)From 4:00pm on 25 December until 4:00pm on 26 December in 2019 and each alternate year thereafter.
(c)From 4:00pm on 24 December until 4:00pm on 25 December in 2020 and each alternate year thereafter.
(d)On Father's Day from 10:00am until 5:00pm.
(e)For such further or other periods as may be mutually agreed.
That the father' s time with the child be suspended:
(a)On Mother's Day from 10:00am until 5:00pm.
(b)From 4:00pm on 24 December 2019 until 4:00pm 25 December 2019 and each alternate year thereafter.
(c)From 4:00pm on 25 December 2020 until 4:00pm 26 December 2020 and each alternate year thereafter.
(d)On the child 's birthday:
(i)from 4:00pm on her birthday until 4:00pm the following day in the year 2021 and each alternate year thereafter; and
(ii)from 4:00pm on the day preceding her birthday until 4:00pm on her birthday in the year 2020 and each alternate year thereafter.
Travel
Each of the parties do all acts and things and sign all documents as may be necessary for the Department of Foreign Affairs and Trade to issue a passport to the child X born … 2016 ("the child'") at their joint expense.
The passport be delivered to the mother and remain in possession of the mother at all times, subject to the orders herein.
Both parties do all acts and things necessary to renew the child's passport as and when required at their joint expense.
In the event that either parent intends to travel with the child interstate, the parent who intends to travel, shall provide written notice upon booking the travel of the dates to the other parent together with details of the destination, mode of travel and contact details.
In the event that either parent intends to travel with the child overseas they shall provide the other parent:
(a)No less than 42 days written notice of their intention to do so with proposed dates and destination.
(b)No later than fourteen (14) days prior to departure, the travelling parent shall provide the other parent the following:
(i)a full itinerary including the destination, mode to travel, flight or vessel details and copies of return airline/cruise ship tickets; and
(ii)accommodation details and contact details for the child for the duration of the holiday.
That no more than once per year the parent intending to travel for such time interstate or overseas travel can be extended to a period of 4 days over term school holidays, and 7 days for long summer holidays, or as otherwise ordered by the Court to facilitate travel with the mother and father.
So far as practicable, the occasions on which the parties travel with the child are to coincide with school holidays.
That in the event that the travelling time reduces the non-travelling parties school time there will be a corresponding amount of make-up time with the non-travelling party of any additional time taken during such period of school holidays.
Superannuation splitting Order
That paragraphs 24 to 30 of these orders are binding on the trustee of the Super Fund A subject to the Family Law Act 1975 and the Superannuation Industry (Supervision) Act 1993 ("the fund" ).
That the base amount allocated to the wife in these proceedings out of the interest of the husband in these proceedings in the fund (he being member number … of the Fund) is $50,000 ("the base amount").
That pursuant to Section 90XT(1)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable in respect of the interest of the said husband in the fund, the wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 ("the Regulations") using the base amount and there be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these orders.
That order 25 has effect from the operative time.
The operative time for the purposes of order 25 is four business days after the date of service of a certified court sealed copy of these orders upon the trustee of the fund.
That there be liberty to apply to each party and the trustee in relation to the implementation of the orders affecting the husband’s superannuation interest in the fund.
That until such time as the superannuation split to the wife pursuant to these orders can be rolled into a separate account to the wife:
(a)the husband shall provide to the wife no less than 28 days' notice before such time as he elects to retire from and/or take voluntary retirement and/or for any reason accept or become entitled to access in whole or part his entitlement in the fund;
(b)The husband shall direct and authorise the trustee of the fund to communicate with the wife and/or any person authorised by her in writing;
(i)to answer any reasonable inquiries as may be made by her or on her behalf from time to time in relation to her entitlement in the fund; and
(ii)to provide to the wife and/or her authorised representative a copy of any notice of any application or request by the husband which seeks release of entitlements in the fund in so far as that release may effect the wife's entitlements in the fund pursuant to these orders.
(c)The husband by himself his servants and/or agents be and hereby are restrained from doing any act or thing which would prevent the wife, her executors, administrators or nominees from receiving the benefits in the fund to which she is entitled pursuant to these orders, including but not limited to executing any death nomination in favour of any person.
In the event that the superannuation split to the wife pursuant to these orders can be rolled into a separate account to the wife each of the parties hereto shall each do all such acts and things and execute all documents as may be necessary to facilitate and to implement the rollover.
Property
That within 28 days the parties submit a minute of Order to Chambers reflecting paragraph 256 of these reasons.
That pursuant to Section 78 of the Family Law Act that each of the husband and the wife shall be and hereby are declared to be the sole and absolute owners at law and in equity of:
(a)all items of furniture, furnishings, personalty, chattels and jewellery;
(b)all monies (whether held in cash or in deposit with any financial institution);
(c)any motor vehicle;
(d)all contributions to or benefits or entitlements arising from membership of any fund of insurance or superannuation whether such interest be present, contingent or expectant;
in the possession, custody or control or each or in which either has an interest which are not otherwise dealt with in these orders.
That in the event that either party should fail, neglect or refuse to sign or execute any deed, document or instrument required by or to give effect to these Orders then pursuant to Section 106A Family Law Act that the Registrar of the Federal Circuit Court of Australia, Melbourne Registry shall be and is hereby authorised, empowered and directed to sign and execute such deed, document or instrument in the place and instead of such party and to thereafter do all things and acts as are necessary to give validity and operation to same.
IT IS NOTED that publication of this judgment under the pseudonym Tran & Liang is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 6235 of 2017
| MS TRAN |
Applicant
And
| MR LIANG |
Respondent
REASONS FOR JUDGMENT
This is a property and parenting dispute between the parties. The parenting dispute is regarding the only child of the marriage, X, born … 2016, aged three.
The wife filed her initiating application seeking financial orders on 20 September 2017. The wife did not seek any parenting orders at this time.
The husband filed his responding material on 27 October 2017 seeking both parenting and financial orders.
The matter came before Her Honour Judge Williams (as she then was) in the duty list on 30 October 2017. Interim consent orders were entered into for both parenting and financial matters. On this occasion the husband consented to spending four hours of supervised time with X without admitting the necessity for such supervision. In addition to valuation and financial disclosure orders, the parties also agreed to attend upon Dr C for a family report.
The matter was listed for mention hearing on 19 February 2018 where orders were made listing the matter for trial. The Court made further parenting orders increasing the husband’s supervised time for a further three hours per week and for the husband to attend upon psychologist Dr D to assist in developing a bond with X.
The husband’s time was increased again at the mention hearing on 2 August 2018. Updated joint valuations of the properties were ordered in addition to an updated family report by Dr C.
The matter proceeded to trial on 15 July 2019 to determine both the parenting and financial issues in dispute. The wife seeks sole parental responsibility for X. The husband seeks equal shared parental responsibility for X and a gradual increase in time with X, including overnight time, in accordance with the recommendations of Dr C.
The husband filed affidavits by Dr D on 14 February 2018, 24 May 2018 and 27 July 2018. She was not required to attend at the trial and her affidavits were not relied upon.
Background
The wife was born in Country Y on … 1985 and is aged 34 years. The wife has been a permanent resident in Australia since 2008 and applied for citizenship in late 2018. The wife currently resides at the former matrimonial home in Suburb E. The wife’s parents and siblings also reside at this address at times.
The husband was born in Australia on … 1978 and is aged 40 years. The husband currently lives with his mother in J Street, Suburb E at an assisted living retirement village.
The parties married on … 2012, separated in June 2016 and divorced on 10 October 2017. They did not live together prior to the marriage. There is a dispute between the parties as to when they started living together. Initially the parties lived in Sydney, New South Wales. The husband moved to Melbourne in … 2012 after finding full time employment. The wife says that she stayed in Sydney until … 2012 as she was organising a job transfer.
X has resided with the wife since the date of separation.
The wife is employed full time at Employer Z as a Professional currently earning $106,000 per annum.
The husband is currently unemployed as stated in his financial statement filed 10 July 2019. He has remained unemployed since … 2017 when his last employer, Employer B, terminated his employment.
Issues I am asked to determine
The parenting issues I must determine are as follows:
a)The impact of family violence;
b)The husband’s parenting capacity;
c)When X should start spending overnights with the husband; and
d)Whether or not the parties should share equal parental responsibility or the wife should exercise sole parental responsibility.
The wife seeks an order for sole parental responsibility in her favour and does not propose any form of consultation with the husband based on her allegations of family violence, his overbearing nature and their inability to communicate. She also seeks that the current spend time with arrangements for the husband and X remain in place until 2021 when X starts school which are limited to:
·9:00am to 4:00pm every alternate Saturday;
·9:00am to 4:00pm every other alternate Sunday; and
·8:30am to 2:30pm each Monday and Wednesday.
In 2021 she proposes that initially the husband have one overnight each week and that during school terms in 2021 he should have from 3:30pm Friday until 3:30pm Sunday on two occasions and during the school holiday period. She proposes that in 2022 he have holiday time for a block of three nights and four days during the term holidays and three periods of a block of three nights and four days during the long summer holidays.
The husband seeks an order for equal shared parental responsibility. He is keen to improve the parties’ communication and co-parenting and is fearful that if the wife has sole parental responsibility she will exclude him from major aspects of X’s life.
The husband seeks to start spending overnights with X straightaway and proposes he have daytime periods with X on Mondays and Wednesdays and each Saturday from 8:30am until 2:30pm on Sunday. His proposal does not provide for weekend time for the wife despite the fact she is working full-time. He also proposes to spend time with X during school holidays initially for a four night block.
Both parties address special occasions and other ancillary parenting orders in their case outlines. There was no cross-examination or submissions made about special days or the appropriate form of travel order. I caused my chambers to write to the parties after judgment was reserved to see if the parties could reach agreement about those issues otherwise the matter would be listed for further submissions on those points. The parties reached agreement about the time X should spend with her parents on special days.
One of the issues that had been in dispute between the parties was overseas travel and obtaining a passport for X. The wife wants to be able to take X overseas each year. She has family in Country Y. The wife’s parents still live there though they spend significant time in Australia to assist her parenting of X subject to visa restrictions. This is an issue that she has raised via her lawyers since 2017. The parties also agreed on orders for obtaining a passport. One order the parties proposed by consent with respect to this is a s.106A order. A registrar is unable to execute a passport application and the parties would need to make an application under s.11 of the Australian Passports Act 2005 (Cth). In any event, both parties have agreed to obtaining a passport for X therefore the inclusion of this order is unnecessary.
At the commencement of the trial the husband agreed to X obtaining a passport and X being able to travel overseas. Both parties should be able to travel overseas with X in the future.
I must determine the following financial issues between the parties:
a)When the parties separated;
b)Assessment of the husband’s initial contributions;
c)Whether or not $155,000 of the legal costs paid by the husband came from joint capital and whether there should be addbacks for paid legal fees;
d)The treatment of the wife’s and her family’s occupation of the former matrimonial home post separation;
e)Assessment of the parties contributions during the relationship;
f)Assessment of the parties post separation contributions and other s.75(2) factors; and
g)Who should retain the J Street, Suburb E property.
In his closing submissions the husband submitted that the wife should receive 20% of the total asset pool, including superannuation. The husband does not seek a superannuation splitting order.
In her closing submissions the wife seeks a division of the non-superannuation pool of 45% in her favour and an equalisation of their superannuation entitlements.
I will address the parenting issues first and then determine the property issues.
Legal principles with respect to children’s issues
The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act 1975 (Cth) (“the Family Law Act”). The Court must regard the best interests of the child as the paramount consideration: s.60CA. What it means in individual cases is informed by a number of statutory provisions.
The objects set out in s.60B(1) help clarify what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objections: s.60B(2). Section 65D of the Family Law Act gives the Court the power to make a parenting Order which is defined by s.64.
In deciding whether to make a particular parenting Order, s.60CA requires that I must consider the matters set out in s.60CC(2), being the primary considerations, and s.60CC(3), being the additional considerations.
There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The Family Law Act indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to s.60CC indicates, are consistent with the first two objects of Part VII. As stated in s.60B, the best interests of the child are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent, consistent with their best interests and protecting them from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.
The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford [2013] FamCA 33, Mazorski & Albright (2007) 37 Fam LR 518 and McCall & Clark (2009) FLC 93-405.
There are 13 additional considerations which are set out in s.60CC(3) which I will refer to later in these reasons.
I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any Order I make is consistent with any family violence Order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the child’s best interests being treated as paramount.
Section 61DA(1) provides that when making a parenting Order, the Court must apply a presumption that it is the best interests of the child for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence (s.61DA(2)). The presumption may also be rebutted if the Court is satisfied that it would not be in the best interests of the child for the parents to have equal shared parental responsibility (s.61DA)(4)).
If the presumption is not rebutted and I accept it would be in the best interests of the child to make an Order for equal shared parental responsibility, I am then required by s.65DAA(1) and (2) to consider whether to make Orders that the child spend equal time, and if not equal time then substantial and significant time with each parent.
For a parenting Order to involve the child spending substantial and significant time with a parent, s.65DAA(3) requires that it must at least provide for the child to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. It must also allow the parent to be involved in the child’s daily routine and on occasions and events that are of particular significance to the child and for the child to be involved in occasions and events that are of special significance to the parent.
Intervention orders and family violence
Both parties complain that the other was violent, abusive and controlling during their relationship.
In his trial affidavit the husband says that the wife would taunt and verbally abuse him throughout the relationship. He does not provide detail.
The wife says they separated on 11 June 2016 when there was a violent incident which resulted in the police attending and issuing a family violence safety notice against the husband and escorting him from the property.
The parties give very different versions of what occurred on that day.
Incident on 11 June 2016
The wife sets out her version of events at paragraph 4(v) of her affidavit filed on 24 November 2017. She alleges this incident was last in a series of incidents and says that the husband threatened her and charged at her. She threw a couple of water bottles at his legs. The wife alleges that the husband grabbed her father and punched him in the face while holding a key in his hand and pushed him to the floor. She annexes photos to her affidavit of the injuries to her father’s face and her mother’s leg. The photographs are black and white and are not dated. The wife did not call either of her parents to give evidence. The husband denied the authenticity of those photographs when cross-examined.
The husband denies assaulting either of the wife’s parents and says that their injuries were self-inflicted. He says the wife threatened and assaulted him. The husband does not refer to the incident in his trial affidavit and did not seek to rely on previous affidavits with respect to this incident. Both discuss the incident with Dr C during their family report interviews.
Police attended and escorted the husband from the former matrimonial home. The husband was issued with an intervention order (“IVO”) on 14 June 2016 in the Magistrates’ Court at Suburb K.
The IVO, made with full conditions, listed the wife and child as affected family members and expired on 13 June 2017. The husband consented to the IVO on a without admissions basis. No one was charged with assault after the incident. The wife annexes a series of emails she received from Sergeant L which indicate that her father was considering having the husband charged with assault but decided not to proceed.
The husband says he did not contact the wife to make arrangements to see X the first few months after the IVO was made against him as he was afraid that the wife would make false allegations against him.
Both refer to the incident taking place in front of X.
The wife’s parents were present and involved in the incident. Despite this, the wife did not call either of her parents to give evidence which is a significant omission given she urges the court to make findings with respect to this incident.
Incident on 27 May 2018
The husband applied for an IVO against the wife on 20 July 2018 alleging the wife had been verbally and physically abusive towards him during changeovers. The wife denies these allegations and the proceedings were contested following the initial ex parte order obtained by the husband.
The husband complains that the wife and her family acted aggressively at changeover. He says when he arrived for a changeover at McDonald’s on 27 May 2018, X was occupied with a large family lunch. He says the wife’s mother screamed at him and filmed the changeover. He says the wife and her mother followed him out of the McDonald’s. He says he and X were distressed by the incident. He also complains that the wife followed him in his car and has done so regularly.
The wife says that there was a family event at the McDonald’s and that she was filming X, not the husband. She says that when the husband walked in X started screaming and shouting and was hysterical. She denies that her mother asked the husband where his supervisor was and says her mother told him to soothe her first. The husband’s time was not required to be supervised at this stage and nor were handovers. The wife says that when the husband was holding X, she was screaming and reaching out for the maternal grandmother. She denies screaming at the husband and telling him not to take X and says that she and her mother were telling him to calm her down. The wife says she stood at the entrance of the McDonald’s and the husband took X to the car park as she was screaming. She says she saw X banging on the windows of his car as he drove away. She said that there was something in the orders that referred to him returning X if he could not calm her down. She said she was concerned so she took a step towards the car. The wife denies that she and the maternal grandmother followed the husband and says they took a few steps towards the car to see if X was okay because she was so distressed. She denied the husband’s version that X settled in the car and said that she was still screaming and banging on the windows as he drove away.
The husband obtained an interim IVO in the Magistrates’ Court at Suburb K on 20 July 2018, naming himself and X as protected people. He says he withdrew the IVO as he wanted to attend family therapy with the wife.
The wife says she had to go to court two times with respect to that IVO as the husband refused to drop it and she had to prepare a response to his further and better particulars. She rejected the suggestion by the husband’s Counsel that he withdrew the IVO because he wanted to have a relationship with her. She believes he withdrew it for strategic purposes after the release of Dr C’s second report which was not supportive of him. She believes it is an attempt at damage control.
Her perspective is understandable.
The husband also applied for an IVO against the wife’s mother, Ms M, on 19 February 2019. The police did not take out this application. As well as referring to the incident at changeover at McDonalds on 27 May 2018, the husband makes allegations of the wife having an agenda to restrict his time and that she and her family will continue to commit violence and make false allegations against him. He does not particularise any incident on 27 May 2018. The Suburb K Court made an IVO against the maternal grandmother for her not to commit family violence and not to get any other person to do so.
It is of some significance that just a week before the husband sent to the wife an email dated 13 February 2019, stating that he preferred to update her mother at changeover about X and asked if he should get her information. He then goes on to invite the wife to withdraw the charges so they can talk or call about any issue. On 28 February 2019 in another email the husband again invites the wife to attend changeover and says that he is looking forward to seeing her at changeover.
She believes the husband was trying to set her up. She queried why he was asking to meet her in person when he had just taken out an IVO. He asked for her mother’s mobile number then took an IVO out against her. Her concerns about this are understandable.
Both applications were withdrawn on 6 May 2019. The husband states at paragraph 124 of his affidavit filed 24 June 2019 that he withdrew the IVOs so that he and the wife could attend upon counselling with Ms N.
The wife indicates at paragraph 14 of her affidavit filed 7 June 2019 that she believes the husband’s motivations in applying for the IVOs against herself and her mother were “purely tactical”.
The wife believes the timing of these applications were deliberate on the husband’s part as the first application against the wife was made two weeks before the first family report interviews with Dr C and the intervention order against the wife’s mother was issued a couple of weeks before the second family report interviews.
The husband’s evidence about the IVOs, the timing of them and his email communication with the wife shortly after he took out the IVO against her in 2018, demonstrates his lack of insight into the mixed messages he sends her. At best his behaviour has been counter-productive. The wife’s anxiety about the husband’s contact with her in these circumstances is perfectly reasonable. The wife’s Counsel suggested to the husband that it was contradictory to apply for an IVO on the basis that he was fearful of his safety but then send the wife friendly emails and texts about X. He further suggested that this would cause the wife anxiety because she does not know where he is coming from and whether or not he is trying to set her up. The husband said that was not his intention. When asked if he has reflected on his own behaviour he said that his fear and anxiety has diminished and that he feels that things can work going forward. At paragraph 11 of Dr C’s family report he states that the husband “also struggled to account for why he was pursuing an intervention order against Ms Tran and her family, if he was genuinely motivated to establish a more functional co-parenting relationship”. He says he did not intend to cause her anxiety but was fearful for himself and X. There is no evidence before me that supports this.
AA Day Care
The husband has concerns about X showing signs of developmental delays with respect to speech-language. He says he was only able to develop a better relationship with the daycare after obtaining a court order granting him access to information.
The wife expresses concern about the husband dealing with X’s childcare centre. She says the husband insists on being provided with detailed developmental reports in addition to their usual reports. She is worried that if he continues in this manner, the daycare will no longer offer X a place there.
The husband says he now has a great relationship with the centre and that they provide him with regular information. He complains that prior to this the wife withheld childcare information from him and prevented the centre from speaking with him.
The wife denies making it difficult for the husband to obtain information from the daycare. She says the daycare provided him with the portfolio every year before he sought the order. She said she was unsure as to what other important information he was looking for.
He continues to complain that he has not received a complete historical record of information including daily reflections, daily communication book attendance records, and so on. This appears to be excessive and somewhat burdensome for the centre. It could also be perceived as being somewhat controlling.
This is a classic example of the disconnect between the parties.
O Medical Centre
X was diagnosed with a heart murmur on 6 February 2018. The wife says the husband was authorised to receive information from the medical centre and was given a copy of the echocardiogram. The wife expresses concern about the husband’s interactions with the O Medical Centre and the centre’s subsequent refusal to continue to treat X. The centre wrote to the wife on 19 November 2018 advising that they would no longer treat X.
The wife says she was distressed upon receiving a letter from the medical centre saying that they could not provide healthcare to X any more. She says when she rang about this she was told that the husband had caused a lot of problems and had made a complaint to the medical board. The wife says she has had trouble finding a medical centre with the same speciality equipment near her.
The wife agreed when cross-examined that the husband was concerned about X’s heart murmur but that she had provided him with the echocardiogram and report. She said as his father was a health care worker she did not think that she needed to tell him that it is a common condition or that there was any additional information she could give him. She said it was important to understand the context. The heart issues arose at a regular check-up and it was just after the IVO. The wife says that the husband was not seeing X very much, and that it was under supervision, and she was anxious about communicating with him given his violence. She emphatically denied blocking the husband from receiving information from the clinic.
Exhibit 8 is a copy of the progress notes from the Centre from 12 April 2018 to 12 July 2018. The notes are limited. The practice manager made a file note on 12 April 2018 noting that the husband saw Dr P and asked for X’s file. The practice manager says she found out the wife had full custody so advised the husband that he needs a letter from her first. She does not indicate where she got this understanding from, although the husband probably assumed it was from the wife. The file note on 12 July 2018 records a practice administration employee asking Dr P about releasing X’s file to the husband who wanted to consolidate the medical record.
The wife’s view is that the husband sought information beyond what is reasonable and he does not realise that his behaviour has agitated the medical centre and the daycare. She denies controlling the flow of information. She says she gives him what she is given.
Exhibit 23 is the AHPRA letter to the husband dated 18 November 2018 advising the husband it did not intend to take any further action. AHPRA noted that he and Dr Q gave conflicting accounts but that Dr Q’s version was supported by contemporaneous clinical records. AHPRA commented further that although there was initially a possible misunderstanding by Dr Q, he did provide the full records and complied with his obligations. The clinical records referred to the husband attending the clinic angry and aggressive on 12 July 2018.
The wife’s responses are reflective of her negative views of the husband. Whilst I have no doubt she felt justified in her lack of communication with the husband, I am also satisfied that this heightened his concern about X and his fear of being excluded from X’s life.
It is a vicious cycle as their reactions feed into each other’s negative experience and perception of each other.
The husband’s dealing with the daycare centre and the medical centre do leave a concerning impression. The husband can be insistent and complains if he does not get what he wants. He does not understand how this actually works against him. It also supports the wife’s experience of him as overbearing.
Interactions between the husband and wife and their attitude towards each other
The wife finds the husband to be overbearing and insincere. She does not trust him and believes that he has mental health issues. The husband says that he has tried to maintain an amicable relationship with the wife for X’s sake but that she refused to communicate with him apart from limited text messages.
The husband says that he has proposed that he and the wife attend family therapy in order to improve and increase their communication. He says that their relationship has been strained since separation but is improving.
The wife reluctantly conceded that the husband does provide her information about X’s time with him and what they are doing, to reassure her.
She grudgingly accepted that his emails are informative but are not necessary. She said she is interested in X’s life. She was cross-examined about the email appearing at page 45 of her trial affidavit. The difficulty with her attitude is that she raised concerns about the husband’s capacity and what goes on whilst X is in his care but then is critical of his emails informing him about what they are doing and how X is. When this was raised to her, the wife backtracked somewhat and said that she was not saying the email was inappropriate and that it was fine for the husband to inform her of what is going on when X is in his care, but she would have appreciated it more if it was not for the timing when he took out an IVO against her mother two weeks later. Given this, she questions the genuineness of it. She said just two weeks after he emails her trying to allay her fears, the police knock on her door whilst she is holding X which she said was traumatic. The wife says that actions are louder than words and that his actions were very different to those words. They must be seen in context.
The wife was cross-examined about the series of emails from the husband she annexed to her trial affidavit. She agreed that those emails were polite, raising enquiries about X and appreciating her role as X’s mother. She agreed that the tone was polite but said they were sent just after he took out an IVO against her. In the messages he is telling her to feel free to call etc. She believed he was trying to make her contact him and breach the IVO he just took out.
The wife said she thought a communication book would be a waste of paper and inefficient. She prefers email. She also said she did not see any point in downloading a parenting app. She conceded that she has not looked at any. This was somewhat arrogant and dismissive of her. These parents would benefit from such an app. Dr C raised this in his first report.
The wife says the last thing she remembers about the husband being in the former matrimonial home was his screaming and threatening to take X. I observed the husband laugh incredulously to himself when she gave this evidence. She said since then she has experienced the husband’s poor behaviour with respect to the IVOs, his contact with the daycare and the medical centre. She says her answer is based on her experience of him over the last two years. She does not believe that he is concerned about her best interests and he does not have good judgment about the impact of his behaviour on her.
The wife said she believes X loves her father.
The wife did not respond to the husband’s letters and requests for overnight time to commence.
The wife said she did not think that she would be able to sit down with the husband and talk about the choice of school for X because of his behaviour.
The husband wants to attend therapy with the wife. Dr C does not support the parties attending therapy. He describes both parties as having concrete, fixed views of the other which would make therapeutic intervention very difficult.
Wife’s concerns in relation to the husband and X’s relationship
The wife does not believe that the husband and X have a strong bond. She acknowledges that X enjoys spending time with her father but she is concerned about X coping with extended or overnight time. She does not want X to start spending overnights with the husband until she starts school.
The wife also expresses concerns about the suitability of the husband’s accommodation as he is currently living in a retirement village with his mother, however the husband says that it is a temporary arrangement. The husband says he is hoping to move back into the former matrimonial home after these proceedings are concluded. If he is unsuccessful in retaining the J Street, Suburb E property he says he will live in the area or in one of his rental properties.
The husband expresses concern that the wife is conflating his capacity to work with his capacity to care for X. This is not entirely unreasonable given that one of the difficulties in this case is the lack of admissible medical material filed by the husband. The husband was in a serious car accident when he was 15. The lack of evidence about the long term impact of this became a significant issue in the cross-examination of the husband and Dr C. It does not appear to have been raised as a significant issue with Dr C when he prepared his reports or in the parties’ material. The husband’s complaints about his health and capacity to work centred on his dismissal from his employment and the trauma he alleged he experienced as a result of family violence. He refers to his injury making him more “vulnerable to trauma”.
The husband expresses concern that the wife tries to prevent him having a meaningful relationship with X by refusing to attend changeovers and refusing his requests for increased time. He also complains that the wife has made major decisions without consulting him.
The husband has completed a number of parenting courses including a positive parenting program, Dads Tuning Into Kids, Tuning Into Toddlers program and a parenting after separation course in 2017. He refers to additional courses he did in 2019 and complains that the wife refuses to do the same.
The husband’s Counsel suggested to the wife that it is important that the parents be able to talk, to tell X about their choice of school. The wife stressed that she does not think she would be able to and refers to the IVO. Although the IVOs have been withdrawn, the wife is worried that the husband will make accusations against her again and take out another IVO. She said she is afraid of him and that she is very fearful of any interaction with him. This is why she seeks sole parental responsibility.
The wife is still breastfeeding X. She said she has not found any academic research which says that she should stop breastfeeding at a certain age and that it has a detrimental effect. She denied that part of her case was that the husband cannot have more time because of her breastfeeding, but that it is because he has not bonded with X and that X wakes up in the middle of the night distressed and even the wife has a hard time settling her. Dr C states at paragraph 25 of his report that:
While there could be some argument that certain practices she undertakes with the child are becoming increasingly age inappropriate, such as ongoing breastfeeding or instances of co-sleeping, I have not formed the opinion that this is an instance in which the child is pathologically enmeshed with the mother. The reality is that X spends time with a range of other people, including her father, maternal grandmother, aunt and uncle, and several days in childcare. The diversity of her care experience is a strong rebuttal to an enmeshment dynamic. Still, I would encourage the applicant mother to reflect on practices such as breastfeeding and evaluate whether these are to meet the child's needs, or her own. The process of X individuating and developing a sense of autonomy is one that must be allowed to evolve unfettered over the years ahead.
When it was put to her that the husband cannot increase his bond without having more time, the wife said she has articulated her concerns about the husband and his behaviour and that at age five, X will be better able to articulate her concerns.
The wife agreed that she read Dr C’s comments inviting the wife to reflect on breastfeeding and co-sleeping with X, and whether they meet X’s needs or hers. She said she has, and is not sure when she will stop. She says that X comes back from changeovers distressed and seeks her breast. She says she has a strong bond with X and does not think there is anything wrong with X nestling into her and coming to her bed after she has had a bad dream. She thinks they have a strong bond because she provides comfort and care.
The husband’s time with X
The wife agreed that the husband did not spend time with X for a few months after they separated, but says the husband did not ask. She agreed that he then started to have a few hours a week which she says was supervised at changeovers. She says she stopped his time in July 2017 when she discovered that he had an adjustment disorder. She says because of the family violence she was afraid of what that might mean for X and so she instructed her lawyers to ask for the husband’s psychological records to show that he had the capacity to care for X. She says he did not provide any reports but said he was seeking treatment.
There seems to be some confusion on the wife’s behalf as to whether or not the time was required to be supervised and for what period.
The wife agreed that she said that every daughter needs a father and that X comes back happy and cheerful. She then said that she usually returned happy and cheerful when supervised and that, as referred to in Dr C’s report, during the observation with the husband she was screaming and crying. She thinks that she was coming back happy because of the supervisor being there. She says she took the recommendations in the first report on board with respect to the husband undergoing bonding sessions. She does not believe that the husband has gone to anger management therapy.
She denied that her mother agitates things behind the scenes and says critical things about the husband. This is a concern raised by the husband and discussed by Dr C in both his reports. Just as the husband could have addressed the wife’s concerns about his parenting of X by calling a family member who has been present during his visits with X, she could have called her mother to give evidence about this as well as the incident on 11 June 2016.
She then said that her parents were concerned about the violence and that her mother could not walk for three days after the June incident and that the husband punched her father. She then said that her mother says critical things about the husband because she believes the man is harmful and she is concerned about their well-being.
The wife conceded that the bonding therapy occurred. She says she opposed the husband’s interim application for an increase in time because she remained concerned. She also says she was concerned about his mother being a supervisor because in 2005 she and her daughter called the police and she believes they took out an IVO against the husband. Due to this she believes that his mother would not have been able to manage the husband when his time was to be supervised early on after the parties separated. There is no suggestion that there have been any other incidents involving IVO’s being taken against the husband or the husband taking out IVO’s against others apart from the wife and her family.
The wife conceded that the husband has asked her to consider overnight time but that she has refused because she is concerned that the husband and X’s bond is not sufficiently well developed. When it was suggested to her that her opposition to overnight is unreasonable, particularly in light of Dr C’s second report, the wife replied that she did not know if it was reasonable or not but she does not believe the bond between X and the husband is sufficiently well developed for overnight time to start.
The wife complained that Dr D’s observations did not accord with hers during that first changeover where the wife says X was screaming and crying out for her. Dr D carried out the bonding therapy. The husband did not rely on her affidavits in his case outline.
The husband’s Counsel put to the wife again that her opposition to the husband spending increasing time and overnights was unreasonable. The wife again replied that she did not know if it was reasonable or not. She was just thinking of her daughter who is distressed at times and needs her mother’s help to moderate her emotions.
She rejected the suggestion of trying it to see how it goes and rejected the proposition that having overnight time would enhance the husband’s parenting capacity and strengthen his bond.
The wife also said that she could not see how putting X to bed is any different to taking her to the park. Either the wife is showing a lack of insight or is unwilling to say anything that supports the husband having overnights. In this regard I refer to the evidence of Dr C.
At a couple of points during her cross-examination the wife was careful to emphasise that the husband is spending 19 hours a week with X which she clearly thinks is sufficient. It underscores her attitude about the husband.
I have formed the view that the wife has difficulty accepting that transitions are hard for any young child and that it is developmentally normal. The wife may need assistance in coping with her own anxiety about the husband spending increasing time and overnight time with X. X cannot help but be aware that her mother, her primary carer, and maternal grandparents are anxious about her spending time with her father.
She also complains that his parenting style is overbearing. He provided unnecessary details and makes unnecessary enquiries. His communication with her needs to be seen in context. Indeed it is similar to his communication with the daycare centre and medical centre.
Evidence of Dr C
Dr C prepared two family reports in this matter. The first report is dated 2 February 2018.
In his first report Dr C refers to the very different versions of events the parties gave with respect to the incident on 11 June 2016 and indeed with respect to the nature of their relationship generally.
The parties also gave very different reasons for the husband’s limited involvement with X. Regardless of whether this was due to disinterest on the husband’s part or restrictions by the wife and her parents, it is not disputed that for three months after the husband left the home he did not spend any time with X. He then commenced having limited supervised time before progressing to unsupervised day time contact. The husband underwent bonding therapy with Dr D. Dr C was provided with Dr D’s reports and husband did not rely on those reports at the trial.
During the interviews for the first family report the wife discussed her concerns about husband’s parenting capacity and the husband dismissed those concerns and told Dr C that he had a strong bond with X. He expressed concerns about the wife’s capacity to facilitate and encourage his relationship with X.
Dr C was unable to conduct an observation with X and her mother for the first report because of X’s distress and exhaustion after the observation with her father.
X was reluctant to transition to her father’s care and began crying and calling for her mother. The husband attempted to distract and comfort her but she remained distressed calling for her mother. X was not interested in her father nor did she seek his comfort. Dr C said that there was no indication that X sees her father as a familiar and safe person.
Dr C also discussed the sub optimal communication between the parties noting that they did not interact with each other nor each other’s family members when conducting the changeovers. They have not interacted with each other in the past two years and neither was satisfied with their communication via text and email.
Dr C described the wife as wary and distrustful of the husband, seeing him as volatile, easily frustrated and inclined to verbal outbursts. She perceives his correspondence about X as overbearing and excessively detailed, focusing on minutiae. The husband sees the wife as controlling of his relationship with X and highly influenced by her parents and that if there was not a change in the co-parenting relationship it is X who will be negatively affected the most. He pointed out that they did not have a history of effective co-parenting but was not of the view at that stage that the situation was unsalvageable. He recommended that the parties use one of the online parenting platforms to provide a more formal mechanism for them to communicate and also believed that the wife would benefit from a course or other intervention to assist her to better collaborate with the husband in the future and in gaining an appreciation of the importance of X having an immersive and meaningful relationship with her father.
With respect to the husband, Dr C stated that he could be much more sensitive to the wife’s pre-existing conceptions of him and could frame his correspondence in a way of taking this into account. He did not think that the wife assuming sole parental responsibility for decisions would be in X’s best interests.
There is no dispute that X is securely bonded to her mother.
Dr C expressed concern that the attachment between X and her father had been compromised as she did not seek his comfort and resisted his efforts to comfort her and that he was not able to soothe her effectively. He pointed out that this does not mean that X does not enjoy spending time with the husband and is not familiar with him but that there is a fundamental difference between the child enjoying spending time with the parent and having a secure attachment with the parent which is a psychological mechanism.
It is worth setting out paragraph 44 of Dr C’s first report in full:
The allegations and counterclaims of family violence exist in this case as disputed matters of fact. It is clearly the province of the Court to determine untested allegations that are not accepted by both parties. Notwithstanding, even if the narrative offered by the applicant mother were to be accepted by the Court as a fairly apt depiction of events, it would still be too significant a leap in my view to conclude that X is at an unacceptable risk of physical or psychological harm while in the care of her father. It may well be the case that Mr Liang struggles to self-regulate at points, and may externalise difficult emotions during times of stress. However, there is an important distinction between parents who say and do things in the last gasps of a troubled marriage as compared with those parents exhibit ongoing child physical abuse post-separation. Parents who are physically and verbally aggressive towards children present within a unique set of risk factors, that are often quite distinct from those psychological processes that underpin volatile marital exchanges. Though I have not undertaken a formal psychometric appraisal of this man’s violence risk, both general and specific, I do not believe he exhibits the type of cognitive, psychological and emotional profile that would render him an acute risk to his daughter.
He did not recommend that the husband’s time remain supervised but also thought the husband’s proposal that would see him spending four nights a fortnight with X would be detrimental to her at this point. He recommended that the husband start spending time with X at least three times a week and that he seek advice from a bonding or attachment specialist to assist him.
Since the first report was released the husband underwent four bonding sessions with X and Dr D who prepared a report with respect to that.
The second family report is dated 16 March 2019.
Dr C found the husband’s presentation at the second interview similar to the first where he was overly formal and responded to questions as if he was attending a job interview.
Dr C says the following is with respect to his interview with the husband at paragraph 11:
When asked about relations between himself and Ms Tran, Mr Liang attempted to make a series of positive and conciliatory statements. For example, he remarked, "I am very positive about co-parenting", and, "I'm still very positive, and I think empathetic .. . I bear no grudge, I harbour no ill feelings". Despite these statements, Mr Liang attempted to craft a picture that the applicant mother had long been emotionally abusive, that he was a victim of female perpetrated family violence; that Ms Tran was fundamentally unreasonable, and that there were instances in which she continued to behave aggressively toward him even now that they are separated. He highlighted the alleged incident at McDonalds in which he claimed the maternal family had assumed a ''violent character about the way they said it (asking him where he planned to take X for the day)". He also struggled to account for why he was pursuing an intervention order against Ms Tran and her family, if he was genuinely motivated to establish a more functional co-parenting relationship.
The husband continued to express concerns about the wife and her family being unsupportive of his relationship with X.
He believed he was now closely bonded with X and thought that she was ready to spend two or three nights a week in his care, which would eventually lead to an equal care arrangement.
Dr C found that the wife presented quite differently in the second assessment. She was aloof and defensive at times and appeared frustrated by the process but still had the impression that she was sincere about her concerns for X and that her reasoning with respect to her concerns about the husband were “cogent and persuasive”.
She said there was still very little interaction between them and that she was wary of attending handovers particularly given his application for an IVO which she thought was tactical and was worried would jeopardise the circumstances of her and her family being able to gain citizenship in Australia. The wife pointed to the hypocrisy of the husband criticising her for not engaging with him whilst at the same time accusing her of being aggressive. She told Dr C that the husband’s overbearing style caused problems with the childcare and had resulted in O Medical Centre refusing to continue to treat X.
She expressed some concerns about X being distressed at times during changeovers and her presentation at times when she returned from her father’s care. She does not believe that X is sufficiently bonded with her father to be able to cope with overnight stays. She refers to X waking during the nights and being breastfed at night time and that she has difficulties at times settling her during the night so she does not think the husband would be able to manage. She stated that she would prefer overnights not to commence until X starts school and is able speak for herself and that she is concerned about soothing X if she wakes up during the night from a bad dream.
Dr C was able to conduct observations of both parents. He noted an improvement in X and the husband’s interactions. X appeared more comfortable and familiar and explored the toys and various items in the playroom and did not become distressed. As with the first observation the husband was pressuring and mildly intrusive with X rather than allowing her to play freely and responding to her cues he tried to structure their interactions. Dr C observed “[t]heir interaction lacked a naturalistic dimensional [sic] that is general observed with parents and young children who live together.”
The wife was much less intrusive with X and allowed X to direct their play.
Dr C’s views about parental responsibility changed by the second report as the parents’ communication had not improved. They remained distrustful of each other. He thought it was telling that the medical centre refused to continue treating X because of the husband’s conduct. He said this was a tangible example of X’s welfare being compromised.
At paragraphs 23 and 24 he said:
While it is clear that Ms Tran and her family remain wary and aloof and guarded around Mr Liang, it is my view that the respondent father now bears much of the responsibility for the difficult state of relations. For him to embark on a process of seeking an intervention order following an exchange at changeover ( even if he was pressed by the maternal family) has set hack any prospect of normalised relations. His account during interview of the manner in which he was apparently accosted was wholly underwhelming. When challenged, he accepted that some of the questions posed by Ms Tran and the maternal family could easily be interpreted in a more reasonable way - such as what activities he was planning for X on the day, and why he had attended without a supervisor (when the condition for a supervisor had only recently changed) . He also acknowledged that he was not backed into a corner as he initially claimed, though rather had easy thoroughfare to an exit because of the layout of the play area at the restaurant In my view, his application for an intervention order has all the hallmark; of a strategic underpinning. Although he claims to want to work more collaboratively with Ms Tran, his behaviour suggests otherwise. His posture is inarguably adversarial at times. He needs to think more carefully about how his conduct will be interpreted by the other side of X's family. The maternal family are not without fault in this equation, and clearly hold a view of Mr Liang as a difficult and potentially nefarious actor within X's orbit. However, their beliefs about him have been augmented and consolidated by his behaviour over the last 12 months or so.
The result of all of this is that X is blatantly disadvantaged. She will not be raised in an environment in which she sees her mother and father as united. It is very likely that a sense of internal conflict will evolve for this child as an artefact of the discord between the two sides of her family. In the years ahead, she may not feel she has the emotional permission to embark on a meaningful relationship with her other parent. To reiterate, I have now formed the view that decisions for this child may be delayed or otherwise abandoned because of her parent's inability to work more closely together around her needs. This creates a far stronger case for Ms Tran to assume sole responsibility for medical and educational decisions.
The husband’s connection and bonding with X had greatly improved but remained vulnerable. Dr C stated that a limitation on this developing further is the fact that X has no memory of waking up in the morning in the husband’s care, being put to bed by the husband and be comforted by him during the night. To date, the time X has spent with her father has been structured around activities and outings. The husband has not had the opportunity of engaging in the routine and mundane parenting activities which enable that bond to deepen and have a meaningful connection. The difficulty with the wife’s position is that the husband will have no opportunity to strengthen his connection with X if his time is not increased such that he has the opportunity to engage in the mundane aspects of parenting.
Dr C acknowledged that the bond is still under developed but recommended that overnights start such that in the course of 2019 one of the weekly visits could be overnight.
Dr C identified the main issue of risk has been with respect to allegations of physical and psychological violence and aggression by the husband. He was of the view that there was an insufficient basis to conclude that X would be at an unacceptable risk in the care of her father and noted that there was nothing to suggest that X had returned from time with her father with “any sort of injury or acute emotional instability or trauma reaction”. I acknowledge that the wife has made complaints about X’s presentations upon returning from spending time with her father on occasions but it does not reach those levels. Indeed, given the level of distrust and anxiety the wife has towards X’s father and the parents’ lack of effective communication, as well as X’s young age, there would be no difficulties with transitions for X.
Dr C was cross-examined at some length about the husband’s acquired brain injury. Quite properly, Dr C stated that his specialty is in forensic behavioural science and that he has conducted cognitive assessments for young offenders in the youth justice system but his specialty is not in neurological issues.
Dr C recorded that both parents continue to complain about the other’s post separation conduct, with the husband being concerned that X is being raised in an environment where her relationship with him is not promoted or encouraged, and the wife is concerned that the husband has been overbearing, unreasonable and has jeopardised X’s ongoing involvement with various services and that he has applied for IVOs for strategic reasons.
At paragraph 31 Dr C states:
In all, I suspect that there are elements of truth in both issues raised by the parties, and indeed, it is my view that they are inexorably linked. Of course Ms Tran and her family have an unfavourable view of Mr Liang. His behaviour during the marriage, and at the point of separation, involving a physical assault of the maternal grandfather, would leave little alternative but for them to develop an unfavourable conception of him. That he would then seek out an intervention order, and make complaints about X's medical practice, and agitate her childcare, only reinforces this view. The more sidelined he feels, the more he agitates, and in turn, the more guarded and wary and exclusionary the maternal family become. It is a dynamic that feeds into itself, Mr Liang has had the opportunity to disrupt any pre-existing opinions of him over the last 12 months or so, though has failed to do so by his actions. He remains aggrieved and resentful, which shows in his behaviour. Equally, Ms Tran must redouble her efforts to delineate Mr Liang's difficult behaviour from the need for this child to have an immersive relationship with her father - a distinction she has not always observed.
Dr C recommended that one of the husband’s weekly visits become an overnight visit and that otherwise three visits a week continue. He stated that a shared care arrangement as proposed by the husband was unrealistic, given the circumstances of this case and the lack of any co-parenting relationship. Once X starts school the husband’s weekly visits will need to be scaled back and an arrangement where the husband has four overnight visits a fortnight could be considered. Given the background of the case he did not recommend that X be away from the wife for more than three or four days at a time even when she commences school.
To the extent that he was criticised for not administering personality tests that some psychologists use commonly, I reject that criticism. All too often personality testing is included in reports without context and is unhelpful.
Also quite properly, Dr C stated that he is limited in what evidence he could give with respect to acquired brain injuries and referred to his understanding of general observations made in the literature about traumatic brain injuries and damage to the frontal lobe. The empirical literature refers to the frontal lobe as being responsible for emotional regulation, planning and problem-solving and that it is the control centre for a person’s functioning. He could not comment on the husband’s brain functioning in particular. Quite properly Dr C refused to be drawn into expressing an opinion about the effect of damage to his frontal lobe on the husband’s functioning. It is outside his expertise and there are too many unknowns including the nature of the damage and whether or not there is any lesion that remains there.
The wife’s Counsel drew his attention to the incident in 2005 where the husband admitted that when he was living with his mother and sister he punched a hole in the wall of the home where they were living and that either his mother or sister took out an IVO against him. She could not remember why he punched the wall.
The wife’s Counsel vigorously cross examined Dr C about the impact of acquired brain injuries and on the issue of family violence. Dr C gave considered, nuanced and thoughtful evidence. The following exchange occurred:
COUNSEL FOR THE WIFE: If the court finds the husband did these things, that he struck the wife’s father to the head with a key causing cuts and bleeding, that he dragged the wife’s father by the collar down the stairs, that he pushed the wife’s father onto the wife’s mother, that he twisted the wife by the wrist and pushed her to the floor, that he punched a hole in a wall while fighting or in some sort of an altercation in the home with his mother and sister in 2005, wouldn’t these findings make it more risky – it would elevate the risk around placing a young child in his care?
Dr C: No, I – I don’t think that that’s a reasonable proposition for the following reasons. I think that four out of five of those things that you have described occurred during one altercation. So there is a 2016 incident. And the fifth of those things occurred in 2005. So there’s an 11 year latency in acts of aggression. So there are two acts of aggression in 11 years both in the context of domestic disputes, albeit with different parties, potentially, if the court were to accept those things. So that’s not an extraordinarily high base rate.
…
Dr C: I – I certainly think that it’s relevant, and I certainly think that it would evidence that this person potentially when they’re involved in agitated discourse with people in their immediate audit – orbit may have a proclivity to become overtly and demonstrably aggressive.
…
COUNSEL FOR THE WIFE: So if the court makes findings to the effect of the propositions that I’ve put to you, if it makes a finding that the husband threatened the wife and said, “I will snap your neck”, if the court makes a finding that the husband did, indeed, hold a fork behind his back while saying to the wife, “You want to fight. You want to fight”, in the context of a 15 year old child where there’s a dispute about contact or a 12 year old child, that might be one thing. When we’re dealing with arrangements for a three year old child, doesn’t that, in your view, in your professional opinion, impact your assessment of risk?
Dr C: All of that – all of those are data points, and in terms of risk – risk is a – your Honour, risk is on a continuum, and you are looking for factors that tend to augment risk or – or factors that you would view reasonably as protective. All of those issues that counsel has highlighted would be viewed as factors that would reasonably start to create a risk profile. Whether that falls it – you know, whether that risk falls at the acute end or the unacceptable end, it is – that – that’s not my view at this point having consulted with this family longitudinally now, but I think that they are – clearly, there – there are features of this man’s behaviour that are of concern. Some of that is disputed, but there are clearly features of concern. I am not the view that they necessarily render him an unacceptable risk to having a child in his care, and I would draw to the court’s attention that, as far as I’m aware, since 2017, when Mr Liang has been spending time with his child consistently and since 2018 when that has been unsupervised, I’m not aware of any particular issue involving the care and wellbeing of the child when X has been with her dad unsupervised.
COUNSEL FOR THE WIFE: Okay. Well, at this - -?
Dr C: So I think that that’s another data point that can potentially offset some of those concerns as well and – and would constitute a protective variable.
I agree that this is a significant factor.
Dr C said the behaviour of the husband keeping an axe and a knife under the bed was highly unusual behaviour. The husband confirmed in his evidence that it was in 2018. He said it was for safety and that the wife knew about it.
I am not in a position to make the detailed factual findings the wife’s Counsel urges in the absence either of the wife’s parents giving evidence and the brevity of the written and oral evidence. I am certainly satisfied that there was an altercation. I accept that the wife’s father was injured and note the police were exploring the issue of laying charges which is an indication that there were some injuries which the husband was alleged to be responsible for.
Dr C agreed with the wife’s counsel that a reasonable hypothesis for the husband’s violent behaviour towards the wife and/or her parents is as a result of his acquired brain injury. Dr C went on to say that he would look for a pattern of the husband being unable to self-regulate across different environments. The evidence does not show a consistent pattern in this regard.
There is no doubt that the husband lacks insight and that his interactions with the wife, the day care and medical centre are unhelpful. They are supportive of equal shared parental responsibility being unworkable but the issue of risk is quite separate to this. I am not satisfied that X will be at an unacceptable risk in her father’s care if she starts having overnight visits now. It is of course trite to say that risk can be eliminated entirely.
I accept Dr C’s evidence that risk is reduced the more a parent-child bond is established and the more competency a parent has. He also made the important point that quantity and quality of time are not interchangeable. It is the exposure of the routine and mundane tasks that strengthen that bond. I also accept his view that overnight time will help normalise X and her father’s relationship.
Conclusions with respect to parenting issues
The issue with respect to parental responsibility is a difficult one. X is very young. Both parents have valuable things to contribute to X’s welfare. However, I cannot ignore the concerns about the parties’ communication. There is a complete disconnect between them. The emails from the husband and his interactions with the daycare and medical centre demonstrate an intensity and intrusiveness which is likely to lead to further conflict. Dr C expressed this concern in his second report. Combined with this is the fact that the husband lacks insight into the problem of his communication style which means he is unlikely to adjust it. Due to these concerns I find that it is in X’s best interests for the wife to exercise sole parental responsibility. However, this should only be with respect to health and education as they are the issues that are likely to arise in the short term. I am also going to require the wife to give the husband an opportunity to express his view and for her to take it into account when making her decision. She must also keep him informed of her decisions and provide him with information from the doctors and schools.
The parties will share parental responsibility with respect to all other major issues.
It is not in X’s best interests for there to be an equal or substantially shared spend time with arrangement. I accept Dr C’s evidence in this regard. There are several factors relevant to this issue including the parties’ communication, their lack of a co-parenting relationship and importantly the fragility of the bond between X and her father and X’s young age.
Given X’s age her views have not been obtained.
I note that the parties have now agreed that X should have a passport and be able to travel. The parties have not been able to agree on how long each parent should be able to travel with X interstate and internationally. They have agreed on travel notice provisions and obtaining a passport for X. The mother proposes that X only be able to travel with each parent during the periods X is living or spending time with that parent. Given the gradual and limited nature of the father’s time this will cause real difficulties for the father, particularly with respect to overseas travel. The father’s proposal with respect to this is modest. He refers to being able to extend interstate travel by 4 days and international travel by 7 days with make-up time to be provided if it impinges on the other parent’s time.
Whilst X is young and strengthening her bond with her father, she should not have significant periods of time away from either parent.
I do think it is important that X start spending overnight time with the husband. X will not be able to strengthen and consolidate her bond with the husband if he does not have the opportunity to engage in the routine and mundane tasks with respect to parenting. As I raised with Dr C during cross examination, I have considered whether or not there should be an increase in the husband’s day time contact first with the husband having the opportunity of giving X dinner but I take on board Dr C’s reservations in this regard.
I accept Dr C’s evidence that delaying X spending overnight time with the husband until she starts school is not in her best interests. I am satisfied that the husband should start spending one overnight with X during a fortnight.
The husband’s proposal does not allow the wife to have even one weekend day with X. The current arrangement sees the husband’s weekend time alternate from Saturdays to Sundays. The overnight time should alternate as well so both parents have the opportunity to spend time with X on the weekends. This is particularly important, even though X is not yet of school age given that the wife works full time and that the husband is seeking employment.
The husband’s time should continue in this pattern for the next 12 months. There then should be a gradual increase in the husband’s time with X consistent with Dr C’s recommendations.
Legal principles applying to property matters
Until the High Court decision in Stanford & Stanford (2012) 247 CLR 108, the position in respect of the process to be applied to the resolution of matrimonial property cases was said to be well settled with a preferred approach as set out by the Full Court in Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143 at 78,386 [39].
The High Court considered the operation of s.79 of the Family Law Act in the matter of Stanford. In this case, the majority stated at [35]-[36] that:
“It will be recalled that s 79(2) provides that "[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order. Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.”
The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.” [Footnotes omitted]
Despite the submission from the wife’s Counsel, there is no evidence to suggest that the husband paid any portion of his legal fees from joint funds, rather his mother advanced him funds post separation. Both parties tendered statements of their paid and anticipated legal fees. There is no evidence that either party paid their legal fees from joint funds. In those circumstances I will not add back either parties’ legal fees. The difficulty is that there are other circumstances where the court can exercise its discretion to addback amounts, but the wife only made submissions with respect to addbacks of legal costs.
F Pty Ltd
F Pty Ltd is a company the husband’s cousin has which the husband invested in. The wife loaned him $20,000 when he could not complete the payment he had arranged. I am satisfied on the evidence that the husband repaid the wife this sum a week later. Exhibit 11 supports this.
The business was valued by U Valuers at $46,724 after separation. The wife complains that the husband did not tell her about the sale of the business for some months, despite there being an injunction in place. She also complains that he has not accounted for the proceeds. The wife’s Counsel put to the husband in cross-examination that as at the date of separation F Pty Ltd owed him $51,000. This came from his discovered document. As he did in other instances when cross-examined (particularly with respect to his legal fees) the husband then sought to distance himself from this saying he relied on his accountant. He then said he did not know if all of that had been repaid to him or not as he relies on his accountant. The wife includes the sum of $51,000 being the repayment of the F Pty Ltd loan to be added back as part of the $155,000 she seeks to be added back. Given the husband’s evidence I accept that the sum of $51,000 and not $46,724 should be included in the pool.
Superannuation
The wife seeks that there be an equalisation of the parties’ superannuation entitlements which would require a split in her favour from the husband’s superannuation in the sum of $50,000.
The husband seeks that there be a split across both pools of 80% in his favour which would not require a superannuation splitting order. When the pool includes a significant amount of superannuation, the court will often exercise its discretion to use a two pool approach: see C & C (2005). This recognises the fact that superannuation is not an immediately realisable asset unless a party meets the conditions for release of superannuation.
The wife seeks that the superannuation entitlements be equalised, pointing out that since separation she has been working full time, building up her superannuation whereas husband has not worked for the past two years. I accept these submissions the wife makes and will make superannuation splitting orders in the terms she seeks. Her lawyers have accorded the superannuation fund procedural fairness.
Asset Pool
I find the asset pool is as follows:
| ASSET | OWNERSHIP | AMOUNT |
| BB Street, Suburb CC | Husband | $580,000 |
| G Street, Suburb H | Husband | $695,000 |
| T Street, Suburb U | Husband | $560,000 |
| R Street, Suburb S | Joint | $680,000 |
| J Street, Suburb E | Joint | $845,000 |
| Trade shares | Wife | $85,000 |
| Shares V | Wife | $6,106 |
| Citibank Country T | Wife | $6,341 |
| F Pty Ltd loan repayments | Husband | $51,000 |
| TOTAL ASSETS | TOTAL | |
| $3,508,447 | ||
| LIABILITIES | ||
| Westpac Investment Loan … – BB Street, Suburb CC | Husband | $333,803 |
| Westpac Investment Loan … - G Street, Suburb H | Husband | $374,777 |
| Westpac Investment Loan … - T Street, Suburb U | Husband | $290,203 |
| Westpac Home Loan … - J Street, Suburb E | Joint | $364,500 |
| Westpac Investment Loan … | Joint | $49,280 |
| Westpac Investment Loan … R Street, Suburb S | Joint | $504,000 |
| TOTAL LIABILITIES | TOTAL | |
| 1,916,563 | ||
| TOTAL NON-SUPER ASSET POOL | TOTAL | |
| $1,591,884 | ||
| SUPERANNUATION | ||
| Super Fund A | Husband | $143,632 |
| Employer B | Husband | $23,137 |
| Employer B Rollover Fund | Husband | $3,716 |
| Employer Z | Wife | $73,700 |
| TOTAL SUPERANNUATION | TOTAL | |
| $244,185 | ||
| TOTAL NET ASSETS | TOTAL | |
| $1,836,069 | ||
The wife received some gifts from the husband’s family, including jewellery, which is usual in their culture. The husband would like the wife to return the family heirlooms so that he can pass them on to X. The wife says that they are in a safety deposit box in Country Y. She did not want to return them to him. The wife’s attitude appears petty and unreasonable in the circumstances given they are from his side of the family and he wishes to pass them on to X.
It also speaks to the distrust between them.
Husband’s termination from his employment
The husband was terminated from his employment with Employer B. Under cross-examination the husband agreed with the wife’s Counsel that Employer B asserted that he took 55,000 files unrelated to his duties that contained sensitive information belonging to Employer B . Exhibit 20 is a letter from Employer B to the husband advising him that his employment had been terminated and that he was required to immediately return any of Employer B’s property that he still had in his possession. He agreed that his employment was terminated due to serious misconduct.
Exhibit 21 is a letter from Minter Ellison to the husband’s solicitors regarding Employer B’s allegations of serious misconduct by the husband. The letter states, among other things, that if the husband did not return the property of Employer B they would commence legal proceedings against the husband. During cross-examination the wife’s Counsel put to the husband that the letter asserted that it was inappropriate and unnecessary for the husband to have those files. The wife’s Counsel then asked the husband if he accepted that as true, and the husband denied that this assertion was true.
The husband filed an unfair dismissal application against Employer B claiming that he was subjected to workplace bullying, however, the matter was resolved by way of a Deed of Release dated … 2017. The husband says he was forced to resolve the matter as he was in no financial position to continue with the application.
The wife’s Counsel also put to the husband that he misleadingly swore an affidavit filed … 2017 that stated he remained “affected by workplace bullying and current unfair dismissal proceedings” which was incorrect in light of the Deed of Release dated … 2017. The husband said that this allegation was “false” and that it had been true throughout the drafting stages of the affidavit, but he had just signed the affidavit without reading it when it was sworn and filed with the court. I find this extremely doubtful. Rather it is another example of the husband avoiding taking responsibility for his own actions.
Section 75(2) factors
The wife is aged 34. The husband is aged 40.
The wife is earning $106,000 a year. The husband is currently unemployed. The wife has the majority care for X and this will continue.
Both parties have the support of extended family for practical and emotional assistance.
The husband’s capacity to work
When cross-examined in relation to medication, the husband said that he does not recall taking medication for anxiety despite being advised that he should. The wife’s Counsel further put to the husband that in his … 2017 affidavit he swore that he was prescribed painkillers, sleeping tablets and anxiety medication. The husband then said that being prescribed medication is different to him actually taking it. The husband’s evidence about his health and capacity to work is unsatisfactory. I am not satisfied that the husband’s capacity for work has been adversely affected by his physical or mental health.
In … 1993 the husband was involved in a serious head-on collision and spent several months in hospital. He suffered an acquired brain injury. He says he still suffers some effects from the incident and that it makes him “vulnerable to trauma”. In her trial affidavit the wife says that as far as she is aware he did not receive medical treatment for this injury during their relationship.
In his trial affidavit the husband goes on to say that he has been receiving treatment for stress and anxiety relating to work and the wife’s abuse. He says he has not been able to work since … 2017 because of health reasons. He does not provide any admissible medical evidence to support this claim. As is all too common in trials, the husband simply annexes a letter from his treating psychologist. In order for this to be admissible, his psychologist would have needed to have prepared an affidavit and be available for cross examination. I place no weight on that document.
The husband was cross-examined about his head injuries from the motor vehicle accident in 1993 when he was 15 and his accumulation of rental properties. He said he did not know if he received compensation or not and says that he was aware that he had a propensity for further injury and was conscious that his health was at risk so he made the decision to accumulate properties as an investment for his future.
In the absence of admissible evidence I am unable to place any weight on the husband’s assertions about his health for the purpose of any adjustment pursuant to s.75(2). Whilst the husband remains unemployed his child support obligations will be modest.
The husband says that he has been seeking to improve his skills by attending a real estate investment course and training course with TAFE so that he could start a home-based business. He says he has also worked with other professionals and has applied for various positions. He then says that he has looked at applying for disability support payments but has not been successful. He then lists several jobs that he says he has applied for from 2017 to date.
The husband was cross-examined about his CV. The husband refers to working for Employer W from … 2017 to date on his CV. Initially he said that he put that down as a stopgap past experience as he needed to have a story to tell in interviews and said that he had done some pro bono work in the past. He then conceded that Employer W is a make-believe consultancy. Employer W is the name of the property that his mother previously owned and the property that he grew up in. The wife’s Counsel suggested to the husband that he made it up for the purpose of interviews. The husband said that he has done a small amount of pro bono work for family and friends. The husband also says that he uses a couple of different resumes and that the one he was being cross-examined about was his employment one. It is difficult to understand the purpose of this cross examination as it does not assist the wife’s case that the husband is not working to his earning capacity.
The husband’s attitude about this was somewhat concerning but it does not assist the wife’s case. The wife’s case is somewhat contradictory as on the one hand she asserts that the husband is not working to his earning capacity and could earn a high income as he did previously but on the other hand alleges that the husband’s health impacts on his capacity to care for X. The husband has been unemployed for some two years. He has qualifications and there is no reason to think he will not be employed in the future. There is no evidence to suggest he is deliberately not looking for work. If that were the case it is unlikely that he would have embellished his CV. One difficulty could be his lack of reference from Employer B but rather just a statement recording the large period of time he worked there.
The husband’s Counsel conceded during his closing submissions that the husband has a capacity for work but has not been able to find work whilst the wife is working and earning approximately $100,000 a year. During the relationship the husband earned more than the wife. In her case outline the wife’s Counsel contends that the husband’s lack of employment post separation is strategic. She said she was not in a position to know whether he was having difficulties because he was terminated from his last employment.
The wife’s Counsel submits in his case outline that the husband is strategically choosing not to work while the proceedings are on foot. This was not put to the husband in cross-examination. There is no evidence to support this contention.
Impression of the parties and gaps in their case
Both parties were keen to emphasise their respective financial contributions and focused on this aspect which is not surprising given their employment backgrounds. Both were inflexible and reluctant to give the other party credit.
There is much inadmissible evidence in both parties’ affidavits. In addition to the medical evidence, the husband refers to events where his mother was present and this was not on affidavit nor was she called to give evidence as to what occurred.
Somewhat inexplicably, given their parents’ involvement, neither party called their parents as witnesses in this matter. With respect to the wife’s parents they spend a significant period of time living in her home and providing day-to-day care and support for X, particularly whilst she is working. Her mother also attends changeovers where there have been several disputes.
With respect to the husband’s mother, he currently lives with her and also says that she is willing and able to provide him with practical support for X’s care. He also claims that since separation he has borrowed approximately $386,000 from his mother which he has used on legal fees and living expenses. As he claims he is required to repay this to his mother, it is extraordinary that she is not on affidavit deposing to this.
When cross-examined, the wife was deliberate in her responses and showed some inflexibility. She struggled to say positive things about the husband and I had the impression that she does not see that her and her family’s anxiety could negatively impact on X and that the transitions would be difficult for X. A striking example was that the wife could not agree to the proposition that the husband loves X very much. She said “I’m not sure I can’t speak for your client.”
The wife struggled to say anything positive about the husband when cross-examined.
She believes that as a parent he is overbearing and exaggerated and believes he lacks confidence. She says she has not observed him with X so she cannot comment on whether he is a good or bad parent. She thinks her views are cogent and consistent with Dr C’s findings about him in his report.
Of course if the Court accepts that there has been some family violence it is unrealistic to expect the wife to have a positive view of the husband. This is compounded by the husband’s behaviour and his failure to address the wife’s concerns despite having ample opportunity to do so.
The husband also struggled with giving the wife any credit. An example was when it was suggested to him that the wife is a capable mother he paused and said that he was not sure and that he did not know.
Despite the husband being aware that the wife is not confident in his parenting of X and believes that his bond with her is underdeveloped, he did not call any family members who have witnessed his interactions with X to give evidence.
When cross-examined the husband also showed some inflexibility and had more trouble answering questions than the wife and wanted to qualify everything and avoid responsibility. He did however make a concession that he could see how the wife would have seen his emails in the context of also receiving an IVO at the same time.
Conclusion as to financial issues
Both Counsel made closing submissions consistent with their case outlines, even though they referred to pieces of evidence which were not borne out at trial.
Both referred to the NSW Court of Appeal decision of Kardos & Sarbutt [2006] NSW CA 11. Neither Counsel referred to the recent Full Family Court decision of Jabour & Jabour [2019] FamCAFC 78. This is surprising as the Full Court helpfully discusses Kardos & Sarbutt and Bilous v Mudaliar (2006) 65 NSWLR which was also referred to by the husband’s Counsel. It is not necessary for me to traverse these.
It is necessary to assess the parties’ contributions holistically, considering initial contributions, contributions during the relationship and post-relationship contributions. Whilst the husband clearly exaggerated the value of his initial contributions and his argument that they were self-funded and should in effect be quarantined is clearly wrong, they are still significant. The value to the parties of being able to purchase J Street, Suburb E from the husband’s mother for less than market value is also significant. I am satisfied that the parties pooled their efforts and resources in partnership and that both made a myriad of financial and non-financial contributions, despite the fact that both parties sought to minimise the contributions of the other when it suited them.
This is a relatively short relationship. X was born late in the relationship. The wife has made significant contributions post-separation. I reject the submission that there should be some sort of adjustment in the husband’s favour because the wife has had the benefit of occupying the J Street, Suburb E property with her family post-separation. She has also paid the mortgage and outgoings. I acknowledge that initially she used the offset account, which both parties contributed to but later from her own income and resources. The husband also made withdrawals from the offset account post separation.
Considering the totality of the parties’ contributions to the non-superannuation pool I find that the non-superannuation pool should be divided to 65% to the husband and 35% to the wife.
The parties have competing s.75(2) factors in their favour. There is uncertainty as to the husband’s future employment although as conceded by his Counsel, he has some earning capacity. This of course also has an impact on the child support the wife receives. Whilst the husband is unemployed his child support payments will be modest. There is also the fact that X is only three years old and that whilst the husband will have increased time with X over time, the wife will have the majority of her care. In considering these competing factors I find that there should be a small adjustment in the wife’s favour. I find that overall it is just and equitable for the wife to receive 40% of the non-superannuation pool and the husband receive 60%.
The wife will retain her trade shares, her Westpac shares and her Citibank Country T accounts totalling $97,447. The husband will retain his F Pty Ltd proceeds of $1,000. The precise terms of the orders to achieve the outcome referred to at paragraph 256 will depend on whether or not the wife will retain the J Street, Suburb E property and make a payment to the husband, or transfer the J Street, Suburb E property to the husband requiring him to make a payment to the wife. Due to this I will grant liberty to apply to the parties with respect to the property orders I will provide in draft form.
In the event the wife does not retain the J Street, Suburb E property the husband will need to make a payment to her, presumably by either increasing encumbrances on his properties, although this might not be possible given that his not working, or by selling one or more properties. The husband indicated that if he did not receive the J Street, Suburb E property he would live in one of the properties he owns near the wife. Presumably, this would be the R Street, Suburb S property owned by the parties jointly.
The husband’s proposed property orders do not specify how the husband intends to pay the wife in the event he retains all the real properties. The wife’s proposed property orders do not contemplate the wife needing to make a payment to the husband in order to retain the J Street, Suburb E property.
Given these uncertainties I propose to require the parties to submit a minute of order to Chambers within 28 days reflecting my reasons. I will also give them the opportunity to consider the parenting orders in draft form. In the event there are orders of controversy which the parties can then make submissions and I will list the matter for mention hearing on 18 November 2019 at 9:00am.
I certify that the preceding two hundred and sixty (260) paragraphs are a true copy of the reasons for judgment of Judge Harland
Date: 17 October 2019
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Consent
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