FEDERAL CIRCUIT COURT OF AUSTRALIA
| WA & LIN & ANOR | [2017] FCCA 1828 |
| Catchwords: FAMILY LAW – Property – contributions by extended family members – whether or not there were gifts or loans – whether or not the husband has an interest in a business in China – credit issues with respect to both husband and wife – addbacks. |
| Legislation: Family Law Act 1975, ss.60B(1), 60B, 60B(2), 60CA, 60CC(2), 60CC(3), 61DA(1), 61DA(2), 61DA(4), 64, 65D, 65DAA(1), 65DAA(2), 65DAA(3), 79, 79(2), 79(4), 106A |
| Cases cited: Reynolds & Sherman [2016] FamCAFC 240 Jones v Dunkel (1959) 101 CLR 298 In the Marriage of Kuebler (1978) FLC 90-434 |
| Applicant: | MR WA |
| First Respondent: | MS LIN |
| Second Respondent: | MRS WA |
| File Number: | MLC 6923 of 2014 |
| Judgment of: | Judge Harland |
| Hearing dates: | 1-5 May 2017 |
| Date of Last Submission: | 19 June 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 4 August 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Testart |
| Solicitors for the Applicant: | GR Lawyers |
| Counsel for the First Respondent: | Ms Tulloch |
| Solicitors for the First Respondents: | Jasper Lawyers |
| Counsel for the Second Respondent: | Ms Wheeler |
| Solicitors for the Second Respondent: | Prudentia Legal |
ORDERS
That all previous orders be discharged.
Parenting
That the wife and husband have equal shared parental responsibility for the child [X] born 2011 (“the child”).
That the child live with the wife.
That the child spend time with the husband as follows:
(a)During school terms, provided that the paternal grandmother is in substantial attendance at the husband’s home, in each two week cycle from the commencement of school (or 9.00am) Monday in the first week until the commencement of school (or 9.00am) Monday in the following week;
(b)For one half of each of the school term holidays at such times as may be agreed between the parties and failing agreement from the conclusion of school on the last day of the relevant school term to 5.00pm on the second Saturday of the said school term holidays;
(c)For one half of the Christmas school holidays in each year at such times as may be agreed between the parties and failing agreement as follows:
(i)In the 2017/2018 Christmas school holidays from after school on the last day of term 4 to…
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- Case
- [2017] FCCA 1828
- Decision Date
CaseChat Overview and Summary
The court was required to determine the appropriate parenting orders for the child, including the extent of equal shared parental responsibility, the child's primary residence, and the specific time each parent and the paternal grandmother would spend with the child. A key aspect of the parenting orders involved the paternal grandmother's role, particularly in circumstances where the husband might be living overseas. The court also had to consider and make orders regarding the sale of a property and the division of the net proceeds between the parties. Further, the court needed to address the husband's interest in a business located in China and make determinations regarding various financial contributions and liabilities, including addbacks.
In relation to parenting, the court ordered equal shared parental responsibility and that the child live with the wife, with specific provisions for the child to spend time with the husband, including conditions related to the paternal grandmother's attendance. The paternal grandmother was also granted specific time with the child, including in circumstances where the husband might be living overseas. Crucially, the court imposed significant restrictions on the child's ability to travel overseas, placing the child on the Australian Federal Police watchlist until a specified date, with provisions for consent for international travel. On the property front, the court ordered the sale of a New South Wales property, with the net proceeds to be divided 63% to the husband and 37% to the wife after the discharge of costs and encumbrances. The court also made detailed orders regarding the release of funds held by solicitors, including specific amounts to be paid to the husband and wife, and addressed the husband's obligation to pay a term deposit to the second respondent. The orders also clarified the parties' entitlements to other property and liabilities, severed any joint tenancies, and provided for the Registrar to execute documents if a party failed to do so.
Orders
Orders of the court
1.
That all previous orders be discharged.
Parenting
2.
That the wife and husband have equal shared parental responsibility for the child [X] born 2011 (“the child”).
3.
That the child live with the wife.
4.
That the child spend time with the husband as follows:
(a) During school terms, provided that the paternal grandmother is in substantial attendance at the husband’s home, in each two week cycle from the commencement of school (or 9.00am) Monday in the first week until the commencement of school (or 9.00am) Monday in the following week;
(b) For one half of each of the school term holidays at such times as may be agreed between the parties and failing agreement from the conclusion of school on the last day of the relevant school term to 5.00pm on the second Saturday of the said school term holidays;
(c) For one half of the Christmas school holidays in each year at such times as may be agreed between the parties and failing agreement as follows:
(i) In the 2017/2018 Christmas school holidays from after school on the last day of term 4 to 5.00pm on the middle day of the said holidays in each alternate year thereafter; and
(ii) In the 2018/2019 Christmas school holidays from 5.00pm on the middle day of the said holidays to 5.00pm on the day prior to the commencement of term 1 and in each alternate year thereafter;
(d) Notwithstanding any other order on Christmas Day in each year as may be agreed between the parties and failing agreement as follows:
(i) From noon on Christmas Eve to 12 noon on Christmas Day in 2017 and in each alternate year thereafter; and
(ii) From 12 noon on Christmas Day to 12 noon on Boxing Day in 2018 and in each alternate year thereafter;
(e) Notwithstanding any other order on the child’s birthday in each year as may be agreed between the parties and failing agreement:
(i) In 2017, on a non-school day from 9.00am to 2.00pm and on a school day from 3.00pm to 5.30pm and in each alternate year thereafter; and
(ii) In 2018, on a non-school day from 2.00pm to 8.00pm and on a school day from 5.30pm to 8.00pm and in each alternate year thereafter;
(f) Notwithstanding any other order on the Husband’s birthday from 6.00pm on the evening preceding the birthday to 6.00pm on the birthday;
(g) Notwithstanding any other order on Father’s Day in each year as may be agreed between the parties and failing agreement from 9.00am to 6.00pm;
(h) At such other and further times as may be agreed between the Wife and the Husband in writing.
5.
Notwithstanding any other order the child to live with the wife as follows:
(a) On Christmas Day in each year as may be agreed between the parties and failing agreement as follows:
(i) From 12 noon on Christmas Day to 12 noon on Boxing Day in 2017 and in each alternate year thereafter; and
(ii) From 12 noon on Christmas Eve to 12 noon on Christmas Day in 2018 and in each alternate year thereafter;
(b) On the child’s birthday in each year as may be agreed between the parties and failing agreement as follows:
(i) On a non-school day from 2.00pm to 8.00pm and on a school day from 5.30pm to 8.00pm in 2017 and in each alternate year thereafter; and
(ii) On a non-school day from 9.00am to 2.00pm and on a school day from 3.00pm to 5.30pm in 2018 and in each alternate year thereafter;
(c) On the Wife’s birthday from 6.00pm on the evening preceding the birthday to 6.00pm on the birthday;
(d) On Mother’s Day in each year as may be agreed between the parties and failing agreement from 9.00am to 6.00pm;
(e) At such other times as may be agreed between the wife and the husband in writing.
6.
The Paternal Grandmother, being the Second Respondent, Mrs Wa spend time with the child:
(a) Concurrently with the Respondent Husband;
(b) In event that the Husband is not living in Australia with the child for up to a period of three consecutive month, the Paternal Grandmother is entitled to spend time with the child in lieu of living with the Husband;
(c) In the event that the Husband is not living in Australia with the child for a period of more than three consecutive months, the child spend time with the Paternal Grandmother as follows:
(i) During school terms in each two week cycle:
A. In week one from conclusion of school on Thursday until the commencement of school on Monday; and
B. In week two from the conclusion of school on Thursday until the commencement of school on Friday;
(ii) During school holidays and on special occasions as per subparagraphs 4(b), 4(c), 4(d), 4(e);
(iii) On the Paternal Grandmother’s birthday from 5.00pm until 9.00am the following morning; and
(iv) For such further and other periods as may be agreed between the Wife and Paternal Grandmother from time to time.
7.
Each party, Mr Wa born 1984 and Ms Lin born 1982 their servants and or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the taking or sending of the child from the Commonwealth of Australia until 2 December 2021.
8.
That [X] born 2011 be and is hereby restrained from leaving the Commonwealth of Australia.
9.
It is requested that the Australian Federal Police give effect to this order by placing the name of the child on the Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist until 2 December 2021.
10.
This order does not prohibit the taking or sending of the child from Australia to a place outside Australia if it is done with the consent in writing (authenticated as prescribed in accordance with Regulation 13 of the Family Law Regulations 1984).
11.
All changeovers which coincide with the start or finish of school to take place at the child’s school and otherwise to take place at the McDonalds Restaurant, (omitted).
12.
The paternal grandmother be permitted to attend changeovers:
(a) With the husband; or
(b) On behalf of the husband in the event that he is unavailable.
13.
The husband and wife do all acts and things and sign all documents necessary to cause the Registry of Births, Deaths and Marriages Victoria to amend the child’s birth certificate to register her name as [X].
14.
That the parties by themselves and their servants and agents be restrained from using any other name for the child that [X] for official purposes including primary and high school enrolments but not including Chinese school and extra curricula activities.
15.
In the event that the child is ill and requires medical attention, the wife, the husband and/or the paternal grandmother promptly inform the other parties of the child’s condition and provide details of any treatment (including medication and other matters which must be attended to) and that each party keep the other informed of any immunisations of the child.
16.
The parties each be and are hereby restrained by themselves, their servants or agents from discussing these proceedings or denigrating the other parties in the hearing or presence of the child and from allowing the child to remain in the presence or hearing of a third party engaging in such behaviour.
NOTING
17.
That if either parent seeks that the child’s name remains on the airport watch list after 2 December 2021, then, before that date, that parent should file a further application to that effect supported by affidavit.
Property
18.
That the husband and the wife forthwith do all such acts and things and sign all such documents as may be required to cause the real property situated at and known as unit Property A in the State of New South Wales being the whole of the land more particularly described in (omitted) (“Property A”) to be forthwith sold (“the sale”) as follows:
(a) The property to be listed for sale with an estate agent to be agreed between the parties and in absence of agreement within 7 days to be nominated by the President of the Real Estate Institute of New South Wales or his nominee (“the agent”);
(b) The property to be sold by way of a public auction to take place no more than 90 days from making of these orders;
(c) The terms and conditions of the sale to be otherwise as agreed between the parties upon the advice of the agent; and
(d) The listing price and reserve price to be agreed between the parties upon the advice of the agent and in default of agreement to be determined by a valuer to be nominated by the President of the Real Estate Institute of New South Wales.
19.
That upon completion of the sale the proceeds be applied:
(a) First, to pay all costs, commissions and expenses of the sale;
(b) Secondly, to discharge the mortgage dealing number (omitted) (“the mortgage”) and any other encumbrances affecting Property A;
(c) Thirdly, to pay any capital gains tax arising from the sale;
(d) Fourthly, the balance then remaining to be divided as follows:
(i) To the wife – 37%; and
(ii) To the husband – 63%.
20.
That pending the settlement of the sale and the distribution of the proceeds of sale pursuant to the terms of these orders:
(a) The parties to cause all income received by way of rental from Property A to be applied to the mortgage and any rates, utilities and outgoings of the property as and when they fall due;
(b) In the event of any shortfall between the rental income received from Property A and the outgoings referred to above the parties to each pay one half of the said shortfall;
(c) The husband and the wife hold their respective interests in Property A upon trust for each other in such proportions as accord with their entitlement under these orders;
(d) Neither party encumber Property A without the prior written consent of the other party.
21.
That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a) Each party be solely entitled to the exclusion of the other to all other property (including choses in action) in the possession of such party as at the date of these orders;
(b) Each party forgo any claims they may have to any superannuation benefits belonging to or earned by the other;
(c) Any insurance policies remain the sole property of the beneficiary named therein;
(d) Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(e) Any joint tenancy of the parties in any real or person estate is hereby expressly severed.
22.
That within 14 days the parties do all acts and things to instruct Taussig Cherrie Fildes to release the funds held by them as follows:
(a) $126,640.08 to the Husband plus:
(i) The sum of $6,000; and
(ii) The amount of interest paid by the husband on the $6,000 credit card liability (number (omitted)) incurred by the wife from July 2014 until the completion of the sale.
(b) $30,284.92 to the wife less:
(i) $6,000: and
(ii) The amount of interest paid by the husband on the $6,000 credit card liability (number (omitted)) incurred by the wife from July 2014 until completion of sale;
(c) The balance, if any, as to 63% to the husband and 37% to wife
23.
Upon the Bank B term deposit of $14,000 held in the name of the husband maturing, the husband forthwith do all such acts and things and sign all such documents as may be necessary to pay the said funds to the Second Respondent and it is declared by this order that the Husband holds such funds upon trust for the Second Respondent and the Wife has no interest real or otherwise in same.
24.
That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a) Each party be solely entitled to the exclusion of the other to all other property(including choses in action) in the possession of such party as at the date of these orders;
(b) Each party forgo any claims they may have to any superannuation benefits belonging to or earned by the other;
(c) Any insurance policies remain the sole property of the beneficiary named therein;
(d) Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(e) Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
25.
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 1975 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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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