Wei & Wei

[2007] FamCA 527

FAMILY COURT OF AUSTRALIA

WEI & WEI [2007] FamCA 527

FAMILY LAW - CHILDREN - With whom a child spends time - Child abduction - Non-compliance with orders for return of child

FAMILY LAW - PROPERTY - Settlement in relation to marriage

Family Law Act 1975 (Cth)

APPLICANT: Mrs Wei

RESPONDENT: Mr Wei

FILE NUMBER: BRF 1377 of 2004

DATE DELIVERED: 9 May 2007

PLACE DELIVERED: Brisbane

JUDGMENT OF: Barry J

HEARING DATE: 21 – 24 August 2006

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hodges of Counsel appeared for the Applicant Wife

SOLICITOR FOR THE APPLICANT: My Solicitors

SOLICITOR FOR THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Ms Hogan of Counsel appeared for the Independent Children’s Lawyer

SOLICITOR FOR THE INDEPENDENT

CHIDREN’S LAWYER

Ms Huth, Solicitor of Legal Aid Queensland

Orders

Draft Orders only – see Reasons for Judgment paragraph 164.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRF1377/2004

MRS WEI

Applicant

And

MR WEI

Respondent

REASONS FOR JUDGMENT

1.The parties are the natural parents of a six year old boy. I am asked to determine property settlement and child related issues in dispute between the parties. 

2.In summary form the Wife seeks there be no contact between the Father and his son.  In relation to property settlement she seeks an order she receive 70% of the net assets of the parties.  Counsel for the Wife sought to increase this to 80% during the course of his final submissions. 

3.The Husband seeks an Order the property be divided equally.

4.Although in his Amended Response he seeks an order for the child to spend equal time with each parent, in a letter handed up on the final day of the hearing the Husband indicated he was willing to accept an order for supervised contact with his son for such period of time as the Court deemed appropriate.

5.The Court was assisted by the appointment of an Independent Children’s Lawyer.  In the course of final submissions Counsel for the Independent Children’s Lawyer recommended there be no order for contact.

6.The Wife’s Amended Application for Final Orders filed on 23 December 2005 is in the following terms:

“Children

(1)That the child of the marriage, [the child] born […] February 2001, reside with the Mother.

(2)That the Father have no contact with the Child.

(3)That the Mother have the sole day to day care of the Child.

(4)That the Mother have the sole parental responsibility for the long term care, welfare and development of the Child.

(5)That the Father be restrained from contacting or approaching the Child or the Mother whether by telephone, in writing or in person, or directing or authorising a relative or another party to do so.

(6)That the Father be restrained from contacting any school which the Child attends.

(7)That the Respondent Father be restrained from applying for a passport:

(a)   in the name of the Child; and

(b)   in the name of the Father and the Child.

(8)Whether in Australia or any other country, territory and/or republic.

(9)That the Father be restrained from removing or taking the Child out of Australia, or from causing any other person to do so.

(10)That the Australian Federal Police place the name of the Child on the Airport Watch list in force at all international points of arrival and departure in the Commonwealth of Australia and maintain the Child’s name on the Watch List until further Order of the Court.

(11)That the Father be restrained from taking the Child within one kilometre of an International Airport and/or Seaport and/or other place from which aircraft and/or ships depart for international destinations.

(12)That the Mother have leave to serve a copy of these Orders on the Embassy of Malaysia and Singapore in Canberra, each Consulate of Malaysia and Singapore in Australia, with a letter of request, requesting the Consul or Ambassador and his staff at each Consulate or Embassy to co-operate and not issue any passport or travel document/s, so as to enable the Father to remove the Child from Australia, and in that event that such attempt is made by or on behalf of the Father that the Embassy and/or Consulate immediately notify the Registrar of the Family Court and the Solicitor for the Mother of any such attempt to obtain a passport or other travel documents in respect of the Child.

(13)That the Mother be permitted to take the Child overseas for the purposes of a holiday and for that purpose only:

(a)   the Airport Watch shall not apply; and

(b)   the Child be permitted to travel internationally.

(14)That the Husband be restrained from denigrating the Wife whatsoever and to whomever.

Property

(15)The Former Matrimonial Home at [C] and more properly described as Lot […] on SP […] County of […] Parish of […] County (sic) and having title reference number […] (the “[C] Property”), be sold and the proceeds split in accordance with clause 19 herein.

(16)That the Wife be appointed the trustee of the sale of the [C] Property.

(17)That the Wife shall have exclusive occupation of the [C] Property until it is sold.

(18)That the [C] Property be sold by private treaty and in the event that the [C] Property remains unsold after 4 months from the date the (sic) it is placed on the market then the [C] Property is to be sold by auction as soon as possible thereafter with a reserve price to be determined by the Wife.  If the auction fails, the Wife shall place the [C] Property for sale by private treaty until sold.

(19)The net proceeds of sale of the [C] Property shall be distributed as follows:

(a)   in payment of the agent’s commission, if any;

(b)   in payment of the legal costs of sale;

(c)    in payment of any encumbrances affecting the property;

(d)   the amount required to discharge the mortgage in favour of the Westpac Bank;

(e)   the balance to be divided in accordance with subparagraph (t) herein;

(f)     that the Wife receive an amount equivalent to 70% of the net matrimonial assets or such greater proportion as the Court thinks fit and the Husband receive the balance thereof, subject to costs in favour of the Wife.

(20)The amount to be received by the Husband, pursuant to clause 19(f) herein, shall be held on trust by My Solicitors of […] pending the determination of the Wife’s application for costs and such amount of the costs orders to be paid to the Wife from the Husband’s proceeds, or from the Husband as the case may be.

(21)For the purposes of determining the value of the assets the credit card liabilities of each of the parties shall not be included.

(22)The Husband is to provide at settlement of the [C] Property a Release of Mortgage capable of being registered at the Department of Natural Resources and Mines in respect of the mortgage in favour of [Mr L] and the Husband is to accept responsibility for such mortgage.

(23)The Wife is to provide at settlement of the [C] Property:

(a)   a Release of Mortgage capable of being registered at the Department of Natural Resources and Mines in respect of the mortgage in favour of [Mr N] and save and except the provisions of subclause (s) the Wife is to accept responsibility for such mortgage; and

(b)   a Withdrawal of Caveat capable of being registered at the Department of Natural Resources and Mines in respect of a Caveat over the Husband’s interest.

(24)Each party is to accept sole responsibility for any liabilities, debts, claims, actions, suits in their name, whether now or in the future, save and except for amounts in respect of the Wife’s Application for costs.

(25)That, for the purpose of these Orders, the sale of the [C] Property, any ancillary and/or incidental matters effecting the property and the registration of any necessary documents and/or dealings for lodgement at the Department of Natural Resources and Mines, [the wife] is one and the same as [ the wife’s maiden name].

(26)That the parties shall promptly execute all deeds, instruments and contracts of sale necessary to give effect to the terms of these Orders and shall do all acts and things necessary to give validity and operation to the said deeds, instruments and contracts of sale and for that purpose the Husband shall forthwith execute any documents provided to him by the Wife/and or the Wife’ solicitor of the purpose of giving effect to these Orders.

(27)The Wife shall retain all her right, title and interest in and to the 2000 Toyota Camry motor vehicle presently in the Wife’s possession.

(28)The Wife shall retain her items of jewellery and personal possessions for her sole use and benefit absolutely and the Husband shall relinquish any claim and/or interest therein.

(29)The household contents shall be divided equally between Wife (sic) with a list of items being provided and each party to select one item at a time until all items have been allocated save and except that items belonging to the Child shall be retained by the Mother on behalf of the Child.

(30)Save as herein provided each of the parties shall be the sole owner of all other items of personalty and realty including but not limited to bank accounts, shares, policies of life insurance and superannuation, motor vehicles and chattels presently in the possession of that party, and each party shall relinquish against the other all claims in and to such items of realty and personalty.

(31)Each party will do and procure the doing of all things and sign and procure the signing of all documents necessary to give full force and effect to the provisions set out herein:

(a)   in the event that either parties shall fail or neglect to execute all such documents and do all such acts and things necessary to implement the terms of these Orders and that in event of either the Husband and the Wife failing to do so within fourteen (14) days of the written request of the other:

(i)the Registrar of the Family Court of Australia, Brisbane Registry, is appointed and empowered to execute all such documents and do all such acts or things to implement these Orders.  For the Registrar to comply with the powers provided in this clause, it shall be sufficient proof that the Husband or Wife, as the case may be, provide to the Registrar an Affidavit deposing to non-compliance of the other party;

(ii)the party in default shall pay to the other party any and all damages on an indemnity basis caused by the default; and

(iii)the party in default is ordered to pay to the other party all reasonable costs incurred on an indemnity basis by the other party for the purpose of enforcing and proving their damages.

(b)   the recipient of any property transferred pursuant to these orders shall be responsible for the payment of any stamp duty and other charges in relation to that transfer;

(c)    any stamp duty and any penalties attaching to that duty shall be paid on any documents executed pursuant to the terms of these orders by the party receiving the benefit thereof.”

I would have thought a number of the orders sought are unnecessary and/or, repetitious of other orders previously sought.  In some instances (by way of example paragraph (12)) what is sought is not an order but an unenforceable request.

7.As a drafting exercise, if the Court was to make an Order that the Husband have no contact with the child (paragraph (2)) and he is restrained from communicating with the child in any way, an order such as sought in paragraph (11) that he be restrained from taking the child within one kilometre of an international airport or seaport would seem an exercise in overkill.

8.For his part the Husband at trial sought Orders in terms of an Amended Response document filed on 13 March 2006.  In that document the Husband seeks Orders:

“Children

1)That the Child, [a son], born on […] February 2001, has a (sic) joint custody with the Father and the Mother.  That the day and the time to be split equally.

2)That the Child, [a son], has a right to know, contact and reside with each of his parents.  That the right of the Child to be with his parents can not be taken away by either of the parents.

3)That the Child, [a son], has a right to know each of his parents’ culture.  That neither of the parents has the right to influence the Child learning and interest.

4)That both of the parents shall respect the Right of the Child and his interest of learning different culture.

5)That both of the parents shall respect the Child’s Human Right.  That this Natural or Birth Right was given to him from birth that no-one can deprive from him.

6)That the Father and the Mother have the equal responsibility to the Child (sic) needs and cares in his Childhood learning and development.

7)That the Mother has no contact with the Father except for the Child matter and through the independent Third Party.

8)That the Welfare officer and the Church people (one of them must be nominated by the parents) be appointed to visit jointly to each of the Child parents regularly whilst the Child is with him or her to ensure that the Child has received a high standard of welfare and benefits.

9)That the Australian Federal Police be informed that the Child name to be remained and retained on the Airport Watch List at all the departure and arrival points in Australia, this Orders (sic) is to be enforce (sic) until the Child reaches 18 years of age.

10)That the restriction be in place that neither of the party (sic) shall allow to take the Child out of the country without the consent from the other party in writing.

11)That the restriction be in place that neither of the parents will allow to take the Child outside a 300 kilometres radius of the Brisbane Central Business District whilst the Child is reside (sic) with the Father or the Mother without the consent from the other party in writing.

12)That the (sic) both parties be restrained from applying for a passport:

a)in the name of the Child;

b)in the name of the Father and the Child;

c)in the name of the Mother and the Child;

whether in Australia or any other country, territory and/or republic.

13)That the (sic) either party wish to change the Orders on Item (10), (11) and (12) will need to get the consent from the other party and through this court proceeding.

14)That the (sic) both parents have a full responsibility to the Child welfare and education development whilst the Child is residing with his Father or Mother.

15)That the Child has the right to keep his name given to him from birth.  That neither parties has the right to alter his birth name.

16)That neither of the parties shall interferes (sic) the other party (sic) life except for the Child matter.

17)That the both parents should put aside each other difference and give the priority to the need of the Child’s future welfare and benefits.

Property

18)That the Former Matrimonial Home at [C] be split equally for both parties.

19)That each party pays their own legal costs in these proceedings and any other legal proceedings.

20)That the Wife provides a detail list of all the Contents, Jewellery and Other Assets at [C].  That all these assets be split equally for both parties.

21)That the Wife discloses fully the location of any household contents or other assets had been removed from the house at [C] or had been disposed by the Wife.

22)That the Former Matrimonial Home at [C] only be sold when the Wife has provided to this Court and the other party a detail list of all the contents and Other Assets and that the Wife has made a full and frank disclosure of all these assets.

23)That the Husband be appointed the trustee of the sale of [C] Property.

24)That the [C] Property be sold by private treaty and in the event that the Property remains unsold after 12 months from the date it is placed on the market then the Property is to be sold by auction with a reserve price to be determined by the Husband.

25)That the net proceeds of sale of the Property and other assets shall be distributed as follows:

a)     in payment of agent commission on sale, if any;

b)     in payment of the legal cost on sale;

c)   to discharge the loan mortgage in favour of the Westpac Bank;

d)     the balance to be divided equally between both parties, subject to each other pay (sic) their own legal costs in these proceedings and other court proceedings.

26)In determine (sic) of the true value of the whole assets, the following items shall be included in calculating the net value of the assets:

a)     the money and other non monetary items received from [a television network] by the Wife (the Wife shall disclose fully);

b)     the Credit Cards debt of the Husband;

c)   the Contents and Jewellery;

d)     the policies of life insurance;

e)   the Superannuation of each party during the marriage must form part of the assets; and

f)   not limited to bank accounts and shares of each of the parties in possession.

27)That the Wife release immediately all the rest of the Husband (sic) Personal items retained in the matrimonial house (Refer to list attached).

28)That the Husband shall retain all his right, title and interest in and to the 2000 Toyota Camry motor vehicle (Registration no. […]).  That the Wife must restore the ownership title to the Husband which the Wife has transferred to her own name without the Husband (sic) knowledge and Consent.

29)That all the Jewellery shall be split equally and the Wife to provide a full and frank detail list of the Jewellery.

30)In the event of the Wife failed (sic) to disclose honestly and frankly of all the assets available.  The Husband has the right to engage the expert or investigator to search and investigate to locate those assets been removed or sold.  The party in default is ordered to pay to the other party for all the reasonable costs incurred in searching and obtaining this information for the Court.

31)That the both parties liable to any liabilities, debts, claims, actions, suits in their name, whether now or in the future in respect of this legal proceedings and any other legal proceeding in the future.”

9.I assume it is coincidental that the Orders sought by each party are encapsulated in 31 paragraphs.

EVIDENCE PRESENTED

APPLICANT WIFE

10.The Wife relied on affidavits by herself filed on 2 December 2004 and 23 December 2005.  She also relied on a further affidavit filed 23 December 2005 which was referred to by her Counsel as the Wife’s “Document Book”.  The Wife further relied on an Amended Financial Statement filed 23 December 2005. 

11.Affidavits were filed by the following single expert witnesses:

·Mr M a registered valuer who valued the former matrimonial home at C at $590,000.

·Mr P a registered jewellery valuer who valued the Wife’s jewellery at $4,175.

·Mr W of D Company who valued the furniture and chattels of the parties at $10,240.  He also valued the motor vehicle at $9,350 as at 30 June 2006.

12.None of the three single experts was required for cross examination.

13.In addition the Wife relied on an affidavit from Ms T who is a paralegal employed by the Wife’s previous solicitors.  She details a 25 minute conversation she had with the Husband on 16 July 2003 in which she describes the Husband as “crying hysterically” and “behaving in an unbalanced manner”.  This witness was not required for cross examination. 

14.Reliance was placed on an affidavit of Mr K who had translated certain phone conversations which translations are annexed to his affidavit. He, too, was not required for cross examination.

15.In the Wife’s case brief oral evidence was adduced from Ms B, the Wife’s Solicitor.  She challenged the accuracy of the affidavit evidence of Mr S a police officer in the Royal Malaysia Police Force sworn 10 December 2004.

RESPONDENT HUSBAND

16.The Husband relied on affidavits sworn 31 March 2005, 27 April 2005, 30 March 2006 and an additional affidavit of 30 March 2006 which was the Husband’s version of his own “Evidence Book”.  A further affidavit of 21 August 2006 relates to the valuation of the chattels.  In addition the Husband relied on a Financial Statement filed on 30 March 2006.  His only witness was the police officer, Mr S.  The police officer gives evidence challenging the Wife’s evidence of a conversation she claims to have had with the police officer about statements said to have been made by the paternal grandfather.  Ms B who was present in Malaysia at the time corroborates the Wife’s version.  The police officer was not available for cross examination.

17.I do not find it necessary to make a finding on this aspect of the evidence.

18.WITNESSES CALLED BY THE INDEPENDENT CHILDREN’S LAWYER

·Dr V – consultant psychiatrist;

·Ms R – Court mediator/family consultant.

19.In addition a total of nine exhibits were tendered.

20.The matter proceeded to trial before me over a period of four days from 21 August 2006 to 24 August 2006 inclusive.  This hearing was the culmination of many prior listings of this matter which I shall endeavour to summarise.

BACKGROUND FACTS

21.The Husband was born in 1965 in Malaysia.  The Wife was born in 1974 in Asia.  The parties met in late 1996 in Papua New Guinea and subsequently married there in August of 1998.

22.By 2000 the parties were residing in Australia.  In February 2000 they signed a contract to purchase the C land.  The child was born in February 2001.

23.The paternal grandmother visited from Malaysia from December 2000 to June 2001 and again from March 2002 to October 2002.

24.In July 2003 each of the parties became Australian citizens.

25.There were a number of separations prior to the final separation.  In September 2002 the parties were separated for a period of five days.  The child remained with the Husband during that period.  In July 2003 the parties separated for two to three months.  The child remained with the Wife during this period.

26.The final separation occurred on 19 February 2004.  On or about 8 March 2004 the Husband took the child to Malaysia and left the child with his parents in the S region.  In late March 2004 the Husband returned to Australia without the child.

27.On 6 April 2004 the Husband was arrested by State Police on charges of assaulting the Wife and depriving her of her liberty.  The assault involved holding a sharp knife to the throat of the Wife.  There was an additional count of burglary.

28.The Husband was refused bail on these charges.

29.The Wife instituted proceedings in this Court seeking that the child be returned to her care.  On the 6 May 2004 Consent Orders were made which included an Order for the Husband to assist with the return of the child.

30.Whilst on remand the Husband was held at the G Correctional Centre.  All outgoing calls at the Correctional Facility are recorded.  All prisoners are advised at the commencement of any telephone call that such call is being recorded.  The Husband phoned his parents in Malaysia on a significant number of occasions and spoke to them in a Chinese/Malay dialect spoken in the S region of Malaysia.  Presumably the Husband was of the view that nobody could understand his conversations with his parents as so few people spoke this particular dialect.

31.The relevant phone records from the Correctional Facility were subpoenaed.  The subpoena was answered by providing a CD document which had on it the full transcript of the various phone conversations.

32.The Wife engaged Mr K a Brisbane restaurateur familiar with the S region dialect to translate the calls from the CD.

33.The record of the phone conversations which are annexed to Mr K’s affidavit read as part of the Wife’s case reveals that far from the Husband facilitating the return of the child he was active in encouraging his parents to conceal the child’s whereabouts and to fabricate allegations about the Wife’s mistreatment of the child.

34.The matter came before Jordan J who heard a charge of contempt brought by the Wife.

35.On 10 September 2004 his Honour ordered the Husband be detained indefinitely until either the child was returned to Australia or the Husband was able to satisfy the Court he had done all in his power to secure the return of the child.

36.In any event the Husband continued to be detained on the criminal charges as various bail applications were refused.  The Husband persisted with his intention to plead not guilty to the charges. 

37.In October 2004 a Publication Order was made by this Court.  On 18 October 2004 the Wife, her solicitor and a television crew from a Brisbane commercial television station travelled to Malaysia in an endeavour to locate the child.

38.As a result of the stance taken by the authorities in Malaysia to the arrival of the television crew the grandparents agreed to take the child back to Australia.  The child was ultimately returned on 28 October 2004 and reunited with his mother.

39.The Wife was paid $50,000 by the commercial television station for her services in assisting them as she did.  These monies were largely dissipated in payment of the Wife’s legal fees.

40.On the 25 January 2005 Jordan J discharged the Order for indefinite detention.  On 16 March 2005 the Husband pleaded guilty and was sentenced for the various criminal charges arising out of the events of 5 April 2004.  Having regard to the time spent on remand the Husband was released on a suspended sentence.

41.At the present time the Husband has not seen his son for any form of contact for a period in excess of three years.

42.The Wife has been in occupation of the former matrimonial home.  She works part-time.  The Husband has regained full-time employment in the financial sector.

43.In the current proceedings Orders were made for a Family Report and the appointment of an Independent Children’s Lawyer and an Order was also made for DNA testing as the Husband challenged the paternity of the child.  The test established he was the father.

44.On the recommendation of the Family Report writer the Court made Orders for the parties to attend upon Dr V, a consultant psychiatrist.  The Husband initially refused to attend the nominated psychiatrist.  Ultimately after specific orders to such effect the Husband did attend on Dr V.

CHILD RELATED ISSUES

45.A convenient place to commence a consideration of the evidence is the report of Dr V and the report of the family consultant, Ms R.

46.The Family Report is dated 2 August 2005.  Although an interpreter attended the Husband indicated he wished to manage the interview in English (refer paragraph 16).  According to the report writer the husband displayed, “A widely fluctuating emotional state during the interview process”, (paragraph 17).  In relation to the incident of the 5 April 2004 at paragraph 24 Ms R reports as follows:

“24.[The husband] denies any incidents of violence towards [the wife], although he does agree there was some argument and shouting within the marriage.  He denies ever threatening her with a knife, although alleges [the wife] threatened to stab him in mid-2003 and that [the child] witnessed this.  In regards to the incident of March 2004 [the husband] claims that [the wife] goaded him to smash a glass door in order to break into the house in [the Brisbane area].  He was reluctant to provide any further information other than to inform that the charges against him had been dropped, and suggested that I speak to his criminal lawyer if I required any further information.”

It would seem that the reference to the incident of March 2004 should read the incident of 5 April 2004.

47.The facts recorded in paragraph 24 are completely at odds with the objective facts. 

48.For reasons given in her report (paragraphs 40 – 45) Ms R elected not to bring the child into contact with his father as part of the reporting process.  At paragraphs 44 and 45 she records:

“44.I have been reluctant to involve [the child] in an assessment with his father at this point.  While I note that [the husband] has stated he has no intention on (sic) absconding with [the child].  This assessment has elicited a number of concerning factors in his presentation, significantly his externalisation of responsibility for his actions and his lack of insight into ramifications for the child.  Additionally, [the husband] has failed to comply with the previous Recovery Order and the fact of imprisonment did not appear to be either a deterrent or motivator to arrange for [the child’s] return.

45.In my opinion, prior to proceeding further with this assessment, it is important for the Court to make a determination on the degree of risk of further attempts by the father to abscond with [the child] if contact were to be established.”

49.In the course of oral evidence Ms R indicated she had raised with the Husband the prospects of visits with his son at a contact centre.  He indicated to her he was not interested in such a proposal.  His expressed attitude was, “Two hours in a contact centre doesn’t make any difference”.

50.On the basis of her interviews with the Husband, Ms R expressed the view she would be very concerned about unsupervised contact taking place.

51.I accept the evidence of Ms R and the conclusions she has reached for the reasons she has given.

REPORT OF DR V

52.In Dr V’s report he makes no adverse psychiatric observation of the Wife.  At page 9 of the report he records:

“There was no evidence of psychosis and I considered she was of average intelligence, probably high average or above.”

53.At page 10 of the report:

“With respect to the mother, [Mrs Wei], on the data available from both interviews it does not seem that she suffers from any major mental disorder such as psychosis, mood disorder, anxiety disorder or organic mental disorder.

With respect to personality it would seem to fall within the normal range.  The only matter of note is that she seems to have been fairly unassertive with respect to her role in the marriage other than towards the end but this may reflect cultural issues.”

54.Of the Husband Dr V made the following observations (page 9):

“I note that jealousy seems to play an important part in his thinking about his ex-wife and indeed his behaviour and some features of the jealousy has a morbid quality.

I note marked alexithymia in that he has an inability to describe his feelings in words and this is probably more than a reflection of the language difficulty.”

Page 10:

“It seems that he has not as yet resolved or come to terms with the break up of his marriage.  Jealousy seems to play an important role in his attitude to his ex-wife and there is some morbid qualities to the jealousy falling short of delusional jealousy.  One reading of his behaviour of taking his son to Malaysia and returning without him was that he was seeking to force a reconciliation.

With respect to personality there are significant issues although some caution needs to be taken in making statements about personality in a trans-cultural context.  There is significant narcissist traits in that he sees matters entirely from his own perspective.  While he states he regrets his actions he in effect blames his ex-partner for his imprisonment.  His actions could also be considered as showing a lack of empathy for both the mother and child.  I also note significant obsessional traits with a need for control.  He appears to be not just a very emotional man but also a controlling man and moreover there also appear to be some paranoid traits.  He further impresses as an emotionally restricted man with few close relationships and his social support is restricted to members of his Church group.”

55.Under the subheading “Recommendations” Dr V records:

·   “The psychiatric issues of themselves are not such as to disqualify the father from being an appropriate contact parent.

·   A shared care arrangement as proposed by the father is unlikely to be viable.  Such an arrangement would only lead to further conflict to the detriment of the child with a potential for dangerous situations to arise.”

56.I accept the evidence of Dr V, in particular the diagnosis he has made of the Husband.  It is consistent with many aspects of the Husband’s behaviour as detailed in the affidavit material of the Wife.

LAW TO BE APPLIED

57.It is not necessary in a matter such as this to canvass the various factors set out in section 60CC.  I have borne those subsections in mind when considering this matter but as a result of the concession by the Husband in the letter handed up on the final day the only issue is whether there should be supervised contact or no contact at all.  The Court could make an Order for supervised contact to be followed by time spent outside a contact centre with a responsible individual such as someone from the Husband’s Church.  I would not be prepared to advance to that stage until an assessment could take place of the benefits to the child of having supervised contact with his father over a period of a minimum of say, twelve months.

58.There is no challenge to the fact the child will live with his mother and she will be the primary carer.  It is not specifically conceded but where the Husband was only seeking periodic supervised time at the contact centre as detailed in the final letter he produced it is in my view appropriate to give the Wife the right to make decisions involving the child’s long term, care, welfare and development.

59.The decision to be made then is whether there should be no contact as contended for by the Wife and the Independent Children’s Lawyer or some limited time supervised at a contact centre?

60.I do not propose to make any Order for the child to see his father.  I am generally reluctant to make an Order in such terms.  I have no doubt the child had a good relationship with his father prior to the events of March and April 2004.  I have no doubt the Husband loves his son dearly and would do nothing to harm him in a physical sense.  The Wife recognises the importance of the first born male in the Husband’s cultural tradition.

61.Prior to my setting out my reasons for the decision not to make an Order for the Husband to spend time with his son it is necessary to consider certain aspects of the evidence.

THE MISSING PASSPORT

62.In the Wife’s chronology for the  28 October 2004 there is the following entry:

“Mother and [Ms B] saw child’s Malaysian passport in grandmother’s possession at Kuala Lumpur Airport Immigration and Passport Control.”

63.In the Wife’s affidavit at paragraphs 235 – 238 she deposes:

“235. I state that there is a Malaysian passport in the name of my son which is in the possession of the applicant husband and/or the paternal grandmother.

236.I saw the passport in the possession of the paternal grandmother.  When I left Malaysia at Kuala Lumpur Airport, the paternal grandmother handed [the child’s] Malaysian passport to Customs and Immigration at Kuala Lumpur Airport.  I noticed that the Malaysian Immigration Officers were querying [the child’s] passport.  I was immediately next in the queue after the paternal grandmother and I could observe what was happening.

237.On 27 April 2005 the respondent father consented to an order that the father forthwith surrender the Malaysian passport of the child to this Honourable Court.  The respondent husband has not complied with the order.

238.On 18 August 2005 the respondent husband’s solicitors sent a letter to my solicitor advising that his client and the paternal grandmother are unable to locate the passport.”

64.In the Wife’s affidavit at paragraph 240 she deposes:

“240.On 9 December 2005 on an application by the respondent husband his Honour Justice Bell ordered that the respondent husband’s passports be returned to him upon [the child’s] passport being handed into this Honourable Court.”

65.The passport has never been produced. 

66.I find it highly unlikely that the Husband and/or his mother would have misplaced such an important document as the child’s Malaysian passport.  Either the Husband has it or his parents have it.  If the parents have it I am more than satisfied the Husband could arrange for its production and delivery to the Court.

67.I am satisfied steps could be taken to have the passport cancelled but there is an underlying principle involved here.  There is a Malaysian passport issued in the name of the child which in all likelihood is in the possession of the Husband and/or his parents.

68.The view that I take of this aspect is if they cannot be trusted to comply with Court Orders for the delivery of the passport to the Court what basis is there for trusting other assurances put forward by the Husband?

HUSBAND’S FAILURE TO COMPLY WITH ORDERS FOR THE RETURN OF THE CHILD

69.On 6 May 2004 the Husband entered into Consent Orders to, “Deliver up and facilitate the return of the child.”  Not only was this not done, I am satisfied from the taped telephone conversations that the Husband in a duplicitous manner set about doing exactly the reverse namely ensuring that the child would not be returned to Australia and that serious allegations would in turn be made about the Wife’s treatment of the child.

70.In paragraph 113 of her affidavit sworn 23 December 2005 the Wife deposes:

“113.On 26 September 2004 at a hearing before his Honour Justice Jordan the respondent husband stated on oath in response to cross examination by his Honour:

a)that he did not know the whereabouts of the child;

b)that he did not know how to contact the child;

c)his mother and uncle have refused to co-operate with him;

d)that his mother has relocated and disconnected her telephone and that he can no longer contact his mother;

e)that his mother and uncle have refused to advise him of the whereabouts of the child; and

f)that his mother and uncle have refused to co-operate with him in the return of the child to Australia.”

71.The Wife annexes a transcript of the proceedings of 26 September 2004.

72.In paragraphs 121, 122, 123 and 124 of her affidavit the Wife particularises the various phone calls made by the Husband including the date and the duration of each phone call.

73.A number of these phone calls have been translated and are annexed to the affidavit of Mr K.  B36 to that affidavit is a transcript of a telephone call on 10 May 2004 where the Husband is clearly addressing his mother. 

74.Given the blatant nature of the attempts by the Husband to mislead the Court it is difficult to have any confidence in any assurances he is prepared to give the Court at the present time.

EXCLUSIVE OCCUPATION OF THE HOME

75.In the Consent Orders of 6 May 2004 there was a provision for the Wife to have exclusive occupation of the C home.  The Wife deposes that on 14 May 2004 at the Magistrates Court on a bail application the Husband informed the Magistrate that if he was released he intended to live at the C property.  It is possible to conclude the Husband is prepared to make any statement to a Court regardless of its accuracy if he believes it will further his own case.

HUSBAND’S ATTITUDE TO WIFE

76.The Husband both to Ms R and Dr V engaged in deceptive conduct, refused to accept responsibility for his behaviour and continued to criticise the Wife and in effect blame her for his situation.  The Husband did this extensively in his affidavit material.

77.In the course of cross examining the Wife during the trial before me he cross examined her about incidents which occurred in H in Asia when they were holidaying there at the Wife’s parents home.  Clearly he was critical of her failure to properly care for the child at that time.  I am more than satisfied there is no merit in such criticisms.

78.There are numerous references in the evidence to the Husband’s unstable behaviour at times.  A clear example is the affidavit of Ms T where she describes him as, “Crying hysterically” and, “Behaving in an unbalanced manner.”  Ms R (paragraph 17) described the Husband as, “Displaying a widely fluctuating emotional state during the interview process.”

79.A term of imprisonment should be the ultimate deterrent to persuade people not to breach Court Orders.  The history of this matter however reveals that not only was the Husband prepared to spend a period of nine months imprisonment he took no steps during that time to secure his own release.  It is a matter for speculation how long he would have continued in this fashion had there not been the supervening events of the arrival of the Wife and the television crew in Malaysia in October 2004.

80.To make an Order for contact I am satisfied would produce considerable fear and apprehension in the Wife.  She has a genuine fear the Husband will abduct the child.  She is equally concerned that the Husband would denigrate her to the child.  She has concerns for her own safety.

81.All of these fears I am satisfied are reality based.

82.There are certain paranoid features in the Husband’s behaviour as noted in Dr V’s report.  But one example of this is the Husband declining to reveal his address to Ms R.  Many of his accounts of events also have a paranoid quality about them.

HUSBAND’S CONTROLLING BEHAVIOUR

83.One week after his release from prison the Husband attended at the Magistrates Court to take out a Domestic Violence Order against the Wife.  The Husband’s explanation for this was that he was prohibited from coming into contact with the Wife but he had concerns from what he had been informed that the Wife would attempt to contact him, presumably to deliberately lead him into breaching the restraining orders.

84.In relation to that application (refer Wife’s Document Book page 136) in response to a question on the Protection Order Application Form:

“Why do you believe that domestic violence is likely to occur again or is a threat likely to be carried out.”

The Husband wrote:

“The respondent is a psycho.  She cannot handle the stress and pressure.  The respondent is still looking for the opportunity to make false accusations against me and hurt me.  I believe she will do it again if she has a chance.  I also (sic) afraid her brother who is currently living with her will come to hurt me because he did that before in November 2003 when I was in [H in Asia].  The respondent and I are still married but separated.  I want to be protected from her and her brother coming near to me.  I afraid (sic) she will attempt to falsely accuse me again because I discovered her immoral conduct with another man.”

85.For her part the Wife expresses concern that the Husband has knowledge that her brother was residing at her residence.

86.In paragraph 218 of her affidavit the Wife says:

“218.The respondent husband refers to my brother who was staying at my home in his Application for Protection.  My brother is a Seminarian in the Catholic Church […] He is a gentle and religious person and not a threat to the respondent husband.  I believe that the applicant has been spying on me or stalking me or he has a third party do so on his behalf as he is aware that my brother is staying at my house despite a Domestic Violence Order issued on 6 April 2004 and the No Contact Order issued in the District Court on 16 March 2005 both for my protection.”

87.In the typed statement handed up by the Husband on the final day – to which earlier reference has been made – the Husband says:

“Secondly I would like to express my sincere regret for the mistake I have done two years ago.  I also very (sic) regret for the loss, pain and suffering which was incurred on my son and his mother.  Your Honour, I do not know how to express my remorse to the mother in words properly for the mistake I have made, but deep inside my heart I really felt remorse for my misconduct.

In the last three days I might have said many things unintentionally about the mother, but it was never be (sic) my intention to say something of the mother to discredit her.  I just try to explain the situation and to claim how much I have devoted to the son, nothing more than that.  Due to my inadequate language expression, I did not realise that by explaining what was happening in the past have caused people in this Court to form an opinion that I will still say something bad about the mother and will still think of doing something bad.  I admit I am not a law expert and also unexperienced with the Court procedures.  Certain words and phrases I used might caused people (sic) misinterpret my true meaning.  I have never been to the Court prior to this matter happened (sic).”

88.The Husband in his affidavit material says he was unaware he was breaching the laws of Australia when he took his son to Malaysia.  I reject such a claim out of hand.

89.If the Husband by chance was unaware of the laws of Australia, certainly by the time Justice Jordan was making Orders in May 2004, the Husband could be under no illusion whatsoever as to what the position was.  He continued to blatantly defy the Orders of the Court and to actively engage in conduct to frustrate the Orders of the Court.

90.In relation to the statement quoted above it was not just in the last three days that the Husband was saying, “Things”, about the mother.  Such allegations permeate every aspect of the evidence in this case.  It is to be seen in the report of Ms R, in the report of Dr V, in the Husband’s affidavit and in his cross examination of the Wife.

91.I reject any claim such behaviour was “Unintentional”.  I reject the Husband’s explanation that such behaviour was somehow due to his poor English language skills.

92.As the Wife notes in her affidavit the Husband was educated for two years in the Republic of Ireland. He completed his tertiary qualifications in Australia.  He worked in the finance sector in a North Queensland office presumably where only English was spoken.  He worked in a professional office in Brisbane where only English was spoken.  He spoke English to the Wife and the child at all times during the relationship.

93.The Husband does speak with a pronounced accent.  It is difficult at times to understand what he is saying.  One of the few pieces of evidence given by the Husband which I would be inclined to accept is his claim when the parties had arguments during the course of the relationship the Wife would taunt him over his poor pronunciation.  This assertion has a ring of truth about it.

94.Notwithstanding his poor pronunciation the fact of the matter is the Husband has quite a sound knowledge of English.  It is fatuous on his part to now assert his numerous complaints and allegations about the Wife are the result of language difficulties.

95.I have given consideration to allowing the Husband to receive information about his son’s progress via school reports, school photos and a requirement that the Wife inform him of any health problems of the child.  It is obvious such Orders would be for the Husband’s benefit, not the child’s benefit.  In my view the provision of such information would be likely to disturb the Husband and possibly cause him to once again react in a highly emotional state.

96.I have given consideration to allowing communication from the Husband to the child other than by personal contact for example by email, letters, gifts and possibly phone calls.

97.The view that I have formed is that it is likely to cause psychological disturbance to the child where he knows his father is wanting to see him but can only communicate by post or phone.  In any event particularly with phone calls it would be difficult to monitor precisely what the Husband is saying to the child.  I have little doubt that in an agitated or highly emotional state he could not control himself and would make denigrating statements about the Wife.  In all of the circumstances I am not satisfied such communication by the Husband to the child if he availed himself of such communication would be in the child’s best interests.

98.If the Husband was to commence to act in good faith by returning the missing passport and by assisting in the financial support of the child (with or without the necessity for the Wife to lodge an application for child support) then as the child grows older and more independent the Court would be likely to review the issue of permitting the Husband to spend time with his son.

99.Until that time comes to pass I am not satisfied an Order for the Husband to spend time with his son at a contact centre is in the best interests of the child.

100.In summary form my reasons for so concluding are:

·I would be concerned the Husband may engage in some attempt to abduct the child if he became emotionally overwrought at any stage.

·Any such Order would be likely to instil considerable fear in the Wife and impact upon her capacity to parent.

·If such limited contact is for any reason discontinued it is likely to have an adverse impact upon the child.

·The Husband is a very emotional man.  It is highly likely he would be unable to control his emotions in a supervised contact setting.  This would be likely to cause distress to the child.

101.I note that this decision is in accord with the recommendations of the experienced Independent Children’s Lawyer.

102.I do not see any point in making Orders in terms of paragraphs 11, 12 and 14 of the Wife’s application.  In relation to paragraph 13 of the Orders she seeks, if the Wife intends to take the child out of the jurisdiction for any reason she should make application at the appropriate time detailing the plans for such travel including the destination and the time she intends to be away.

103.I will make Orders in terms of paragraphs 1 – 10 inclusive of the Wife’s application with appropriate amendments to reflect recent changes in the legislation.  I note in relation to the amended response document that Counsel for the Wife did not oppose an Order being made in terms of paragraph 15 namely, “That the child has the right to keep his name given to him from birth.  That neither parties has a right to alter his birth name.”

104.In the circumstances I will make an Order that the Wife is not to change the name of the child without specific permission of the Court.

PROPERTY SETTLEMENT

105.The assets and liabilities of the parties are set out in paragraph 11 of the Wife’s affidavit filed on 23 December 2005.  An amended asset schedule was handed up by Counsel for the Wife during the course of final submissions.

106.It is in the following terms:

“                 [The parties’] Asset Schedule (Wife)

[C property]  $590,000

Furniture and chattels  $  10,240

Toyota Camry  $    9,350

Jewellery  $    4,175

Bank account: Husband

Wife

Superannuation: Wife        S Super  $  22,135

O Super  $      428

Add back – Husband – Westpac Account Singapore                $  32,583

$668,911

Liabilities

Mortgage  $141,445

Net Assets  $527,466”

107.The asset schedule does not include $50,000 the Wife received from the commercial television station after participating in the trip to Malaysia.  Of this sum I accept the Wife received $17,200 with the balance being expended on the costs of her solicitors, barrister and the translator.  The Husband made no contribution to the sum of $50,000 the Wife received other than in the perverse sense that but for his illegal conduct the Wife would not have received the amount.

108.The Wife has had no financial support for the child from the Husband in the period since separation.

109.In the exercise of my discretion I do not intend to bring the sum of $50,000 into account.

110.The Wife in her affidavit material states the possibility of the Husband owning property in Malaysia.  At paragraph 174 of her affidavit the Wife deposes:

“174.Whilst in Malaysia I caused enquiries to be made as regards possible real property owned by the respondent husband.  Two addresses were located in Malaysia under the name of [the husband].  One address was in [the S region] and the other address was in [the K region].  I drove to the property in [the S region] and I saw a very large house.  I do not know if the respondent husband owns this property but I recall the respondent husband telling me during the marriage that he had inherited property from his grandmother.”

111.I have no confidence whatsoever in the Husband’s credibility.  I am unable to conclude whether he owns property in Malaysia.  He may well do so but I am not in a position to be able to make such a finding.

112.Exhibit 5 consisted of a statement from Westpac Banking Corporation of 12 January 1999 which shows in the Singapore branch of the Westpac Banking Corporation as at January 1999 the Husband had a fixed deposit or deposits totalling in excess of $126,000.  From the dates of the deposits the amounts held could be as high as $186,000.

113.I am unable to conclude precisely what happened to such funds but it is likely a considerable part of the funds were used to purchase the C land and pay for the subsequent construction of the house on that block.

114.In the Husband’s affidavit affirmed on 30 March 2006 at paragraph 10 the Husband deposes as follows:

“Financial contribution to property, car and household contents

10.The following lists are an estimate amount of the initial contribution made by me up to the period ended on 30 June 2001.  Any contribution to the purchase of additional household contents and loan repayments has not been taken into account as follows:

Purchase of land  $100,113

Construction costs - GW Homes  $191,018

Inground pool  $  25,000

Concreting and timber fences  $  10,000

Driveway and pathway  $    5,000

Landscaping  $    4,000

Pool fence, front fence and gates  $    2,500

Security window and doors  $    3,500

Carpet laying  $    3,000

Tiles  $    4,500

Lightings  $    9,000

Air-conditioners with labour  $    3,000

Furnitures and household contents  $  40,000

Patio  $    2,500

Car –Toyota Camry  $  28,000

$431,131

Paid by Westpac Mortgage  $150,000

Total cash contribution made by me as at 30 June 2001                  $281,131

All my salary has been used to pay for the home loan repayment and other household expenses.”

115.Exhibit 4 is another document from Westpac Banking Corporation 29 March 2004 which would reveal a deposit by the Husband in the Singapore branch of the Westpac Bank of $32,460.

116.I note that the document makes reference to the bank holding special instructions numbered … and ….

117.No attempt was made to subpoena this material via the Westpac Bank in Australia or direct to the Westpac Banking Corporation in Singapore. 

118.Counsel for the Wife submitted that I should bring this amount into account.  The Husband was unable to give any adequate explanation as to the disposition of such funds.

119.There would certainly seem to be a suggestion that such deposit was not a one off transaction but I am unable to make a finding one way or the other on that aspect.

120.I will accede to the submission that the deposit in question be brought into account as an asset of the Husband.

AMENDMENTS TO ASSET SCHEDULE

121.In the Wife’s list of assets her two superannuation funds have been included.

122.I note the Husband filed an amended Financial Statement on 30 March 2006.  In that document he discloses two superannuation funds as follows:

“A Super  $3,209

U Super   $2,630”

123.On the final day of the hearing the Husband handed up a schedule of assets.  There were significant differences with the schedule handed up by Counsel for the Wife but it was in the same format.  The Husband included the $50,000 the Wife received from the Brisbane TV station.  He also included his credit card liabilities of $9,254.

124.He includes his own superannuation as follows:

“A Super   $3,209

U Super (estimate)              $6,050

Total  $9,259”

125.It is not fair to include the value of the Wife’s superannuation funds as a notional asset and not treat the Husband’s in the same fashion.  Accordingly I will add the sum of $9,259 to the asset schedule.

126.The main disputation from the Husband was that many of the items set out in Mr W’s valuation should be returned to him.  The Husband also sought that he receive the motor vehicle.

127.As the Wife has had the use of the vehicle for some time now and presumably uses the vehicle for transporting the child for various activities I would not be inclined to transfer the vehicle to the Husband.

128.Apart from including a value for the Husband’s superannuation funds as disclosed by him in the Husband’s asset schedule document he discloses cash of $2,500.  This document was handed up as at the final day of the hearing.  I see no reason why this amount should not also be added to the total list of assets.

129.I do not propose to include the credit card liabilities of $9,254 as sought by the Husband.  He adduced no evidence to show when the credit card debts were incurred or the nature of the expenditure incurred.  If it was solely for his benefit or related to expenses incurred in the abduction of the child the Court would not countenance taking such liabilities into account.

130.The parties have been separated now for a significant period of time.  Absent the Husband adducing evidence of the nature of the credit card liabilities I am not minded to bring them into account as sought by him. 

CHATTEL ITEMS

131.The chattels are listed, as previously noted, in the valuation of Mr W.  The Husband swore an affidavit on 21 August 2006.  At page 1 of that document under the heading – “House contents – at the C Property he notes the following:

“Lists of the items are in possession of the property.  The preparation of these lists is based on my best knowledge and recollection at the time I prepared it and do not exclude any items which might come to my mind at the later stage.  I state that I have not been accessed (sic) to the property nor do I have an opportunity to sight the items when these lists are prepared.

The items underlined indicate that these items have not been disclosed by the applicant to the valuer at the time of the valuation.  Nor do I have given (sic) an opportunity to say or sight the physical items before the valuer signed off for his or her valuation report.”

132.The items underlined include, “A high chair for my son”, “A baby car seat for my son”, “Car seat booster for my son”, “Pram for my son”, “Playing cot for my son”.  I note that a white cot was valued by Mr W at $200.  How many cots the child had as an infant is not otherwise disclosed.

133.The child is now aged six.  It is highly unlikely he has any need for these items nor in the present circumstances do either of the parents.  It is unlikely they have any significant value.

134.Item 52 in the Husband’s list is a JVC video recorder.  It would appear to be the same item of this description set out in Mr W’s list.

135.It is possible that the Wife has disposed of the various items underlined in the Husband’s list and/or has not provided for such items to be valued but in the absence of better evidence I am only prepared to bring into account the items set out in the valuation of Mr W.

JEWELLERY ITEMS

136.In relation to the jewellery items Counsel for the Wife handed up Mr P’s list and the Wife has indicated she is prepared for the Husband to have items 7 containing four items, a dress ring valued at $350, another dress ring valued at $240, a wedding ring valued at $150 and another wedding ring valued at $160.

137.For my own part I certainly would not have made an Order for the return of wedding rings but the Wife through her Counsel has agreed to the return of those items.  I will be making an Order to that effect.  I will bring those items into account at a value of $750 to be credited to the Husband.  What use the Husband is going to have for a 5.6 mm wide wedding band which is inscribed “[the wife’s maiden name]” is a matter for conjecture.

138.The Wife has also taken the list of D Company and indicated the items she wishes to retain by putting the initials of the wife next to same and the items she is prepared to give to the Husband the initials of the husband.  Items marked with an asterisk appear to be items not wanted by either party at the value ascribed to them by Mr W.

139.The value of items to be transferred to the Husband totals $3,195. 

140.The other items marked with an asterisk can be forwarded to the Husband and he will be credited with them at the value attributed by Mr W whose evidence was not challenged.

SECTION 79 FACTORS

141.The Husband says that he introduced cash to allow for the construction of the home.  I have previously quoted from the Husband’s affidavit where he says the total cash contribution amounted to $281,131 (paragraph 114 hereof). 

142.In paragraphs 22 and 23 of an affidavit affirmed on 30 March 2005 the Husband deposes:

“Financial Support to the Respondent Wife Since 1997

22.I had provided financial support to the respondent wife about two months after we became friends.

23.     I believe I am able to prove that:

a)I gave the respondent wife a sum of about $50,000 to solve her family financial problems in [H in Asia] during the period of 1997 and 1998.

b)I had spent a sum of not less than $50,000 during our holidays in Australia, Malaysia, Singapore Papua New Guinea and  [H in Asia] during the period of 1997 to 2003.

c)I had paid for her rent, all the utility bills and daily living expenses with a sum of about $2,000 per month.

d)I had spent with a sum (sic) of not less than $300,000 to buy the land and the house located at [C].

e)I had spent $28,000 to buy Toyota Camry Model 2000 (Registration no. […]) in November 2000.

f)I had spent a sum of not less than $100,000 to buy all the household contents for the house at [C].

g)I had spent a sum of not less than $30,000 in jewellery (sic).

h)I had spent a sum of not less than $5,000 to buy refrigerator, cooking stove, washing machine, cooling fans, cooking pots and pressure cooker for her family in [H in Asia] in October 2003.

i)I had spent a sum of not less than $500 to buy the clothes and shoes for her family members in [H in Asia] in October 2003.

j)I had spent a sum of not less than $600 to buy the foods for her family and ours when we were in [H in Asia] in October 2003.”

143.The Husband adduced no evidence of forwarding anything like the sum of $50,000 to members of the Wife’s family in H in Asia.

144.In the exhibits that were produced by the Husband as exhibit 8 there is evidence of sending the sum of $529 on 5 August 2003 and the sum of $300 on 7 August 2003.

145.The Husband works in the financial sector.  He should have better records or be able to subpoena bank records which would provide evidence of the claimed transfers.  Again the Husband was unable to adduce any evidence of expending $50,000 for holidays.  Presumably credit card records would be able to establish this.

146.I note that the Husband did have money and the C property was acquired with a modest mortgage.  The Wife did not contribute in any significant way to this capital item.  I accept that the Husband in all likelihood purchased the Toyota Camry.

147.I am extremely sceptical of the Husband’s claim that he spent $100,000 purchasing the contents for the house at C.  The Husband’s claims of $30,000 in jewellery for the Wife is not reflected in Mr P’s valuation.  I can simply observe that of the monies the Husband says he expended it would seem to far exceed what the Husband’s relatively modest income has been as an accountant.  At the present time he says his income is $46,000 gross per year.  Even allowing for a person being of frugal nature I find it difficult to accept he has been able to make all of these significant claims for expenditure as set out in paragraph 23 quoted above.

148.The Husband says his non-financial contributions to the property include building up the house garden, doing regular maintenance of the garden and mowing, doing all of the repairs and maintenance for the house and being the sole and the primary handy man in the house (refer paragraph 11 of Husband’ s affidavit affirmed 30 March 2006).  It is likely he made some contribution in this regard but I do not intend to place any great weight on this fact having regard to my finding about the Husband’s credibility generally and the relatively short period of the relationship.

149.The Wife’s claims for contribution are set out in a Summary of Argument document filed 15 August 2006.  The Wife notes that cohabitation was for a period of 5.5 years.  Both parties worked during the marriage.  The Wife was the primary homemaker during the marriage.  The Wife was the primary carer for the child during the marriage.

150.The Wife seeks a weighting of her contributions on the basis of the, “Kennon principle”.  I am not minded to make such an Order.  There was a serious assault incident on the 5 April.  It is possible the Wife may be able to make a claim for criminal compensation under State legislation.  I do not doubt the Wife’s claims of domestic violence and controlling behaviour by the Husband but the case as presented did not amount to one that would persuade me it comes within the relatively narrow band of cases provided for in the decision of Kennon.

151.I accept that the most weighty aspect of the Wife’s contribution has occurred post-separation.  She has paid all of the outgoings on the former matrimonial home.  She has paid the mortgage instalments at a time when there has been a sharp increase in property values throughout south east Queensland.  The Husband would have been unable to make any such payments because of his period of nine months imprisonment but apart from that particular period has not offered to contribute in any way.

152.The Wife had the expense of the sole care of the child from the date of separation without any financial support from the Husband.  It is likely that the Wife will have the majority of the cost of supporting this child in the future. 

153.On account of section 79 factors I am minded to award the Husband 70 per cent of the net assets and the Wife 30 per cent.  The reason for the heavy weighting in favour of the Husband is the fact that I am satisfied he contributed a large cash injection to the C home and also paid for the motor vehicle.

SECTION 75(2) FACTORS

154.On account of section 75(2) factors I am minded to make a significant adjustment to the Wife in the order of 30 per cent.  The parties are relatively young.  The Husband has a greater earning capacity than the Wife.  The Wife will have the major cost of contributing to the child’s upbringing in the future.

155.Both parties are in good health.  I am satisfied that a significant weighting on account of the Wife’s future needs is justified.

156.I am satisfied that a distribution of assets 60 per cent 40 per cent in favour of the Wife is a just and equitable result.

CALCULATIONS

157.Net assets as revealed in schedule produced by

Counsel for the Husband  $527,466

Adjustments to schedule:

Add Husband’s superannuation  $   9,259

Husband’s bank account  $   2,500

Total  $539,225

Wife’s entitlement at 60 per cent  $323,535

158.Wife is to receive:

Former matrimonial home  $590,000

Less mortgage  $141,445

Equity in former matrimonial home  $448,555

Car  $    9,350

Jewellery  $    3,425

Furniture  $    3,440

Superannuation  $  22,563

Total  $487,333

Wife’s entitlement  $323,535

Wife to pay Husband  $163,798

Husband’s entitlement:

Net value of assets  $539,225

Husband’s entitlement at 40 per cent  $215,690

Husband to receive:

Westpac Singapore funds  $  32,583

Superannuation  $    9,259

Bank account  $    2,500

Jewellery  $       750

Furniture pool 1  $    3,195

Furniture pool 2  $    3,605

Payment from Wife  $163,798

Total              $215,690

159.The Court was asked to make Orders freezing any payment to the Husband until the issue of costs can be disposed of.

160.I note that the Husband’s previous solicitors, E Lawyers forwarded a letter to the Registrar on 15 August 2006 claiming to be owed approximately $30,000 by the Husband.  It is my understanding that this firm has registered a second mortgage on the C property.

161.Clearly this is a liability of the Husband.  I have not brought it into the account for the same reason I have not brought the Wife’s legal liabilities into account.

162.Whether the Husband’s liability to E lawyers should receive priority over any liability of the Husband to the Wife for costs is a matter for further submissions.

163.The Orders sought by the Wife provide for the sale of the home.  It is possible the Wife may be able to raise the amount to pay out the Husband.  It may be that she is able to offset such amount by way of costs.  However having regard to the Wife’s financial circumstances it is likely the home will have to be sold to pay overall legal fees.

164.I will at this stage note the Orders as being in draft form only.  Final Orders will issue only after the issue of costs is determined.

DRAFT ORDERS

Children

(1)That the child of the marriage born … February 2001, live with the Mother.

(2)That the Father have no contact with the Child.

(3)That the Mother have the sole day to day care of the Child.

(4)That the Mother have the sole parental responsibility for the long term care, welfare and development of the Child.

(5)That the Father be restrained from contacting or approaching the Child or the Mother whether by telephone, in writing or in person, or directing or authorising a relative or another party to do so.

(6)That the Father be restrained from contacting any school which the Child attends.

(7)That the Respondent Father be restrained from applying for a passport:

(a)   in the name of the Child; and

(b)  in the name of the Father and the Child.

whether in Australia or any other country.

(8)That the Father be restrained from removing or taking the Child out of Australia, or causing any other person to do so.

(9)That the Australian Federal Police place the name of the Child on the Airport Watch list in force at all international points of arrival and departure in the Commonwealth of Australia and maintain the Child’s name on the Watch List until further Order of the Court.

(10)The Wife is not to change the name of the Child without specific permission of a Court to do so.

Property

(11)The Former Matrimonial Home at C and more properly described as Lot … on SP … County of … Parish of … County and having title reference number … (the “C Property”), be sold and the proceeds divided in accordance with these Orders.

(12)That the Wife be appointed the trustee for the sale of the C Property.

(13)That the Wife shall have exclusive occupation of the C Property until it is sold.

(14)That the sale procedure of the C property shall be as follows:

(a)it is to be listed for sale by private treaty for a period of two (2) months;

(b)the selling agent shall be as determined by the Wife;

(c)the list price shall be $590,000 or such lesser sum as the parties may agree or as may be ordered by the Court;

(d)if not sold within two (2) months as provided for in (a) herein the property is to be auctioned within a further six (6) weeks by an auctioneer appointed by the Wife.  The reserve price for the auction shall be as determined by the Wife.

(15)The net proceeds of the sale of the C property shall be distributed as follows:

(a)in payment of the agent’s commission and auction fees, if any;

(b)in payment of the legal costs of sale;

(c)the amount required to discharge the mortgage in favour of the Westpac Bank;

(d)the balance to be held on trust by My Solicitors of … pending the determination of the Wife’s application for costs and such amount of the costs order to be paid to the Wife from the Husband’s proceeds.

(16)Each party is to accept sole responsibility for any liabilities, debts, claims, actions, suits in their name, whether now or in the future, save and except for amounts in respect of the Wife’s application for costs.

(17)The parties shall promptly execute all deeds, instruments and contracts of sale necessary to give effect to the terms of these Orders and shall do all acts and things necessary to give validity and operation to the said deeds, instruments and contracts of sale and for that purpose the Husband shall forthwith execute any documents provided to him by the Wife and/or the Wife’s solicitors for the purpose of giving effect to these Orders.

(18)A Registrar of the Family Court of Australia is appointed and empowered to execute all documents and do all such things to implement these Orders in the event that the Husband fails to do so within a period of fourteen (14) days of being so requested.

(19)Save as provided for in the Orders each party is to stand possessed of all chattels and other property in their respective names.

I certify that the preceding one hundred and sixty four (164) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Barry

Associate 

Date:  9 May 2007

IT IS NOTED that publication of this judgment under the pseudonym Wei & Wei is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)