WU & YANG

[2015] FCCA 2074

FEDERAL CIRCUIT COURT OF AUSTRALIA

WU & YANG [2015] FCCA 2074

Catchwords:
FAMILY LAW – Children – Parenting Orders – best interests of the child – parental responsibility – sole parental responsibility – violence issues – family violence – protection of the child from family violence.

FAMILY LAW – Property – application for property settlement.

PRACTICE AND PROCEDURE – Undefended hearing – where no appearance by the Respondent.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 79, 106A

Federal Circuit Court Rules 2001, r.13.03C, Part 22

Cases cited:
Bevan & Bevan [2013] FamCAFC 116
Black & Kellner (1992) 15 Fam LR 343; FLC 92-287
Hickey & Hickey [2003] FamCA 395; (2003) 30 Fam LR 35; FLC 93-143
Kowaliw & Kowaliw (1981) 7 Fam LN 13; FLC 91-092
Stanford v Stanford [2012] HCA 52; (2012) 47 Fam LR 481; FLC 93-518
Townsend & Townsend [1994] FamCA 144; (1995) 18 Fam LR 505; FLC 92-569
Watson & Ling [2013] FamCA 57

Weir & Weir (1993) 16 Fam LR 154; FLC 92-338

Applicant: MS WU

Respondent: MR YANG

File Number: PAC 4351 of 2014

Judgment of: Judge Scarlett

Hearing date: 20 July 2015

Date of Last Submission: 20 July 2015

Delivered at: Sydney

Delivered on: 20 July 2015

REPRESENTATION

Counsel for the Applicant: Mr Ford

Solicitors for the Applicant: Juris Cor Legal

Respondent: No appearance

ORDERS

1. The Applicant is granted leave to proceed ex parte.

2. All prior Orders are discharged.

3. The Applicant Mother is to have sole parental responsibility for the child X born (omitted) 2011.

4. The child X is to live with the Mother.

5. No parenting order is made in favour of the Respondent Father.

6. The Respondent is to sign all documents including a Discharge Authority and Transfer and do all acts and things necessary to transfer all of his right, title and interest in the property located at Property W in the State of New South Wales more particularly described in folio identifier (omitted) (hereinafter referred to as “the Property W property”) to the Applicant and the Applicant is to assume all liability for and indemnify the Respondent against all payments for the debts, rates, taxes and outgoings of or with respect to the property.

7. Simultaneously with the immediately preceding Order, the Applicant is to refinance the mortgage secured on the title to the Property W property into her sole name.

8. Within forty-two (42) days from the date of these Orders the Respondent must pay to the Applicant the sum of $150,000.00 and interest at the rate prescribed by Part 22 of the Rules shall accrue on any amount outstanding more than forty-two (42) days from the date of these Orders.

9. Other than as is specifically provided for in these Orders the parties are solely entitled to the exclusion of the other to all real and personal property, chattels and assets including but not limited to all monies standing to the credit of either of the parties in any bank or building society, share holdings, motor vehicles, superannuation entitlements and any present or future expectation under a trust or order and each party shall indemnify and keep indemnified the other with respect to any liability arising from the proprietorship of any property chattel or asset retained by them by reason of the operation of these Orders.

10. If either of the parties refuses or neglects to do all acts and things or execute all such deeds, documents or instruments as are necessary to give effect to these Orders, a Registrar of the Federal Circuit Court of Australia at Sydney is appointed under Section 106A of the Family Law Act 1975 to execute all such deeds, documents or instruments in the name of the party in default and to do all such things necessary to give validity and operation to the said Orders upon the Registrar being satisfied of such refusal or neglect by either of the parties by way of Affidavit evidence only and the party in default shall be liable to pay the other party’s costs and disbursements.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

PAC 4351 of 2014

MS WU

Applicant

And

MR YANG

Respondent

REASONS FOR JUDGMENT

Application

1. This is the matter of Wu & Yang.  The Applicant is Ms Wu and the Respondent is Mr Yang.  This is an application by the Mother for parenting orders and for property orders. 

2. The Father has not filed a Response or any affidavit or financial statement.  He has not attended court.  The matter has been listed for an undefended hearing.  The Mother has attended court, accompanied by her barrister, Mr Ford, and her solicitor. The Mother has given evidence in the witness box. 

3. In respect of the parenting matters, the fact is that the parties had one child of the marriage, X, who was born on (omitted) 2011.  That child lives with the Mother and has done so all his life.  She has been his primary caregiver.  The Father has not spent time with the child for about a year and has spent no overnight time with the child at all.  He did, on the Mother’s evidence, turn up at the house on one occasion and ask to spend time with the child.  He is not playing any regular part in the child’s life and it is unlikely that the child would know him. 

4. On the property side, the mother gave evidence about the fact that when the parties separated, the father took the sum of $335,000 from the parties’ joint bank account.  She has had no contact with him since then.  The Mother relies on her affidavits of 20^th March and 16^th May 2015 and her affidavit of service.

Background 

1. The parties met in (country omitted) in (omitted) 2009 and were married in (country omitted) on (omitted) 2010.  The Mother at that stage had assets totalling an estimated $154,000. 

2. On 31^st August 2010, the parties opened a joint account with the (omitted) Bank and the Mother deposited that sum into the bank.  In September of that year, they purchased a property at Property W for $610,000, together with stamp duty.  It was partly financed by a mortgage to the (omitted) Bank of $488,000.  The Mother estimates that she paid some $25,424 per year by way of mortgage repayments but that the Father or his family contributed larger sums totalling $350,987. 

3. It is the Mother’s evidence that the marriage broke down after the parties quarrelled in early 2012.  In June of that year, the Mother returned from work to find that the Father was missing and all the jewellery and valuables, worth approximately $20,000, had gone, along with some documents.  When the Mother checked the bank account, she saw that $335,000 had been transferred from the joint account to the Father’s personal bank account. 

4. The Mother spoke to the Father on 22^nd September 2012 and he conceded that he had taken that money.  He sought to reconcile with her.  In October of 2013, the Father contacted the Mother, wanting to see the child X.  The Mother was concerned about the Father’s tendency towards violent behaviour and observed in (omitted) of 2014 the Father pushing her mother, i.e. the child’s maternal grandmother. 

Applications for parenting orders

1. When dealing with parenting matters, the court is required to consider the matters set out in Part VII of the Family Law Act 1975 (Cth), particularly:

   a)section 60B of the Act, which contains the objects and principles of Part VII;

   b)section 60CA, which provides that the best interests of the child must be the paramount consideration;

   c)section 60CC, which assists the court in determining what are the child’s best interests, section 61DA, which requires the court to apply the presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for the child; and

   d)section 65DAA, which applies where a court makes an order providing for equal shared parental responsibility and requires the court to consider whether it is both in the child’s best interests and reasonably practicable for the child’s parents to have equal shared care of the child or whether, in the alternative, it is in the child’s best interests and reasonably practicable for the child to spend substantial and significant time with each parent.

2. I am not satisfied on the evidence that the presumption of equal shared parental responsibility applies.  The mother has given evidence of violence and, indeed, has tendered a copy of a Final Apprehended Domestic Violence Order made by the Local Court of New South Wales at the Downing Centre in Sydney on 25 June 2014.  That order was in place for a period of 12 months and has only recently expired.  The Court made the standard orders against the respondent father and further ordered that he must not enter the premises where the mother may from time to time reside or work or other premises, including the property at Property W.

Conclusions 

1. I find that the presumption of equal shared parental responsibility does not apply and, accordingly, the provisions of section 65DAA of the Family Law Act 1975 do not apply.  I propose to make an order that the mother should have sole parental responsibility for the child X, born on (omitted) 2011.  I am satisfied that it is in X’s best interests for him to live with the mother.  The father has played an extremely limited role in the child’s life.  He has shown no interest in these proceedings.  I propose to make no parenting order in favour of the respondent father.  If he wishes to spend time with his child, he will need to make arrangements with the mother or he will need to bring his own application to the court.

Property Application 

1. I deal now with the questions of property settlement. The proper approach to determination of a property application under section 79 of the Family Law Act 1975 is, first of all, for the court to follow the principles set out by the High Court of Australia in Stanford v Stanford[1].  The court must consider the requirement in subsection 79(2) of the Act that prescribes that the 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. 

   [1] [2012] HCA 52; (2012) 47 Fam LR 481; FLC 93-518

2. The High Court held in Stanford at [37] that the court must identify the existing legal and equitable interests of the parties in the property. Though section 79 confers a broad power on a court to make a property settlement order, it is not a power that is to be exercised according to an unguided judicial discretion. The third principle and perhaps the most important, whether making a property settlement order is just and equitable, is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property, which is fixed by reference to the various matters, including financial contributions set out in subsection 79(4).

3. Thus, the decision in Stanford means that the court must consider the requirements of subsection 79(2) before embarking on the four-step process set out in Hickey & Hickey[2].  In Hickey, the Full Court of the Family Court set out a process of four interrelated steps that must be taken by a court when determining a property application:

   Firstly, the court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing.  Secondly, the court should identify and assess the contributions of the parties within the meaning of subsection 79(4) paragraphs (a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties.  Thirdly, the court should identify and assess the relevant matters (“the other factors”) including the matters referred to in subsection 75(2) so far as they are relevant.  Fourthly, the court should resolve what order is just and equitable in all the circumstances of the case.

   [2] [2003] FamCA 395; (2003) 30 Fam LR 35; FLC 93-143

4. It is neither contrary nor redundant to consider again whether a proposed order is just and equitable under subsection 79(2), because the court is considering the matter after having undertaken the three previous steps referred to in the Hickey decision.

Just and equitable 

1. First of all, I consider whether it is just and equitable to make a property order at all.  I have the benefit of a well-prepared case outline from the mother’s counsel, Mr Ford of counsel, to which a comprehensive balance sheet has been attached.

Assets and liabilities 

1. The assets are the Property W property at Property W, a Toyota motor vehicle of approximately $3000 in value, the contents of the house, valued at approximately $3000 and a superannuation interest in the sum of $41,492.  There are liabilities, being a loan to the (omitted) Bank of $488,000, credit card debt to (omitted) Bank in the sum of a thousand dollars.  The assets and the liabilities of the parties can be summarised as follows.  Total assets:  $756,000.  Add-back, being the sum of $335,000 removed by the husband:  $335,000.  From this will be taken the liabilities of $489,000, to which will be added the superannuation, leaving a net asset pool, including superannuation, of $643,492.

Contributions of the parties 

1. I consider the contributions and the part of the parties.  I note that the Mother has always been the primary carer of the child X and that she also made a substantial contribution at the commencement of the marriage, approximately $154,000.  The Mother seeks a division on the basis of a split of just over 71 per cent in her favour.  The Father had removed $335,000 from the joint bank account, which represented 52 and a half per cent of the net asset pool and the Mother seeks that the Father pay her the sum of $150,000. 

2. It is submitted by counsel for the Applicant that this is a just and equitable result, referring the court both to the decisions of the High Court in Stanford & Stanford[3], to which I have previously adverted, and the more recent decisions of Bevan & Bevan[4] and Watson & Ling[5].  Counsel for the applicant submits that the treatment of what is known as add-backs has changed in this jurisdiction, but not with respect to the premature distribution of assets, and he refers the court to the decision of Townsend & Townsend[6]. 

   [3] supra

   [4] [2013] FamCAFC 116

   [5] [2013] FamCA 57

   [6] [1994] FamCA 144; (1995) 18 Fam LR 505; FLC 92-569

3. Mr Ford submits that the withdrawal of the sum of $335,000 by the Father from the joint account should be added back to the pool.  It’s further submitted that, based upon the decision of the High Court in Stanford at [37], if the court cannot identify the legal or equitable interest in the sum of $335,000, then the Father’s conduct amounts to reckless, negligent or wanton conduct as identified by Baker J in Kowaliw & Kowaliw[7] and, as such the Father should account for these funds.  He has not discharged his own obligation of full and frank disclosure and the court could, in the alternative, treat such conduct as warranting an adjustment in favour of the Mother by reason of the Father’s lack of disclosure. 

   [7] (1981) 7 Fam LN 13; FLC 91-092

4. I am referred to the decisions in Black & Kellner[8] and Weir & Weir[9].  The Court must consider also relevant matters in subsection 75(2).  It is significant that the Applicant is and has been the primary carer of the parties’ child, X.  There is no evidence that she receives any financial assistance for this child and, as he is a little boy of only four years, she is going to have to provide for his care until he becomes an adult. 

   [8] (1992) 15 Fam LR 343; FLC 92-287

   [9] (1993) 16 Fam LR 154; FLC 92-338

5. In my view, this is a substantial reason for an adjustment in the Mother’s favour.  There is no evidence that the Mother is living with any other person.  The fact that the Mother has the care of a child under school age is not only a financial burden upon her but also restricts her considerably in her ability to obtain full-time gainful employment. 

6. I am of the view that the submissions advanced by counsel on behalf of the Mother should be accepted in their entirety.  I am satisfied that this is a case where the Applicant is to receive some 71.25 per cent of the total net asset pool of $643,492, which amounts to a value of $458,492. 

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  5 August 2015