FAMILY COURT OF AUSTRALIA
| XUEN & CHAO | [2013] FamCA 767 |
FAMILY LAW – CHILDREN – Final orders – Undefended hearing - With whom a child lives with – Child’s best interests - Where mother relocated overseas and abandoned children – Where children expressed wishes to live with father – Where mother’s conduct questions her capacity to provide for the children’s emotional needs – Where mother demonstrates poor attitude towards parenting – Where mother has engaged in low level family violence – Order that the father have sole parental responsibility - Order made for precondition that the mother spend time with children as agreed by the father.
FAMILY LAW – CHILDREN – Parental Responsibility –Where presumption of equal shared parental responsibility rebutted on the basis of family violence.
FAMILY LAW – PROPERTY – Application for property settlement orders undefended hearing – Complex property proceedings regarding significant overseas and Australian assets in one or both parties names – Husband seeking orders that all Australian property together the all superannuation interests be transferred to him and to keep his interest in a jointly owned property overseas – Where difficulty ascertaining value of overseas property – Where wife not cooperating in proceedings – Where deliberate non disclosure by wife – Where husband’s values of overseas property accepted – Where proceedings undefended - Whether property owned by non parties or where gifted to non parties was part of the property pool – Where husband made greater financial contributions – Where significant weight given to father being sole contributor to the welfare of family since 2009 – where husband has care and control of children - Whether money taken by wife from superannuation and education fund considered as add backs or property of the wife - Difficulty of enforcement in overseas jurisdiction of an order for payment by the wife to the husband of the equivalent amount withdrawn as part of property order – Where unlikely mother would repay the amounts – Whether just and equitable to make an order in circumstances where the property division sought in father’s favour is less than would be his likely entitlement – Whether just and equitable to take all remaining superannuation in the unique circumstances – Where just and equitable to leave open husband’s prospect of salvaging the value of his joint interest in overseas property – Where it was not practicable to completely end the financial interrelationship between the parties in the circumstances in order to ensure a just and equitable division of property.
FAMILY LAW – COSTS – Application for property settlement orders – Where wife commenced but failed to cooperate in proceedings – Where wife wholly unsuccessful in proceedings – Costs on indemnity basis not warranted - Order made that wife pay the husband’s taxed costs of and incidental to proceedings.
Family Law Act 1975 (Cth) ss.4AB, 60CA, 60CC, 61DA, 65DAA, 65DAC, 75, 79, 81, 90MT, 117
Family Law (Superannuation) Regulations 2001
Domestic and Family Violence Protection Act (Old)
In the Marriage of Biltoff &…
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- AGLC
- Xuen and Chao [2013] FamCA 767
- Case
- [2013] FamCA 767
- Decision Date
CaseChat Overview and Summary
The court was required to determine the appropriate parenting orders for the children, considering their best interests. Additionally, the court had to adjudicate the division of the parties' property, including two properties in Queensland, various shareholdings, and superannuation funds, as well as address the husband's business interests.
Tree J ordered that the father have sole parental responsibility for the children and that they live with him, with provisions for the children to spend time and communicate with the mother as agreed in writing. In relation to property, the wife was ordered to repay a sum to a superannuation fund and pay a sum to the husband. The husband was to receive the wife's interest in two Queensland properties, with detailed provisions for the transfer process, including the husband's sole right to occupy one property pending transfer and his responsibility for associated costs. The husband was also to receive the wife's interests in various shareholdings. The court made specific orders regarding the division of superannuation, allocating 100 per cent of the wife's interest in Australian Super to the husband and ordering the wife to relinquish her entitlement in the N Super fund, which included a property at O Street, Suburb P. The husband was to retain his business interests free from any claim by the wife. The orders also stipulated that each party would retain assets in their possession from a specified date, with provisions for indemnifying each other against liabilities. The wife was ordered to pay the husband's costs of the proceedings.
Orders
Orders of the court
Parenting Orders
1.
That the father have sole parental responsibility for the children J born … 1996 and F born … 2000.
2.
That the children live with the father.
3.
That the children spend time and communicate with the mother at all times as agreed in writing between them.
Property Settlement
Real Property
4.
That within 7 days the wife repay to the N Super the amount of $68,296.23.
5.
That within 30 days the wife pay to the Husband the amount of $81,368.64.
6.
That within 90 days (the settlement date) the husband and the wife do all acts and sign all documents as are necessary to transfer to the husband, at the expense of the husband, all of the wife’s right, title and interest in the following properties:
(a) O Street, Suburb P in the State of Queensland more particularly described as Lot … on Registered Plan …, County of Q Parish of R, bearing Title Reference …; and
(b) S Street, Suburb T in the State of Queensland more particularly describes as Lot … on Registered Plan …, County of Q Parish of U, bearing Title Reference ...
7.
That to complete the transfer by the wife to the husband, the following shall apply:
(a) settlement will take on the settlement date;
(b) the transfer documentation will be prepared by the husband’s solicitor and delivered to the wife by ordinary post for signature within 21 days;
(c) where the husband’s solicitor requires the return of the transfer documents for stamping purposes then:
(i) the husband’s solicitor will advise the wife at the time the transfer documentation is delivered;
(ii) the wife will then sign and deliver the transfers to the husband’s solicitors within 7 days;
(iii) where the wife fails to return the transfer documents within 7 days after the documents have been posted to the wife, then the husband may apply to a Registrar of the Family Court of Australia for such documents to be executed on behalf of the wife in accordance with these orders;
(iv) the husband’s solicitor will hold the transfer documents in escrow and use the transfers for stamping purposes only pending settlement.
8.
That where the property is encumbered by a mortgage:
(a) the husband and wife shall sign an authority and any other documentation required by the mortgagee to release the mortgage and for that purpose the husband will obtain the relevant documents required by the bank;
(b) the husband’s solicitor will send the relevant release of mortgage documents to the wife for her signature;
(c) where the wife fails to sign and return the release of mortgage documents within 7 days of the date the documents were posted, then the husband may apply to a Registrar of the Family Court of Australia for such documents to be executed on behalf of the wife in accordance with these orders.
9.
That pending the transfer:
(a) the husband shall have the sole right to occupy the Suburb T property and shall be solely responsible of the Suburb P property and during such right of occupation the husband shall be responsible for mortgage payments, rates and outgoing on the properties as they fall due up to and including the settlement date;
(b) the parties hold their respective interests in the properties upon trust pursuant to these orders;
(c) neither party shall encumber the properties without the consent of the other party or the mortgagee;
(d) any party who causes damage to the properties will repair such damage caused by them at their own expense.
10.
The husband shall, from the settlement date, indemnify the wife against all claims, demands, proceedings and judgments in respect of any liability pursuant to the mortgages to V Home Loans, that is, W Pty Ltd ACN … with respect to registered Mortgage Number …, and all rates, taxes and other outgoings of the properties of whatsoever nature and kind.
11.
That in the event that the husband is unable to raise sufficient finance to complete the transfers referred to herein, then the husband shall solely be responsible for the sale of one or both properties and in order for the sale of one or both properties to occur the following shall apply:
(a) the property shall be listed for sale by private treaty by such real estate agent chosen by the husband;
(b) the list price for the property shall be nominated by the husband;
(c) the sale price of the property shall be nominated by the husband;
(d) that upon agreement being reached for the sale of the property the parties shall execute the contract of sale and all other documents necessary to complete the sale of the property including all transfer documentation forthwith upon its submission to them by the agent or their solicitor;
(e) where the wife fails to sign and return such documents within 7 days of the date the documents were posted, then the husband may apply to a Registrar of the Family Court of Australia for such documents to be executed on behalf of the wife in accordance with these orders;
(f) the contract of sale shall provide for completion within 30 days after the date of the contract;
(g) the proceeds of sale of the property shall be paid in the following manner and priority:
(i) discharge the mortgage to V Home Loans;
(ii) payment of the agent’s commission, advertising and other expenses of sale;
(iii) payment of legal costs and outlays relating to the conveyancing for the sale;
(iv) the balance to be paid entirely to the husband.
Shares
12.
That the husband and wife shall do all acts and sign all documents as are necessary to transfer to the husband, at the expense of the husband, all of the wife’s right, title and interest in and to the following shares:
(a) the wife’s shareholding in Telstra shares under Holder Reference Number … being the entire balance of Telstra shares held by her;
(b) the full balance of the jointly owned shares held with News Limited;
(c) the full balance of the jointly owned shares held in the Bank of Queensland;
(d) the full balance of the jointly owned shares held with Telstra;
(e) the full balance of the jointly owned shares held with X Pty ltd.
Superannuation
13.
That the court allocates as required by Section 90MT(4) of the Family Law Act 1975, a base amount of 100 per cent to the husband out of the wife’s interest in Australian Super superannuation fund.
14.
That in accordance with Section 90MT(1)(a) of the Family Law Act 1975;
(a) the husband is entitled to be paid using the base amount allocated in the immediately preceding order, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001; and
(b) the entitlement of the wife in the Australian Super superannuation fund is correspondingly reduced by force of this order.
15.
That the trustee of the Australian Super superannuation fund (“the trustee”) shall do all acts and things and sign all documents as may be necessary to:
(a) calculate, in accordance with the requirements of the Family Law Act 1975, the entitlement awarded to the husband in the immediately preceding clause of this order;
(b) pay the entitlement whenever the trustee makes the suitable payment from the wife’s interest in the Australian Super superannuation fund.
16.
That this order has effect from the operative time and the operative time is the fourth business day after the date of service of this order upon the trustee.
17.
That the wife shall relinquish her entitlement in the N Super fund being the self-managed super fund of the parties and the husband shall retain, in its entirety, the whole benefit of the superannuation fund.
18.
For the purpose of the preceding order that the husband and wife do all acts as are necessary to transfer to the husband all right, title and interest at the expense of the husband all of the wife’s right, title and interest in the only asset of the N Super Fund being the property at O Street, Suburb P in the State of Queensland more particularly described as Lot … on Registered Plan …, County of Q, Parish of R, bearing Title Reference ...
19.
That to complete the transfer by the wife to the husband, the following shall apply:
(a) settlement will take on the settlement date;
(b) the transfer documentation will be prepared by the husband’s solicitor and delivered to the wife by ordinary post for signature within 21 days;
(c) where the husband’s solicitor requires the return of the transfer documents for stamping purposes then:
(i) the husband’s solicitor will advise the wife at the time the transfer documentation is delivered;
(ii) the wife will then sign and deliver the transfers to the husband’s solicitor within 7 days;
(iii) where the wife fails to return the transfer documents within 7 days after the documents have been posted to the wife, then the husband may apply to a Registrar of the Family Court of Australia for such documents to be executed on behalf of the wife in accordance with these orders;
(iv) the husband’s solicitor will hold the transfer documents in escrow and use the transfers for stamping purposes only pending settlement.
20.
That pending the transfer:
(a) the husband shall be solely responsible for the Suburb P property and during such right of occupation the husband shall be responsible for mortgage payments, rates and outgoings on the properties as they fall due to and including the settlement date;
(b) the parties hold their respective interests in the properties upon trust pursuant to these orders;
(c) neither party shall encumber the properties without the consent of the other party of the mortgagee;
(d) any party who causes damage to the properties will repair such damage caused by them at their own expense.
21.
That the wife will otherwise resign as a Trustee of the N Super and shall sign all documents required to be signed, and for that purpose where the wife fails to return the relevant documents within 7 days after the documents have been posted to the wife, then the husband may apply to a Registrar of the Family Court of Australia for such documents to be executed on behalf of the wife in accordance with these orders.
22.
That otherwise the husband shall retain the entire benefit of his interest in the Australian Super Superannuation Fund and his interest in the self-managed superannuation fund N Super Fund.
The Husband’s Business
23.
The husband will retain free claim by the wife his interest in the business Xuen Pty Ltd ABN … and the husband will indemnify the wife with respect to any liability owing by the business.
Other Orders
24.
That the husband retain the following assets free from any claim by the wife:
(a) the cash payment of $81,368.64 from the wife;
(b) the property at S Street, Suburb T;
(c) the property at O Street, Suburb P;
(d) the News Limited Shares;
(e) all Telstra Shares;
(f) the Bank of Queensland Shares;
(g) the X Pty ltd Shares;
(h) the education fund for J;
(i) the business Xuen Pty Ltd;
(j) all benefits payable by Australian Super;
(k) the entire benefit of the self-managed superannuation fund, N Super Fund and in particular the property which forms part of that fund at O Street, Suburb P as well as the payment from the wife in the amount of $68,296.23;
(l) any other assets in the husband’s own name including contents of any properties, vehicles and bank accounts.
25.
That the wife retain the following assets free from any claim by the husband:
(a) all remaining assets and interests not specifically referred to in these orders held by the wife in Australia.
26.
That from the settlement date and unless otherwise specified in this order except for the purposes of enforcing payment due under these or any subsequent orders:
(a) each party shall be solely entitled to the exclusion of the other to all property in the possession of such party as at this date including any jewellery, furniture, furnishings, shares and motor vehicles;
(b) monies outstanding to the credit of the parties in their bank accounts to be the property of the party in whose name such bank account is held;
(c) each party forgoes any claim they may have to any superannuation benefit to or owned by the other. The parties in whose name such policy of superannuation or insurance stands shall be deemed to be the owner and beneficiary of such policy to the exclusion of the other;
(d) each party shall be solely liable for and indemnify the other against any other liability encumbering any item of property to which that party is entitled pursuant to this order.
27.
That:
(a) each party shall do all acts and things reasonably required by the other including the signing and execution of all necessary documents to give effect to the provisions of this order within 7 days of being requested to do so;
(b) if either party refuses to neglects to sign or execute or return a document within 7 days of the request to do so then a Registrar of the Brisbane Registry of the Family Court of Australia is hereby appointed under Section 106A of the Family Law Act 1975 to sign or execute such document on behalf of that party upon lodgement of such document and filing of an affidavit of a solicitor on behalf of the requesting party as to the said neglect or refusal;
(c) a defaulting party shall pay the other party’s tax costs of and incidental to such requests and production of any documents to the Registrar.
28.
That either party have liberty to apply to the implementation or enforcement of these orders within giving 7 days notice in writing to the other party.
29.
That the wife pay the husband’s cost of and incidental to these proceedings.
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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