Yang and Gian and Ors - [2014] FamCA 934

FAMILY COURT OF AUSTRALIA

YANG & GIAN AND ORS

[2014] FamCA 934

FAMILY LAW – PROPERTY – Where the wife seeks orders regarding the division of property – Where the wife accused the husband of transferring his shares to a third party ––Where the wife accused the husband of carrying on business under a false name – Where the husband claims to owe family members significant sum of money – Where there is insufficient evidence to support the existence of the loans – Where the husband was found not to have made a full and frank disclosure of his finances – Black v Kellner (l992) FLC 92-287– Where the orders sought by the wife are considered to be just and equitable.

FAMILY LAW – CHILDREN – Where the mother seeks an order that the children live with the mother but spend regular overnight time with the father – Where the father opposes this order ––Where the mother alternatively seeks sole parental responsibility of the children – Where it would not be in the children’s best interests not to spend time with their father – Where the mother’s parenting application is dismissed.

Family Law Act 1975 (Cth) ss 60CC, 61DA, 75(2), 79(2), 79(4), 106B

Black & Kellner (1992)FLC 92-287
Weir and Weir (1993) FLC 92-338

Kannis & Kannis (2002) 172 FLR 464

APPLICANT:

Ms Yang

1ST RESPONDENT:

Mr Gian

2ND RESPONDENT:

Mr X

3RD RESPONDENT:

Z Pty Ltd

FILE NUMBER:

SYC

4390

2012

DATE DELIVERED:

29 October 2014

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATE:

22-25 September 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Alexander

SOLICITOR FOR THE APPLICANT:

Yau & Wang Lawyers

SOLICITOR FOR THE 1ST RESPONDENT:

The Respondent Husband in Person with an Interpreter

SOLICITOR FOR THE 2ND AND 3RD RESPONDENT:

GJ Fong & Co

Orders

That the whole of the net proceeds of the sale of the property known as B Street, Suburb C, being Folio Identifier …, being the sum of $224,244.59 as at 8 August 2014 and any interest thereon, such sum currently held in a controlled monies account of Kemp Strang, be released to Ms Yang (“the wife”) forthwith.
That the parties do all acts and things necessary to transfer to the wife the sum of approximately $10,000.00 presently held by the Third Respondent and representing the proceeds of the rent of A Street, Suburb C, collected by it.
That the Second Respondent transfer all shares in the Third Respondent to Mr Gian (“the husband”).
That the commercial property, being the property contained in Folio Identifier … and situated at and known as Suite #, A Street, Suburb C (“commercial property”), be sold.
That Mr I be appointed as the Trustee for sale of the commercial property.
That the Trustee shall have all powers and authority to conduct the sale of the commercial property and appoint an agent to sell the commercial property.
That the commercial property be sold:
(a)In the first instance, by way of private treaty at any price agreed in writing between the wife and the husband or failing such agreement within fourteen (14) days of the date of these Orders at no less than the price of $300,000; or
(b)In the event that contracts have not been exchanged for a sale by private treaty within six (6) weeks of the date of these Orders, order that the sale be by way of auction, with a reserve price of $300,000 and such auction to occur within ten (10) weeks of the date of these Orders; or
(c)In the event that the property is passed in at auction, the commercial property be sold by such manner and such price as determined by the Trustee for sale.
That the Trustee deals with the proceeds of sale of the commercial property as follows:
(a) Firstly, in payment of any mortgage held over the property, if any;
(b)Secondly, in payment of any usual adjustments of municipal and water rates;
(c)Thirdly, in payment of the agent’s commission and other associated expenses;
(d)Fourthly, in payment of any reasonable expenses incurred by the Trustee in respect of the sale;
(e)Fifthly, in payment of any legal expenses associated with transferring the property to the purchaser; and
(f)Sixthly, in payment of any such taxation liabilities in relation to capital gains tax and land tax that may fall due; and
(g) Seventhly, that the residue to be paid in the following proportions:
(i)75 per cent to the wife; and
(ii)25 per cent to be held by the Trustee on trust for the husband for a period of twenty-eight (28) days, pending further order.
That unless otherwise specified in these Orders:
(a) The wife and husband be hereby solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such of them as at the date of the these Orders and that for this purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank’s record as the holder of the account, insurance policies are deemed to be in the possession of the beneficiary thereof, superannuation polices are deemed to be in the possession of the beneficiary thereof, superannuation entitlements and long service leave and other associated employment benefits are deemed to be in the possession of the person who is named as the worker whose wage or working future provides the conditions for payment out of such entitlements; and
(b)The wife and husband shall each be solely responsible for the payment of any debts or loans in their name as at the date of these Orders and shall indemnify and keep the other indemnified in relation thereto.

Parenting

That the wife’s application for parenting orders be dismissed.
That all applications and cross applications be and are hereby dismissed.
That all issues be removed from the Active Pending Cases List.
That all material produced on subpoena shall be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same not before fifty-six (56) days from the date of these Orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Yang & Gian and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 4390 of 2012

Ms Yang

Applicant

And

Mr Gian

First Respondent

And

Mr Xu

Second Respondent

And

Z Pty Ltd

Third Respondent

REASONS FOR JUDGMENT

These proceedings principally concern the property of the parties. Ms Yang (“the wife”) seeks orders as to the division of the property held by her and Mr Gian (“the husband”).
The wife joined as parties Mr Xu and Z Pty Ltd. She asserted that the transfer by the husband of his shares in Z Pty Ltd to Mr Xu on 3 August 2012 should be set aside pursuant to s 106B of the Family Law Act 1975 (Cth) (“the Act”). Z Pty Ltd owns a property at Suite #, A Street, Suburb C (“the commercial property”), valued at $300,000. Its sole corporate function is to own that property which is let out.
On the first day of the hearing Mr Xu and Z Pty Ltd appeared and consented to orders transferring the shares in Z Pty Ltd back to the husband and to orders preventing dealings with the property and $10,000 rent remaining in a bank account pending the determination of these proceedings.
The issue of significance in the proceedings was whether or not the husband had fully disclosed his assets and business activities.

In addition to her claim under s 79 of the Act, the wife sought some variations to the parenting arrangements currently in place.
I have generally used the versions of the names of the parties and witnesses used by the parties. The names differed in spelling in different documents and were spelt differently in the transcript at different times. When quoting documents or transcript I have followed the spelling used in that document.

Applicable Principles

According to guidelines established through a series of leading decisions the court is required to determine the following matters:
a)The assets, liabilities and financial resources of the parties to the marriage.
b)Having regard to the breakdown of the marriage if any, is it just and equitable to consider whether the alteration of the parties’ interests in their properties is just and equal.
c)All relevant contributions of each of the parties.
d)The matters in paragraphs (a) – (c) of s 79(4), must be identified and weighed against each other.
e)The matters in paragraphs (d)-(g) of s 79(4), particularly paragraph (e) which takes up, by reference, the provisions of s 75(2) must be considered and a determination made as to what, if any, alterations should be made to the entitlements of the parties earlier assessed on account of their contributions.
An order under s 79 must not be made unless the court is satisfied in all of the circumstances it is just and equitable to make the order.
The husband was born in China in 1972 and is currently 42 years old. He arrived in Australia in 1993 and has substantially lived here ever since.
The wife was born in China in 1981 and is currently 33 years old. She arrived in Australia in October 2004 and shortly afterwards met the husband. A relationship commenced in March 2005 and in May 2005 they commenced cohabiting in a unit in Suburb O. In April 2006 the wife discovered that she was pregnant and shortly thereafter left her job.
In September 2006, B Street, Suburb C (“B Street property”) was purchased for $370,000. The husband was the sole registered proprietor.
How this property was purchased is not entirely clear.
In his affidavit of 10 December 2013 the husband said:
This property was purchased before we were married. The total value of the property was $370 000 with a mortgage of $200 000. I paid $17 000 as the initial payment instalment. The property was purchased by the income I had earned before the marriage and is not a joint property.
In his affidavit of 19 May 2014 the husband said:
[3]As I must pay the first instalment for the purpose of the property in May 2006 I borrowed a total amount of $50 000 from my sister [Ms N]. This amount of money has not been repaid. I request the Court to allow an independent lawyer to execute the repayment of this money.
[4]My property was purchased in September 2006 before our marriage and the first instalment was $170 000. [The wife] did not give any support to the first instalment. Apart from the $50 000 borrowed by [Ms N], the remaining $120 000 was from my parents. Although my parents didn’t ask for an IOU this part of the first instalment from them should be repaid to them since the property is now listed for sale.
In cross examination the husband said that he received a first home owner’s grant to assist with the purchase. He said that he borrowed $50,000 from his sister, $120,000 from his parents and $200,000 from a bank.
In February 2012 the husband made a successful application to refinance the mortgage on the property. The total amount borrowed was $400,000 of which $194,500 was to retire the existing home loan and $109,500 to retire a further loan secured over the property.
In passing it is notable that the loan application that the Westpac Bank describes the husband’s employer as S Pty Ltd and gives as the work phone number, one of the husband’s telephone numbers. His income was said to be $120,000 per year with no liabilities other than the liability for the home mortgage.
The explanation that the husband gave for income being shown to be $120,000 per annum was that that was what the bank manager told him he would have to earn in order to get the loan.
It thus appears that of the purchase price $370,000, $200,000 was provided by a mortgage and most of the balance by the husband. I will return to the source of his funds in due course.
The parties were married in October 2006. They moved into the B Street property in December 2006.
The parties’ daughter L was born in 2007 and their son V was born in 2010.
On 21 June 2010, Z Pty Ltd, of which the husband was then the sole director and shareholder, acquired Suite #, A Street, Suburb C, for $270,800. It is a commercial property. The husband provided the funds for the purchase of the property and no commercial borrowings were involved.
The parties separated on 27 June 2012.
On 5 July 2012 the wife discovered that the husband had listed the B Street property for sale by auction to be held on 28 July 2012. She commenced these proceedings on 26 July 2012 and on 27 July 2012 sought urgent interlocutory orders restraining the auction. Ultimately, the auction was cancelled by consent.
On 3 August 2012 the husband transferred all of his shares in Z Pty Ltd to Mr Xu with the value of the share transfer said to be $100.
The husband had previously entered into an exclusive agency agreement for the sale of this property on 14 February 2012. He did so under the name of Mr J Gian. Between 6 September 2012 and late September 2012 the agent, engaged by the husband, had a number of conversations with the husband where he sought and received instructions as to the sale of the property. The sale did not proceed due to the wife lodging a caveat on the title to the property.
After leaving the matrimonial home the wife rented premises for her and the children. To assist with the payment of the rent she sublet two of the bedrooms to other tenants.
On 30 January 2013 consent orders were made for the husband to vacate the matrimonial property on or before 20 February 2013. He did not do so.
On 8 April 2013 the court issued a warrant for the possession of the B Street property in favour of the wife, such warrant not to be enforced until 16 April 2013. The husband vacated the property on or around 16 April 2013 and the wife re-entered the property on 19 April 2013.
Although on 30 January 2013 the husband undertook to use his best endeavours to maintain the payments on the mortgage he did not make the payments. The wife made some payments of the mortgage but could not afford to maintain them. The Westpac Banking Corporation sought to intervene in the proceedings to obtain an order for the sale of the property.
On 19 December 2013 the court appointed the trustees for the sale of the B Street property for $565,000. The net proceeds of sale of $224,800 are presently held in the trust account of the solicitors for the Westpac Banking Corporation pending the determination of these proceedings.

Mr F

It was the wife’s case that the husband has been carrying on business under the name of Mr F. She asserts that the husband has had the control of a number of bank accounts held in the name of Mr F with the Commonwealth Bank of Australia.
The Department of Immigration records show that Mr F arrived in Australia on 13 January 1990, departed on 12 September 1993 and has not returned.
On 25 February 1992 Mr F opened bank account …227 with the Commonwealth Bank of Australia. The entries in the account are consistent with a person operating a business in Australia. Importantly the accounts show regular and frequent cash withdrawals from ATMs within Australia.
That account was still operating in November 2012.
In cross examination the husband said that he was not familiar with the name Mr F. He was certain that he had never met him or borrowed money from him. He thought that Mr Y had mentioned his name to him. Mr Y was said by the husband to be a person to whom he had previously rented a room and for whose company he had carried out some work.
On 12 October 2012 the lawyers acting for the wife wrote to the lawyers then acting for the husband seeking “a copy of [the husband’s] and [Mr F’s] 3 most recent tax returns and assessments”.
On 31 October 2012 the husband’s lawyers replied saying:
… we have been instructed to disclose the following documents (the same paragraph number is adopted):
(a)[The husband’s] tax return forms for 2011 and 2012;
[The husband] does not have any of Mr [F’s] financial documents and was only an employee for Mr [F] before Mr [F] returned to China due to visa issue.
When confronted with this entry the husband said that he had never worked for Mr F and he thought that there was an error made by the lawyer because Mr F had returned to China in 2003.
There are three entries that clearly link the CBA account in the name of Mr F to the husband.
On 27 July 2012 $1,000 was paid to Austin Horwarth Lexin Lawyers in Sydney, the husband’s lawyers, from the CBA account.
On 27 July 2012 the proceedings between the husband and the wife were before this Court with the wife seeking an interlocutory order restraining the husband from selling the B Street property. The husband said that his lawyers refused to go to court unless they were paid that day. He said that he did not have all of the funds necessary to make the payment so arranged with a friend to make a payment on his behalf.
It is more likely than not that the payment of the $1,000 from the CBA account on 27 July 2012 was for the payment of the husband’s lawyers. I find that it was.
The husband said that the person who made the payment on his behalf was a person with whom he had been drinking and playing poker, off and on, for one to two years, who he knew by the nickname of XX. He said that he did not know the real name of XX and that the two only knew each other by nicknames.
The clear inference then, accepting for the moment the husband’s evidence, given that the payment made was from the Mr F account, is that XX had control of that account and that XX and Mr F are the same person.
This creates a difficulty for the husband. If his lawyer’s letter of 31 October 2012 is correct, XX cannot be Mr F because the husband would be well familiar with him, having been his employee. The husband sought to explain this difficulty by saying:
I think that there – that was the error made by the solicitor because I think you mentioned early on Mr [F] went back in 2003. So this was – that was before this 2011 or – I think you – I was … or I was misled about it by you guys that Mr [F] went back to China in 2003 and I think the – my lawyer was misled about this information as well. So you might ask something about Mr [F] from my solicitor so that’s why then put down that Mr [F] returned to China and that we did not have anything about Mr [F].
… I had mentioned to my solicitor I had nothing to do with [Mr F]. So the secretary or whatever typed this letter and then there’s some errors of not and I can’t…
[As per original transcript]
On 12 September 2012 $5,000 was withdrawn from the CBA account by netbank transfer. On the same day $5,000 was transferred into the husband’s bank account with the CBA, by netbank transfer, with the initials “xxx” appearing in the husband’s bank account entry recording the transfer.
On 23 September 2008 $5,000 was transferred from the CBA account, by netbank transfer, with the description “fff”. On the same day, by netbank transfer, $5,000 was deposited to the husband’s bank account again with the description “fff”.
It is more likely than not that these were the same sums of money. I find that on 12 September 2008 and 23 September 2008 $5,000 was transferred from an account in the name of Mr F to an account of the husband.
These cannot be payments or advances by XX because the husband was adamant that he had only known XX, his poker playing friend, for one to two years prior to the payment of the $1,000 in July 2012. When this was suggested to the husband he said: “I am not sure now”.
As to the first payment the husband said:
MR ALEXANDER : And that was $5000 credited to your account on 12 September 2008.
THE INTERPRETER: Those transactions actually reflect that I borrow money from China, as – as I told you before. So I tell people who want to send that money to China, “Give me the money as I’ll transfer money to my account,” and my relatives in China pay them in Chinese currency. But I’m not sure who sent this – who transfer this money to my account. So this transaction was not a payment for work because – because any payment for work, it can be a round – round number. So when I look at this round numbers I can tell. That’s part of my borrowing practice.
MR ALEXANDER: So your evidence is that the source of this $5000 is China. Correct?
THE INTERPRETER: The money is from – from Australia. As I said, I ask people who want to send money to China, “Give me the money.” Then I ask my sister in China to pay them in China in renminbi.
MR ALEXANDER: The source of the money is the [Mr F] account, isn’t it?
THE INTERPRETER: I don’t know who sent this money to me. As long as I see the money, then I will told my – then I will tell my sister in China to pay. I don’t care where the money come from as long as I – I saw the money. And you can see after this – after this 5000 there are a few other transactions, yes, 5000, 5000. This – these transactions reflect the same fact that I just hold people’s money here and ask my sister to pay their – in - in China. So you can see there’s $5000 taken from different accounts.
[As per original transcript]

As to the second, the husband said:
Yes. Now, yes, I see it, but – because as – as – as – as your Honour can see, there are so many transactions, so that – I didn’t realise this – the source of this transaction. Sir, I thought it was somebody else and - - -
[As per original transcript]
Neither of these is any explanation at all for the matching withdrawals and deposits in the two accounts. His evidence as to XX and the letter written by his lawyers is inconsistent. None of it is accepted.
The address given on the bank statement for the Mr F account for 30 April 2005 is PO Box 456, Suburb K. Bank statements of the husband for the period commencing 25 May 2006 bear the address “PO Box [456], [Suburb K]” - the same address. He agreed that he had directed the Commonwealth Bank to send his bank accounts to that post office box.
He said that he did not think that he applied for the post office box at Suburb K but anyone who lived with him could use it. He said:
…Because I had tenants at my place at that time. They might ask for my P O Box number and I provided it. I cannot recall that I had this P O Box so this P O Box might be a tenant using – not using – maybe this P O Box may be under my ex-wife’s name or my friend’s name.
…Earlier you indicated that perhaps a tenant used your P O Box? --- I don’t think I applied for that P O Box so this P O Box could have been applied by the tenant or my ex-wife, but anyone that lived at my place could use that P O Box.
But why are you ---?--- Why do you think it’s necessary when I first appeared and the post office found who applied for this P O Box?
We will come to the P O Box in a minute, sir. Why would you be directing the Commonwealth Bank to send correspondence to you in a P O Box that is not yours? --- Yes, I think it’s – the P O Box – was in my friend’s name or my ex-wife’s name. There’s no need for everyone to – every one of us to have a P O Box. We can share the P O Box and then we can also share the costs.
HIS HONOUR: So you got the Commonwealth Bank to send your account details – this bank statement to that P O Box’s number. Is that what you’re saying? --- Yes. Because at the time I lived at a rental property so the mail is in the letterbox could be – disappear, so I asked the manager to send them to the P O Box. The P O Box could be my friend’s or my ex-wife’s.
And did you have tenants in your rental property? --- Yes, because he rental property could be two bedrooms, three bedrooms, so we sub-let some rooms to other people to cover costs.
[As per original transcript]
This evidence, of course, establishes that Mr F and the husband had their mail sent to a common post office box. It would be odd then, if they did know each other, or at least know of each other. This is, of course contrary to his evidence. The explanation given by the husband carries the inference that Mr F could have been a tenant of his. This again is contrary to his evidence.
On the statement for the Mr F account for 1 August 2008, the address had changed and is shown as “PO Box [123], [Suburb C]”.
The Australia Post records for that post office box showed that it was registered to Mr Y from 12 June 2007 to 6 July 2009. His address was shown as T Street, Suburb R.
Between 6 July 2009 and 14 March 2012 that post office box was registered in the name of S Pty Ltd. S Pty Ltd is a company of which Mr Y is a shareholder and director. The husband described Mr Y as a tenant of his who lived in his house. Of S Pty Ltd he said that it was a company he had worked with part time, perhaps for one to two weeks, perhaps longer but he had not worked for several years.
The address given for S Pty Ltd in the records of the Australian Post Office was the address of the husband’s accountant.
In completing the form for registration of the post office box in 2007, Mr Y, or whoever completed it, inserted as his telephone number, the residential telephone number of the husband at B Street, Suburb K. Mr Y inserted as the mobile number, a mobile telephone number used by the husband.
When this was raised with the husband in cross-examination he denied that he had anything to do with the post office box as people used his name and his telephone numbers without his permission. He also said that people would give out his home telephone number as theirs so that the husband could, on their behalf, speak English to the caller. When it was pointed out that the husband was in fact giving evidence through an interpreter and had very poor English he merely said it was better than those who gave out his number.
He also asserted, by way of explanation, that he had a number of mobile phones but that people used his numbers because they were illegal immigrants who did not want or could not obtain a mobile telephone account. When it was suggested that they could merely buy a prepaid phone the husband had no answer.
When S Pty Ltd applied to be the registered user of the post office box the form was again completed by Mr Y. Again the husband’s home telephone number and mobile telephone number were used.
The form contained a heading “Other names from your current address you want delivered to your post office box”. Under that were listed four names, Mr F, Mr Q, Mr U and Mr N. The last, if it is spelt correctly, is the name of the husband’s cousin. It may be a misspelling and refer to the husband. The name Ms U is the name on the passport used by the wife to enter Australia. Mr Q is the husband’s nephew and was also said by him to be a tenant of his. It seems a remarkable coincidence that Mr Y, who was a tenant of and it seems, an employer of the husband, use the husband’s telephone numbers and included as recipients of mail people known to the husband. It was not explained how Mr Y was aware of the name Ms U.
An inference that can be drawn from this material is that at least Mr Y assumed that Mr F would be collecting his mail from that address. This is not surprising since it was fact an address used by Mr F.
The application for registration as an Australian company of S Pty Ltd was made by Mr LL. He is the husband’s accountant.
The registered office of the company was EE Street, Suburb W which was also the address of the director, Mr Y. The husband accepted that he had lived at that address but added:
As I said, my tenant used to live with me. So, if he wanted to do something, I could not stop it.
Interestingly, the husband was a director of SS Pty Ltd from 26 July 2002 until March 2005 when the company was deregistered. Its other director was Ms TC, the former wife of the husband. The registered office of that company was also EE Street, Suburb W.
New accounts at the Commonwealth Bank in the name of Mr F were opened on 30 March 2011, 11 September 1998 and 2 June 2008. In relation to the last two of these the means of identification was described as the “existing customer account …227 opened 25/02/1992”. This was a reference to the original account. Thus, the husband’s submission that Mr F must exist as he would need to present either his driver’s licence or passport to open the new accounts must be rejected. It also indicates that someone other than Mr F was then operating those accounts because he was not in Australia.
As was pointed out by the husband during the course of his evidence the signatures on those documents bear little resemblance to each other.
The wife gave evidence that on one occasion she found the husband practising the signature of Mr F. The husband asked her if the signature looked “similar”. When asked why he was practising the signature the husband said “I need to go to the bank to collect something. I need to sign for it.” The wife said that Mr F is the Romanised version of the husband’s name.
The wife also said that she saw at the B Street property invoices issued in the name of Mr F, bank cards for the Commonwealth Bank of Australia and Westpac in the name of Mr F, a cheque book with the name Mr F and a bank card and a passport for Mr Y.
Three invoices were found by the wife at the B Street property. They are in the name of Mr F, date from July and August 2011 and are for the amounts of $1,148.40, $13,838.00 and $35,490.40. Each of those invoices directs payment to the CBA account referred to earlier from which the three sums were transferred to the husband’s account. The husband said:
MR ALEXANDER: She said she found them on your desk.
THE INTERPRETER: My desk was shared by all the people living in my property, sir. The tenants used that desk as well.
MR ALEXANDER: Well, if you turn up – keep that page open. Do you also have volume 3 in front of you? The relevant documents, sir, can be found at page 7 of volume 3. You will see there are tax invoices from [Mr F]. Page 7, it’s the big numbers at the middle of the page. Do you see that?
THE INTERPRETER: Yes. Yes, I see it.
MR ALEXANDER: And your explanation is this might have belonged to someone else who was living at the home at the time. Is that right?
THE INTERPRETER: Yes.
[As per original transcipt]
This explanation by the husband accepts that someone living in his house was openly trading as Mr F. He did not suggest who it might have been. It would be most odd if Mr F was living at the husband’s house without the husband becoming aware of that.
When the wife left the matrimonial home she took with her a telephone on which she found a number of SMS messages. They are dated between November 2010 and are as follows:
·[Suburb M address] for tomorrow and Sunday.
·[Mr F] BSB …9 account …227.
·[Suburb P Address].
·After 66739.75 discount total cost 516685.50 rage pay me 347395.60 including the 32279.00 from … own poket rage still have to pay me 169269.00 thank you.
·[Suburb WWW address]. I’ll be there at 7am.
·Hi this is [tradesman] [J] can sent cheque to po box [123] [Suburb C] or transfers money to [Mr F] BSB …9 account …227 total amont 5209.60 thank you.
·[Suburb WW address].
[As per original]
The husband did not dispute the content of these messages.
It is to be recalled that the husband accepted that he was a tradesman and went by the name of J. The references to the Mr F account are again the CBA account from which the three payments were made to the husband’s account.
The reference to PO Box 123, Suburb C is a reference to the post office box that has already been discussed.
The husband’s explanation was:
THE INTERPRETER:   I think I mentioned this yesterday. My friend, or friends, sometimes they can’t speak English. They use – they ask me to send text or call on their behalf. So quite often it’s the case that a person my phone and ask me to send text.
MR ALEXANDER:   Well, you turn up volume 3, page 12. You will see at page 12 one of the texts is just an address.
THE INTERPRETER:   Yes.
MR ALEXANDER:   And if you turn over to page 13, the SMS just says [Mr F], and that’s the bank account for [Mr F]. Sir, the answer is “yes” or “no.” You don’t have to give an explanation. There is an SMS from your phone and it refers to [Mr F]. Yes or no?
THE INTERPRETER:   I’m not sure who used this number to send this text. .....
MR ALEXANDER:   So your explanation is sometimes other people would use your phone. Correct?
THE INTERPRETER:   Yes. They are sent under my name. There were four mobile numbers. Even Ms [Yang] used one of these four numbers. She used my – she used mobile number under my name even up to last year. If she used that mobile number to send some texts to other people, would you also say some texts that were from me.
MR ALEXANDER:   Sir, your explanation then is, the person who sent this might have been your wife. It might have been [Mr N].
THE INTERPRETER:   And [Mr UO].
MR ALEXANDER:   And it might have been [Mr EH]. Is that right?
THE INTERPRETER:   Yes.
MR ALEXANDER:   Yes. Would you turn up page 15. I apologise. Page 17. This message reads:
Hi, this is [tradesman] [J].
Do you see that? And:
Sent cheque to PO Box [123] [Suburb C] or transfers money to [Mr F].
Do you see those words, sir?
THE INTERPRETER:   Yes. Yes, I see.
MR ALEXANDER:   You sent that text, didn’t you?
THE INTERPRETER:   As I said early on, sometimes I send text message for my friend because I – I could pass them in English and my friend couldn’t.
HIS HONOUR:   Which friend did you send that text for?
THE INTERPRETER:   I think this particular one is – was for [Mr EH].
MR ALEXANDER:   At the beginning of this cross-examination I asked you about the name [Mr F]. Do you remember that, sir?
THE INTERPRETER:   Yes.
MR ALEXANDER:   You said you were not familiar with that name.
THE INTERPRETER:   I think that your question was did I know this person and I said no, I – no, I didn’t.
MR ALEXANDER:   You said you don’t know who he is, you never met him.
THE INTERPRETER:   That’s right. I have never met him.
MR ALEXANDER:   But you send text messages on behalf of third parties to pay money into his account. Is that your evidence?
THE INTERPRETER:   So I sometimes help my friends, but I think ..... [Mr F] did not live in Australia any more, so who use – who send this text – text, I’m not sure.
MR ALEXANDER:   Are you saying you might not have sent this text?
THE INTERPRETER:   I think I – I did send this text out, because your question about did I meet {Mr F] – [Mr F], my answer is no.
[As per original transcript]
The husband’s evidence was confusing, contradictory and improbable. When one adds to that his frequently evasive and discursive answers to simple and direct questions, no confidence whatsoever can be placed in his evidence. I will not accept the husband’s evidence unless it is corroborated by some satisfactory independent evidence.
The evidence establishes that it is more likely than not that the husband is using the name and bank accounts of Mr F to engage in the occupation of a tradesman. Even if he was not presently doing so, he was doing so at least up until 2012. There are too many links between the husband, the Mr F account, the payment of his lawyers’ account, the business of the husband and the business of Mr F and their mailing addresses for them to be the product of mere coincidence.
The Mr F bank account has had substantial monies passing through it. For example, on 1 August 2011 it had an opening balance of $2,178.37 but by 3 January 2012 the balance was $103,875.19. For the period 1 August 2011 and 31 January 2012 the total debits were $469,405.30 and the total credits were $474,329.62. For the period from 1 February 2012 to 31 July 2012 the total debits to that account were $234,333.77 and the total credits were $233,233.92.
I find that the husband was conducting a substantial business at least up until July 2012 and that he was doing so in the name of Mr F and operating the Mr F account referred to above. The fate of the funds earned by the husband is unknown. Given the money lending business discussed below and the remission of funds by the husband to China (as is evident from the SMS messages from his sister set out below) it is more likely than not that they were remitted to China.
The husband did not, of course, disclose the business. Indeed, the husband said that his total earnings during the six years of his marriage were some $75,000 or an average income of $12,500 per year. That evidence is not accepted.

The Husband’s Borrowings From His Family

The husband said that he was indebted to members of his family as follows:
Parents  $120,000
Ms NN (his sister)  $500,000
Ms FC  $300,000
MS ZN  $60,000
YA   Rmb             758,000
The husband agreed, that generally, an exchange rate of 6 or 7 Renminbi to one AUD applied to the transaction the subject of this case.
The husband produced what were described as IOUs as evidence of the above borrowings, other than for the borrowing from his parents, the husband saying it was not necessary because of the family relationship. His evidence also was to the effect that his father was extremely wealthy, extremely poorly educated, was suffering from dementia and that he, the husband, managed his money.
He also said that his sister was rich but not well educated and that she often asked him for advice as to how to manage her money. I shall return to that shortly.
I have already referred to the husband’s different versions as to the source of funds used to acquire the B Street property.
There is in evidence, an IOU from the husband dated 18 June 2006 which reads:
I, [the husband], by rate interest-free $500,000 from [Ms NN] on 18 June 2006. This amount of money will be repaid when I have the repayment ability.
This is inconsistent with the evidence of the husband as to the purchase of the B Street property.
It is also inconsistent with the actual borrowings. The husband said that he did not at any time borrow a lump sum of $500,000 from his sister but borrowed money from time to time as he needed it. He also said that although the document was dated June 2006 it was prepared at a later date to record the total borrowings.
There are no bank records to prove the transactions he alleged. The husband said that they did not involve bank transactions. A person in Australia would provide him with the sum in cash he was borrowing and his relative in China would make a matching advance to a person in China. The husband did not adduce any other records, such as letters or text messages that might support the transactions. The husband did not call in aid any evidence other than his own. As I am not prepared to accept his evidence, and I am not prepared to accept that the IOUs relied upon by the husband accurately record genuine transactions. This is confirmed by his evidence that the IOU’s were not necessarily contemporaneous records of a transaction but rather summaries created some time later.
The husband did not disclose any of these debts in his Financial Statement filed on 31 October 2012. In that document, the only family borrowing to which he referred was $60,000 from Ms ZN and YA. His explanation was that his lawyer advised him not to include these loans as the court would not accept that those transactions had occurred in the absence of appropriate supporting documents. If that advice was given, it was prescient.
Had I been satisfied that these loans had been made, issues would arise as to whether or not those debts should be regarded as being recoverable given the time that has elapsed since the borrowings were made.
The loan from Ms FC was said to arise in this way. Between 18 March and 18 April 2012 the husband was in China with Mr Xu. He needed money because his investments in China (investments in a ship and a coal mine) had failed. He was, he said, trying to sell the commercial property to repay the loans which he had made in order to investment. Some of the loans were, he said, in fact made by his brother-in-law on his behalf so that he could invest in the brother-in-law’s business. Mr Xu proposed that the husband borrow from Ms FC and that he, Mr Xu, would guarantee the loan. It was this guarantee which was said to justify the transfer of the shares of Z Pty Ltd to Mr Xu.
There are some difficulties with this evidence.
When initially asked about Ms FC the husband did not recognise the name then said that he guessed she was the friend of Mr Xu from whom he borrowed the money.
On 31 October 2012 his lawyers wrote to the wife’s saying:
(n) [Z] Pty Ltd CAN … was transferred to Mr. [Xu] on 3^rd August 2012 to repay the debt of principle sum of RMBY Y800,000 to Mr. [Xu], and principle sum of RMB Y1,000,000 to Mr. [Xu’s] father Mr. [XC]. A copy of the loan notes and agreement are enclosed for your information, English translation shall be provided when available.
Mr XC is Mr Xu’s father.
In evidence are IOUs showing a borrowing from Mr YC of RMB 500,000 yuan on 26 March 2012, RMB 500,000 yuan on 8 April 2012 and from Mr Xu of RMB 800,000 yuan on 16 April 2012.
Mr YC is the father of Mr Xu.
Also in evidence is a document dated 16 April 2012 signed by Mr Xu and the husband as follows:
I, [Mr Gian] borrowed from [Mr Xu] 1,800,000 yuan RMB and the loan amount shall be paid back in three months together with the interest at a rate of 1.2%. [Mr Xu], the guarantor shall have the right on behalf of [Ms FC] to ask [Mr Gian] to pay back this loan amount in case [Mr Gian] fails to pay back the borrowed money in time.

Further IOUs show the husband borrowing RMB 700,000, RMB 500,000 and RMB 600,00 from Ms FC between 12 – 16 April 2012.
The husband explained the discrepancy between these documents as Ms FC not being satisfied with the first three IOUs and required the documents to be re-done.
I do not accept the husband’s evidence and he cannot rely on the documents – there being different and contradictory versions of the same transaction. He has therefore not established that he is indebted to Ms FC as he asserts.
For the same reasons I am not satisfied that there is a debt presently payable to Ms ZN or YA.
The husband gave evidence to the effect that he had investments in China that had been unsuccessful. This evidence was particularly difficult to follow. In his affidavit of 6 August 2014 he said:
[3]In 2006 and 2010, I borrowed $500,000 and $60,000 from my two sisters [Ms N] and [Ms ZN] respectively (please see Annexure B) to be used for the investment in the shipping business and purchase of the property at [A Street, Suburb C] and the property at [B Street, Suburb C].
[4]Due to the poor management of the invested shipping business, I withdrew as a shareholder in 2012 after losing Renminbi one million eight hundred thousand Yuan (Y1,800,000.00) which is converted into three hundred thousand Australian dollars ($330,000 – please see Annexure C).
Annexure C is said to be an agreement between YA, the husband and ZR Company Limited executed on 28 March 2012. It provided that YA had invested RMB Y8,900,000 in the ‘688 Ship’ and that “[The husband] held RMB Y2,500,000 yuan (RMBY, 2,500,000) under the name of the shareholder [YA]”. The document proceeded to note that the shipping business had been losing money and that the husband proceeded to withdraw his shares, and it seems, return them to YA. Thus it was agreed that the husband would give up his shares at the price of Y700,000. The document then continued (noting that the translator for some reason referred to the husband as a female) continued:
At the time of making her investment, she borrowed a loan of Renminbi one million Yuan (Y1,000,000.00) and she is still owed Renminbi seven hundred and fifty eight thousand Yuan (Y758,000) by offsetting the above Renminbi seven hundred thousand Yuan (Y700,000). It is therefore clear that after the withdrawal of the above Renminbi seven hundred thousand Yuan (Y700,000), Renminbi seven hundred thousand fifty eight thousand Yuan (Y758,000.00) remains a debt.
I do not understand what that paragraph means or the calculations involved in it. The husband did not seek to include any liability arising from this document liability as a liability of his. I gather from his cross-examination that, as a result of this document and surrounding transactions he neither owed nor was owed money in relation to the shipping business. Whether that is so is impossible to tell. This document demonstrates, however, that the husband made a significant investment in China and obtained funds for that purpose from some source. This was not disclosed to the wife.
A number of SMS messages from the husband’s sister Ms ZN to him were tendered. Relevantly they were:
8 September 2011     [Mr Gian], there is RMB 262,600 Yuan In your account with … Bank. Last night, someone wanted to borrow RMB 100,000 Yuan. Should I lend it?
3 January 2012         300,000 Yuan loan and loan term 6 months and 7 days, from 24.06.2011 to 01.01.2012. The interest is 28,050 Yuan with 1.5% interest rate. Interest for 200,000 Yuan loan and 300,000 Yuan loan.
3 January 2012         200,000 Yuan loan and loan term 49 months and 6 days, from 25.11.2007 to 01.01.2012. The interest is 98,400 Yuan with 1% interest rate which minus 50,000 Yuan paid interest, and the interest balance is 48,400 Yuan.
3 January 2012         plus 300 Yuan principal is 376,450 Yuan in total.
6 January 2012         [Mr Gian], I tell you all about the money: … paid 165,000 Yuan; received 47,000 Yuan from mother, 50,000 Yuan for the boat, withdraw 100,025 Yuan from …’s account; plus 108,743 Yuan you remitted directly; the total is 470,768. … lent … 100,000 Yuan so the rest is 370,768 Yuan. Then, plus 376,450 Yuan from brother and the total is 747,218 Yuan in cash.
10 January 2012       Hello [Mr Gian]! 635,550 Yuan remitted by your sister has received, plus the last debt 376,450 Yuan is 1,000,000 Yuan loan in total (on 10 January, 2012). Another debt is 200,000 Yuan (01 January, 2012).
12 January 2012       Uncle [Mr N] will come and repay you 50,000 Yuan this afternoon. Call me if you have time so we can talk in details.
27 January 2012       [Mr Gian], the exchange rate for Australian dollar is 669.13 today. Call me if you need to exchange money.
10 February 2012     [Mr Gian], you remit 269,116 Yuan twice.
[As per original]
The husband sought to explain these text messages in two ways. The first was that his sister was uneducated and needed his help to check calculations for loans that she was making herself. It was suggested that her Chinese was so poor that, for example the message on 12 January 2012 was intended to read that a person was coming in to repay his father’s debt. Secondly, the explanation was that these were dealings with his father’s assets.
The content of the messages supports neither of these propositions. For the reasons given earlier I do not accept the husband’s explanations.
This evidence comfortably establishes that the husband has significant undisclosed assets under his control in China. He has also remitted significant funds from Australia to China in 2012. None of this was disclosed by him and the husband’s financial affairs in China remain unknown.

Advances To The Wife’s Sister

The last two liabilities to be considered are loans that it is agreed the husband made to the wife’s sisters in the amounts of $7,535 and $7,079. The husband said they had been repaid by the sisters to his wife. The wife denied this. She denied that she was aware of the person to whom the second advance was said to be made.
The husband mounted a substantial attack on the wife’s credit based upon the fact that she entered Australia on a foreign passport in the name of Ms U. The wife denied that it was false and the husband did not further explore this. Nonetheless the evidence, such as it was, to a reasonable inference that it was not a valid passport of the wife. That does not of itself rob all her evidence of weight however. Generally speaking much of the wife’s evidence is not controversial or inconsistent with accepted facts. However given the dispute between them, on this issue, the evidence does not enable me to say that these debts remain owing. They will not be taken into account.

Property Of The Parties

Thus the property of the parties to be taken into account is the following:
Monies in controlled monies account        $224,244.59
Z Pty Ltd  $300,000.00
Proceeds of rental monies  $10,000.00
Husband’s superannuation with CBUS         $16,457.00
The wife did not seek any orders against the husband’s superannuation. The appropriate course, then, is to deal with the property in two pools - the first consisting of the first three assets and the second the husband’s superannuation and that there be a division only of the first pool.
The husband sought to have included as liabilities his three credit card debts. There is no evidence that the liabilities of those cards were incurred during the relationship and I do not propose to take them into account.
There are thus no liabilities to be taken into account and the issue then is the division of the pool of $534,244 (the assets excluding superannuation).

subsection 79(2) of the act

I must first determine whether it is just and equitable that there be an alteration of the property rights of the parties. This must be done by consideration of the relationship, its breakdown, if any, the property held by the parties and the basis on which it was held and used by them. The determination is not to be inflated with the consideration of matters arising under s 79(4).
In the present case I am satisfied that it is just and equitable to make orders altering the interests of the parties to the marriage to the property held by them. They are no longer living in a marital relationship. As the parties are no longer living together in a married relationship the basis on which their property was owned and used has ended. It is appropriate, therefore, that their property interests are altered so as to meet their new needs and circumstances.

Parties’ Contributions

Exactly how the B Street property and the commercial property were purchased is not clear. What is clear is that the wife made little or no financial contribution. Given that I have not accepted the husband’s evidence that borrowings from his family were the source of the funds used to purchase the properties, the only finding that can be made is that the husband, in some way, used his own funds to purchase these properties, with the assistance of a mortgage of about $200,000 in relation to the B Street property.
According to the wife, the husband worked very hard during the marriage. The husband denies this saying he was too sick to work but as I have found it is more likely than not that he was carrying on a substantial business under the name Mr F. He also had business interests in China. The husband made the vast bulk of the financial contributions to the marriage.
On the other hand, the evidence clearly establishes that the wife made the bulk of the contributions to the welfare of the family up until the date of separation.
Since the date of the separation the wife has received no financial support from the husband. She has had to support the children financially and otherwise since separation on her own with the children spending some limited time with their father.
There were allegations by each party that the other had improperly removed assets from the matrimonial home.
The wife agreed that when she separated from the husband she took with her a small fridge, television, washing machine, three seater lounge, television unit, queen mattress and two single bed mattress so that she could furnish her new residence. I do not consider that to be an improper use of the matrimonial property.
She also removed some jewellery which the husband gave to her. I do not know what became of it and neither party sought to include it as an asset to be taken into account in the division of the parties’ property.
When the wife returned to the B Street property on 19 April 2013 it was almost completely devoid of furniture. There is no evidence as to what happened to it but a likely inference is that the husband removed it. There is no evidence as to its value and I do not propose to take it into account.
Although the husband made a significantly greater financial contribution to the property than the wife, I am satisfied that the appropriate overall contributions to the property and to the welfare of the family should be regarded as equal because of her contributions to the welfare of the family and her post separation support, financial and otherwise, of the children.

Other s 79(4) Factors

I do not see that any of the orders that I will make will affect the earning capacity of either of the parties.
The parties are relatively young but the wife is not in particularly good health, having had a cancerous tumour removed recently. The husband suffers from Hepatitis B and sleep apnoea. He says a bad back which prevents him from working. None of those prevented him from working as a tradesman under the name Mr F. He can continue to undertake his business dealings in China, whatever they may be.
The wife earns a limited income working part time. She will only have the financial resources that she receives from this court case to look after her and the two children. Nonetheless she is keen to continue to do what work she can and develop her English skills as to obtain better work.
The husband’s property and financial resources are not known but are sufficient for him regularly to have lent out significant sums of money.
The wife has the care and control of the two children of the marriage and is likely to do so until they become adults. The husband presently pays no maintenance or child support to the wife.
Neither of the parties seems to be cohabiting with another person.
Three issues were raised as to matters that ought to be taken into account under s 75(2) of the Act.
The first submission was that the husband deliberately failed to pay the mortgage resulting in the mortgage arrears increasing by some $19,513. From 16 April 2013, the date of being removed from the property, the husband ceased paying the mortgage payments. He said that he did not have the funds to do so. The evidence of the husband’s working and assets overseas is confined to the period prior to separation. There is, therefore, no direct evidence that suggests the husband had the means to pay the mortgage but did not. It is a fair inference, however, from that evidence that he has retained sufficient assets and income to meet the relatively modest repayments even if he was not then working.
In these circumstances, there is clearly a basis for finding that the husband’s conduct was reckless, negligent or wanton such that it should be taken into account in the wife’s favour. However, given the view I have taken as to the husband’s non-disclosure it is unnecessary to pursue this issue further.
Secondly, it was said that the husband removed the furniture of the house at the time exclusive occupation was given. I have already dealt with that issue.
Finally, and of great significance, is the husband’s non-disclosure of his financial position. It is substantial. It would appear that the husband’s business dealings in China involve sums of money greatly in excess of the assets presently in Australia. He appears to have under his control significantly large (in terms of the assets in Australia) sums of cash which he lends out for profit. At least until late 2012 he carried on a substantial and significant business in Australia under the name Mr F with a gross income of hundreds of thousands of dollars a year.
Where there has been deliberate non-disclosure the court should not be unduly cautious about making findings in favour of the innocent party. It may well be appropriate to err on the side of generosity. Black & Kellner (1992)FLC 92-287; Weir and Weir (1993) FLC 92-338 and Kannis & Kannis (2002) 172 FLR 464.
The husband’s non-disclosure is deliberate and extensive. The evidence suggests that he has earned a substantial income and holds assets that exceed the assets the subject of these proceedings. The appropriate adjustment, therefore, is one that would see the wife receive all, or nearly all, of the available assets in Australia.
The wife sought an order that she receive the money in the controlled monies account and the rental account and that the commercial property at A Street be sold and she receive sufficient of the proceeds to give her 85 per cent of the net assets. In the circumstances, that is the most appropriate adjustment to make as it would place nearly all of the available assets in the wife’s hands.
The total assets in that pool are $534,244 of which 85 per cent is $454,108. If the wife receives the funds in the bank accounts she would require a further $219,863 from the sale of the commercial property to obtain the percentage. This is 73.3 per cent of $300,000.
The sale costs of the commercial property are unknown, as is its actual selling price. As it is to be sold the appropriate approach is for the wife to receive a percentage of the sale price which I will round up to 75 per cent. This will, as best as can be done, provide for her to receive 85 per cent of the non-superannuation pool.
As sought by the wife, an independent person should be appointed to conduct the sale of the commercial property. I would not trust the husband to do it. The second respondent has forsworn any interest in the property. I will appoint the independent solicitor proposed by the wife as the trustee for sale of the property.
The husband, on the other hand proposed that the assets should be placed in trust for his eldest daughter (but not his son). The wife and the son would receive no benefit from such an order. They have genuine needs that must be met. That is not an appropriate order in the circumstances.
Accordingly, I am satisfied that the orders proposed by the wife are appropriate. They take into account her greater need in the future given her care of the children, her restricted employment opportunities, disparity between financial resources between her and the husband and the husband’s non-disclosure of his assets. I am satisfied that the orders are appropriate, that is to say just and equitable.
Taking all of the above matters into account, I am satisfied that the orders I propose to make are appropriate, that is to say, just and equitable taking into account all of the matters I have discussed under the heading s 79(4) as set out above. The orders meet, as best they can in the circumstances, the obligation under s 81 finally to determine the financial relationship between the parties and avoid further proceedings between them to the extent possible.

Parenting

The children currently live with the mother and spend time with the father between 9.00 am and 6.00 pm each Saturday pursuant to an arrangement reached between the parties.
The wife sought an order that the children spend overnight time with their father from Saturday morning until Sunday afternoon. She did so primarily because that would enable her to obtain weekend employment rather than that being in the children’s best interests.
The husband’s position is that he is living in a one bedroom flat with no suitable accommodation for the children. That was not challenged by the wife. In any event, he said he would not take the children for that time. Thus, the order sought by the wife cannot be made.
As an alternative, the wife sought that she have sole parental responsibility for the children on the ground that the husband was not really interested in the children. The orders proposed by her were simply that the children live with her. In other words, the wife proposed that there be no orders providing for the children to spend time with their father.
This approach is somewhat contradictory in that one alternative proposes the children spending more time with their father, including overnight time, and the other no time with the father at all.
The issue of parenting was very much a side issue in the proceedings with the parties concentrating primarily on the property issues. This is not surprising since the issues of sole parental responsibility and the children not spending time with the father were only raised in a Further Amended Initiating Application filed on 8 August 2014, which was some time after the directions hearing at which the final hearing date was fixed. Had it been raised at an earlier stage I would have ordered that a Family Report be prepared to assist with the determination of these issues.
The wife said that the children returned from spending time with their father hungry and tired. The child L is said to have told the wife that the husband watched television or slept when they were with him.
More recently the father has been taking the children to a park with one of his daughters from his previous marriage. L is said to have told her mother the husband slept in the car whilst they were at the park.
She said that on 11 August 2013 the child V returned with a high fever. On 18 August 2013 he was returned, she said, in discomfort because he needed a soiled nappy changed. In oral evidence she said recently V, now aged just four, had refused to spend time with his father. Given his age it is unlikely to be a considered decision.
Such is the state of the evidence on the parenting issues.

Section 61DA of the Act provides that:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
The children’s best interests are to be determined by having regards to the matters set out in s 60CC of the Act.
There is no evidence that there is a need to protect the children from physical or psychological harm from the father.
The children presently live with the wife and spend time with the husband each week. There is no evidence that spending time with each parent is not of benefit to them. The fact that the children might prefer to be doing something more interesting to them when with the husband does not mean that the time is not of benefit to them.
The children are aged seven and four. Their views, as expressed by the wife, should be given little weight because of their age and the way they are expressed.
There is no evidence that the children do not have a relationship with the husband that is of value to them.
The husband continues to spend time with the children. His behaviour as to the occupation of the B Street property did not seem to have the interests of the children given any weight. There is no evidence as to his role, if any, in decisions that concern them.
The husband has not maintained the children.
There is no evidence that the children would benefit from not seeing their father. It would suit the mother, it seems, but that is not the test.
There is no practical difficulty or expense in the children continuing to live with the wife and spend time with the father each Saturday.
Apart from the suggestion that the father ignores the children when they are with him (or at least did so on a few occasions) there is no evidence that the father lacks the capacity to provide for the children’s needs. That is so, even if on one occasion the husband refused to buy a book for L because it was a waste of money. It may or may not have been.
The above evidence is insufficient to displace the statutory presumption. It is inconsistent with the wife’s alternative application which is that the children spend more time with their father which suggests a greater involvement rather than no involvement in their lives.
For the same reasons the court cannot be satisfied that it is in the children’s best interests not to spend time with the husband.
The wife’s parenting application will be dismissed.

I certify that the preceding one hundred and seventy six (176) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 29 October 2014.

Associate:

Date: 29 October 2014