Yim and Zieth (No.3)
[2019] FCCA 3404
•28 November 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| YIM & ZIETH (No.3) | [2019] FCCA 3404 |
| Catchwords: | |
| FAMILY LAW – De facto property application – jurisdiction – where parties dispute date of separation – where respondent alleges separation occurred in January 2009 and applicant contends it occurred in 2015 – where respondent does not opt in – applicable principles – court’s power to determine whether it has jurisdiction – where post-2009, respondent purchases two properties in applicant’s name and secures borrowings to complete purchases in applicant’s name – where applicant is registered proprietor of properties and mortgagor for secured liabilities – where respondent maintains and alters records of Chinese Corporation on basis applicant is the relevant “Legal Person” – where respondent registers trademarks using address of applicant’s parents as business address – where the court finds parties’ final separation was after 1 March 2009 – court has jurisdiction to entertain an application for an extension of time. | |
| FAMILY LAW – De facto property application – leave to proceed – where applicant seeks leave to file application for adjustment of property interests out of time – where respondent opposes application – applicable principles – where applicant is registered proprietor of two properties, subject to registered mortgages – whether hardship to applicant or children – leave will not be granted if to do so would not alleviate hardship – need to demonstrate that the loss would be of a right which, in all the circumstances, is substantial – leave refused. | |
| FAMILY LAW – Sole use and occupancy – where both parties seek sole use and occupancy of residence where children presently live – where, following IVO, respondent takes proceedings in VCAT to secure the eviction of applicant and grandparents – where respondent ceases to pay mortgage liabilities, utilities, school fees or to provide any financial support for children – where respondent also has alternative residence – applicable principles – no utility in order for sole use and occupancy in favour of applicant – application refused. | |
| PRACTICE & PROCEDURE – Bias – where respondent alleges bias against Independent Children’s Lawyer – responsibilities of Independent Children’s Lawyer – allegation unfounded and untenable. |
| Legislation: Acts Interpretation Act 1901 (Cth), ss.1, 2D, 2E, 2F Crimes Act 1958 (Cth), s.314 Evidence Act 1995 (Cth), s.140 Family Law Act 1975 (Cth), ss.4, 4AA, 4AB, 39A, 39B, 44, 60B, 60CA, 60CD, 60CC, 61C, 61DA, 62G, 64A, 64D, 65A, 65AA, 65D, 65DAA, 65ZD, 67Z, 68L, 90RA, 90RD, 90SB, 90SK, 90SM |
| Cases cited: Althaus & Althaus (1982) FLC 91-233 AMS v AIF (1999) 199 CLR 160 B and B (1993) FLC 92-357 Betros & Betros [2017] FamCAFC 90 Bondelmonte v Bondelmonte (2017) 259 CLR 662 Briginshaw v Briginshaw (1938) 60 CLR 336 Carpenter & Lunn [2009] FamCAFC 128 CDJ v VAJ (1998) 197 CLR 172 Champness v Hanson (2009) FLC 93-407 Commonwealth of Australia v Lyon (2003) 133 FCR 265 Cooke & Morton [2018] FamCAFC 9 Davis & Davis (1976) FLC 90-062 Dundas & Blake [2013] FamCAFC 133 Edmunds & Edmunds (2018) 50 FLC 93-847 Federated Engine Drivers’ & Firemen’s Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398 Gorman & Huffman & Anor [2016] FamCAFC 174 Godfrey v Saunders (2007) 208 FLR 287 Goode & Goode (2006) 36 Fam LR 422 Gadzen & Simkin [2018] FamCAFC 218 H & K [2001] FamCA 687 Hall and Hall (1979) FLC 90-679 Harridge & Harridge [2010] FamCA 445 Heath v Hemming (No 2) [2011] FamCA 749 Herford & Berke (No 2) [2019] FamCAFC 182 Holden & Wolff (2014) 52 Fam LR 60 Jabour & Jabour [2019] FamCAFC 78 Johnson v Page (2007) FLC 93-344 Kuglioski v Metrobus (2004) 220 CLR 363 Kulat & Azzarudin [2018] FamCAFC 97 Lennon & Lennon [2011] FamCA 571 Macdonald & McDonald (1977) FLC 90-317 Makita (Australia) Pty Ltd v Sprowles(2001) 52 NSWLR 705 Mallory & Mallory [2018] FCCA 2335 Mellick & Mellick [2014] FamCAFC 236 Moose & Moose (2008) FLC 93-375 Morgan and Miles (2007) FLC 93-343 Morton & Berry (2014) FLC 93-613 MRR v GR (2010) 240 CLR 461 M v M (1988) 166 CLR 69 Na & Tiu(No 2) [2017] FamCAFC 269 Norbis & Norbis (1986) 161 CLR 513 Norton & Locke (2013) FLC 93-567 Oscar & Traynor [2008] FamCA 95 Oscar & Traynor [2008] FamCAFC 158 Oswald & Karrington [2016] FamCAFC 152 Paggett & Cable [2015] FamCAFC 186 Panno & Panno [2018] FamCAFC 195 Petrotimor Companhia de PetroleosSARL v Commonwealth of Australia (2003) 128 FCR 507 Reid & Lynch (2010) FLC 93-448 Rice & Asplund (1979) FLC 90-725 Rocacelli & Seles [2019] FamCA 105 SCVG & KLD [2014] FamCAFC 42 S & S [2002] FamCA 59 Sha & Cham [2017] FamCAFC 161 Sharp & Sharp (2011) 50 Fam LR 567 Sinclair & Whittaker (2013) FLC 93-551 Slater & Light [2013] FamCAFC 4 Stanford v Stanford(2012) 247 CLR 108 Stott & Holgar & Anor [2017] FamCAFC 152 U & U (2002) 211 CLR 238 Vaughan & Bele [2011] FamCA 436 Whitford & Whitford (1979) FLC 90-612 Yim & Anor v Zieth [2018] FCCA 3797 Yim & Anor v Zieth (No 2) [2019] FCCA 436 Zieth v Yim [2019] FamCA 75 Texts referred to: |
| Applicant: | MS YIM |
| Respondent: | MR ZIETH |
| File Number: | MLC 10467 of 2018 |
| Judgment of: | Judge A Kelly |
| Hearing dates: | 29, 30, 31 May 2019, 24 June 2019 |
| Date of Last Submission: | 3 July 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 28 November 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr D. Carne |
| Solicitors for the Applicant: | Oakfair Lawyers |
| Solicitors for the Respondent: | Parke Lawyers, (29, 30, 31 May 2019) |
| Advocate for the Respondent: | Mr R. Müller (29, 30, 31 May 2019) |
| In person (24 June 2019) | |
| Counsel for the Independent Children's Lawyer: | Ms P.A. Byrne |
| Solicitors for the Independent Children's Lawyer: | White Cleland |
THE COURT ORDERS THAT:
Parenting
The applicant mother and respondent father have equal shared parental responsibility for the children X born on … 2003 and Y born on … 2006 (the Children).
The Children live with the mother.
Subject to paragraphs (4), (5), (6) and (7) of this Order, the Children spend time and communicate with the respondent father:
(a)each alternative Saturday, from midday until 5:00pm; or
(b)in accordance with the wishes of the Children; or
(c)as otherwise agreed in writing.
During school term and Christmas holidays, the Children spend time and communicate with the respondent for half of such holidays as may be agreed in writing and in default of agreement for the first half of such holidays, subject however to:
(a)the express wishes of the Children or either of them;
(b)the respondent being in substantial attendance at those times.
Where changeover is not able to take place at the Children’s schools, such changeover occur at IGA Supermarket, Suburb A , unless otherwise agreed in writing.
Each party shall do all acts and things as may be reasonably necessary to give effect to the reasonable wishes of the Children that they spend time, or communicate, with the other party.
Provided any such communication be initiated by the Children, each party may communicate with the Children whether by correspondence, telephone, text message, mobile phone or other digital application.
The parties and each of them, whether by himself or herself, their servants or agents or howsoever otherwise are restrained from:
(a)preventing or discouraging the Children from contacting or communicating with the other party at any time;
(b)abusing, insulting, rebuking or otherwise denigrating one another, or members of their respective extended family, in the presence or hearing of the Children;
(c)discussing this proceeding or matters raised in this proceeding in the presence or hearing of the Children;
(d)changing, or taking any step in connection with a change in, the Children’s enrolment in their schools without the consent in writing of both parents;
(e)removing, or attempting to remove, the Children or either of them from the Commonwealth of Australia without having first provided to the other parent (not less than 28 days before the date of proposed travel), notice of such intended travel, a detailed itinerary and a copy of prepaid tickets for the outbound and return travel;
(f)withholding the Children’s passports from when they are reasonably required, whether for the purposes of pre-travel identification or travel that has been agreed upon or otherwise.
Each of the parties be authorised to obtain from the Children’s schools at their respective request and expense (if any), such information as a parent would ordinarily be provided or entitled to, including but not limited to school reports, school photographs, order forms and notices of events and, for the purposes of this Order, the parties be authorised to provide a copy of this Order to each of Children’s schools.
Each of the parties be at liberty to attend the Children’s school events provided that, during such attendance, each refrain from approaching the other parent or any members of their extended family who may be present and ensure that they conduct themselves in a respectful manner toward the other parent and any extended family member.
The parties undertake a post-separation parenting course and furnish a certificate of completion to the other.
The parties do all acts and things as may reasonably be necessary to procure the enrolment of the child, Y, at D School to commence in Term One, 2020.
In default of compliance with paragraph (12) of this Order, and the court considering it necessary to exercise the powers of the court under s.106A(1) of the Family Law Act 1975 (Cth) (Act), a Registrar of the Federal Circuit Court of Australia be forthwith appointed to execute any documents in the name of either party and do all acts and things as may be necessary to give validity and operation to an application for enrolment of Y at D School.
Each party keep the other informed of any significant medical condition or serious injury that may occur while either of the Children are in their care and this Order constitutes the authority of any medical or allied professional who may be treating the Children, to discuss the diagnosis, treatment and prognosis concerning any such condition or injury.
The parties be authorised to provide a copy of this Order to any medical or allied professional.
Each party keep the other advised of their current residential address, contact telephone numbers (both landline and mobile telephone) and email addresses and advise the other of any changes to such details within 48 hours of such change occurring.
Property
The application for leave to proceed out of time pursuant to s 44(6) of the Act be dismissed.
Sole use and occupancy
The parties respective applications for the sole use and occupancy of the properties the subject of their applications be dismissed.
Other matters
Pursuant to s 68P(2)(a) of the Act, that to the extent that this Order may be inconsistent with any Interim Intervention Order that has been made by a Magistrates Court (Intervention Order):
(a)this Order prevails over such Intervention Order and operates according to its terms;
(b)that Intervention Order is invalid, pursuant to s 68Q(1) of the Act.
The parties be authorised to provide a copy of these reasons for judgment to a State court.
Subject to paragraph (22) of this Order, all previous parenting orders in this proceeding be discharged.
The appointment of the Independent Children’s Lawyer be discharged with effect from 31 March 2020.
By 4.00pm on 12 December 2019, the parties file and serve any submissions, not exceeding 6 pages (1.5 spacing, font 12) in relation to any application for costs.
Any application for costs be decided on the papers.
Pursuant to ss 65DA(2) and 62B of the Act, the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order are set out in Annexure A and these particulars are included in this Order.
IT IS NOTED that publication of this judgment under the pseudonym Yim & Zieth (No.3) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 10467 of 2018
| MS YIM |
Applicant
And
| MR ZIETH |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment explain orders that are made in an application under the Family Law Act 1975 (Cth) (Act) for parenting orders and leave to proceed in an adjustment of property interests between the applicant wife and respondent husband who were parties to a de facto relationship, the duration of which is in issue.
By way of overview, the proceeding involves parties of Chinese ethnicity who have recently been in a state of conflict, which had not existed before 2018. There are two adolescent children of the relationship whose primary attachment is to their maternal grandparents. They and their grandparents live in a property in Suburb A of which the applicant is registered proprietor and that was purchased by the respondent. Until the respondent determined, in August 2018, that the grandparents should vacate that property, the applicant had for many years been living and working in China, effectively delegating her share of her parenting responsibility to her parents. The respondent has otherwise borne the primary parenting responsibility for many years.
The case has become highly litigious in a relatively short time. A family report writer’s opinion is that the parties’ conflict will likely resolve but that this will be dependent, in part, on completion of this litigation.
Having regard to the relevant facts and circumstances, it is convenient to arrange these reasons as follows:
(1)first, by reference to the procedural history;
(2)secondly, as to the findings upon the evidence;
(3)thirdly, to address a bias allegation against the Independent Children’s Lawyer (ICL);
(4)fourthly, to address parenting issues;
(5)fifthly, to consider jurisdiction respecting property issues;
(6)sixthly, to determine leave to proceed under s 44(6);
(7)seventhly, to resolve the application for sole use and occupancy.
In summary, I have concluded that, as concerns:
a)bias: the allegations made against the ICL were unwarranted and untenable;
b)parenting orders: I have made orders that the parties should have equal shared parental responsibility for the children and that they should live with the applicant. A number of other parenting orders have been made to address the several submissions made;
c)jurisdiction: the court has jurisdiction to determine whether it has jurisdiction to entertain an application in relation to the property interests of parties to a de facto relationship. As I have found that the parties’ final separation occurred after 1 March 2009, it follows that the court has jurisdiction to consider an application for leave to proceed pursuant to s 44(6) of the Act;
d)the application for leave to proceed: I am not satisfied that it is a proper exercise of discretionary power to grant leave to proceed with an application for an adjustment of property interests out of time. Accordingly, that application is dismissed
e)sole use and occupancy: in the circumstances, including that the applicant is registered proprietor of the subject property, there is no utility in the grant of an application that the applicant should have sole use and occupancy of that property.
Three matters should also be recorded by way of introduction. First is that the respondent, who employed three firms of lawyers over the course of the proceeding, was also frequently self-represented. Secondly, at times, when he was self-represented, including following the conclusion of the trial, the respondent took it upon himself to make several written submissions which, had they been filed by a party having legal representation, I would have ignored. While I have determined that it was preferable, and expedient, in the interests of justice to consider those further submissions, this has prolonged the time to complete the preparation of these reasons for judgment. Thirdly, the respondent was afforded but declined opportunities to reflect on the stance he has taken in opposing the determination of a property application in this court.
Procedural history
On 7 September 2018, the first applicant[1] commenced this proceeding by an Initiating Application seeking orders respecting both property and parenting matters. The maternal grandfather[2] was joined as second applicant to the proceeding. This was done for the apparent purpose of securing interim parenting orders that, pending the applicant’s return from China, the children should live with her father. Various other parenting orders were sought, including that the children should spend time with their father on terms to be agreed between the respondent and grandfather “from time to time.” The applicant sought an order for the sole use and occupation of property situate at F Street, Suburb A, Suburb A (Suburb A property), conditioned on terms that the respondent continue to pay the mortgage payments as and when they fell due.
[1] Who, for ease of reference, will be referred to in these Reasons as the applicant.
[2] Who, for ease of reference, will be referred to in these Reasons as the grandfather.
As concerned property matters, the applicant sought leave pursuant to s 44(6) of the Act to file her application out of time. Interim orders were sought for the valuation of the Suburb A property, together with certain properties situate in Suburb B, one of which is owned by the applicant and the other by the respondent. Other ancillary orders were sought.
On 8 October 2018, a Response to the Initiating Application was filed on behalf of the respondent by a firm of lawyers having specialist experience in family law. By this Response, the respondent agreed on some practical aspects of the proposed parenting arrangements including that provision be made for access to school notices, reports and invitations for matters such as parent/teacher interviews. Otherwise, the respondent proposed by way of interim relief that the children should live with him and spend time with their mother by agreement. He also sought an order for sole use and occupancy of the Suburb A property.
As concerned property, the respondent sought dismissal of the application made pursuant to s 46(6) of the Act. In notes to his Response, the respondent contended that the applicant did not reside in Australia and had lived exclusively in China since 2007. He contended that the date of final separation was January 2009 (not 2015), stating “the de facto relationship broke down before 1 March 2009” and that, as the applicant had not made substantial contributions, there would be no resulting serious injustice to her by the refusal of orders and declarations for an adjustment of property interests. The respondent further stated that the applicant had not made substantial contributions in any participating jurisdiction. Further, in the notes to his Response, he contended that until 11 September 2018 the children had lived with him.
I note, in passing, that the grandfather also sought interim relief that he be authorised to use a Motor Vehicle G which was located at the Suburb A property. The respondent sought injunctions, both to compel grandfather, aged 73 years, to return the Motor Vehicle G and to restrain him from driving the children in any vehicle.
Each of the parties filed a notice of risk, which I address below.
On 11 October 2018, the Department of Health and Human Services (DHHS), filed a response to those notices given under s 67Z of the Act.
At the first directions hearing held in a Duty List on 15 October 2018, orders were made: appointing an ICL; permitting the parties to inspect documents produced by DHHS, and; adjourning the matter for mention. In addition, orders were made, by consent, that the children live with the applicant, and spend time on alternative Saturdays with the respondent but subject to the children’s wishes. Having regard to other emerging issues, the parties were agreed in orders that both children remain enrolled at their respective secondary schools in Suburb A. A further consent order was made for the preparation of a family report by Mr H who was available to see the parties on short notice.
Notwithstanding that the respondent had been legally represented at the directions hearing, the following day he communicated with chambers purporting to withdraw his consent to the orders that had been made on that date. As was appropriately demonstrated in cross-examination, before seeking orders from the court, the parties had participated in their own negotiation in the course of which they had reduced to writing the terms of their interim consent order. The respondent agreed that both he and the applicant had signed that handwritten order (which was tendered in evidence). To the extent the respondent sought to suggest that he had been placed under undue pressure to agree upon the terms of that minute of order, I reject that evidence.
On 25 October 2018, respondent, who was then self-represented, filed an Application in a Case seeking summary dismissal of the Initiating Application as being “fraudulent, frivolous, vexatious and an abuse of process” and for the applicants to be “reprimanded and/or suitably punished, for providing intentionally false and misleading evidence” and that they should pay his costs of the proceeding on an indemnity basis. While I address the circumstances giving rise to that application below, it is sufficient to record that on 10 December 2018, an order was made dismissing the Application in a Case: Yim & Anor v Zieth.[3] By those reasons for judgment, I explained that the application would be dismissed, essentially because very serious allegations made by the respondent were not supported by any cogent evidence as at the date on which the application was filed and the belated attempt to do so, shortly before the date of the hearing, was quite unacceptable. The respondent had merely deposed he would provide “further and better particulars with regards to my application in a case . . . as soon as possible.”
[3] [2018] FCCA 3797.
On 26 October 2018, the parties and children attended upon Mr H. On 9 November 2018, Mr H completed his family report. Later, the respondent would challenge findings in the family report including that the children’s stated views did not reflect their true feelings.
In consequence of the matters raised in the course of hearing the Application in a Case on 10 December 2018, orders were made listing the matter for trial at the earliest date for a three-day trial (being 29 May 2019), and referring the parties to mediation.
On 17 December 2018, the respondent filed a notice of appeal from the order dismissing his Application in a Case, which notice was amended on two occasions. The appeal was dismissed on 30 April 2019.
In the interim, although arrangements were made to schedule the matter for mediation on 28 February 2019, the respondent did not attend that mediation. Moreover, the respondent filed further applications seeking:
a)on 24 December 2019, amongst other things, a stay of the order made on 10 December 2018; dismissal of the Initiating Application “on the grounds that it is fundamentally fraudulent and an abuse of process without undue delay”; and for the referral of the applicant’s “to relevant authority for providing intentionally false and misleading evidences and false statements.” On 18 February 2019, submissions were made on this application in a Duty List. On 28 February 2019, orders were made for the dismissal of the application: Yim & Anor v Zieth (No 2).[4] It is necessary to refer in a little detail to the circumstances underlying that application;
b)on 19 March 2019, an order that the orders made on 10 December 2018 be stayed pending appeal. This application was made returnable on 29 March 2019 and on that date, orders were made for the dismissal of that application.
[4] [2019] FCCA 346.
On 2 April 2019, the grandfather filed a notice of discontinuance. In the result, only the applicant proceeded at trial to seek, relevantly, parenting orders together with leave to proceed pursuant to s 44(6) of the Act.
As noted above, on 30 April 2019 the appeal was dismissed with costs: Zieth v Yim.[5] The respondent disagreed, contending the appeal had been withdrawn. While the respondent was strictly correct, his narrative left out of account that he had withdrawn the appeal in the course of the hearing of that appeal.
[5] [2019] FamCA 75 (Strickland J).
On 1 May 2019, the applicant filed an Amended Initiating Application by which she proposed more refined final orders in respect of parenting matters. No Response to that amended application was filed.
The trial of the proceeding occurred over four days. Although represented during the evidence, the respondent was self-represented on the final day of hearing when closing submissions were made. On the second day of hearing, the parties announced that agreement had been made, relevantly: (1) for change over; (2) for the enrolment of Y at D School; (3) as to non-denigration; (4) to permit the parties to obtain access to school reports, notices, order forms, photographs etc; (5) the parties to attend school events; (6) the parties to inform each other of their current address and contact details; (7) for each party to advise the other if either of the children suffered any serious medical illness or injury. I have incorporated those orders into the final orders which are pronounced and set out above.
Each of the parties and the ICL furnished detailed Outlines of Case and chronologies of events against which the scope of their dispute could be more fully considered. I have examined those documents in detail.
As noted, the respondent filed a number of written submissions, both before and after closing oral submissions were heard on 24 June 2019. I record that, to my observation, counsel for the represented parties treated the respondent with dignity and respect at all times.
Parties positions at trial
The factual issues that were identified by the parties’ Outlines of Case were stated to be as follows:
a)the ICL: Who had been the children’s primary carer for the period May 2013 – August 2018?
b)the applicant: (i) whether the presumption of equal shared parental responsibility was rebutted; (ii) what arrangements for the children’s spend time would meet their best interests;
c)the respondent: Who was considered to be the children’s primary carer for the period August 2013 to August 2018? Attention was directed to the extent and nature of: (i) the care provided to the children in that period and by whom; (ii) the parental relationship of each of the parties with their children.
Somewhat curiously, the applicant’s Outline of Case did not identify the issue of who had been the children’s primary carer in the period 2013 – 2018 as a significant question or at all.
The orders which were sought by the parties were as follows:
a)at this point, the ICL’s qualified position was that parenting orders should provide for: the children to live with the applicant; for the parents to have equal shared parental responsibility for their children; for the children to spend time and communicate with the respondent on alternative Saturdays (five hours) and as otherwise agreed; change over; non-denigration; the obtaining of school information and attendance at school events.
b)the applicant sought parenting orders: for the applicant to have sole parental responsibility, conditioned upon obligations to inform the respondent of significant long-term decisions; for the children to live with her and spend time and communicate with the respondent on alternate Saturdays (three hours) and as otherwise agreed; change over; for the children’s school enrolments to be maintained; for the return of passports (and to be retained by the applicant); for notice of future international travel; non-denigration and the obtaining of school information. The applicant also sought an order that each parent keep the other advised of their current residential address and contact telephone numbers.
c)the respondent sought parenting orders: for the parties to have equal shared parental responsibility; for the children to live with the father and (while the applicant was resident in Melbourne), for the children to spend time with their mother by agreement and, in default of agreement on a week-about basis during school terms and half of each school holidays; for a communication regime; for the children’s wishes to be respected in relation to spend time; for change over; for Y to be enrolled in a new school; non-denigration; obtaining of school reports and information.
While it is convenient to address the parties’ proposed orders in relation to the application pursuant to s 44(6) of the Act in the consideration of that issue below, it is sufficient for present purposes to recognise that the applicant sought, and the respondent opposed, the grant of leave; doing so on the basis that the court had no jurisdiction to consider the application. Determination of the jurisdictional objection turned upon the finding of a jurisdictional fact as to whether the parties’ final separation had occurred before or after 1 March 2009.
Evidence at trial
Evidence was adduced from the parties, the grandfather and Mr H. I have considered the trial affidavits and report respectively of those witnesses together with the evidence which they gave at trial. It has not been necessary to refer to every aspect of their evidence. Equally, while I have considered each of the documents in the court book upon which the parties placed specific reliance, it has not been necessary to refer to every one of those documents in this judgment.
It is necessary to make some general observations concerning the witnesses and how they presented at trial. By way of overview, it is clear as Mr Carne, counsel for the applicant, submitted that the parties now no longer harbour any affection for each other. A particular difficulty with the applicant and respondent was that they preferred not to answer questions but instead to employ them as an opportunity to make a speech on a topic which travelled well beyond that posed by the question put to them. On occasion, they were clearly motivated by self-interest. Yet, I found that they presented as essentially honest and reliable witnesses who did their best to deal with the questions that were asked of them.
Overall, I found the applicant, who is a professional, to be essentially credible. A feature of the applicant’s evidence was that, although she was assisted by an interpreter, she often answered questions before the interpreter had completed the translation. In terms of demeanour, overall I found the applicant to be an essentially truthful witness; however, an issue in the case is whether her intention to remain in Australia will change.
I found the grandfather to be honest and forthright. He presented as a truthful witness, however, as counsel for the ICL observed, his contempt for the respondent was stark. His underlying animosity for the respondent is therefore a factor of real significance in the evaluation of his evidence. His evidence is also important for the reason that he has assumed a significant role in the lives of the children. There is no doubt that the children’s primary attachment is to their grandparents, and in particular, the grandfather. He presented as a caring person with a love of the children which was confirmed by: the opinion evidence of the family report writer, Mr H; the submissions of the ICL, and; most importantly, the children.
I found the respondent to be a troubling witness. I have no doubt that the views which he expressed were genuinely held. Relatedly, it was necessary to assess whether there was a rational basis for his views on some issues and, on other occasions, whether his evidence was corroborated or undermined by contemporaneous documentary evidence or otherwise. In some instances, his written and oral evidence had a formulaic quality.
Counsel for the ICL submitted that the respondent presented as a controlling and manipulative person who had great difficulty in seeing a matter from any perspective other than his own. The respondent was criticised as lacking insight as to the impact of his behaviour, and in particular as concerned the impact of his behaviour on the children. Counsel endorsed the views expressed by Mr H that the respondent presented as a person whose thinking and logic tended to be reductive and one-dimensional and that his behaviour displayed a tendency to act unilaterally and in conformity with his own beliefs and without consultation. Further, Mr H considered that the respondent displayed no understanding or insight into the developmental phases of the children during their adolescence, and that he had given little thought to their psychological and emotional adjustment during the period of conflict between their parents. Mr H also considered the respondent did not possess the ability to plan in a way that supported the children and that, in the children’s eyes there was “a lack of fit between their father’s parenting approach, social skills and his ability to relate to them in a psychological and emotional level.”
The respondent was criticised both by counsel for the applicant and the ICL. While there was much force in those criticisms, much of what was said was more easily understandable when account was taken of the respondent’s unique personality traits. It was clear that the respondent is passionate in the views he holds in relation to the matter and that he has an unwavering sense of self belief. As the family report writer observed, one by-product of the respondent’s personality is a relative lack of insight in relation to the views expressed by others; relevantly, the applicant, the grandfather, the family report writer and, most importantly, the children. However passionate the respondent’s self-belief may be, in my view he made a considerable effort to restrain himself when giving evidence, during cross-examination and in submissions. Regrettably, on not infrequent occasions, he was unable to do so. In particular, his inability to restrain himself exhibited itself when he was addressing topics which demonstrate what he considers to be, the iniquity of his present position.
Other aspects of the respondent’s evidence established that he was frequently argumentative and resolute in the correctness of his own belief. Again, these aspects of his presentation may be seen as a reflection of his intellect. Yet his argumentative nature resulted, on several occasions, in an inability to respond to questions, the answers to which should have been clear. He also demonstrated a tendency to turn the question upon the questioner and criticise either counsel or the instructing solicitor in relation to the issue at hand. The respondent was at times highly emotional and combative, resulting in an unwillingness to consider an alternative point of view. The following examples may be seen from the evidence which is considered in more detail below: (1) while the respondent maintained that he was frequently resident at the Suburb A property midweek, there is evidence to contradict that assertion; (2) at the commencement of trial, the respondent sought to advance the position that he would relocate to Suburb A – yet there was very little independent objective evidence to provide any substantive basis for this contention; (3) further, by the time of closing addresses, the respondent adopted the position that the children should reside with him in Suburb U and attend schools in that nearby locality; (4) by contrast, in the course of trial and in particular during openings, it had essentially been agreed that Y should attend D School– yet he recanted; (5) when challenged in relation to his motivation for having purchased two properties in the applicant’s name, the respondent attributed the decision to his having acted upon the advice of a mortgage broker and as being nothing more than a ‘commercial arrangement’; (6) he did so despite being confronted with contemporaneous letters which had been written by his former solicitors (i.e. on his instructions), or by himself, each of which explained that the transactions had been arranged by him so as to provide the applicant some financial security on the stated basis that he did not believe the applicant had the capacity to purchase a property in Australia; (7) contextually, the letter written by his former lawyers was his primary response to a letter of demand from the applicant’s lawyers seeking to resolve property issues – a matter upon which he criticised the applicant stridently; (8) by way of further context, the letter written by the respondent himself was one that he addressed to his adolescent son as an explanation for the matters which had escalated into a significant dispute; (9) likewise, the respondent was unable to reflect upon or consider whether, in light of the available evidence, it had been reasonable for him to notify DHHS of his ‘concerns’ in relation to the grandfather.
All of the above matters considered, I have reminded myself that the stress of litigation is difficult enough for practitioners with experience in the conduct of trials. I do not underestimate how much more difficult it may be for litigants, especially those who are self-represented, and whose personality traits may, as here, elevate their emotions in relation to difficult issues.
The family report writer, Mr H, gave his evidence in the forthright manner as would be expected from a truly independent expert witness. He was prepared to reflect upon and amplify the reasons for opinions that he had expressed. I was impressed by his evidence.
The following findings are based upon an analysis of the parties’ affidavits, viva voce and documentary evidence and the inferences which I consider are properly made. The matters set out below include both matters that were common ground, including from their chronologies, and my findings of fact upon particular issues. Matters addressed above in my summary of the procedural history are incorporated in my findings. Given the parties’ tendency to debate the minutiae of their history, and having regard to their definition of the issues in dispute, in many cases it has not been necessary to decide, as a matter of probability, which of the parties’ allegations or counter allegations are to be preferred.
Where the parties had agreed upon a fact or circumstance in their affidavits, chronologies or case outlines, I have taken account of that matter. Where issues of dispute arose, I have addressed them separately in a later section of these reasons. In deciding disputed issues of fact, I have applied the civil standard of proof to the resolution of that issue.[6] The more serious the allegation, the more necessary it was that I took into account the gravity of the allegation in deciding whether it was made out.[7] Where the evidence does not permit the court to make an affirmative finding either way on a particular issue, the court is not bound to do so, and may find that the party which bears the evidentiary onus of proof has failed to discharge it.[8] The court may well accept some parts of a witness’s evidence and reject other parts of it.[9]
[6] Evidence Act 1995 (Cth), s 140.
[7]cf Evidence Act 1995 (Cth), sub-s 140(2); Johnson v Page (2007) FLC 93-344, [72]; Briginshaw v Briginshaw (1938) 60 CLR 336.
[8] Kuglioski v Metrobus (2004) 220 CLR 363.
[9] Jabour & Jabour [2019] FamCAFC 78, [110] and cases cited.
Background
The parties are of Chinese ethnicity. Mandarin is their native language.
The cultural aspect of their Chinese heritage has played no small part in relation to the children’s living arrangements and in particular the manner in which their children have been raised. As will appear, much of their upbringing has been undertaken by one or other of their maternal grandparents.
The applicant wife is aged 41 years and is described in her Amended Initiating Application as an Australian citizen and being a professional by occupation. The respondent accepts that she is an Australian citizen. The applicant has not been previously married and is an only child.
The respondent husband is aged 59 years and is described in his Response as an Australian citizen and ordinarily resident, domiciled and present in Australia and as being a professional by occupation. The respondent has had two prior marriages and an adult child from an earlier relationship. The respondent’s business activities have been somewhat entrepreneurial and have been carried out both in Australia and in China. They have included: in Australia, a V Business, and; in China a W business and, more recently, a Z business. In the result, it has been necessary for the respondent to travel from Australia frequently, and at regular intervals.
There are two children of the relationship, X now aged 15 years and Y now aged 13 years. For much of their adolescence, and in particular since May 2015, they have lived in the Suburb A property which, though purchased by the respondent, is owned by the applicant.
The parties met in 2002, and in 2003 commenced cohabitation in rental accommodation in Melbourne. The applicant was then engaged in the course of study, which she completed in … 2003.
There was some dispute as to the initial parenting arrangements for the child. It was common ground that in the period December 2003 to March 2005, the applicant had been the child’s primary carer and that, at this time, the respondent was actively engaged on a full-time basis in the conduct of his V business which traded as L Pty Ltd. At trial, the respondent presented a business card on which he was described as being its Executive Director. He described it as an Australian company and as one that he continues to operate.
It was also common ground that the applicant’s mother would travel from China to Melbourne at quarterly intervals to assist in the care of the child, X, following his birth in 2003, and that she continued to do so following Y’s birth in 2006.
In … 2005, the applicant commenced studies for a graduate certificate in …. At this time, the respondent continued to be engaged, full-time, in the conduct of his V business. The applicant contended, and I accept, it was in these circumstances that X was dispatched to China to live with his grandparents. However, X returned to Australia in … 2005. The parties were agreed that X had lived in China and returned to Australia on those dates. As early as July 2005, the applicant wrote a letter to the Department of Immigration in support of a Long Stay (Subclass 686) visa application for her mother.
The parties’ second child, Y, was born on … 2006.
The respondent contended that from this date he had been the primary carer for both children, however, he agreed that, again, the maternal grandmother had travelled to Australia every three months to assist with and care for the children.
Again, a little over a year after the birth of Y, both of the children were sent to live with their maternal grandparents. The applicant contended that the delivery of the children to China was a joint decision that was grounded on the demands placed on their commitments to complete studies and attend to the conduct of the business respectively. The respondent contended that the children lived with their grandparents in China in the period, 2007-2008. It was the respondent’s position that the children moved to China to live with their grandparents so as to facilitate the applicant’s desire to pursue further studies and that she was “facing other issues at the time.” He later described those ‘other issues’ as postnatal depression, a matter denied by the applicant and about which there was no further evidence. It was also his position that he, as a result, was obligated to remain in Australia “to fulfil his work and business commitments and earn adequate incomes to support expenses on both sites till August 2013.”
The parties disagree as to who was the primary carer for the children at this time and disagree as to the reasoning behind the decision to send the children to China.
There was some dispute as to whether, in late 2007, the children returned from China, as did their parents and maternal grandparents.
In May 2007, the respondent also registered a W business styled L Pty Ltd, City M, China. Despite his denials to the contrary, I find that the respondent registered the applicant in China as the owner of that business. The respondent maintains that he is an investor in that business. Some confusion may be avoided when it is recognised that the Australian V business and the Chinese W business each employ ‘L Pty Ltd’ within their respective business names. Another feature of the case which emerges at this point is that the respondent has, for whatever reason, adopted a practice of either registering, or otherwise employing, real or personal property in the applicant’s name.
The parties’ first item of real property was an apartment in Suburb T which had been purchased by the respondent in 2005 and was registered in the applicant’s name. The respondent applied for a home loan in the applicant’s name and she thereby became liable as mortgagor for that secured liability. In 2008, the Suburb T property was sold. There is little information as to the net proceeds of sale of that property and what has become of them or how they were applied to any other investment. The respondent substantially serviced this mortgage liability and all other outgoings on this property.
It was common ground that in 2008, both parents, with the children, relocated to China, doing so because the respondent wished to pursue a W business. The applicant and children lived with her parents in 2008-2009. The respondent disagreed that he relocated, stating that he maintained his residence in Melbourne and said that he visited them at 1-2 monthly intervals, maintaining phone contact with them between such visits, also explaining that he had the responsibility for the operation of his V business in Melbourne. On any view he, and the applicant, each travelled a good deal.
While the respondent contended that the W business failed about a year later as a result of the global financial crisis, the applicant contended that it began to fail towards late 2010. The respondent gave this evidence in a convincing manner upon an issue that was somewhat against interest (i.e. the failure of a business venture). The applicant’s case was that for those reasons she and the children lived in China with her parents during this period. However, in 2009, she vacated the grandparents’ home and insisted that the parties had occupied rental accommodation that was some 30 minutes away. The respondent disagreed, stating that the applicant obtained alternate accommodation as she did not wish to continue living with her parents and further. He further stated that he had provided financial support for the children.
The applicant maintained that until 2015, whenever the respondent travelled to China he lived with her and the children. The respondent stated that the parties tried, but struggled, to maintain a long distance relationship in the period 2007 – 2009 and that they separated in January 2009. He also says that with the applicant’s agreement, he continued to visit the children every 1-2 months and that he maintained phone contact with them between such visits. The respondent’s movement record obtained from the Department of Home Affairs confirms that from at least 2000, the respondent had travelled to China from Australia at approximately monthly intervals. Those records also confirm that before 2000 he had travelled there, albeit less frequently, since 1990.
The respondent asserts that he agreed he would continue to support both the children and the applicant in China whilst he lived in Australia, stating that he did so for the purpose of the “care, welfare and development, and the well-being of the children.” He also says that, for the same reasons, he did not re-partner as he wished to present to the children a position that “nothing happened” and that he maintained this position until more recently when they started to ask questions. The respondent further stated that he and the applicant had minimal contact after January 2009.
The respondent further contends that in the period 2009 to January 2013, the applicant and children continued to live in China but lived in their own accommodation, separately from the grandparents. The respondent says that he visited the children at two-monthly intervals and, again, says that he maintained contact with them at all times by telephone.
On a date which is unknown, the respondent purchased an apartment in Suburb B (First Suburb B property). In … 2010, the respondent purchased another apartment in Suburb B (Second Suburb E property). These properties are located nearby.
It is self-evident, on the respondent’s case, that the Second Suburb E property was purchased after the date of final separation. However, it was the applicant’s case that the respondent had, without her knowledge or consent, purchased the Second Suburb E property and for that purpose applied for and obtained a home loan in her name. The respondent agreed that the transaction occurred without the applicant’s knowledge or consent and described it (on more than one occasion) as a “convenient commercial arrangement.” He further says that in relation to all such property purchases, the decision to name the applicant in the transactional documents was made on the advice of his mortgage broker (who was not called to give evidence).
As with the Suburb T property, the respondent also serviced the mortgage and all outgoings on each of the Suburb B properties and, following the purchase of the Suburb A property below, he continued to do so until October 2018. The respondent’s decision to cease paying the mortgage, and other outgoings, on that property was explained by his effective eviction from the Suburb A property as a result of the applicant obtaining an IVO against him.
In 2011, the applicant commenced full-time employment in China, working as a professional. It was the applicant’s contention that she commenced this full-time employment in a company to supplement the family’s income having regard to the progressive failure of the W business, L Pty Ltd, City M, China.
Notwithstanding the respondent’s contention that the parties separated in 2009, on 3 February 2012 he had registered the business address of L Pty Ltd, City M, China as being situated at the home address of the maternal grandparents in City M.
The respondent disagreed that he ceased operating the Chinese W business from 2012 and described as “not relevant” the suggestion that thereafter, he continued to employ the L Pty Ltd business name in the conduct of a Z business. The respondent agreed that he registered three trademarks in connection with his Z export business and, again, had utilised the grandparents’ City M address in connection with those trademarks, explaining this also as being a “commercial arrangement”. Those applications had been made in September 2012. The respondent’s offhand dismissal of various transactions as being a commercial arrangement was unconvincing
In November 2012, the respondent purchased the Suburb A property. In relation to this property, too, the respondent purchased it and obtained a home loan in the applicant’s name, apparently doing so without her knowledge or consent. By letter dated 21 November 2012, the respondent wrote to St George Bank in relation to a loan application stating “As the matter is kind of urgent, we’d appreciate if you could send it at your earliest convenience.” The letter was signed by the respondent over the title “Attorney for Ms Yim.” On the respondent’s case, the applicant was not in Australia at that time. Relatedly, the respondent prepared a letter dated 21 October 2012 addressed “To Whom It May Concern” on behalf of the applicant, stating that her permanent address in Australia was Suburb B. The respondent also prepared a general power of attorney on behalf of the applicant expressed to be made on “26th day of May 2009” which was purportedly signed by both the applicant and respondent.
In January 2013, the respondent completed a loan application on behalf of the applicant in order that he could complete the purchase of the Suburb A property. In doing so, the respondent provided the lender with the applicant’s supposed employment details. In the loan application, he described the applicant as being “General Manager – private industry” and being employed by “L Pty Ltd”. Later, on 18 June 2013, the respondent completed the lender’s form to close an account on behalf of the applicant, using her signature at a time when the movement records relied upon by the respondent demonstrated that she was not in Australia.
The respondent says that he spent more than six months renovating and furnishing the Suburb A property so that it was completely ready for the arrival of the children in 2013.
In the result, the applicant has become registered as proprietor of both the Second Suburb B property and the Suburb A property. At the same time, she is the mortgagor under mortgages granted to Westpac Banking Corporation and which are registered on title to those properties. Pursuant to those securities she is liable for substantial debts.
The parties were agreed that in … 2012, the respondent travelled to China for the purposes of celebrating X’s ninth birthday. Photographic evidence tendered at the hearing confirmed this to have been a joyous family occasion. However, the respondent disagreed that the parties had lived together at the rental apartment and stated that he had only spent the day with X for his birthday party. The applicant maintained that the parties shared a bedroom, conceding that on occasions, the children would sleep with them in the same room. It was common ground that that when he travelled to China at this time, the respondent had brought the contract of sale for the purchase of the Suburb A property for the applicant to sign. The court book contained a copy of the contract of sale for the Suburb A property dated … 2012, which appears to suggest that the respondent executed it as the applicant’s attorney. Whatever had actually occurred, the respondent adhered to the position that it was a “valid commercial arrangement recommended by [his] broker.”
It was the respondent’s case that in … 2013 the grandparents travelled from China with the children to inspect the Suburb A property to see if it was suitable for the children to live at and for the extended family to visit. The parties agree that from … to 21 … 2013, the children and paternal grandparents resided with the respondent in Melbourne. They also agreed that settlement on the purchase of that property occurred on … 2013.
The applicant travelled from China to Melbourne to spend time with the respondent and her children, residing with them at the Suburb A property in the period … to … 2013. The respondent maintained that the applicant had stayed in X’s bedroom.
The grandparents then took the children back to China where they lived from … to … 2013. The applicant claims that during this period the children lived with her at a rental apartment in City M. The respondent conceded that the children resided with the applicant at this time but there was “likely some time with maternal grandparents.”
Thematically, the respondent sought to characterise the assistance being lent by the grandparents to the upbringing of the children as being demonstrative of the applicant’s lack of parenting, rather than evidence of the manner in which the children had been brought up in the overall context of this somewhat long-distance relationship (or lack thereof). He also seemed to leave out of account that the manner of the children’s upbringing was consistent both with the parties’ historical parenting arrangements and with their Chinese cultural mores.
Then, in … 2013, the children, with the maternal grandparents relocated to Melbourne, again living in the Suburb A property. I note that the respondent had been the person who enrolled the children at their schools in that area.
From that time, until 2018, the children and grandparents predominantly lived at that property. Further, the respondent maintains that the applicant remained in China and refused to return to Australia with the children and thereby abandoned and neglected them. By contrast, it was the applicant’s case that the respondent lived in a Suburb B property, doing so by reason of the need to attend to his business activities.
It was agreed that the applicant travelled to Melbourne to spend time with the respondent and children from … 2013 and lived at the Suburb A property. The applicant agreed that at this time she had slept in X’s room, however, she stated that the parents went out with the children as a family and took them on trips such as farm visits.
By contrast, the respondent contended that the children, upon relocating, lived under his primary care and that the grandparents stayed in the Suburb A property as his ‘guests’, and who, he said, provided “some practical assistance (housework, some cooking)” in caring for the children and assisting him. The respondent maintained that, at this time he commuted from the Suburb A property to work in Melbourne on a daily basis midweek and that he also lived at the property on weekends. However, on his own case, the respondent accepted that the grandparents also cared for the children in the Suburb A property on the occasions when he was at work or travelling overseas (which was frequently). Indeed, it was clear that the grandparents provided the effective day-to-day care for the children midweek in Suburb A while the respondent worked in Melbourne or overseas and with the applicant being in China.
The children travelled from Suburb A to stay with the applicant in China again from … 2014 to … 2014. The respondent agreed that the children travelled to China in … 2014.
In May 2014, an application was made on behalf of the grandfather for an onshore aged parent visa. It was part of the respondent’s case that this visa application had been made “as part of the solution for care, welfare and development of children given the fact that mother effectively neglected and abandoned the children in … 2013.” Later, the respondent would contend that on 6 May 2014 the grandparents pleaded with him that they be allowed to stay in Australia and that it was for this reason he assisted them with visa applications and permitted them to stay in the Suburb A property “as guests”. The applicant stated it had been at the respondent’s suggestion that the grandparents had lived in Australia to care for the children and that he had encouraged them to retire there. Whether or not the final proposition was accepted, the other matters set out earlier in this paragraph had a quality of being recently invented and somewhat self-serving.
In … 2015, the grandfather travelled to China where he made arrangements to sell his home. The sale was completed in … 2015. The applicant tendered in evidence the translation of some WeChat Messages, which passed between the grandfather and herself in which they discussed the relative merit of purchasing a property in Australia over a comparable purchase in China. In the course of this, the applicant stated: “The kids have their own destiny! They already have better conditions than many other kids. You two should enjoy your in time and I thank you both for your care for my kids” and later “Don’t be fooled by the agents; I wish you and grandma could stay well in Australia. . .” And further “Our family house is arranged for you people. When the children go to high school, they would be everywhere, they might go to Britain or the US for university. All depends on them”. (Emphasis added)
In … 2015, the children returned from China to Australia with their grandparents and commenced living at the Suburb A property. From then, until 2017, the applicant had spent time with the children in China approximately twice annually.
The applicant adduced evidence that on 12 June 2015, the grandfather sent a text message to the respondent requesting his bank account details so as to enable the grandfather to transfer RMB$200,000 to that account for the purpose of purchasing a motor vehicle. The respondent agreed, describing it as a “commercial matter only”, adding that he had also lent money to the grandfather at a time which was not specified. It was denied that the grandfather had borrowed money from the respondent. In the translation of the WeChat Messages, the grandfather suggested that “The RMB yuan 200,000 I want to give you, do you think [I] should exchange them into foreign currency . . . Or how do you want to operate?”
The parties agreed that on … 2015, the grandfather returned to Melbourne. The parties are in dispute as to whether the children, who remained in Australia, were under the care of their grandmother or the respondent.
The applicant says that the parties separated in mid-2015.
The applicant gave evidence that in about August-September 2015, the respondent asked her to relocate to Melbourne immediately. It was her position that she had responded, explaining to him that in light of his current financial situation it would be better for the family if she maintained a steady source of income from her work in China. In an ensuing argument relating to this issue, she told the respondent that she wished to separate. However, the respondent maintained that: the parties had been separated since 2009; he had asked the applicant to visit the children; she had abandoned them, and; the parties had almost no contact from that time.
The parties were in contest whether the children had been under the effective care of the grandparents from this time. The respondent maintained that the grandparents may have provided some assistance with household chores but otherwise had no decision-making authority or other responsibility for the care and development of the children. The grandfather is a retired public servant. He deposed to a love of learning, that he valued education deeply and that his practice is to supervise the children’s homework. The grandfather is an artist and has driven Y to her music lessons. He also coaches and supervises her daily practice. The grandfather stated that he took the initiative of: transmitting school reports to the applicant in China; conducted art classes; participated in science classes, and; attended parent-teacher interviews. His evidence also identified the extensive number of occasions on which he has travelled with the children to China.
Although it had initially been disputed by the applicant, at trial it was ultimately common ground that the children had travelled with the respondent to Country AA from … to … 2015.
By way of overview, in the period 2013 to 2015, the children travelled to China on about seven to eight occasions. Further, in that period the applicant travelled to Melbourne on two occasions.
There was some evidence given in relation to the company details of a corporate entity, O Pty Ltd (City M). In particular, the applicant contended, and the respondent disagreed (and described as “unknown”), that the respondent had changed the “Legal Person” of that company on four occasions:
a)first, on 10 February 2014, from “Ms Yim” to “Mr N”;
b)secondly, on 13 March 2014, from “Mr N” to “Ms Yim”;
c)thirdly, on 26 March 2016, from the applicant’s name to “P”;
d)fourthly, on 28 April 2018, the name of the company was changed to O Pty Ltd.
Three matters are notable: (a) the equivocal nature of the respondents reply to those matters – why these matters were unknown to him was remarkable; (b) Mr N is the applicant’s father; (c) these changes in company details occurred, on the respondent’s case, many years after the parties’ relationship had ended (i.e. January 2009).
In the period … 2016 to … 2018, both of the children, and on one occasion, Y alone, travelled to China to spend time with the applicant. The respondent contended that during this period the children travelled to China, spending a week with him and his extended family and then some other time with the applicant and her family. The applicant answered that assertion, stating that she had taken the children to Disneyland City Q, with the grandparents for three or four days and that the respondent, who was also in City Q China for work commitments, spent some time with the children (but not any overnight time). She further stated that following the Disneyland trip the children had returned with her, living at her City M apartment.
From … 2016 to … 2017, the children travelled with the respondent to the European Union, via China. He contended that although arrangements had been made for the children to spend a week with the applicant at this time, instead they had spent only one night with her. This was disputed with the applicant stating that the children spent two days with her in City Q China before making the transit flight from Europe to Melbourne (i.e. the applicant had travelled from City M to City Q China for this purpose, and that the children stayed in her City Q China apartment for those two days). He said that in the period … to … 2017, the children again travelled to China, and, as the respondent maintained, this was “ostensibly to spend time” with the applicant.
It was part of the respondent’s case that by the end of term one in 2018, X’s grades had deteriorated to the point where he was achieving “mainly B’s and a few C’s” and that by the end of term two, his grades had deteriorated further “to C’s with some D’s.” Responding to these assertions, the applicant stated that she had spoken to X who advised that his poor grades were a reflection of the stress and conflict at home. Further, she observed that during a week in September 2018 when the respondent had stayed at the Suburb A property, X had not attended school but simply played video games in his room. Finally, the applicant stated that X’s school grades had since improved.
Y again travelled to China, from … to … 2018, on this occasion with the grandfather. Somewhat curiously, it was also agreed that both children travelled to China where they stayed from … to … 2018; however, the respondent maintained that whether they spend time with the applicant was “unknown” and suggested that they had in truth spent significant time with their grandfather. The applicant again disputed this, maintaining that the children had lived with her in her rental apartment for the entirety of their trip, and that she had taken leave from work to take them on trips (including to Country BB). I accept her evidence on this issue.
One issue that emerged in the evidence concerned the extent of time which the respondent in fact spent midweek at the Suburb A property. Part of the respondent’s case was that while he worked from Suburb B, after the purchase of the Suburb A property he had commuted to the city and spent time with the children at home of an evening. This was challenged. While the applicant was in no real position to do so, I accept the findings as recorded by Mr H that both of the children lent no real support to the proposition their father spent much time at the property midweek. This finding does not, of course, exclude that he may have done so on some occasions.
The respondent maintained that for the entirety of the period October 2013 to August 2018, the applicant did not visit Australia at all. Further, the respondent maintained that during that period he provided all care, welfare and development and other arrangements for the children, doing so “for their well-being as a single parent in Australia.” In the way that the respondent saw this aspect of the case, he also looked after the applicant’s parents by allowing them to stay at the Suburb A property as his guests and thereby provided them with accommodation, health care and other necessities. However, he conceded that the grandparents provided assistance in the nature of “house duties when they were around in Australia.”
As concerned the precise date on which the applicant had been present in Australia, this issue was investigated by the respondent for the purposes of the Application in a Case filed on 24 December 2018. The reason the respondent had conducted that investigation was because of his indignation at a statement made by the applicant in an affidavit sworn on 30 August 2018 in which she deposed that [8] “During the relationship, the Respondent and I lived at… [the Suburb A property].” As I found in relation to that application, the applicant’s evidence given at [8] of her affidavit had to be evaluated in the context of other evidence which, collectively, showed that the applicant accepted she had been resident in China, not Australia, for much of the period 2008-2018. However, the respondent obtained movement records from the Department of Home Affairs which establish the following dates of arrival and departure in Australia as follows:
a)Arrive: … 2008 Depart: … 2008
b)Arrive: … 2008 Depart: … 2008
c)Arrive: … 2013 Depart: … 2013
d)Arrive: … 2013 Depart: … 2013
e)Arrive: … 2018 Depart: … 2018
f)Arrive: … 2018.
As I found upon that application, the applicant had been largely absent from Australia for the period 2009-2012 and again from 2014–2018 until the matters the subject of dispute below had occurred. Further, it is convenient to set out my findings in relation to the allegations of fraud that were levelled by the respondent at the applicant:[10]
The respondent complains that the first applicant’s evidence as to the date on which the relationship ended is a lie and comprises one of the reasons why the application ought be dismissed. Whatever indignation the respondent may feel respecting the manner in which the first applicant expressed her evidence at [8], the whole of her affidavit made explicit that she had not been in Australia for much of the period in issue. As noted above, the respondent has had and taken the opportunity to respond to this issue which he has squarely addressed. I am not satisfied that the evidence given at [8], read in the context of the affidavit as a whole, was false or fraudulent in the sense contended for by the respondent. The respondent’s broad references to the offences of giving false testimony contrary to s 35(1) of the Crimes Act 1914 (Cth) and perjury contrary to s 314(1) of the Crimes Act 1958 (Vic) do not advance the contention that the court should conclude on evidence, which has not been tested by cross-examination, that the proceeding should be summarily dismissed.
[10] Yim & Anor v Zieth (No 2) [2019] FCCA 436, [38].
Nothing in the evidence adduced at trial causes me to alter the opinion which I held at that time on this issue. Relatedly, it was correctly observed that the respondent’s solicitor-advocate did not cross-examine the applicant on the question of fraud. I reject the allegations of perjury and fraudulent conduct as alleged by the respondent.
On the whole of the evidence considered above, I find that the respondent had, and discharged, responsibility for issues respecting the care, welfare and development of the children that were both of a day-to-day long-term nature and in this sense, he was their primary caregiver in the period 2013–2018. If there was cogent documentary evidence respecting the applicant’s involvement in major parenting decisions, it was not produced. However, I also find that during this same period, and indeed as a result of the parenting arrangements since infancy, the children’s primary attachment is to their grandparents.
Dispute between respondent and grandfather
It appears that a not insignificant level of friction evolved in the relations between respondent and the grandparents. Viewed with the benefit of hindsight, quite apart from the breakdown of the relationship, the parties’ dispute as to parenting arrangements may be seen as emerging from the grandparents having taken up occupation of the Suburb A property in the relatively short period from May 2015 to August 2018. There was no other significant event which gave rise to a dispute between the applicant and respondent at this time.
It was the respondent’s case that in the period October 2017 to August 2018, the grandfather caused increasing tension in the Suburb A household with “erratic behaviour, increasingly frequent arguments with [the respondent], harsh approach to disciplining X, derogatory comments to [the respondent] and frequent unauthorised recording of [the respondent] and the children.” In another aspect of his case, the respondent said that from early 2018 he observed the grandfather to be an obstacle in the children’s development.
Matters then escalated on 4 August 2018 when, as the respondent alleged, the grandfather threatened him with a chair and a knife and argued with him in a raised voice. The respondent said that the grandfather threatened to destroy his life and his business, which was of course, of great concern. The respondent said that X had provided him a recording of his grandfather yelling at him.
On 8 August 2018, the respondent asked the grandparents to vacate the Suburb A property. On the same date, the respondent sent a text message to the applicant requesting she arrange for her parents to vacate the Suburb A property. In this text, he also told the applicant that he wished to make arrangements to change the enrolment of the children’s schools. The respondent said that his communications with the applicant at this time reflected his concern for the “care, welfare and development of the children, and concern of inappropriate behaviour of the [grandfather].” This prompted the applicant to return to Australia immediately.
Following some investigation, on 14 August 2018, the applicant ascertained that she had been registered as proprietor of both the Second Suburb E and Suburb A properties and that she had been named as borrower in home loans arranged by the respondent for their purchase.
Although he had often been resident at the First Suburb B property mid-week, on Thursday, 16 August 2018, the respondent attended and made demand that the maternal grandparents vacate the Suburb A property. The respondent disagreed, contending that he had only stayed in the city on one night, being forced to do so after a late meeting. Further, it appears that the respondent has initiated some steps to re-enrol the children at new schools, doing so without any consultation. He replied that the option for changing the children’s schools had been discussed previously, particularly as he wished to look for “better suited schools”.
The respondent said that on 17 August 2018, the applicant visited him and that the parties attempted to resolve the issues in dispute but that no resolution was achieved. This was confirmed by the respondent’s reply to the applicant’s letter of demand. By letter dated 30 August 2018, the respondent’s then lawyers advised “On Thursday, 16 August 2018, Ms Yim arrived in Melbourne unannounced and attended our client’s home. X telephoned our client to inform our client that Ms Yim had arrived.”
On 18 August 2018, the applicant returned to China.
The applicant engaged lawyers to represent her interests and on 20 August 2018, her lawyers wrote to the respondent inviting him to participate in negotiations to resolve both property and parenting issues. The letter also adverted to the respondent’s unilateral attempts to re-enrol the children at new schools and requested that he desist from engaging in this conduct. The respondent appears to have reacted to this request by notifying Y’s school that the grandfather was no longer authorised to collect his daughter from school. Regrettably, when the respondent arrived at her school to collect her, the child refused to go with him and instead, the school released the child to the grandfather.
The respondent agreed that he received the letter on that day and adopted the stance that “there was no family law matter . . . given the fact that the de facto relationship ended in 2009 or earlier, and the applicant effectively neglected and abandoned the children for about five years.” He added that he had appointed lawyers with the object of concluding “the matter of sole parenting right quickly.”
A recurrent theme in the respondent’s evidence was that the overwhelming tenor of the letter sent by the applicant’s lawyers was focused on the Asset Pool and that the only thing of real interest to the applicant was “property, property, property.” He stated that this letter was the first indication by the applicant in five years that she had any interest in the children’s schooling and that he had “sole parental responsibility throughout.” The respondent’s reaction to the letter of demand may be somewhat understandable having regard to the structure of the letter. After providing a summary of the instructions ([1]-[11]) the author then set out what was considered to comprise the Asset Pool ([12]-[14]) and asserted that separation had occurred in mid-2015([15]). After advising that any power of attorney given to the respondent by her was revoked, the letter then invited negotiations in relation to finalisation of property issues and then addressed parenting issues. As concerned property, the author requested financial disclosure but sought nothing further. As to parenting matters, it was noted that the respondent’s view was that C School was “too expensive” and that he had recently attempted to change her enrolment. The letter noted that “there is a presumption of equal shared parental responsibility.”
The respondent’s reply to the applicant’s letter of demand asserted that the parties had separated in 2009 and (without challenging the court’s jurisdiction) proceeded to identify reasons why the court would be unlikely to grant leave to apply out of time, which included, relevantly: (1) the net proceeds of the sale of the Suburb T property (~$200,000) had been paid to the applicant and deposited to her account; (2) the applicant had provided no support for the children in the period 2013–2018; (3) the Second Suburb E property and the Suburb A property had each been purchased by the respondent in the applicant’s name as a gesture of goodwill and because he recognised she was unlikely to be in a financial position in the foreseeable future to be able to purchase her own property.
At the same time, by letter dated 31 August 2018, the respondent wrote directly to X addressing the current conflict that existed between the applicant and himself and repeated the contention that the properties had been purchased as a gesture of goodwill for the reasons stated above.
At this point, the indicative values of the assets have not been established. Nor has the veracity of the various liabilities been explored. However, the parties presented the issue for determination on the basis of those indicative assets and liabilities. While the overall results of the data in the foregoing table suggest that the parties may have no, or negative equity in their Asset Pool, of more immediate significance is that the applicant is the legal owner of the vast bulk of the Asset Pool.
I am satisfied that it would have been just and equitable for an order to be made adjusting property interests. That would be because the parties no longer have the common use of their property.[96] In this case, the parties proceeded upon an implicit assumption, which subsisted during their relationship, concerning the common use of property. Their assumption ended upon the parties’ choice to terminate their relationship.
[96] Stanford v Stanford(2012) 247 CLR 108, [44].
Having regard to the duration of the parties’ relationship, their contributions of all kinds as considered above and the two children, I am satisfied that the applicant would have a viable claim to an adjustment of property interests. I find that the claim would be of such a quality that the applicant would be entitled to a not insignificant share in the parties’ Asset Pool. For the avoidance of doubt, and for the reasons above, I reject the respondent’s contention that the applicant had not made substantial contributions of the relevant kind.
Hardship
It is a separate question whether a viable claim is substantial. The loss of the right to pursue a claim under the Act is a necessary, but not sufficient, condition for the grant of leave: Macdonald & McDonald;[97] Sharp & Sharp.[98] Before the court can be satisfied an applicant would suffer hardship within the meaning of par 44(6)(b), it must be demonstrated that the loss would be of a right which, in all the circumstances, is ‘substantial’. The requirement to demonstrate that there is an arguable claim of substance does not always refer to the quantum of the claim; it is a relative concept. A small sum of money may be of particular significance to some parties, and a claim to share in a small Asset Pool may properly qualify as being a claim of substance. Just as a critical consideration to the exercise of power to adjust the interests of parties is whether it is just and equitable to do so, in the same way, the grant of leave to make a claim out of time requires that the court be satisfied the applicant would have a claim that is of substance. One reason this may be answered in the negative is because, having regard to the applicant’s existing circumstances, no adjustment of the parties existing interests in property would be warranted.
[97] (1977) FLC 90-317, 76, 688 (Evatt CJ).
[98] [2011] FamCAFC 150, [26] (The Court).
The respondent submitted that no hardship would be caused to the applicant by the operation of the statutory time limit according to its terms and that the resolution of any dispute concerning real property owned in Victoria could be properly determined in a State court upon the application of either party.
For the purposes of the grant of leave, I am concerned with the consequences of the loss of a right to commence an application for an adjustment of property interests. Such a right may be of substantial value. The corollary of that conclusion would be that the loss of such a right would entail hardship. A critical consideration in the present case is that leave will not be granted if to do so would not alleviate hardship.
The substantive basis on which hardship was grounded was said to be the loss of the right to obtain in this court an immediate determination of an application for an adjustment of property interests. To have framed the submission in this way tended to mask the scope and operation of Part V of the Act. Jurisdictional objections aside, the right[99] to institute a de facto financial cause is subject[100] to that Part, which includes express limitations upon the existence of the right, including that an entitlement to institute such a claim out of time is subject to the grant of leave which is conditioned on hardship being established if leave were not granted.[101] As noted, the loss of a right to institute proceedings is not ‘hardship’ in the sense necessary to satisfy sub-s 44(6)(a) of the Act. It is the consequences attending the loss of the right which matters.
[99] Act, s 39A(1).
[100] Act, s 39A(4).
[101] Act, s 44(6)(a).
It was submitted that hardship emerged from the fact that it was inevitable the parties would become embroiled in further litigation in circumstances where, although the applicant was registered as proprietor of two properties, the respondent had lodged caveats claiming an equitable interest in those properties. Counsel was unaware of a decision where it had been accepted that hardship might arise from the opponent’s desire that the issue should be litigated in another forum. Conceptually, I would accept that it may constitute hardship in some cases.
It was also submitted that the properties were encumbered by mortgages which the applicant was required to service. While she is servicing the mortgage on the Suburb A property, she is not doing so in relation to the Second Suburb E property with the result that this mortgage is in default. From the Asset Pool above, it appears that there is negative equity in the Second Suburb E property. It may be assumed that if the mortgage remains in default, the mortgagee will exercise its powers of sale and recover any shortfall from the applicant. By contrast, the Suburb A property has equity of about $700,000 and as matters stand, the grandfather is assisting the applicant to service that loan. The applicant’s existing interests in those properties is necessarily subject to the valid interests of third parties, including a mortgagee.
I also take into account that although the respondent had paid the children’s school fees until 2018, he is now not doing so and, since the escalation of their dispute, has made no other financial contribution for the applicant or their children. Further, since October 2018, and despite request, the respondent has also refused to pay: mortgage liabilities; utilities, and; children’s living expenses. In the result, the applicant has been solely responsible for all of these payments.
The question remains whether the grant of leave would alleviate hardship in the relevant sense. If the court is not satisfied that the grant of leave would serve to alleviate hardship, leave should be refused. Leave would not serve to alleviate hardship where the applicant’s existing circumstances are such that an adjustment of existing property interests would be warranted. By s 79(2) of the Act, the court shall not make an order unless it separately determines that it is just and equitable to do so. For example, following the breakdown of relationship, the parties might well negotiate and agree – out of court – two adjust their property interests privately. The resulting adjustment may well be, objectively, just and equitable. Why, in such circumstances, should the court grant leave to a party who has had second thoughts? The grant of leave would not alleviate any relevant hardship. It would not do so because the applicant could not demonstrate a substantial claim.
I am not satisfied that the applicant should have leave pursuant to s 44(6) to commence this application out of time. In particular, I am not satisfied that the grant of leave will alleviate the hardship of which the applicant complains. The applicant is registered as proprietor of two items of real estate which, although encumbered by mortgages, are not of insubstantial value. Accepting the respondent at his word, he intended that by transferring those properties to the applicant he would provide her with a measure of financial security. Having adopted that stance in his sworn evidence, I do not see how he can approbate and reprobate.
From this perspective, and when regard is had to the indicative value of the Asset Pool, a very significant question is posed whether the applicant would be able to demonstrate that any further adjustment of property interests was just and equitable. I am not satisfied that it would be.
Accepting that the applicant has a viable claim, I do not see that she would achieve a better result than already exists. While one might be concerned to examine the alleged liabilities at a trial in greater detail, what is required at the present point is a more generalised assessment. However, the present case bears some similarities to Sharp & Sharp[102] inasmuch as the parties relied upon extensive evidence in relation to the relief sought at this hearing. The respondent has asserted a large number of liabilities. Even if leave were granted, on the state of the evidence that was adduced for the purpose of this application, I cannot conclude that the applicant would secure a better adjustment of property interests than presently exists.[103] For those reasons, I am not satisfied that, in the circumstances of this case, the claim which the applicant would seek to advance is substantial in the requisite sense. It also follows that the grant of leave would not serve to alleviate any relevant hardship.
[102] [2011] FamCAFC 150, [68].
[103] Sharp & Sharp [2011] FamCAFC 150, [73].
As the authorities confirm, in cases where the parties share a negative Asset Pool, the court has jurisdiction to order that they should also share their liabilities. On one view, hardship to the respondent might have been demonstrated from the consequences of refusing leave. He has arranged his affairs, quite deliberately, by procuring that the applicant was registered as proprietor of the Suburb A and the Second Suburb E properties respectively. Despite the respondent’s protestations of his financial circumstances and the repeated invitations that were extended to him to reconsider whether he would prefer that an application for an adjustment of property interests be determined in this court, he is insistent that this should not occur. This invitation was also made at the commencement of trial when he was legally represented.
Further, for substantially the same reasons, I would not otherwise have exercised the statutory discretion in favour of the grant of leave.[104] As concerns discretionary considerations, I accept the applicant’s explanation for not instituting the proceeding in a timely way and would not have regarded delay as a factor that carried particular weight in this case. I would also accept that, absent prejudice, a more lenient exercise of discretion would generally be appropriate in the grant of leave.[105]
[104] Sharp & Sharp [2011] FamCAFC 150, [27].
[105] Sharp & Sharp [2011] FamCAFC 150, [75]-[77], [95]-[97], [101].
Accordingly, I am not satisfied that the grant of leave would alleviate from the consequences said to attend the loss of the right to commence a proceeding. In particular, I am not satisfied that the consequences of refusing leave would cause the applicant any relevant hardship. For the same reasons, nor has the applicant demonstrated the loss of a substantial right would flow from refusing her leave. The application is refused.
Sole use and occupancy
Both parties sought orders for sole use and occupancy of the Suburb A property. In the applicant’s case, a further order was sought that, in addition, the court should also order that the respondent pay all mortgage liabilities. As to this, it will be recalled that the respondent has ceased paying the mortgage and utilities on the Suburb A property since late 2018. In their respective attempts to ameliorate the effect of excluding the other from the Suburb A property, both parties sought orders granting sole use and occupancy of the Second Suburb E property to the other.
An order for sole use an occupancy is an interim order. In the circumstances that I have refused the application for leave to apply for an adjustment of property interests and that the respondent flatly refuses to seek any such relief in this court himself, each application must fail.
As noted, the jurisdiction and power to make an order for sole use and occupancy of the specified residence of parties to a de facto relationship is contained in s 114(2A) of the Act. While the criteria for the grant of such relief have been described as surprisingly vague, it is clear that the discretion is conditioned by the requirement that it be proper to make such an order. The power to grant such injunctions is not to be exercised liberally and there must be circumstances arising out of the relationship which “make it necessary to restrain, temporarily, a spouse from using his or her property rights to the detriment of the other party.”[106]
[106] S & S [2002] FamCA 59.
Discretionary considerations that are invariably addressed upon such an application include “the means and needs of the parties, the needs of the children, hardship to either of the children and, where relevant, conduct of one party which may justify the other party in leaving the home or in asking for the expulsion from the home of the first party.”[107] It has also been suggested that it is no longer necessary to show that the circumstances would make it impossible or intolerable for the applicant to continue in co-occupation of a house with the other party. Nor is it necessary to demonstrate conduct as would justify expulsion. Rather:
[107] Davis & Davis (1976) FLC 90-062, 75,309.
All that is necessary, it seems, is that the court should regard the situation between the parties as being such that it would not be reasonable to expect them to remain in the home together.[108]
[108] Davis & Davis (1983) FLC 91-319, 71,170 (Baker J, Evatt CJ and Underhill J agreeing).
Relatedly, the jurisdiction and power conferred by s 114(2A) to grant an injunction with respect to the sole use or occupancy of the Suburb A property, depended upon the court having jurisdiction in a proceeding under Part VIIIAB of the Act. On the assumption that the parties’ relationship ended before 1 March 2009, the court would have had no jurisdiction on either application for sole use and occupancy. It follows that, had I accepted his primary objection to jurisdiction, the respondent could never have established a basis on which to seek an order in his favour for the sole use and occupancy of the Suburb A property.
While counsel for the ICL recognised that the court’s jurisdiction to address property issues required determination, it was submitted that in all the circumstances of this case it was important to recognise that the application for sole use and occupancy of the Suburb A property arose in a context where the children had been exposed to much conflict and uncertainty for a period of at least 12 months or more. It was further submitted that the Suburb A property had been their home for much of their adolescence, was proximate to their schools, and that X is approaching the important milestone of his VCE with Y also facing the immediate prospect of changing schools. Y has accepted that this may be an economically necessary consequence of her parent’s separation, however, she wishes to remain in the Suburb A area.
It was submitted that if the parties’ financial situation enabled them to reside in the Suburb A home at least until the determination of the property application, this would clearly be in the children’s best interests.
With those considerations in mind, I cannot ignore that the respondent has initiated a series of cascading and increasingly serious attempts to force the grandparents (and, by extension, the applicant) to vacate the Suburb A property. What began as a request for the grandparents to vacate was followed immediately with a demand that the applicant should ensure that they leave Suburb A without delay. The respondent did so, well knowing that the grandparents’ home in China had been sold. While he had assisted them with their visa applications, it was far from clear precisely what the grandparents were supposed to do in the immediate short-term to secure alternative accommodation. An IVO was also obtained. Undeterred, the respondent brought a proceeding in VCAT to secure their removal. One curiosity of that application arose from the fact that the respondent recognised the applicant was the registered proprietor of the Suburb A property. For that reason, it was necessary for him to frame his application upon an entitlement to quiet possession as a tenant of the property.
Despite the several invitations that were made of the respondent to reflect upon whether he wished to maintain his jurisdictional objection, he has been steadfast in his insistence that the court should not entertain any application for an adjustment of the parties’ property interests and that this is a matter for a State court. On the evidence, the parties have several properties and there is no imperative for the respondent to live at the Suburb A property. In my opinion, a determinative consideration against acceding to the respondent’s application would have been the hardship to the children in circumstances where I have determined they should live with the applicant. Further, in light of the parties’ existing relations, I do not think it would be reasonable to expect them to remain in that property together, whether or not the grandparents were present. Finally, I am not satisfied that the respondent would have demonstrated that sufficient hardship flowed from the refusal of an order for sole use and occupancy in his favour. I would also have refused his application on discretionary grounds given each of the matters addressed above.
As leave to seek final relief has been refused, there would be no utility in making orders for the sole use and occupancy of the Suburb A property. Each of the parties’ applications for such relief is dismissed.
Had it remained to determine a property application, I would have accepted the ICL’s submission and granted sole use and occupancy to the applicant, doing so on the substantive basis that it is not reasonable to expect the parties to remain in that property and because the needs of the children should be given priority at this time.
Conclusion
It is a matter of significant regret that the parties have been unable to resolve a dispute which has escalated so quickly in relation to the manner in which the children’s parenting arrangements are to be addressed. The catalyst for their dispute was the grandparents’ continued occupation of the Suburb A property and the respondent’s determination that they should vacate that property; something which he has, to this point unsuccessfully, attempted to secure by several means.
I wholly endorse the views of Mr H that the parties’ dispute is in a highly emotional phase but that, should they find it possible to remove the heat from their present situation, and the respondent begins to relate to his children in a more calm and insightful way, they may well elect to spend more time with him. Equally, the respondent perceives himself as having been framed, and the victim of perjury targeted at him by the applicant and grandfather. He has confirmed the depth of his views on these issues, particularly when giving evidence and making submissions. As he sees it, the applicant’s objective has been, and remains, neither more nor less than “property, property, property.”
Putting to one side the animosity which the respondent harbours toward the applicant, he also possesses parental empathy and love for each of his children and considers that he has acted in their best interests, responsibly and in a protective manner at all times. In cross-examination he agreed upon the importance of the children needing and having stability as they complete their adolescence into adulthood. It is to be hoped that the parties will reflect on those matters in the discharge their parenting obligations.
Both parties applied for costs. Orders have been made to address this.
I certify that the preceding four hundred and thirty-eight (438) paragraphs are a true copy of the reasons for judgment of Judge A Kelly
Date: 28 November 2019.
11
7