Zeng and Lam - [2017] FamCA 66

FAMILY COURT OF AUSTRALIA

ZENG & LAM

[2017] FamCA 66

FAMILY LAW – CHILDREN – Where parenting orders are sought in respect to the child who is 17 years old and has a mild intellectual disability – Where both parents seek sole parental responsibility of the child and for the child to live with them – Where the wife makes allegations of family violence against the husband and those allegations are made out – Where the husband says the child would be at risk of psychological harm if in the wife’s care – Where the risks posed by the wife to the child are not of the same magnitude as the risks posed by the husband – Where the husband and the child have not spent any significant time together since January 2015 notwithstanding his parents have been separated under the one roof during that time – Where there is some need to protect the child from spending extensive periods of time with the husband – Where orders are made for the wife to have sole parental responsibility for the child and the child to live with her – Where orders are made for the child to spend time with the husband every second weekend.

FAMILY LAW – PROPERTY – Where both parties seek a division of property in their favour – Where each party seeks to retain the former matrimonial home and the other party to receive an investment property with a cash adjustment – Where both parties have provided evidence that they can raise enough finance to retain the former matrimonial home – Where the contributions made by each party in the marriage were equal – Where there should be a five per cent adjustment in favour of the wife for s 79(4)(d)-(g) considerations – Where the wife is to receive 55 per cent of the assets of the parties and the husband is to receive 45 per cent – Where orders are made for the wife to have the first option of retaining the former matrimonial home – Where the husband will be given the option to retain the former matrimonial home should the wife not raise the necessary funds within a two month period – Where household contents are divided by way of a ‘pick a pile’ order – Where orders are made for the parties to pay the costs of the Independent Children’s Lawyer such payments to be a charge on the respective properties of each party; to be deferred until the sale of the respective residences of the parties and Legal Aid NSW shall be entitled to lodge a caveat pursuant to that charging order.

Family Law Act 1975 (Cth)

APPLICANT:

Mr Zeng

RESPONDENT:

Ms Lam

INDEPENDENT CHILDREN’S LAWYER: Mr Ladopolous

FILE NUMBER:

SYC

2086

2014

DATE DELIVERED:

10 February 2017

PLACE DELIVERED:

Canberra

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

21 – 25 November 2016

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Litigant in person

COUNSEL FOR THE RESPONDENT:

Ms Barnett

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Zeng and Lam

Details

AGLC: Zeng and Lam [2017] FamCA 66
Case: [2017] FamCA 66
Decision Date: 10 February 2017

CaseChat Overview and Summary

This matter concerned parenting and property disputes between the wife and the husband, heard by Watts J. The court was required to make orders regarding the primary care and time arrangements for the parties' child, X, born in 1999. Additionally, the court was tasked with determining the division of the parties' property, including two significant real estate holdings and various other assets and debts.

The legal issues before the court included determining the best interests of the child, X, in relation to parental responsibility, living arrangements, and time spent with each parent. The court also had to consider the division of property pursuant to section 79 of the *Family Law Act 1975* (Cth), which involved assessing the contributions of each party to the marriage and their future needs, as well as addressing any existing family violence within the relationship which influenced the evidence presented.

Watts J made detailed parenting orders, granting the wife sole parental responsibility for the child, X, with specific limitations regarding name changes and living arrangements that would impede time with the husband. The child was ordered to live with the wife, and a schedule for alternate weekend time with the husband was established. The orders also included provisions for communication, medical information sharing, school involvement, and prohibitions against discussing proceedings or denigrating the other parent in the child's presence. In relation to property, the court ordered a division of assets, including the Suburb B and Suburb G properties, a Japanese motor vehicle, a hatchback vehicle, and superannuation interests. The orders provided a primary mechanism for the wife to pay the husband a sum of money and discharge his mortgage responsibilities on the Suburb B property, with alternative arrangements if this did not occur within specified timelines, including the potential sale of the Suburb B property. Each party was to receive their respective superannuation interests and other personal property, with provisions for the division of household furniture and effects. The court also made orders regarding costs payable to Legal Aid NSW by each party, secured by charging orders on the properties they received.

Orders

Orders of the court

Parenting

The wife have sole parental responsibility for the child, X, born … 1999 (“the child”) except the wife shall not change the child’s name nor make changes to the child's living arrangements that make it significantly more difficult for the child to spend time with the husband.

The child live with the wife.

Commencing on the second weekend following the date of these Orders, unless the wife and the husband agree otherwise in writing, the child shall spend time with the husband each alternate weekend as follows:

3.1. from the end of school on Friday (or, if the child is not attending school that day, from 3.00 pm), with the husband to collect the child from school (or, if the child is not attending school that day, from the wife’s home);

3.2. until the start of school on Monday (or, if the child is not attending school that day, until 9.00 am), with the husband to deliver the child to school (or, if the child is not attending school that day, to the wife’s home).

The wife and the husband ensure the child is at liberty to telephone the other parent at any reasonable times that he may wish to do so.

The wife shall:

5.1. keep the husband advised of the names and addresses of the child’s treating doctors;

5.2. inform the husband in writing as soon as practical of any specialist medical appointments including appointments with any dentist, optometrist, psychologist, psychiatrist, counsellor or therapist ("specialist medical consultant") in relation to the child; and

5.3. ensure that the husband is provided with a copy of any report by any such specialist medical consultant in relation to the child, within 14 days of the wife’s receipt of the report.

Both the husband and wife shall be entitled to:

6.1. attend any appointments with any of the child’s treating doctors or specialist medical consultants; and

6.2. discuss the child’s condition with such treating doctor or specialist medical consultant,

however such attendance(s) shall be at the discretion of the treating doctor or specialist medical consultant.

The wife shall ensure that the husband is notified as soon as practicable if, while in her care, the child is admitted to hospital or is involved in a medical emergency.

The husband shall ensure that the wife is notified as soon as practicable if, while in his care, the child is admitted to hospital or is involved in a medical emergency.

These Orders hereby authorise any school which the child attends from time to time to provide both the wife and the husband with copies of all reports, circulars, notices and documents in relation to the child including copies of all school reports, reports on school progress and behavioural issues and notices received in relation to functions, parent teacher nights and like activities to which parents are invited as well as any and all information which may be sought from time to time by the wife or husband in relation to the child.

10.

Both the wife and the husband be permitted to attend any of the child’s school events to which parents are ordinarily invited.

11.

The wife and the husband notify each other of any change in their telephone contact numbers, such notification to be made in writing and within three (3) days of any change.

12.

The wife and the husband notify each other of any proposed change to their place of residence, such notification to be made in writing and no less than fourteen (14) days prior to the proposed change.

13.

The wife and the husband shall:

13.1. be restrained from:

13.1.1. discussing these proceedings in the hearing of or presence of the child;

13.1.2. speaking about the other parent or the other parent’s family or member of the other parent’s household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of the child;

13.2. take all reasonable steps to prevent any other person:

13.2.1. discussing these proceedings in the hearing of or presence of the child;

13.2.2. speaking about the other parent or the other parent’s family or member of the other parent’s household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of the child.

14.

The wife and the husband shall be restrained from:

14.1. physically disciplining the child or physically restraining the child (including tying his hands for training purposes); and

14.2. showing the child any document filed in these proceeding or any documents related to these proceedings.

15.

The wife shall ensure that the child attends an appointment with the Independent Children’s Lawyer, as arranged by the Independent Children’s Lawyer, for the purposes of having these Orders explained to him.

16.

Within 14 days of the date of these Orders, the Independent Children's Lawyer shall provide a copy of the following documents to Ms C:

16.1. Family Report dated 8 May 2015 prepared by Family Consultant H;

16.2. these Orders; and

16.3. these Reasons for Judgment.

17.

Pursuant to s 65DA(2) and s 62B Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Property

18.

Pursuant to s 79 of the Family Law Act 1975 (Cth), an order be made in accordance with paragraphs 19 to 30 below.

19.

Within a period of two (2) months from the date of these orders, the wife pay to the husband the sum of $131,069 and discharge any responsibility the husband has in respect of the mortgage on the property situated at D Street, Suburb B (“the Suburb B property”).

20.

Contemporaneously with the wife fulfilling the requirements of the preceding paragraph, the husband will do all acts and things and sign all necessary documents to discharge any responsibility the wife has in respect of the current mortgage on the property situated at F Street, Suburb G (“the Suburb G property”) and transfer to the wife his right, title and interest in the Suburb B property.

21.

Contemporaneously with the implementation of the two previous paragraphs, the wife is to transfer to the husband her right, title and interest in the Suburb G property.

22.

Upon the wife transferring the amount referred to in paragraph 19 and discharging the mortgage in respect of the Suburb B property, the husband is to forthwith vacate the Suburb B property.

23.

In the event the wife does not make the payment referred to in paragraph 19 within a period of two months, then within a further period of two (2) months:

23.1. The husband pay to the wife the sum of $290,321 and discharge any responsibility the wife has in respect of the mortgage on the Suburb B property.

23.2. Contemporaneously with the husband fulfilling the requirements of the preceding subparagraph, the wife will do all acts and things and sign all necessary documents to discharge any responsibility the husband has in respect of the current mortgage on the Suburb G property and transfer to the husband her right, title and interest in the Suburb B property.

23.3. Contemporaneously with the implementation of the two previous subparagraphs, the husband is to transfer to the wife his right, title and interest in the Suburb G property.

Upon the husband tendering the amount referred to in paragraph 23.1 and discharging the mortgage in respect of the Suburb B property, the wife is to forthwith vacate the Suburb B property.

24.

In the event that after a period of four (4) months neither party has acquired the other’s interest in the Suburb B property, the parties shall do all things and sign all necessary documents to sell the Suburb B property by private treaty at a price agreed upon between the parties and failing agreement, at a price to be determined by a nominee of the President of The Australian Valuers Institute and the net proceeds of sale will be distributed as follows:

24.1. Payment of the costs of sale;

24.2. Discharge of the mortgage on the Suburb B property;

24.3. 86.85 per cent to the wife;

24.4. 13.15 per cent to the husband

AND

24.5. The wife will transfer to the husband her right, title and interest in the Suburb G property

AND

24.6. The husband will discharge any liability the wife has in respect of the mortgage on the Suburb G property.

25.

The wife shall be entitled to sole right, title and interest in her Japanese motor vehicle.

26.

The husband transfer any interest he has in the hatchback vehicle to the wife if she requires him to do so and the wife shall be responsible for the hatchback vehicle and, if applicable, the disposal of that motor vehicle.

27.

Each party shall be entitled to their respective superannuation interests.

28.

The wife shall forthwith prepare two lists of generally equivalent value of the personal property, furniture and effects of the husband and the wife, situated at the Suburb B property as at the date of these orders, excluding that which is ordinarily solely used by any of the children of the marriage and present the lists to the husband. Within seven days the husband is to choose one of the lists and notify the wife of that choice in writing. Upon the husband choosing one of the lists, the items in that list will become his sole property and the items in the other list will then become the sole property of the wife. In the event the husband fails to notify the wife of his chosen list within seven days, the wife shall be entitled to have the items in one of the lists as chosen by her and as notified to the husband in writing.

29.

Each party be solely entitled to the exclusion of the other to all other property, chattels and superannuation in their respective names or possession as at the date of these orders and that each party indemnify the other in relation to any debt associated with any asset that is kept by each of them respectively.

30.

If either party refuses or neglects to sign (within fourteen (14) days of a written request to do so) any documents necessary to effect the terms of these Orders, the Registrar of the Sydney Registry of the Family Court of Australia is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act 1975 (Cth) to execute such documents on behalf of such party.

31.

The wife shall pay by way of costs to Legal Aid NSW a sum of $8,951.77 which payment shall be deferred until the wife disposes of her interest in the property she receives as a result of the implementation of these orders. A charging order is made in relation to that debt on that property and Legal Aid NSW shall be entitled to lodge a caveat pursuant to the charging order.

32.

The husband shall pay by way of costs to Legal Aid NSW a sum of $8,951.77 which payment shall be deferred until the husband disposes of his interest in the property he receives as a result of the implementation of these orders. A charging order is made in relation to that debt on that property and Legal Aid NSW shall be entitled to lodge a caveat pursuant to the charging order.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Whilst there was some difficulties with the wife’s evidence, overall there were far more difficulties with the husband’s. There were a number of inconsistencies in the husband’s evidence. For example, in relation to the incident on 18 April 2015 (discussed below) the husband gave a number of different versions and did not provide an adequate explanation as to these inconsistencies. English is not the wife’s first language and I accept some of the COPS entries are based upon misunderstandings when no interpreter has been present. Counsel for the wife submitted that where there were exaggerations in the wife’s evidence or in her actions, she was able to provide an explanation as to why and her evidence is coloured by her experience of living with the husband and the things he has done in the past which could explain why she is sceptical, concerned and anxious about his present conduct. I accept there is some force in that submission. The parties have different memories and perspectives about the history of family violence in the relationship. I generally accept the wife’s evidence about the history of family violence which in important respects is corroborated by Mr Y, the eldest child of the parties. Mr Y, gave oral evidence. I was impressed by Mr Y’s demeanour and the manner in which he gave his evidence. I bear in mind that Mr Y is very firmly in the wife’s camp. I accept that Mr Y felt that his mother was entitled to justice arising from Mr Y’s lived experience in the household. Having said that, he gave his evidence in a straight forward manner and he reported some inappropriate behaviour by his mother. I accept that Mr Y witnessed multiple incidents of family violence in the household that he lived in as he was growing up. The husband was born in China in 1956 and is currently 60 years old. The wife was born in 1959 in China and is currently 57 years old. The parties married in 1985 in City J, China. After their marriage, the parties lived in City J for about four years before they both moved to Australia in about 1989, although in other places in the wife’s evidence she says March 1992 but no attention was given to the inconsistency and it matters not. In March 1993 the parties established a business, K Pty Ltd. The parties’ first child, Mr Y, was born in 1992 and is currently 24 years of age. In about 1995 the parties bought a property at F Street, Suburb G, NSW (“the Suburb G property”) for about $170,000. The parties’ second child, Mr Z, was born in 1996 and is currently 20 years of age. The parties’ third child, X, was born in 1999 and is currently 17 years of age. In about 2000 the parties purchased the matrimonial home at D Street, Suburb B, NSW (“the Suburb B property”) for about $430,000. In December 2003 an incident of family violence occurred where the husband assaulted the wife which is discussed in more detail below. The parties stopped running their business in 2003. The company was deregistered in June 2005.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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