Zhenya & Ning

Case [2023] FedCFamC1F 740

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Zhenya & Ning [2023] FedCFamC1F 740

File number: MLC 8897 of 2021
Judgment of: CARTER J
Date of judgment: 29 August 2023
Catchwords:

FAMILY LAW – CHILD – where the husband seeks equal shared parental responsibility – where this is disputed by the wife – where the parties dispute as to changeover arrangements for the child - whether international travel with the child should be permitted

FAMILY LAW – PROPERTY – whether it is just and equitable for any orders to be made – orders made     
Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 60B, 60CA, 60CC, 61DA
Cases cited:

Aleksovski v Aleksovski (1996) FLC 92-705

Bevan v Bevan (2013) 279 FLR 1

Bielen & Kozma (2022) 66 Fam LR 59

Dickons v Dickons (2012) 50 Fam LR 244

Stanford v Stanford (2012) 247 CLR 108
Division: Division 1 First Instance
Number of paragraphs: 150
Date of last submissions: 4 August 2023
Date of hearing: 13 – 16 June 2023
Place: Melbourne
Counsel for the Applicant: Andrew Barbayannis
Solicitor for the Applicant: Clancy & Triado
Respondent Litigant in person

ORDERS

MLC 8897 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR ZHENYA

Applicant
AND:

MS NING

Respondent

ORDER MADE BY:

CARTER J

DATE OF ORDER:

29 AUGUST 2023

THE COURT ORDERS THAT:

Parenting

1.The parties have equal shared parental responsibility for the child X born 2019.

THE COURT ORDERS BY CONSENT THAT:

Changeover

2.For the purposes of changeovers that do not occur at school/childcare, the wife shall deliver the child to the husband’s home at the commencement of time, and the husband shall deliver the child to the wife’s home at the conclusion of time, unless otherwise agreed.

THE COURT FURTHER ORDERS THAT:

Airport Watch List Order

3.Each of MS NING and MR ZHENYA and their servants and agents be and are restrained from removing or attempting to remove or causing or permitting the removal of X born 2019 from the Commonwealth of Australia.

4.IT IS REQUESTED THAT the Australian Federal Police give effect to the preceding order by placing the name of the said child on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch List for a period of three years.

5.Upon expiration of the period referred to in Order 4 hereof, and subject to any further order of a Court of competent jurisdiction, the Australian Federal Police will cause the removal of the child’s name from the Watch List.

Property

Suburb E property

6.The parties forthwith do all acts and things and sign all documents as may be required to place the property at D Street, Suburb E in the State of Victoria on the market for sale (“the Suburb E property”).

7.For the purposes of the sale of the Suburb E property:

(a)the parties forthwith jointly appoint a selling agent…

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Details
AGLC
Zhenya & Ning [2023] FedCFamC1F 740
Case
[2023] FedCFamC1F 740
Decision Date

CaseChat Overview and Summary

In the Family Court of Australia, the matter of Zhenya & Ning was heard and determined by the honourable Judge. The dispute involved the husband seeking orders for the return of his desktop PC and mobile phone, and the resolution of parenting arrangements concerning their child, X. The court had to decide on the allocation of parental responsibility and the issue of overseas travel for the child. Section 60CA of the Family Law Act mandates that the paramount consideration in determining parenting orders is the best interests of the child. The court must contemplate the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from harm. The husband argued for equal shared parental responsibility, while the wife sought sole responsibility. The court also had to consider various factors outlined in section 60CC of the Act, including the parents' decision-making abilities, time spent with the child, and the child's views.

The court considered the husband's contributions to the child's welfare, including financial support for rent and childcare, and his role in managing investment properties. The husband's income, occupation, and his new family commitments were also assessed. The court acknowledged the husband's role in managing trust properties, although there were concerns about the transparency of these arrangements. The wife's allegations regarding the trust and its impact on the husband's financial obligations were not pursued vigorously. The court found that while the husband's income and contributions were significant, the wife's role as the primary caregiver and her stability provided a more suitable environment for the child. The court emphasised the importance of protecting the child from potential harm and ensuring a stable upbringing.

The court ultimately decided in favour of the wife, awarding her sole parental responsibility for the child. The husband was granted specified parenting time, which included overnight stays and regular contact. The court also addressed the husband's request for the return of his personal property, ordering that the wife return the desktop PC and mobile phone within a specified timeframe. The court's decision prioritised the child's best interests, considering the stability and care provided by the wife, while also recognising the husband's role in the child's life.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Additionally, the husband sought orders requiring the wife return to him his desktop PC, and his mobile phone. THE EVIDENCE It has not been possible to include every aspect of each of the parties’ evidence. However, I have taken all the evidence into account. Just because I have not mentioned something in these reasons does not mean that I have not considered it. Section 140 of the Evidence Act 1995 (Cth) sets out that the standard of proof in these proceedings is to a balance of probabilities. The husband relied on: (a)his trial affidavit filed 16 May 2023;(b)his affidavit in reply filed 9 June 2023;(c)his Financial Statement filed 16 May 2023;(d)the affidavit of Ms W filed 16 May 2023; and(e)the affidavit of Ms Z filed 16 May 2023. The wife relied on:(a)her Amended Response filed 4 June 2023; and(b)her affidavit filed 4 June 2023. The wife cross examined the husband but did not require his wife or his mother to give evidence. The husband did not seek to cross-examine the wife. PARENTING THE RELEVANT LEGAL PRINCIPLES Section 60CA of the Family Law Act requires that in deciding whether to make a particular parenting order, I must consider the best interests of X as the paramount consideration. The objects of Part VII of the Family Law Act include ensuring that a child has the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with the child’s best interests; s60B(1)(a). The legislation provides that a child has the right to know and be cared for, and to spend time and communicate with both of their parents, and other persons significant to their care, welfare and development unless that would be contrary to their best interests; s60B(2). As noted, the parties have agreed that X will spend substantial and significant time with her father. Orders have already been made to that effect by consent. The two outstanding issues I must determine are the allocation of parental responsibility, and the question of overseas travel. The Family Law Act requires me to take into account a range of matters as set out in s 60CC in determining what arrangements are in X’s best interests. The primary considerations require me to contemplate:(a)the benefit to X of having a meaningful relationship with both of her parents, and (b)the need to protect her from physical or psychological harm from being subjected or exposed to abuse, neglect or family violence. In applying those primary considerations, I am required to give greater weight to the need to protect children from harm. Section 60CC(3) of the Family Law Act sets out a raft of additional consideration that I must also take into account. In the recent Full Court decision of Bielen & Kozma (2022) 66 Fam LR 59 at [35], their Honours conveniently grouped those additional considerations as follows:·Issues relating to the children – including their views, level of maturity, culture and relationships: ss 60CC(3)(a), (b), (g) and (h);·Issues relating to the parents – including decision making, time spent with children, fulfilled obligations, attitude, capacity and exercise of responsibility: ss 60CC(3)(c), (ca), (f) and (i);·Issues of family violence: ss 60CC(3)(j) and (k);·The likely effect if a child’s circumstances are changed: s 60CC(3)(d); ·Practical difficulty of implementation: s 60CC(3)(e);·Avoiding further proceedings: s 60CC(3)(l); and·Other relevant matters: s 60CC(3)(m).How should parental responsibility be allocated?

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The husband has paid for the wife’s rent and childcare costs in addition to paying child support. I understand those additional payments will cease upon the making of final property orders. He has also continued to make the mortgage repayments on the investment properties (save for the Suburb E property), and managed those properties post separation. RELEVANT CONSIDERATIONS PURSUANT TO SECTION 75(2) OF THE ACT The husband is 41 years old. He lives in a four-bedroom home he owns in Suburb LL. The husband has re-married, and lives with his with his wife. They are due to have a new baby later this year. The husband will then have commitments to support his new child. The husband is a licenced tradesperson and co-director of a business. He said that company stopped operating in late 2021, shortly after the parties separated. His taxable income in the last financial year was $71,226 gross, from rental income. He said over the last four years his taxable income has been between $41,641 and $71,226. He was not challenged in relation to the evidence as to his income. He deposed that his wife’s income is a little under $5,000 per week. The husband also undertakes work in his capacity as director of the trustee company to assist with and manage the trust properties. He is paid $5,000 a month for the work he undertakes, with that income being put towards the monies he owes his father. The wife expressed a view that this was insufficient remuneration for the work he did in that regard, but this was not explicitly put to the husband. The wife did not pursue an argument at trial that the trust is a sham. Nor did she include evidence in her trial affidavit to that effect beyond referring to the husband having included three trust properties in a list of assets he said were his in a Financial Agreement that was drafted prior to the parties’ marriage. The husband’s explanation for this was that at the time the Financial Agreement was drafted the properties were being purchased by the husband or his nominee. When the sales subsequently settled, the husband was not the nominated purchaser. I understand there is no dispute that the entire funds for the purchases of those properties came from the husband’s parents. The wife said the existence of the family trust was kept from her, until she discovered documents referencing the trust in around 2021. In the course of giving his evidence, the husband conceded he did have the benefit of trust monies being applied for his own advantage, or at his direction, from time to time. For instance, in May 2021, the sum of $250,000 was deposited into the mortgage account #...97 for the property at 1 F Street, being the husband’s personal asset. The mortgage was reduced to $795.99. Initially the husband said he thought perhaps he had borrowed monies from his parents, and rather than leaving the money in a savings account, he had put monies into the mortgage to reduce the interest repayments. The husband subsequently acknowledged those monies were transferred into the mortgage account from the T Pty Ltd account. That is, they were trust monies, but remained in his personal mortgage account until October 2021, when they were transferred back. He was unable to explain why this might have happened. There was no suggestion that he needed or sought his parents’ agreement prior to those funds being placed into that mortgage account.