ZHIN & ZOU

FAMILY COURT OF AUSTRALIA

ZHIN & ZOU

[2016] FamCA 1072

FAMILY LAW – CHILDREN – Best interests – Undefended – Where the husband was on bail and removed himself from Australia – Where the husband declined to return to Australia to participate in the proceedings – Where the husband has been absent from Australia for six years – Where the husband was permitted to engage in some limited cross-examination and to make submissions but none of his material was read – Where it is not in the child’s best interests for the parents to have equal shared parental responsibility – Where the husband has removed himself from having any meaningful involvement with the child – Order made that the wife have sole parental responsibility for the child – Order made that the child live with the wife and spend no time with or communicate with the father.

FAMILY LAW – PROPERTY – Settlement in relation to marriage – Undefended – Where the contributions overall by the wife have exceeded those of the husband, significantly – Where an adjustment pursuant to s 75(2) factors in favour of the wife is appropriate – Where the Court is not aware of the extent of the husband’s property in China – Orders made for the wife to retain the property in Australia

Family Law Act 1975 (Cth)

citations

APPLICANT:

Ms Zhin

RESPONDENT:

Mr Zou

INDEPENDENT CHILDREN’S LAWYER:

Shedden & Associates

FILE NUMBER:

SYC

2583

2013

DATE DELIVERED:

14 December 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Johnston J

HEARING DATE:

12 September 2016 and 12 December 2016

REPRESENTATION

FOR THE APPLICANT:

Ms Zhin in person

FOR THE RESPONDENT:

Mr Zou in person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Shedden

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Shedden & Associates

Orders

PARENTING

That the following parenting orders are made in relation to the child B (“the child”) born on … 2002.
That pursuant to Sections 65DA(2) and 62B of the 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 those particulars are included in these orders.

Parental Responsibility

That the wife have the sole parental responsibility for the child.

Live With

That the child shall live with the wife and continue her study in Australia.

Passport

That the wife be permitted to do all things and sign all documents necessary to obtain a passport for the child without the consent of the husband.

Spend Time With

That the child spend no time nor communicate with the husband.

PROPERTY

That the husband forthwith do all things and sign all documents necessary to transfer to the wife his interest in the property at C Street, Suburb D, New South Wales.
That the husband and wife are declared the sole owners respectively of all other property, superannuation and financial resources in their possession and/or control.
That in the event that either party refuses or neglects to sign a document necessary to give effect to the above orders, the Registrars of this Court are appointed to sign any such document in the name of such party and to do all things necessary to give validity and operation to the said document.

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

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

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2583 of 2013

Ms Zhin

Applicant

And

Mr Zou

Respondent

REASONS FOR JUDGMENT

Introduction

These are final parenting and property proceedings. The proceedings come before the Court undefended in circumstances to which I shall refer below.
The applicant is Ms Zhin to whom for convenience I shall refer as “the wife”. The respondent is Mr Zou to whom for convenience I shall refer as “the husband”.
In April 2010 the husband was arrested and charged with various sexual offences against the wife. He was granted bail and while on bail he removed himself from Australia in late 2010 and has lived in China since that time. I have had numerous telephone conversations with the husband during the course of these proceedings. During those conversations I have urged the husband to return to Australia and present his defence in the District Court. He says he is innocent of the subject of the charges but refuses to return to Australia to have the matter properly dealt with. He says that he is afraid that on his return he will be arrested and imprisoned.
I informed the husband at an early stage that unless he was prepared to present himself in person before the Court I would give leave for the wife to have her application heard on an undefended basis. The husband has continued to decline to return to Australia. I had previously indicated to the husband that I would be prepared to let him engage in some limited cross-examination of the wife and to make submissions. But I also informed him that in circumstances where he refused to appear at court and submit to cross-examination, I did not propose to read any material filed by him.
On 12 December 2016 I gave reasons ex tempore in the parenting proceedings. But I reserved the reasons for judgment in the property proceedings to 14 December 2016. These reasons include the ex tempore reasons given on 12 December 2016.

Wife’s Application

The wife seeks orders to the following effect:
·That she have sole parental responsibility for the child B born in 2002;
·That the child live with her and continue her study in Australia;
·That she be permitted to make a passport application for the child notwithstanding the absence of the consent of the husband;
·That the husband do all things and sign all documents necessary to transfer his interest in the property C Street, Suburb D, New South Wales to her;
·That each party be declared the sole owner of all other items of property and financial resources in their respective name, possession or control; and
·An enforcement order.

Husband’s Application

It is clear that the husband opposes both the parenting orders and property orders sought by the wife. In relation to parenting he indicated that he would like the wife to take the child to China from time to time so that she could spend time with him in China. The husband is not prepared to come to Australia to spend any time with the child.

Application by Independent Child Lawyer

The Independent Child Lawyer (“ICL”) supports the wife’s application and has informed the husband that if he wishes to spend any time with the child he would have to return to Australia. The ICL is not prepared to support an order for the child to spend time with the husband in China.

Short History

The wife, 50 years, and the husband, 62 years, met in 1998 and were married in 2001. They separated in April 2010. Together they have one child namely B (“the child”) who was born in 2002 and is now 14 years of age.
The husband has an adult child, namely Mr E. He was born in 1987 and is currently 29 years of age.

Background

In 1989 the wife graduated from college in China and was appointed to a government role.
Prior to 1996, the husband came to Australia on a student visa. He obtained a PHD in Sydney and later became a permanent resident of Australia.
From 1996 to 2000 the husband worked at F University in China.
In 1998 the parties met. From this time they lived together in an apartment at F University.
In 1999 the husband purchased an apartment within F University for RMB 39 000. The husband purchased the property outright using savings.
In 2001 the parties married.
From 2001 until 2004 the husband worked at G University in China. From this time, the property at F University was rented out. The parties purchased a property in City G, H province in China in joint names for RMB 320 000, unencumbered. The wife contributed RMB 160 000 from her savings towards the purchase price.
On 12 September 2002 the wife arrived in Australia. She initially lived with a couple, Mr and Ms I, in Suburb J in Sydney. From this time, the husband travelled back and forth between Australia and China.
In 2002 the child was born.
When the child was approximately three months old the wife commenced work in various casual jobs. At this time the child went to live with the wife’s parents in China where she remained until 2006. The wife said that she was informed by her parents that the father visited the child once or twice over a two or three month period. I accept this. Approximately twice per year the husband would accompany the child to Australia where they would remain for two to eight weeks.
In 2003 the wife started working part-time as a health care professional.
In 2003 the parties purchased a property in City K, L District for RMB 57 000, unencumbered. It was registered in the husband’s sole name and then rented out.
In 2004 the parties purchased a property at C Street, Suburb D in New South Wales (“the Suburb D property”) for $210 000. The property was purchased outright and in joint names. The wife contributed $70 000 of her savings, and the husband contributed $110 000 of his savings. The remaining purchase price was funded using money from the first home buyers grant and a baby bonus.
In 2004 the wife completed a Certificate III at TAFE.
From 2004 until 2008 the husband’s child, Mr E, lived with the wife in the Suburb D property.
In 2005 the wife completed a Certificate IV in English for Academic Purposes at TAFE.
From 2005 the husband worked at M University, City N in China.
In mid-2006 the child moved back to Australia to live with the wife. She commenced attending child care and later primary school.
In 2007 the wife completed a Bachelors degree.
In April 2007 the husband sold the property in City G, H province for RMB 510 000, without the wife’s knowledge.
In 2007, the husband transferred a total of $100 000 from various bank accounts of the wife, to that of his ex-wife. The husband told the wife that he would pay the whole amount back but this has not occurred.
In May 2007 the wife and the child travelled to China for eight weeks. The husband, the wife and the child stayed together at M University.
In July 2007 the parties purchased a property in M province in China in the husband’s name for RMB 391 000. The property was purchased outright using proceeds from the sale of the property in City G, H province, and the balance with a first home buyers grant.
From 2008 until 2011 the wife’s parents lived with her in Australia and assisted in caring for the child.
On 4 April 2008 a final Apprehended Domestic Violence Order (“ADVO”) was issued against the husband for the protection of the wife and the child for a period of 12 months. But there was also an ADVO issued against the wife for the protection of the husband.
In April 2010 the parties separated.
On 22 April 2010 the husband was arrested and charged with four counts of sexual assault without consent and three counts of assault and commit act of indecency, alleged to have been committed against the wife.
On 23 April 2010 a provisional ADVO was issued against the husband for the protection of the wife
On 10 July 2010 the wife made a statement to police in relation to the husband’s alleged abuse of the child. The child commenced counselling through Victims Services which she attended until 2012.
In September 2010 the wife commenced counselling through Victims Services
In November 2010 while he was on bail the husband left Australia for China. Since this time the husband has not paid child support. Shortly after his departure, the wife was informed that the husband had commenced family law proceedings in China. Such proceedings were before the City K L District People’s Court in December 2010.
Orders were made by the City K L District People’s Court in China to the following effect:
a) That the divorce (sought by the husband) was granted;
b)That the child live with the wife;
c)That the husband pay to the wife child support of approximately $320 per month until the child attains the age of 18 years;
d)That the wife retain the Suburb D property; and
e)That the husband retain the three properties in China.
The Suburb D property has never been transferred to the wife’s sole ownership
The decision of the City K L District People’s Court was appealed by the husband to the City K No 1 Intermediate People’s Court.
The husband’s criminal trial was listed to commence on 11 April 2011 at Suburb O District Court. It was vacated on 1 April 2011 and was mentioned on a number of occasions thereafter but the husband failed to appear.
On 12 May 2011 the husband’s bail was revoked as a result of his continued presence in China.
On 10 June 2011 a warrant for the husband’s arrest was issued.
On 26 August 2011 a final ADVO was issued against the husband for the protection of the wife for a period of two years.
In 2012 the wife completed another Certificate III at TAFE.
On 13 May 2013 the wife commenced these proceedings.
On 20 August 2013 the wife was notified that the husband’s appeal in the City K, L District People’s Court had failed and the original decision was upheld.
On 22 August 2013 an Independent Child Lawyer was appointed.
On 14 February 2014 the proceedings were transferred from the Federal Circuit Court to this Court.
On 20 June 2016 the Court noted that the father has conceded that he was in breach of Australian law in that he left Australia in breach of bail conditions imposed by the District Court of New South Wales. The Court ordered that the father may participate in the hearing by telephone from China but only in a limited hearing. The Court gave leave to the wife for her application for final orders to be heard as an undefended proceedings. The Court listed that application on 12 September 2016 at 10.00 am.
The wife’s substantive application for parenting and property orders was heard on 12 September 2016. The husband was present by telephone from China. The hearing of the parenting proceedings was completed. But in the property proceedings there was a difficulty in that the wife was unable to produce any evidence in proper form about the value of the Suburb D property. This was central to her application. In those circumstances, the hearing of the property proceedings was adjourned to 12 December 2016.
On 12 December 2016 the wife presented her application. She was self-represented. The husband attended by telephone from China. He cross-examined the wife in relation to matters contained in her affidavit. He also made submissions.
The wife and the child continue to live in the Suburb D property. The child is currently 14 years of age and is in year eight at school.

PARENTING

The Applicable Law

The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Family Law Act 1975 (“the Act”).
When considering making a parenting order the Court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s 60B of the Act.
The objects in this context are to ensure that the best interests of children are met by:
·Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
·Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
·Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
·Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·Parents should agree about the future parenting of their children; and
·Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration (s 60CA and s 65AA). Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests.
Section 61C of the Act provides to the effect that each of a child’s parents has parental responsibility until such time as the child attains the age of 18 years unless the Court makes an order which alters that joint parental responsibility.
Section 61DA(1) of the Act provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 61DA(2) of the Act provides in effect that the presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with a parent of the child has engaged in abuse of the child or another child member of the parent’s family or family violence.
Sub-section 61DA(4) provides to the effect that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must first consider making an order for the child to spend equal time with each parent if this will be in the best interests of the child and be reasonably practicable. Such is provided by s 65DAA(1) of the Act. If equal time is not in the best interests of the child or reasonably practicable, s 65DAA(2) of the Act requires the Court to consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and would be reasonably practicable.
The above principles have been examined in numerous authorities including the decision of the Full Court of this Court in the case of Goode and Goode (2006) FLC 93-286 and the High Court case of MRR v GR (2010) 240 CLR 461.

Parental Responsibility

Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
The difficulty for the husband in terms of parental responsibility is that he left Australia more than six years ago and has remained away from Australia continuously since that time. So he has not taken any parental responsibility in relation to the child and the wife has had to make all the parenting decisions, and to provide financially for the child without assistance from the husband over that period. Against this factual background, in my view it could not be said to be in the child’s interest to continue the parents’ joint parental responsibility. So in my view the presumption in s 61DA(1) that the parents have equal shared parental responsibility for the child would not be consistent with her best interests. That is, it is the wife who is in Australia living with the child, in a position to understand the educational and health systems and what services and facilities are available in Australia to serve the interests of the child. As I say the wife has done this without the assistance of the husband now for the past six years. Accordingly, the actual reality that she has exercised sole parental responsibility ought now be reflected in appropriate court orders.

Best Interests

Because the presumption does not apply, what arrangements are in the best interests of the child is at large.

Primary Considerations

The primary considerations are set out in s 60CC(2) of the Act. These are:
·The benefit to the child of having a meaningful relationship with both of the child’s parents; and
·The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
One would think that it would be beneficial for the child to have a meaningful relationship with not only her mother but also her father. The difficulty is that the husband removed himself from any prospect and opportunity of being able to have a face to face relationship with his daughter. As indicated above it is his clear view that he will not change that situation by returning to Australia and dealing with the criminal charges against him. Accordingly, the husband has placed himself in a situation where it is really impossible for there to be opportunity for him to have a meaningful relationship with the child.
The husband says that the Court should use its authority to require the wife to present the child in China from time to time to enable her to have opportunity for a meaningful relationship with him. But in my view it would be completely unreasonable to expect the wife, who is of modest means, to do all that would be necessary to bring such a course about. This is from a father who is in serious breach of Australian law. He says in effect I have broken Australian law but do not worry about that, I want the Australian law to require the wife to travel to China so that I can have a meaningful relationship with our daughter.
In relation to the second of the primary considerations, there is no expert opinion before the Court about the child’s emotional and psychological present condition. One can only wonder whether at some point of time she might feel some sense of abandonment by her father who asserts that in earlier years he and the child had a close and loving relationship.

Additional Considerations – s 60CC(3)

The additional considerations are set out in s 60CC(3) of the Act. I shall discuss the relevant evidence in relation to each of the additional considerations as follows.

Sub-section 60CC(3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

The ICL said that the child is ambivalent about spending any time with her father. That is, she has not said that is something that she would like to do but also she has not said that is something that she would not like to do.
I must say this is hardly surprising given the absence of her father in her life now for so many years.

Sub-section 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)

The child has an excellent relationship with her mother. I accept that in circumstances where many years ago her father was living with the family in Australia and involved in her parenting at that time the husband and the child would have had a good relationship. But six years having now gone by, the reality is that they do not have a relationship nor have they had such for many years.

Sub-section 60CC(3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child and to communicate with the child

All of the major decisions for the child over the last six years have been made by her mother. By having removed himself from any proximity with the child the husband has failed to participate in making appropriate decisions about the child.

Sub-section 60CC(3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;

The husband stopped paying child support when he left Australia more than six years ago. Since that time the financial responsibility for the child has been entirely met by the wife.
This is all the more troubling when the husband has made it clear that one of the reasons that he has been unable to come to Australia was because he was working. He did say during the hearing that he is now retired.

Sub-section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person (including any grandparent or other relative of the child), with whom the child has been living

It is unclear what the likely effect of the child having been separated from her father now for many years has had other than it having resulted in her having no relationship with him.

Sub-section 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

This is a highly relevant matter. Given the stance taken by the husband that under no circumstances will he return to Australia the only possibility would be for the child to visit him in China. This is very difficult. As I have said, her mother is of modest means and her father is now retired, so the cost would be a factor.
There is no question that the practical difficulty imposed by the husband refusing to return to Australia to spend time with the child has clearly affected the right of the child to maintain her relationship with her father.

Sub-section 60CC(3)(f) – the capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.

There is no question about the wife’s capacity to adequately parent the child. She has been doing this for the entirety of the child’s life and exclusively for more than the last six years.
On the other hand the husband has demonstrated no parenting capacity at all over the last six years. Clearly he has not been able to prioritise the child’s need to have a meaningful relationship with him over his personal need to ensure that he is not dealt with by the Australian criminal justice system. In my view, this reflects very poor parenting capacity on the part of the husband.

Sub-section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.

The child’s parents are both originally from China and one would think, given that heritage, there would be matters of Chinese lifestyle, culture and traditions of interest and benefit to the child. However, her mother would be more than able to determine and arrange opportunity for the child to experience such matters.

Section 60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Islander child, the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting order under this Part will have on that right;

This is not a relevant consideration.

Sub-section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.

The wife has demonstrated at all times an appropriate attitude to the responsibilities of parenthood.
Unfortunately the husband has not. Firstly, he has removed himself from having any meaningful involvement with the child. Secondly, he has failed even to fulfil an important parental responsibility which is to provide for the financial needs of his own child.

Sub-section 60CC(3)(j) – any family violence involving the child or a member of the child's family;

The wife makes serious allegations that the husband has been violent towards her and the child. The husband strongly denies any such behaviour on his part. The Court is in no position to be able to make a determination about this matter.

Sub-section 60CC(3)(k) – if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order and any other relevant matter;

The wife had been granted an Apprehended Violence Order against the husband which continued for a two year period, albeit now quite some years ago.

Sub-section 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

In my view, the orders sought by the wife would be less likely to lead to the institution of further proceedings than those sought by the husband. In my view to order the child to spend time with the father in China would quite likely lead to further litigation.

Sub-section 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant

The City K, L District People’s Court in China granted an order in December 2010 that the child live with her mother and that the husband pay the wife the equivalent of approximately $320 per month child support until the child attains 18 years of age.

Conclusion

Whilst the husband asks this Court to show sympathy for him in his plight in not having had any relationship with his child now for many years, in my view, he is the architect of his own difficulty in this regard.
As I have said, I have suggested to the husband on numerous occasions that fairness is the hallmark of the Australian justice system. He would be well advised to return to Australia and withstand the penalty of some period of imprisonment with a view to taking the opportunity granted to him to participate in a fair criminal trial.
The husband has lost his relationship with his daughter and I accept for the purpose of these proceedings that she is ambivalent about spending any time with him. The husband has abandoned his parental responsibility for the child yet he seems to think it would be in her best interests to be required to travel to China to visit him. Although, as indicated above, there is no expert opinion before the Court, one could only anticipate difficulty in the prospects of restoration of the child’s relationship with her father after such a long period. At a minimum one would think she would, if required to spend time with her father in China, confront a very difficult emotional and psychological situation. That is, she would be endeavouring to reunite with a father whom one would expect she would regard as having abandoned her. There was no expert opinion before the Court about what the prospects would be of the child being able to leave China if she was to visit her father there. This Court could not necessarily have confidence that this would be a smooth process.
Given the husband’s attitude as exemplified by his behaviour in leaving Australia in breach of his bail conditions, which in my view is the antithesis of appropriate parenting responsibility, and given all the other difficulties in the case, in my view it would not be in the best interests of the child for this Court to use its authority to require the mother to take the child to China to spend time with her father.
In all the circumstances, in my opinion, the best interests of this child would be served by the mother having sole parental responsibility for her, by orders that she continue to live with her mother and spend no time or communicate with her father. This is a very sad situation which has been brought about as a consequence of the decisions which the husband has taken. In my view, it is unrealistic in the extreme for him to expect a parenting order such as that proposed by him to be made by this Court. The orders will be in accordance with the wife’s minute of order.

PROPERTY

As indicated above, the wife seeks orders that the husband do all things and sign all documents necessary to transfer his interest in the former matrimonial home at C Street, Suburb D, New South Wales to her. The wife also seeks an order that each party be declared the sole owner of all other items of property and financial resources in their respective name, possession or control, as well as an enforcement order.
Sub-section 79(1) of the Family Law Act 1975 (Cth) (“the Act”) provides to the effect that in property settlement proceedings the Court may make such order as it considers appropriate altering the interests of the parties to the marriage in the property.
Sub-section 79(2) provides that the Court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
Sub-section 79(4) sets out various matters which must be taken into account in considering what order (if any) should be made under the section. These matters include direct and indirect contributions, financial and otherwise by or on behalf of a party or a child to the acquisition, conservation or improvement of any property of the parties, contributions by a party to the welfare of their family including as a homemaker or parent, relevant matters referred to in s 75(2) and the other matters referred to in s 79(4).
The operation of s 79 was the subject of consideration by the High Court in the case of Stanford v Stanford (2012) 247 CLR 108. In this case the majority said (at page 120) in referring to ss 79(2) and 79(4) as follows:
35.… the requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.
36.The expression “just and equitable” is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. … while the power given by s 79 is not “to be exercised in accordance with fixed rules”, nevertheless, three fundamental propositions must not be obscured.
The High Court said that the first of these propositions is for the court to identify, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.
The second is that although s 79 confers a broad power on the court, it is not a power that is to be exercised according to an unguided judicial discretion. It must be exercised in accordance with legal principles, including the principles which the Act itself lays down.
The High Court said that the third fundamental proposition is that the question of whether the order is “just and equitable” is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters set out in s 79(4). To conclude that making an order is “just and equitable” only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2) would be to “conflate” the statutory requirements and ignore the principles laid down by the Act.
And the High Court majority went on to say (at page 122) as follows:
41.… The fundamental propositions that have been identified require that a court have a principled reason for interfering with the existing legal and equitable interests of the parties to the marriage and whatever may have been their stated or unstated assumptions and agreements about property interests during the continuance of the marriage.

The Parties’ Existing Legal and Equitable Interests in Property

There are several issues. In relation to the various properties the wife says were purchased in China, the husband agreed that he lived in these properties. He said that each was provided by the University by which he was employed at the time. He said at one point that he did not own the properties. Yet, at another point during our telephone conversation on 12 December 2016, he said that in fact he had purchased each of the properties from the University but he was in the process of selling them back to each university. He said that he had not been able to complete this process and, in any event, the properties were worth very little.
In my view, what the husband said about this matters little. This is because, as indicated above, in circumstances where the husband refused to come to Australia and make himself available for cross-examination, I declined to allow material from him to be admitted into the evidence. Accordingly, I accept the wife’s evidence about these properties. But I do not have evidence of the value of the properties.
The husband also denied the level of contributions that the wife asserted she made to the acquisition of not only the Chinese properties, but also the former matrimonial home at Suburb D. I take the same approach in relation to this and accept the wife’s evidence.
In relation to the wife’s assertion that the husband transferred $100,000 from her accounts, the husband agreed that he did this. But he said that it was joint money rather than her sole money. The wife denied this and I accept her evidence in this regard.
The parties’ interests in property and superannuation are as follows:

1. Former matrimonial home at C Street, Suburb D	$360,000
2. Husband’s property in China at P Street, Suburb Q, City K	Not Known
3. Husband’s property in China at R Street, F University	Not Known
4. Husband’s property in China at S Street M University, City N	Not Known
5. Wife’s motor vehicle	2,500
6. Wife’s superannuation	49,613
7. Wife’s savings	510
8. Wife’s household contents	1,500
Total Assets	$414,123

The wife has liabilities consisting of a tertiary studies’ loan of $4,064 and a National Australia Bank visa card liability of $3,000. This is a total of $7,064.
Accordingly, the wife has a surplus of assets compared with liabilities of $407,059.
I am not aware what the value of the husband’s properties is nor am I aware what other property or superannuation he might have.

Sub-Section 79(2)

Sub-section 79(2) of the Act provides:
The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
In their decision in the case of Bevan & Bevan (2013) FLC 93-545 the Full Court (Bryant CJ and Thackray J) said as follows at page 87,234:
In our view, it will be less likely that the separate issues arising under s 79(2) and s 79(4) will be conflated if judges refrain from evaluating contributions and other relevant factors in percentage or monetary terms until they have first determined that it would be just and equitable to make an order.
In the present case, the parties were married for approximately nine years and have a child.
If the Court did not make orders this would be unfair to the wife, because her interest in the former matrimonial home would remain a joint interest with that of the husband. He has made it very clear that he has no intention of ever returning to Australia. If the Court did not make an order, for the wife to free her interest from that of the husband, the wife would have to make an application to the appropriate New South Wales court under the general law. The principles which would apply to such an application would take no account of the fact that the wife has supported the parties’ child over the last six years without assistance from the husband nor the fact that the husband owns property in China. This would be unfair to the wife.

In these circumstances, in my view it would be just and equitable to make an order under s 79 of the Act.

Contributions

In the absence of evidence by the husband, all I am able to do is to look in broad terms at the history of contributions as asserted by the wife.
At the time the parties commenced cohabiting each was working in paid employment in China.
The wife came to Australia alone in September 2002. She boarded with a couple at Suburb J. The husband travelled back and forth between China and Australia. The wife had always assisted the husband with his work without payment. This continued. The wife undertook a variety of different employment. From 2003, she worked as a health professional. I accept her evidence that she worked double shifts in some of these occupations.
In 2004 and 2005 the wife undertook TAFE courses and Certificate IV in English. She completed a degree at the T University in 2007. In 2012 she completed another TAFE course. In addition to such study, the wife worked in part-time and casual employment.
As I have said, in the absence of proper evidence from the husband, it is impossible to be certain about what the relevant contributions by each of the parties have been. But looking broadly at the evidence of the wife, it would be surprising if between the time that the parties commenced cohabitation and their separation in 2010 their contributions were not at least equal. Each of them undertook paid employment and each of them undertook some responsibility for parenting the child, although clearly this has fallen more heavily to the wife and her parents to undertake.
There can be no doubt, that following the parties’ separation in 2010, the contributions both financial and as homemaker and parent have fallen heavily in favour of having been made by the wife. The husband simply removed himself from Australia in the circumstances to which I have referred above. And he left it entirely to the wife to look after herself and the child. He has made no financial contribution nor provided any direct assistance to the wife in caring for the child since that time. That has been a period now in excess of six years. The only contribution I can see that the husband has made since separation is that he has permitted the wife to continue to occupy the former matrimonial home in which, of course, he has an interest. But he has made no contribution to the rates or outgoings in respect of that property.
In all these circumstances, in my view, it is clear that the contributions overall by the wife have exceeded those of the husband. The difficulty is that one cannot be clear about the precise extent of this. But, in my view, it is unnecessary to make some lively calibrated finding about the level of contributions in the circumstances of this case. I am satisfied that the wife’s contributions overall have been significantly greater than those of the husband.

Sub-section 75(2) matters

The wife is 50 years of age and she is working full time, her income from such employment being $750 per week. In addition, she receives the Family Tax Benefit A and B of $173 per week. This is a very modest income by Australian standards.
The wife is in reasonable health. On present indications she would appear to have the capacity to continue in her present line of employment for the foreseeable future.
The wife has the sole care of the child of the marriage who is 14 years of age as I have said. On all present indications the wife is almost certain to continue to have the financial and physical responsibility for caring for the child until she attains 18 years of age or is self-supporting.
The wife’s commitments are as set out in her financial statement. Taking account of her income and her commitments, it would appear that she is only just able to survive on her modest income and at a level which provides a very modest standard of living for herself and the child.
On the other hand, the husband is 62 years of age and he says that he is retired from paid employment. As I have said, his circumstances are largely unknown in the sense that I have not accepted into evidence any material from him. In particular, apart from the wife’s assertions about the three properties which he appears to own in China, there is a dearth of material about what his financial circumstances might be.
When the child was three months of age the wife arranged for her to live with the wife’s parents in China. The wife’s parents paid the child’s daily expenses such as food, clothes, shoes, nappies, toys, books, baby equipment and health treatment.
In approximately mid 2006 the wife arranged for the child to return to Australia and she has lived with the wife since that time. In 2008 the wife’s parents came to Australia. They lived with her and assisted her in caring for the child.
Doing the best that I can in these very challenging circumstances, in my view in order to arrive at a just and equitable order, it would be appropriate to make an adjustment of available property in favour of the wife to take account of the relevant s 75(2) matters, particularly the fact that the wife has the sole responsibility for continuing to care for the parties’ child. She is unlikely to receive any child support from the husband.
There is also another relevant matter which is that over the four years from 2004 until 2008 the husband’s son, from his previous marriage Mr E, came to Australia and lived with the wife at the Suburb D property. The wife said that she paid all the child’s living expenses and there is no evidence to contradict this. In my view, this is a relevant matter to take into account pursuant to s 75(2) of the Act.

Conclusion and fourth step

The circumstances of this case are not such as to permit a finding about contributions and an adjustment pursuant to s 75(2) in percentage or dollar terms. In my view, in the difficult circumstances of this case, what the Court is faced with is a husband living in China, apparently enjoying some real property in China and quite likely other property which he has not disclosed, and on the other hand, a wife who is living in Australia in a property owned by the parties and who has the other property and superannuation referred to above. In my view, looking broadly at this matter, justice and equity requires that the wife would have the enjoyment of more of the parties’ property than would the husband.
In circumstances where this Court is not aware of the extent of the husband’s property in China a just and equitable result would be to make orders which would ensure that the wife is able to enjoy the totality of the property available in Australia, and the husband is able to retain his property in China. This would result in the wife and child living in the former matrimonial home at Suburb D. The wife would continue to work and her income would be just sufficient to support herself and the child. The husband would continue to live in his property in China and receive his Chinese pension. I propose to make orders to this effect.

I certify that the preceding one hundred and forty (140) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 14 December 2016.

Associate:

Date: 14 December 2016

[2016] FamCA 1072

14 December 2016

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Jurisdiction

Remedies