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Wa & Lin & Anor [2017] FCCA 1828 (4 August 2017)

Last Updated: 19 September 2017

FEDERAL CIRCUIT COURT OF AUSTRALIA

WA & LIN & ANOR


Catchwords:
FAMILY LAW – Parenting – shared care – role of paternal grandmother as primary carer in the early years of the child’s life – overseas travel – watchlist.

FAMILY LAW – Property – contributions by extended family members – whether or not there were gifts or loans – whether or not the husband has an interest in a business in China – credit issues with respect to both husband and wife – addbacks.


Legislation:
Family Law Act 1975, ss.60B(1), 60B, 60B(2), 60CA, 60CC(2), 60CC(3), 61DA(1), 61DA(2), 61DA(4), 64, 65D, 65DAA(1), 65DAA(2), 65DAA(3), 79, 79(2), 79(4), 106A

Cases cited:
Reynolds & Sherman [2016] FamCAFC 240
Jones v Dunkel (1959) 101 CLR 298
In the Marriage of Kuebler [1978] FamCA 26; (1978) FLC 90-434
Line & Line (1997) FLC 92-729
Yilmaz & Yilmaz [2010] FMCAfam 791
Stanford & Stanford [2012] HCA 52; (2012) 247 CLR 108
Pierce & Pierce [1998] FamCA 74
Wallis & Manning [2017] FamCAFC 14
Williams & Williams [2007] FamCA 313
Waterford & Waterford [2013] FamCA 33
Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518
McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405
MRR v GR [2010] HCA 4
Prpic & Prpic (1995) FLC 92-574
Tian & Fong [2010] FamCAFC 255
British South Africa Company v Companhia de Moçambique (1893) AC 602
Bevan v Bevan [2013] FamCAFC 116
Masoud & Masoud [2016] FamCAFC 24
Vass & Vass [2015] FamCAFC 51


Applicant:
MR WA

First Respondent:
MS LIN

Second Respondent:
MRS WA

File Number:
MLC 6923 of 2014

Judgment of:
Judge Harland

Hearing dates:
1-5 May 2017

Date of Last Submission:
19 June 2017

Delivered at:
Melbourne

Delivered on:
4 August 2017


REPRESENTATION

Counsel for the Applicant:
Mr Testart

Solicitors for the Applicant:
GR Lawyers

Counsel for the First Respondent:
Ms Tulloch

Solicitors for the First Respondents:
Jasper Lawyers

Counsel for the Second Respondent:
Ms Wheeler

Solicitors for the Second Respondent:
Prudentia Legal




ORDERS

(1) That all previous orders be discharged.

Parenting

(2) That the wife and husband have equal shared parental responsibility for the child [X] born 2011 (“the child”).
(3) That the child live with the wife.
(4) That the child spend time with the husband as follows:
(5) Notwithstanding any other order the child to live with the wife as follows:
(6) The Paternal Grandmother, being the Second Respondent, Mrs Wa spend time with the child:
(7) Each party, Mr Wa born 1984 and Ms Lin born 1982 their servants and or agents be and are hereby restrained from removing or attempting to remove or causing or permitting the taking or sending of the child from the Commonwealth of Australia until 2 December 2021.
(8) That [X] born 2011 be and is hereby restrained from leaving the Commonwealth of Australia.
(9) It is requested that the Australian Federal Police give effect to this order by placing the name of the child on the Watchlist in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watchlist until 2 December 2021.
(10) This order does not prohibit the taking or sending of the child from Australia to a place outside Australia if it is done with the consent in writing (authenticated as prescribed in accordance with Regulation 13 of the Family Law Regulations 1984).
(11) All changeovers which coincide with the start or finish of school to take place at the child’s school and otherwise to take place at the McDonalds Restaurant, (omitted).
(12) The paternal grandmother be permitted to attend changeovers:
(13) The husband and wife do all acts and things and sign all documents necessary to cause the Registry of Births, Deaths and Marriages Victoria to amend the child’s birth certificate to register her name as [X].
(14) That the parties by themselves and their servants and agents be restrained from using any other name for the child that [X] for official purposes including primary and high school enrolments but not including Chinese school and extra curricula activities.
(15) In the event that the child is ill and requires medical attention, the wife, the husband and/or the paternal grandmother promptly inform the other parties of the child’s condition and provide details of any treatment (including medication and other matters which must be attended to) and that each party keep the other informed of any immunisations of the child.
(16) The parties each be and are hereby restrained by themselves, their servants or agents from discussing these proceedings or denigrating the other parties in the hearing or presence of the child and from allowing the child to remain in the presence or hearing of a third party engaging in such behaviour.

NOTING

(17) That if either parent seeks that the child’s name remains on the airport watch list after 2 December 2021, then, before that date, that parent should file a further application to that effect supported by affidavit.

Property

(18) That the husband and the wife forthwith do all such acts and things and sign all such documents as may be required to cause the real property situated at and known as unit Property A in the State of New South Wales being the whole of the land more particularly described in (omitted) (“Property A”) to be forthwith sold (“the sale”) as follows:
(19) That upon completion of the sale the proceeds be applied:
(20) That pending the settlement of the sale and the distribution of the proceeds of sale pursuant to the terms of these orders:
(21) That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(22) That within 14 days the parties do all acts and things to instruct Taussig Cherrie Fildes to release the funds held by them as follows:
(23) Upon the Bank B term deposit of $14,000 held in the name of the husband maturing, the husband forthwith do all such acts and things and sign all such documents as may be necessary to pay the said funds to the Second Respondent and it is declared by this order that the Husband holds such funds upon trust for the Second Respondent and the Wife has no interest real or otherwise in same.
(24) That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(25) In the event that either party should fail, neglect or refuse to sign or execute any deed, document or instrument required by or to give effect to these Orders then pursuant to Section 106A Family Law Act 1975 that the Registrar of the Federal Circuit Court of Australia, Melbourne Registry shall be and is hereby authorised, empowered and directed to sign and execute such deed, document or instrument in the place and instead of such party and to thereafter do all things and acts as are necessary to give validity and operation to same.

IT IS NOTED that publication of this judgment under the pseudonym Wa & Lin & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 6923 of 2014

MR WA

Applicant

And

MS LIN

First Respondent

MRS WA

Second Respondent


REASONS FOR JUDGMENT

  1. The parties cannot agree on the property and parenting orders the Court should make. The second respondent is the husband’s mother. Her interest in the case relates to monies she and her husband advanced to the husband which she says are loans. She also seeks parenting orders on the basis that in the early parts of [X]’s life she was her primary carer.
  2. The parties have spent significant funds on legal fees. The husband and wife indicated that they have spent approximately $200,000 each in legal fees. Both said their parents have paid their legal fees. This is out of all proportion to the value of the property pool and the issues in dispute. This is the second time the case has been listed for a five day final hearing. The wife’s case preparation has been particularly poor which has resulted in her relying on her trial affidavit filed in July 2015. The length of the trial was in part due to the fact that the husband and wife needed the assistance of interpreters at times during their evidence. The paternal grandparents relied completely on interpreters.
  3. In the written submissions each of the parties seek costs. If any of the parties maintains that position after considering these reasons, they should make an application in accordance with the rules.

Background

  1. The husband and wife married in Australia in a civil ceremony on (omitted) 2004.
  2. There is one child of the relationship, [X], born 2011 (“[X]”).
  3. In 2008 the husband and wife had a wedding ceremony in China.
  4. The husband and wife separated on 21 July 2014.
  5. When the husband and wife met they were both full time students. Both worked in various jobs during the relationship in Australia and in China. Neither is working currently.

Credit issues

  1. During the hearing I experienced concerns about the credibility of both the husband and the wife. This has made the finding of contested issues of fact more difficult. It has been necessary to carefully review the parties’ affidavits and the oral evidence when considering the contested issues.
  2. All the parties were put on notice about these concerns during the hearing. The husband’s written submissions acknowledge those difficulties. It would have been difficult not to given he had to concede that:
    1. He lied about completing the undergraduate degree going to the extent of posing for a fake graduation photograph and obtaining a fake degree certificate. He was not candid in his affidavits. It was only when he was faced with the photograph and certificate in cross-examination and when confronted with this he said his education was the only thing he lied about. This is not true;
    2. The other aspect of his credibility that causes me the most concern is with respect to his Chinese citizenship issue. The husband agreed that the wife’s evidence that when taking up Australian citizenship it is necessary to give up Chinese citizenship and hand back your Chinese citizen identity card. He agreed that her evidence was correct and conceded that he did not return his identity card. He further conceded that this means that when he travels to China he can pass for a Chinese citizen and go into areas of China where only Chinese citizens can go; and
    1. The judgment against the husband made by the Chinese court refers to his citizenship number. He also agreed that it was suggested to the wife that she has no reason to be concerned about the husband travelling to China with [X] because of his Australian citizenship.
  3. The husband conceded that he obtained a false document so he could pretend that he had graduated in a (omitted) degree when in fact he deferred and never completed his degree at (omitted university). He disagreed with the proposition that he was prepared to lie and forge documents to further his own interests. He said it was only with respect to this issue and not with respect to the IOU he signed for the paternal grandmother. I do not accept his evidence in this regard. This does not mean that I should reject all of his evidence but it does mean I have to approach his evidence with caution.
  4. In her written submissions the wife urges that I make adverse findings against the paternal grandparents as well as the husband. She is silent about her own credibility issues which were also the subject of comment at the hearing.
  5. The wife’s credibility is particularly affected by the following issues:
    1. Her lack of candour in her ex parte application. She tried to deflect blame but I do not accept her explanations; and
    2. Inconsistencies in evidence discussed earlier.
  6. The wife’s parents were present in court for the entire final hearing. Despite this the wife did not call them as witnesses in support of her case, where their evidence would have been relevant to both financial and parenting issues particularly with respect to the following:
    1. The contributions the wife claims her parents made on her behalf at the beginning and during the relationship;
    2. The use of the name [X's Chinese name] for [X]; and
    1. Whether or not the injunction preventing the wife from allowing her father to attend handovers should continue on a final basis.
  7. In these circumstances, the husband and the paternal grandmother ask the court to draw an inference in reliance on Jones v Dunkel (1959) 101 CLR 298. The wife’s submissions are silent on this point. The grounds for drawing the inference that the wife’s parents’ evidence would not have assisted her case in the areas I have indicated above is established.
  8. With respect to the evidence of the paternal grandfather, the comments of the Full Court in Prpic & Prpic (1995) FLC 92-574 which is extracted at [19] of Tian & Fong [2010] FamCAFC 255 (‘Tian & Fong’) are relevant. I set it out here.
  9. Given the issues with respect to difficulties and the interpretation of the paternal grandfather’s evidence I am not in a position to make adverse credit findings against him. It was clear to me that he was totally reliant on the interpreter when giving evidence and that the paternal grandmother relied on the interpreters to a greater extent than either the husband or the wife.

Parenting

  1. There is no dispute that the paternal grandmother is a significant person in [X]’s life. She was [X]’s primary carer for the first couple of years of [X]’s life. [X] enjoys a significant bond with her.

Issues for determination

  1. The issues I am required to determine with respect to parenting are the following:
    1. Whether or not [X]’s birth certificate should be amended to include:
      1. A second Chinese name;
      2. Hyphenating her surname.
    2. Whether or not [X] should live with her parents in an equal shared time arrangement or another arrangement;
    1. Whether or not the paternal grandmother should spend time with [X] when the husband is unable to exercise his time pursuant to the orders if the husband is overseas;
    1. Whether the husband should be able to travel with [X] overseas.

[X]

  1. The wife stayed with her parents in Melbourne for the first two months after [X] was born. Her parents assisted her as did the paternal grandmother two or three weekends and one weekend day.
  2. The wife and [X] moved to Shanghai when [X] was three months old to join the husband.
  3. The paternal grandmother returned to Australia with [X] in June 2012 so that [X] could get her vaccinations. [X] lived with the paternal grandmother in Australia. The paternal grandmother and [X] returned to Shanghai in September 2012 and lived there until December 2012 when they returned to Australia to receive the 12 month old vaccinations. The wife says that she cared for [X] outside of her working hours when [X] was in Shanghai.
  4. The wife returned to Melbourne with [X] and the paternal grandmother on 1 January 2014 and there were further periods where the wife returned to China while [X] and the paternal grandmother remained in Melbourne.
  5. The paternal grandmother sets out the role she provided in caring for [X] and the assistance she gave the wife during periods the wife was staying with her or nearby. She provides detailed evidence on this topic which was not challenged. It is not necessary to set out her evidence on this topic.
  6. There is no doubt that the paternal grandmother was [X]’s primary carer in the early years of her life. That is reflected in the closeness of [X]’s relationship with her paternal grandmother to which the family consultant refers. The wife says the content of the second family report came as a surprise to her and that she realised it was important for [X]’s welfare that she spent substantial time with both parents. She said this is why she supports the husband having care of [X] for five nights a fortnight. She thinks six nights a fortnight is too long because [X] is so young. She also said that [X] was not distressed in August 2014 when she was not seeing the husband and paternal grandmother. She went on to say that she did not think about the impact on [X] at the time because the matter was urgent and she was concerned that the husband would go overseas with the money and [X]. I have some concerns that the mother lacks insight into the impact on [X] of the sudden separation particularly from the paternal grandmother.
  7. The wife conceded that the husband is good father and takes [X] to school and is involved with the school and that [X] returns from her visits happy.

[X]’s Chinese name and surname

  1. One of the interim issues in these proceedings was the use of [X]’s Chinese name. An order was made on 15 July 2015 injuncting the parties without admissions from using any name for [X] other than what appears on her birth certificate for any official purpose, including childcare or kindergarten enrolments.
  2. The wife now seeks orders that [X]’s birth certificate be amended to include a second Chinese name of [X's Chinese name] and to hyphenate her surname to include the wife’s maiden name.
  3. [X]’s name on her birth certificate is [X].
  4. The respondents complain that they did not address this issue in their trial affidavits because they were not aware the wife was still putting this in issue. This is because she did not put it in issue in her trial affidavit for the 2015 final hearing which did not proceed. The wife also did not identify it as an issue to the family consultant for the second family report. In those circumstances the wife’s lawyers should have identified it as an issue prior to the trial affidavits being due.
  5. The husband does address the issue of seeking a continuation of the injunction with respect to the use of [X]’s name. He says the wife has had a long standing view that she wished to use the name [X's Chinese name] instead of her Chinese name on her birth certificate. He says that [X's Chinese name] is a nickname and not a proper name.
  6. The wife agreed with the proposition put to her in cross-examination that she wanted to elevate the nickname to a legal name. She said at Chinese school she is called [X] or [X's Chinese name].
  7. The wife says she has called [X] “[X's Chinese name]” since she was born. She says it means “(omitted)” or “(omitted)”.
  8. The wife gave evidence that everyone in the family referred to [X] as [X's Chinese name]. She says she does not know why they deny it now. She did not agree with the proposition that she has been calling [X] that since separation to distance her from the husband’s family. She says that she has always called [X] “[X's Chinese name]”.
  9. The wife says she did not mention the change of name issue to Ms B because the interview was short and she was not asked a lot of questions. If it was as important an issue to her as she says I would have expected the wife to raise it.
  10. The wife says it is important to her to include her surname as part of [X]’s surname and seeks that [X]’s surname be hyphenated to achieve this. The wife gave evidence that she is an only child so it is a way of her family name continuing on. She accepted the proposition that it is the usual cultural practice for the child to have the father’s surname. She agreed that it is unusual for Chinese surnames to be hyphenated. The husband opposes [X] being given a hyphenated surname because it is very unusual in China. He also opposes her birth certificate being amended to give her a second Chinese name. Again he says this is unusual but also that [X's Chinese name] is a nickname and not a proper name.
  11. The husband’s evidence is that her correct name is used at her primary school but at Chinese school her name in English is [X] and her Chinese name is [X's Chinese name] and not [X]. He says he attended the school to discuss the issue with them but they were not helpful and claimed they have lost the enrolment form. The husband says that it is an informal name or nickname and he has no difficulty with it being used as such but does not agree to it being used formally and her birth certificate being amended. He is concerned that if her birth certificate is amended to add the second Chinese name her first Chinese name will not be used.
  12. The paternal grandmother agreed with the wife’s evidence that it is traditional to consult with a fortune teller with respect to a child’s Chinese name as it is seen as auspicious. The paternal grandmother advised the wife of the chosen name and says that the wife did not object.
  13. The Chinese school [X] attends is associated with the (omitted) where the wife volunteers several days a week. Exhibit C is a copy of the school attendance form. It records [X]’s Chinese name as [X's Chinese name]. The wife denies that she was involved in this. The wife says [X] told the school this is her Chinese name. She says this is why it is in her handwriting. The husband complains that the wife breached the injunction. I do not accept that [X] simply used this name without any encouragement or input from her mother. I note that the wife did not call her parents to support her claim that she and her family have used this name for years.
  14. Decisions about a child’s name is an aspect of parental responsibility. That is made clear from the definition of long term issues with respect to parental responsibility in s4 of the Family Law Act 1975 (Cth) (“Family Law Act”) and affirmed by the Full Court of the Family Court (“Full Court”) in Reynolds & Sherman [2016] FamCAFC 240. It flows from this that is necessary for me to consider whether the proposed changes to [X]’s names are in her best interests.
  15. A child’s name is part of a child’s identity. The arguments with respect to the proposed additions to [X]’s name raise issues of cultural identity. The evidence of the parties conflicted, although the wife did concede that a hyphenated surname is unusual in Chinese culture. There is little evidence for or against the proposed changes being in [X]’s best interests. In the circumstances of this case it is more about the interests of the adults.
  16. With respect to adding a Chinese name for [X] I find that on the balance of probabilities [X's Chinese name] is a nick name rather than a proper name. The Chinese name on [X]’s birth certificate was chosen by the paternal grandmother in accordance with Chinese tradition. The wife conceded this. Given that [X's Chinese name] is a nick name I do not think it is in [X]’s best interests to include it on her birth certificate. Having decided that I have to decide whether or not to grant the injunction the husband and paternal grandmother seeks requiring the parties to ensure that only the names appearing on [X]’s birth certificate should be used in for any official purpose including Chinese school and extra-curricular activities. I do not think it is in [X]’s best interests to extend the injunction to include Chinese school and extra-curricular activities. I acknowledge the interim injunction was made in those terms by consent but this is a permanent injunction. I do not see how it is in [X]’s best interests to create further conflict with the Chinese school if [X] wants to use the name [X's Chinese name]. As the family consultant was not aware the change of name remained in issue, she did not explore it with [X]. The wife gives evidence that [X] told her teachers at Chinese school that this is the name she uses. Particularly given the issues of the credibility issues in this case, which I address later, I cannot be certain this is the case rather than the wife telling the school that is her name. My concern is that it is not going to serve [X]’s interests to prevent her from using either Chinese name at Chinese school and at extra-curricular activities. Given the level of distrust between the parties currently it is likely to cause further conflict.
  17. [X] is in her first year of school. I accept the evidence of the parties that hyphenated surnames are unusual in Chinese culture. The wife’s written submissions refer to Australian culture being a “culture tolerant of a wide range of naming practices”. This does not advance the issue as is clear that for all parties their Chinese heritage is important to them.
  18. Whilst I do not think a hyphenated surname is in [X]’s best interests I do find that adding the name Wa would be in her interests. The wife spoke about being an only child and wanting her family name to continue in some way. It is clear that [X] has close and loving relationships with both sides of her family. Having a connection with both sides of her family by having their same names will benefit [X] in the long term.

The family consultant

  1. Ms B prepared two family reports in this matter, released on the 30 June 2015 and 3 April 2017.
  2. Her first report records that all parties acknowledged that between March 2012 and June 2014 [X] lived primarily with the paternal grandmother.
  3. At the time of the first report the husband and his mother were seeing [X] from 10.00am Sunday until 6.00pm Tuesdays in accordance with interim orders. The husband’s proposal was to reverse that arrangement and to have [X] live with him and the paternal grandmother at the paternal grandmother’s home in (omitted).
  4. The family consultant observed that the paternal grandmother presented as confused and hurt that the events which led to [X] being removed from her care placed with the wife and maternal grandmother. She was respectful of the wife but suspicious about the motivations and actions of the maternal grandparents. She referred to the maternal grandparents working full-time and unable to provide much assistance to the wife, who did not drive, and referred to the maternal grandfather hitting the maternal grandmother in front of [X].
  5. The family consultant observed that the wife and maternal grandmother were possessive and controlling of [X] during the assessment process. She observed the maternal grandmother holding tightly onto [X] when they arrived which she thought was designed to prevent [X] from approaching the paternal grandmother and husband.
  6. She observed positive interactions between the wife and [X]. The wife was child focused and it was evidenced that a close and connected relationship had formed. The maternal grandmother was less involved but attentive and supportive of the wife.
  7. The transition from the wife to the husband and paternal grandmother was difficult for [X] and she cried and became clingy. The maternal grandmother was unhelpful. The husband appeared to be at a loss and the paternal grandmother was active in encouraging and the wife also assisted. [X] then settled quickly. She noted that the closeness of the relationship between the paternal grandmother and [X] soon became apparent during the observation. [X] was less self-assured and confident in the husband’s care. The husband was engaged and child focused.
  8. She concluded that [X]’s relationship with her mother has strengthened in the past 12 months that [X] had been living with her and that the paternal grandmother should continue to enjoy her relationship with [X] given her significance in her early years of life.
  9. She recommended that [X] continue to live with the wife and spend three days a week with the husband and paternal grandmother. She recommended that the husband not be restricted to spending time with [X] at the paternal grandmother’s home. She also recommended that the paternal grandmother still spend time with [X] in the event the husband was unavailable.
  10. Interestingly, she records the husband telling her that he was completing post graduate studies and completing an honours degree in (omitted).
  11. At the recent report interviews the wife was seeking to reduce the husband’s time to alternate weekends from Friday to Sunday and half school holidays. She also wanted sole parental responsibility. As the wife did not provide a recent trial affidavit her reasoning for seeking such a drastic change to the arrangements was little explored at the hearing because her position at trial was different.
  12. The husband wanted equal shared parental responsibility and an equal time arrangement. He told Ms B that he did not want [X]’s legal name changed. He said the wife was trying to separate him from [X] by using another name.
  13. The paternal grandmother was not seeking separate time with [X].
  14. One of the issues in dispute was international travel and whether or not [X]’s name should remain on the watch list.
  15. The husband told the family consultant that he was living at (omitted) and spending time a few days a week at the paternal grandparents’ home. He said the paternal grandmother comes to his home during the school week to spend time with [X].
  16. Again she observed that the wife and maternal grandmother huddled around [X] preventing her from approaching or acknowledging the husband and paternal grandmother. It is very concerning that they engaged in such behaviour for both reports.
  17. The wife complained that the husband leaves much of the parenting to the paternal grandmother and that the two parents should be the ones primarily parenting [X]. She complained that the paternal grandmother writes in the communication book when the husband is away.
  18. The family consultant found the wife’s reasons and complaints about the husband in support of her position to reduce his time to be vague. She noted that [X] was in prep yet the wife was complaining about the husband not doing homework with her.
  19. The initial observations of [X] were concerning as she was “anxious and vigilant” with the wife and maternal grandmother and looking to them for permission to separate from them. Once she did, she relaxed and settled easily with the husband and paternal grandmother.
  20. [X] talked about her father’s two houses, one being at (omitted) and the other being the paternal grandmother’s house. She said she wanted more sleeps at her father’s house but was worried that her mother would get angry at her for saying that.
  21. The family consultant supported the parents having equal shared parental responsibility and did not support the wife’s proposal for reducing the husband’s time. She also did not support the husband’s proposal for equal shared time. She said the level of trust between the parties and their ability to communicate is not well enough developed for that.
  22. The family consultant said there was no reason to restrict the paternal grandmother’s time if the husband is not there and that [X] will benefit from spending time with her whether the husband is there or not.
  23. The observations of the family consultant of the wife and maternal grandmother’s conduct at both interviews in the first and second family report in preventing [X] from being able to naturally engage with the paternal family is concerning. It raises concerns about the wife’s ability to encourage and facilitate [X]’s relationship with the paternal family which is clearly very important to [X].
  24. Ms B was cross-examined about [21] of her second report where she observed that when [X] arrived with her wife and maternal grandmother she was cautious about separating from them to go to the husband and paternal grandmother and looked to them for guidance. Ms B observed that [X] “presented as anxious and vigilant in their company” and when given permission by her wife separated from them. Ms B said this behaviour is concerning on a minor level and that [X] is robust enough to manage it. The wife and maternal grandmother were clingy and possessive of [X], which made it difficult for [X] to leave as she is a very respectful child. The real risk to [X] is that she does not have permission to love her father and paternal grandmother and spend time with them. The way to minimise this risk is to allow [X] to spend more time with them. She went on to say that she recommended that handovers take place at school because [X] needs to be protected from this behaviour.
  25. I find it concerning that the wife and maternal grandmother continued to show this kind of behaviour even after reading the first report. It is a strong reason for ordering more time with the paternal family as there is no indication that the wife and the maternal grandmother are able to modify their behaviour in this regard.
  26. The family consultant recommended that both parents and both grandmothers participate in post separation counselling, for example at (omitted). I will not make an order as I cannot compel the maternal grandmother to go. It is also counter-productive to make such an order after the final hearing. Hopefully the adults can put [X]’s needs first and participate in the program without a court order after the proceedings have ended. If they do so it will not only benefit [X], but also themselves, as [X] is young and they will need to deal with one another for years to come. She said the recommendations in the family report rest on practical issues and the fact that the paternal grandmother lives a long way away from [X]’s school and [X]’s relationship with her father is still developing. She would not recommend an increase in time with the husband in the absence of the paternal grandmother. She said if the paternal grandmother was also present she would recommend the increase in time from what she recommended in her report. The paternal grandmother addresses this in her amended minute of orders.
  27. Ms B was asked about [23] of her second report where she recorded that the when interviewed on her own [X] spoke positively about her parents and extended maternal and paternal families but spoke about her mother not liking her father any more. She referred to her mother saying bad things about her father which makes her sad. She referred to the maternal grandfather and wife as being the angriest in the family. When cross-examined about this Ms B said that she believed it was an accurate reflection of [X]’s experiences.
  28. Ms B said the reason she did not support the wife’s proposal to reduce the husband’s time, which she refers to at [27] of her second family report, is the secure attachment between the paternal grandmother and [X] and the relatively secure relationship [X] has developed with each parent. She also did not support the husband’s proposal for equal time due to the lack of trust between the parents and their communication not being at a level where this proposal would work well for [X]. When asked about this, Ms B said that [X] had started primary school and that substantial and significant time would give the husband the opportunity continue to be involved with her school, but given her age and being in her first year of primary school it is a lot for [X] to take on. She said it is crystal ball gazing to look in the future and said after getting past the first three years of primary school it may be that more time would be appropriate.
  29. With respect to the paternal grandmother Ms B saw no reason why her time should be restricted when the husband is not present. She did not support the wife’s proposal at the hearing that the paternal grandmother have two nights a fortnight rather than five if the husband is not available. She saw no reason to place a restriction on her time and that [X] would benefit and enjoy from the one-on-one time with the paternal grandmother.
  30. She was asked about the wife’s concerns that the husband would go overseas for extended periods and abridge his responsibilities to the paternal grandmother. Ms B said it would be difficult for the paternal grandmother because of the distance from her home to [X]’s school and that would be the only concern if the husband is away from extended periods because the relationship [X] has with the paternal grandmother is very strong.
  31. Ms B was also asked about the proposed change of name issues. She said she thought that issue had been resolved and that she had not turned her mind to it. She did not think it would have an impact on [X]’s emotional development. She did not see it as an issue that [X] was already at school.
  32. Ms B was cross-examined about the husband’s admissions that he obtained fake degree certificate and graduation photo. She said that this affects his credibility in business but not as a parent. She also said quite properly that the issue with respect to the risk as to whether or not the husband would return [X] after overseas travel is a matter for the court and that she could only assess the parties on two occasions that she saw them.
  33. The family consultant did not share the wife’s concerns about the husband absenting himself for long periods because [X]’s relationship with the paternal grandmother is very strong and that provided that the paternal grandmother was able to get [X] to school she would not be concerned about the husband being away, for example, a whole school term. She said that the travel from (omitted) to school to [X] would not be too onerous in a five night arrangement but would be in a week about arrangement. The paternal grandmother and the husband address their concerns in their amended proposed minutes accompanying their written submissions.

Injunction

  1. The husband and the paternal grandmother seek an injunction requiring the wife to prevent the maternal grandfather from attending handovers after an incident at handover in November 2014. An injunction was made on an interim basis. The paternal grandmother obtained an interim intervention order against him. The proceedings between all parties were resolved except for those between the paternal grandmother and the maternal grandfather which were adjourned for contested hearing at the Magistrates’ Court of Victoria on 17 August 2015. None of the parties address this in their written submissions.
  2. The wife says nothing has occurred since November 2014. The husband says this has been because of the injunction that is in place by way of the consent order made on 8 December 2014 which reads “The Applicant do all things reasonably required to ensure that her father not attend or be present at any contact changeover.”
  3. The wife did not call her parents to give evidence so I do not have the benefit from hearing from the maternal grandfather on this issue. I have some concerns about making an injunction on a permanent basis. Clearly it will be to [X]’s benefit if the parents and grandparents on both sides can reduce the conflict between them which would make transitions and handovers much easier for [X].

Overseas travel and watch list

  1. [X]’s name is currently on the watch list. The wife seeks that that order be continued.
  2. The husband says he and the wife travelled extensively both within Australia and overseas during their marriage and he has continued to travel outside Australia regularly. He sets out the overseas trips he has taken since separation. They are extensive, especially for someone on Centrelink benefits.
  3. Significantly, the wife was cross-examined about Chinese citizenship. She agreed that China does not allow its citizens to hold dual citizenships. However she said some people do not tell the government.
  4. She said that [X] would be able to be educated at a private school in China.
  5. The wife says that the husband’s family is in China. Clearly whilst the husband’s parents (particularly the maternal grandmother) have connections with Australia they also maintain strong connections with China. All the wife’s family lives here. The wife became emotional during this part of her evidence. I accept that she is genuinely fearful that the husband will take [X] to China and disappear with her.
  6. He says at [153] of his trial affidavit that he is an Australian citizen. He no longer holds Chinese citizenship or citizenship of any other country. He says:
  7. It is significant that he makes no mention of the fact that he did not return his Chinese citizenship card when he was required to.
  8. When the husband was cross-examined about this he had to concede that in the Chinese court proceedings he held himself out as a Chinese citizen and this is evidenced by the reference to citizenship number on the judgement. He also conceded that through his counsel’s cross-examination of the wife that it was suggested that the wife’s suspicions about his proposed overseas travel was unfounded because he had given up his Chinese citizenship.
  9. The husband proposes orders in his written submissions that [X] remain on the watch list until 2 December 2021, when [X] will be 10 years old but with orders providing for the temporary lifting of the watch list to enable both parents travel overseas provided various conditions are met. This includes the travelling parent providing a $30,000 bond.
  10. In his written submissions the husband argues that there is no evidence that the husband has threatened to take [X] overseas and not return her although he conceded that he has retained his Chinese ID card, has used it in recent times, and his parents own property in China. He refers to, and I accept, Ms B’s evidence about the value to [X] of travelling overseas and experiencing her cultural heritage in China. He says the orders he proposes strikes a balance between the competing issues being the wife’s fears and lack of trust, the husband’s possession of a Chinese identity card, the fact that China is not a signatory to the Hague Convention on Civil Aspects of International Child Abduction and the benefit to [X] of overseas travel. Significantly the husband does not offer to hand in his Chinese identity card. I do not accept that the husband’s orders do strike that balance. It is of significant concern with respect to the issue of overseas travel that the husband was not honest about retaining his Chinese identity card.
  11. My impression is that the husband’s parents are of some substantial means. This is particularly so in light of the contributions they have made during the relationship. I have some concerns that $30,000 is a relatively modest sum for the husband to raise in those circumstances. I am less certain of the wife’s family’s wealth.
  12. It is very concerning that the husband has been dishonest not just about his university degree but also retaining his citizenship card in the knowledge that he is not entitled to do so. It is relevant because it raises real concerns about his bona fides with respect to his desire to travel overseas with [X]. He has strong connections overseas. He is not working. Additionally, he has a girlfriend living overseas.
  13. Several authorities have discussed relevant considerations when considering an application to travel overseas with children. These include: In the Marriage of Kuebler [1978] FamCA 26; (1978) FLC 90-434 and Line & Line (1997) FLC 92-729. Halligan FM (as he then was) reviewed the authorities which predated the 2006 amendments to the Family Law Act in Yilmaz & Yilmaz [2010] FMCAfam 791. Justice Bennett identified a list of relevant factors to consider as follows:[1]
  14. I am of the view that it is not appropriate to have the watch list order lifted and replaced whenever parties travel. Either there is a real risk of non-return, justifying the child’s name remaining on the watch list or there is not.
  15. In view it is not in [X]’s best interests to make the orders regarding travel which the husband seeks. I will make an order for [X]’s name to remain on the watch list until 2 December 2020 when she turns 10. I accept the wife’s fears are genuine. I am mindful that there may well be further proceedings where the husband seeks permission to travel overseas with [X] and/or where the wife seeks to extend the period [X]’s name remains on the watchlist. In the circumstances of this case it is appropriate that the husband brings a specific application if he chooses to do so in the future. It may be that after these proceedings have concluded and time has passed the parties may be able to agree on overseas travel. If they can’t, they will be able to bring an application.

Legal principles and their application to parenting issues

  1. The principles governing the Court’s determination in this matter are set out in Part VII of the Family Law Act. The Court must regard the best interests of the child as the paramount consideration: s.60CA. What it means in individual cases is informed by a number of statutory provisions.
  2. The objects set out in s.60B(1) help clarify what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objections: s.60B(2). Section 65D of the Family Law Act gives the Court the power to make a parenting Order which is defined by s.64.
  3. In deciding whether to make a particular parenting Order, s.60CA requires that I must consider the matters set out in s.60CC(2), being the primary considerations, and s.60CC(3), being the additional considerations.
  4. There are two primary considerations. The first is the benefit to the child of having a meaningful relationship with both their parents and the second is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
  5. The Family Law Act indicates that these considerations are to be considered as having particular importance. They are described as primary and as a note to s.60CC indicates, are consistent with the first two objects of Part VII. As stated in s.60B, the best interests of the child are met by ensuring they have the benefit of both their parents having a meaningful involvement in their lives to the maximum extent, consistent with their best interests and protecting them from physical or psychological harm and from being subjected to or exposed to abuse, neglect or family violence.
  6. The concept of a meaningful relationship has been considered in a number of decisions including Waterford & Waterford [2013] FamCA 33, Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518 and McCall & Clark [2009] FamCAFC 92; (2009) FLC 93-405.
  7. There are 13 additional considerations which are set out in s.60CC(3) which I will refer to later in these reasons.
  8. I must also consider the extent to which each parent has fulfilled his or her parental responsibilities and has facilitated the other in fulfilling his or her parental responsibilities. I must ensure that any Order I make is consistent with any family violence Order and does not expose a person to an unacceptable risk of family violence to the extent that doing so is consistent with the children’s best interests being treated as paramount. There are no issues of family violence in this case.
  9. Section 61DA(1) provides that when making a parenting Order, the Court must apply a presumption that it is the best interests of the children for their parents to have equal shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the children or family violence (s.61DA(2)). The presumption may also be rebutted if the Court is satisfied that it would not be in the best interests of the children for the parents to have equal shared parental responsibility (s.61DA)(4)).
  10. If the presumption is not rebutted and I accept it would be in the best interests of the children to make an Order for equal shared parental responsibility, I am then required by s.65DAA(1) and (2) to consider whether to make Orders that the children spend equal time, and if not equal time then substantial and significant time with each parent.
  11. For a parenting Order to involve the children spending substantial and significant time with a parent, s.65DAA(3) requires that it must at least provide for the children to spend time with the parent both on days falling on weekends and holidays and on days falling outside those times. It must also allow the parent to be involved in the children’s daily routine and on occasions and events that are of particular significance to the children and for the children to be involved in occasions and events that are of special significance to the parent.
  12. In MRR v GR [2010] HCA 4, the High Court found that s.65DAA(1) requires a Court to consider both whether the best interests of a child is served by an Order for equal time and that it is reasonably practicable for children to spend equal time. Both elements must be present in order for a Court to make an Order for equal time. At paragraph [13] of the judgment the High Court said:

Conclusions with respect to outstanding parenting issues

  1. I have addressed the specific parenting issues with respect to the change of names, international travel, and the watch list and will not repeat those here.
  2. All parties now seek an order that changeovers that do not take place at [X]’s school take place at McDonalds (omitted).
  3. It is indicative of the way the parties ran the case that the written submissions of the parties, in essence, seeks the same arrangements of school holidays and special days but use different wording and slightly different times. The differences do not affect [X]’s best interests in the slightest.
  4. The paternal grandmother’s written submissions seek an order that if the husband is unable to exercise equal shared parental responsibility with the wife that she exercise equal shared parental responsibility with the wife. She did not seek this order in her case outline and it was not the subject of evidence during the hearing. I decline to make this order. Such an order would only heighten the wife’s concern that the husband does intent to absent himself for long periods and does nothing to improve communication and trust between the two families.
  5. I will order that the parents have equal shared parental responsibility for [X]. The husband seeks an equal time arrangement. The wife seeks orders that the husband have care of [X] for 5 nights a fortnight.
  6. [X] is too young to express a view about the parties differing proposals. The evidence is clear that the [X] has close and loving relationships with her parents and grandparents, and that she has a particularly close relationship with the paternal grandmother. Contrary to the wife’s written submission, the evidence does not support any concern that the paternal grandmother will be unable to continue to meet [X]’s emotional and education needs. The only concern raised is a practical one being the distance between the paternal grandmother’s home and [X]’s school. The husband and parental grandmother address this in their proposed orders requiring her to be substantially present at the husband’s home during the school week. That order is entirely appropriate and addresses that concern.
  7. In her written submissions the wife also raises the wording on s60CC(2) and (3) with respect to parents and grandparents. The submission does not advance matters as it is necessary to examine the legislative provisions in the context of this particular relationship. Rather it ignores the reality of [X]’s upbringing. I accept Ms B’s evidence that [X]’s relationship with her paternal grandmother is extremely close and her relationship with both parents is also loving and close relationship which has been developing over time.
  8. I have some real concerns about the attitude of the wife and maternal grandmother in understanding the importance of [X]’s relationships with [X]’s paternal family as demonstrated in both family reports. This was also demonstrated by the wife seeking to reduce the husband’s time at the time of the second family report interviews.
  9. Neither parent raised concerns about cultural issues other than in the context of travel and [X]’s name which I have already addressed.
  10. In the context of property submissions the wife says that the husband does not pay child support and is unlikely to in the future. Both parties rely on social security payments. Neither are working. There is no evidence to support the submission that the husband will not pay child support in the future if assessed to do so. The wife may also be assessed to do so in the future. In these circumstances I am not satisfied that s60CC(3)(ca) is relevant.
  11. Ms B’s family reports and oral evidence were of great assistance in this case. I place great weight on those. I note Ms B’s amendment to her recommendations with respect to the husband spending equal time with [X] with his wife being in substantial attendance.
  12. I find that it is in [X]’s best interests that she spend equal time with her mother and with her father and or paternal grandmother. Ms B did not share the wife’s concern about [X] spending substantial periods of time with her paternal grandmother in the husband’s absence. The only qualifiers were with respect to getting [X] to school and if the husband is away from Australia for a period of three months or more. Both these concerns are addressed by the husband’s and grandmother’s submissions and I will make orders on that basis.
  13. The paternal grandmother seeks an order in the same terms as the parents with respect to her birthday. I will make an order that [X] spend time with the paternal grandmother on the paternal grandmother’s birthday in the event the husband is overseas.

Financial issues

Issues for determination

  1. The issues I have to determine with respect to financial issues among the parties are as follows:
    1. The parties’ initial contributions;
    2. Contributions made by the wife’s family;
    1. Contributions made by the husband’s family;
    1. Whether the husband’s parents are owed any money;
    2. Whether or not the wife loaned CNY $104,200 to a friend (the husband says this converts to approximately AUD $20,840).
    3. Whether or not the husband has an interest in the business known as the Business A in China and how this should be treated;

Circumstances surrounding the husband and wife’s separation

  1. The wife says they separated on 31 July 2014 when she claims the husband insisted on the wife and [X] moving into their own apartment. The wife says husband tried to take [X] from her.
  2. The husband agrees that this is the separation date but says he went to the home that day to collect [X] at the wife’s request but that when he arrived the wife’s father was yelling and acting aggressively.

Ex parte application by the wife in the Family Court of Australia

  1. The wife says she discovered that on that day the husband had transferred $149,999 out of their joint account. She says that represented almost all of their savings. The wife relied on this withdrawal when seeking ex parte injunctions.
  2. The wife says she then withdrew $19,199 from the parties’ joint offset account and used it for living expenses.
  3. The Bank A statement is annexed to the husband’s trial affidavit marked BL-14, it shows the following transactions:
Date
Transaction
120.1
31 July 2014
[X]'s Bank A AccountBank AWife transferred $10,000 from Bank A (-omitted) to [X]'s Bank A Account (-4993)
120.2
31 July 2014
Bank AHusband withdrew $99,999 from Bank A (-9819)
120.3
31 July 2014
Bank AHusband withdrew $50,000 from Bank A (-9819)
120.4
31 July 2014
Wife withdrew $5,000 from Bank A (-9819)
120.5
1 August 2014
Wife transferred $9,190 from Bank A (-9819) to [X]'s Bank A Account (-4993)
  1. From the Bank A account the husband withdrew a total of $149,999. The wife withdrew $36,091.
  2. The husband’s affidavit annexes a copy of a transaction list for the wife’s Bank B account marked at BL-15, it shows the following transactions:
122.1
1 August 2014
Wife transferred $11,901 from her Bank A account No. 613776 into her Bank A Account A.885264
122.2
2 August 2014
Wife deposited $8,000 cash into her Bank B
122.3
2 August 2014
Wife withdrew $8,000 from her Bank B
  1. Annexure BL-17 is a bank statement for [X]’s account, it shows the following:
123.1
6 August 2014
Wife withdrew $5,000 cash from [X]'s Bank A Account (-4993)
123.2
6 August 2014
Wife withdrew $15,648 cash from [X]'s Bank A Account (-4993)
  1. BL-16 shows the wife transferring $12,000 to the Australian Taxation Office from her Bank A choice account No. 885264 on 4 August 2014 after transferring $11,901 on 1 August 2014.
  2. The wife was cross-examined about her ex parte application for injunctions in the Family Court of Australia. She conceded that the financial statement filed on 7 August 2014 she relied on in the support of that application was wrong when she deposed that she only had $100 in the bank. She said it happened all of a sudden and it was the first time she spoke to lawyers and it was not well prepared. She also referred to the husband taking $150,000 and the intervention order proceedings. The principles applying to ex parte applications are well known. Due to the fact that by their nature ex parte applications deny the respondents procedural fairness it is vital that the applicant makes full, frank and accurate disclosure.
  3. She was then asked to agree with the statement that her financial statement was not a true document. She said it was correct, but then immediately said it may have the wrong figures as she signed it that day and checked it later on. Her explanations are not acceptable. It is a sworn document. It seems at best she was careless about ensuring it was accurate. It is important to note that she was legally represented. She would not agree that it was a lie but said she amended it later on. The difficulty is that the court relies on these documents being accurate in ex parte applications. The obligations on an applicant in those circumstances are clear. It may have affected the outcome but that is speculation. She conceded that her lawyer explained to her the importance of being truthful when making an ex parte application but that she did not mention the sums she took. She made these withdrawals just a few days before swearing her court documents.
  4. She was also cross-examined about her evidence with respect to obtaining the airport watch list order. She conceded that there was not a risk that the husband or his parents would remove [X] inappropriately from Australia. She did say that the husband has [X]’s passport. She did not agree that there was no need for the watch list order. It is clear that the level of distrust between the parties was high at that time and remains so today.
  5. She was cross-examined about the various sums she withdrew from the parties’ joint accounts post separation. She used $12,000 of those sums to reduce her HECS debt. The sums she took are significant sums that she failed to disclose in her financial statement. This impacts on her credibility.
  6. The husband said when he discovered that the wife removed $10,000 from the joint account that he was fearful that she would remove the funds that he says they owed his parents, so he transferred $149,999 from their mortgage offset account to his parents’ account. It is not surprising that the situation escalated.
  7. The husband seeks that the amount of $46,228 be added back.
  8. The wife refers to the funds she withdrew at [124 – 125] of her trial affidavit She refers to the $19,190 from the joint account. She also refers to the $8,000 and the $12,000 she withdrew from her account to repay her HECS debt.
  9. She does not refer to the further $5,000 she withdrew from the joint Bank A account.
  10. I cannot reconcile the $46,228 amount the husband seeks be added back with the sums taken by the wife. It is not easy to follow as she did not just make withdrawals but also transferred various funds between accounts. The wife withdrew the sums of $10,000, $9,190 and $5,000 from the joint Bank A account.
  11. At [125] of the wife’s affidavit she said she withdrew $8,000 and $12,000 from her accounts. She said she applied both sums to pay her HECS debt on 4 August 2014.
  12. She says she thought this was appropriate as the husband had previously agreed that she should repay it. I find that this action was similar to the husband transferring the $149,999 to his wife’s account.
  13. In the circumstances, in order to do justice to both parties, in light of the fact that the funds the husband took form part of the pool given the injunction, the sum of $44,091 taken by the wife must be added back also. This represents the sums taken which are referred to at [120.1, 120.4, 120.5, 122.1 and 122.2]. If the wife had complied with her obligations to be full and frank in her ex parte application it may be that not all of the $149,999 would have been frozen or some other order may have been made.

Initial contributions

  1. The parties had $80,000 in an HSBC term deposit. The statement appears at annexure BL-12 of the husband’s trial affidavit. The term deposit was opened on 9 February 2009. This represents the initial contributions of the parties. They disagree as to the sources of this $80,000 sum.
  2. The wife says that her parents gave her $50,000 in cash at the beginning of the relationship. She says she also had $20,000 in savings. She says the remaining $10,000 was the husband’s savings.
  3. The wife says that her parents gave her $50,000 in cash when they heard she was getting married. She relies on photographs which are exhibit A. They show her with her parents and the husband with some cash on the table. She says the blue box which can be seen on the table also contained cash.
  4. The wife did not call either of her parents as witnesses in her case. When asked about this she said she did not want to involve them too much. However, they were in court throughout the hearing.
  5. The husband denies that the wife’s parents gave them $50,000 in cash. He says he had $50,000 in a term deposit with matured in February 2004. He says his parents gifted him $50,000 in 2002. Annexure BL12 of the husband’s trial affidavit shows this amount. He says that this sum formed part of the $80,000.
  6. He says that as they were getting married the $50,000 from his term deposit was put in a joint fixed term deposit account in his and his wife’s name. He says the paternal grandmother gave him a further $30,000 which was also placed in that account. He says when that matured he repaid the $30,000 to the paternal grandmother. He says (although he does not explain why given the account was in his and his wife’s name according to his evidence not the paternal grandmother’s), the paternal grandmother paid $10,000 to him, $10,000 to the wife, and $20,000 for an engagement ring for the wife.
  7. The photos show some cash but they do not prove that the wife’s parents gave them $50,000. She has chosen not to call her parents to give evidence in circumstances where they were available to do so.
  8. She also does not have documents which prove that she had $20,000 in savings. She relied on Exhibit B which is a bundle of bank statements in the wife’s mother’s name. These statements fall well short of this. They show deposits from Centrelink for the youth allowance and regular withdrawals. The wife claims that she withdrew cash amounts of $1000 and put this cash in her safe at home. She says this was about $15,000 and she also earnt money from a part time job. These withdrawals were made over a year. The Centrelink benefits were for her living expenses. I do not accept her evidence that she had $20,000 in savings. Exhibit B does not support this.
  9. On this issue I prefer the evidence of the husband and the paternal grandmother.
  10. There have been several cases which have discussed the treatment of initial contributions. Pierce & Pierce [1998] FamCA 74 and Williams & Williams [2007] FamCA 313. The Full Court has considered initial contributions recently in Wallis & Manning [2017] FamCAFC 14. The length of the marriage is relevant to the assessment of initial contributions as is the use made of initial contributions. In this case the marriage lasted seven years. The initial contributions were used for various expenses and not put into real estate or other assets that the parties still have. Nonetheless, it would not be just and equitable to ignore initial contributions.

Contributions by the wife’s parents

  1. The wife says that she and her husband lived with her parents 80% of the time between 2004 and 2006. The rest of the time they lived at (address omitted) which was rented by the paternal grandmother. The wife says that her parents did not charge them board or rent and her father paid for the majority of their expenses. The wife was receiving youth allowance at this time.
  2. The wife says that the paternal grandmother returned to China in early 2004 and remained there until mid-2006 but that she continued to rent the (omitted) unit. She says that she and the husband spent the weekends there. She says that they agreed to pay about 80% of the utility and telephone bills for the unit. The wife’s evidence about this is not convincing. Why would they pay 80% of the utilities if they were only staying there on weekends? It is more likely that they were paying that because they were spending the majority of their time there.
  3. The paternal grandmother says that from March 2012 to July 2014 the husband and wife lived in her and her husband’s family home in China and she did not receive any payments from the husband and wife. She denies the wife’s assertion that her parents paid them $20,000. She says she and her husband wanted them to save money from their salaries for their future.
  4. The wife says that in mid-2006 the paternal grandmother returned to Australia and purchased the home at (address omitted). The wife says that she and the husband spent about half the time at her parents’ home and half the time at his parents’ home with most of their expenses being met by their respective parents.
  5. The wife claims that her parents made other financial gifts during their marriage. She itemised various amounts and included receipts, including for a dinner after their wedding at the Crown for $845. The husband acknowledged some contributions by her parents and denied others. He acknowledged that her parents gave her $40,000 in December 2009. He agrees the wife used $20,000 of that to repay a portion of her HECS debt and the rest went into their Bank A offset account.
  6. It is clear that both sets of grandparents provided financial assistance to the parties at various times. The paternal grandparents advanced great sums to the parties.

Move to Sydney and purchase of the Property A

  1. The husband and wife moved to Sydney in 2008.
  2. The wife says her parents loaned her $40,000 to repay her HECS loan in December 2009. She says she and her husband agreed to deposit it into the mortgage offset account to reduce the interest. She paid $20,000 off her HECS debt in 2011.
  3. The wife says that the husband was unhappy with his job in Sydney and wanted to work in China. She wanted to remain in Sydney.
  4. The husband and wife purchased Property A (“the Property A Property”) in April 2009 for $625,000.
  5. The wife says her father gave them $21,450 on 3 March 2009 which they used towards the purchase. She annexes a copy of the cheque to her affidavit. The husband acknowledges this in his affidavit.
  6. The wife also says that her parents loaned them $50,000 so they could reduce the interest on the loan. She says it was a verbal agreement, repayable on demand. She says they repaid $30,000 when her parents wanted to buy their (omitted) franchise. She says they still owe $20,000 which she says she is willing to treat as a gift for the purpose of these proceedings.
  7. The husband says her parents gifted them $50,000. He says they spent $20,000 on furniture. He says her parents were having problems with their business and a week later asked for the balance back so they could buy a business. They repaid her parents $30,000.
  8. I find that the husband’s parents advanced $200,000 for the purchase of Property A and the wife’s parents advanced $41,450 (made up of the $21,450 and the $20,000). The issue in dispute between the parties centres on whether or not the $200,000 was a gift or a loan and the treatment of other funds transferred between the husband and his parents. This is discussed below.
  9. The wife’s written submissions with respect to this is not open on the evidence.

Alleged loans from the husband’s parents

  1. The wife says the husband’s parents gifted them $200,000 in early 2009 to assist with the purchase of the Property A property. She denies that this was a loan. There is no dispute that the husband’s parents provided the husband and wife with the money and that they used those funds to assist in the purchase of the Property A property.
  2. The paternal grandmother says this was a loan from herself and her husband and that they require this to be repaid. She says she asked her son to give her written confirmation that this was a loan and annexes a copy of the document in Chinese together with the English translation of the document she says the husband gave her when they were both in China. It is dated 25 April 2009. It says that the husband needed a deposit for a purchase and that he borrowed $200,000 AUD from the paternal grandmother. It makes no reference to the wife. It also does not make any reference to any terms of the loan and is headed IOU.
  3. The husband says in his trial affidavit that when he asked the paternal grandmother to borrow $200,000 to buy a house. He says at [181]:
  4. On his evidence this is not a firm loan agreement. Why would his parents loan the husband the money for him to buy a property if they had to withdraw the funds from their mortgage without even asking him to make interest repayments or require interest to be paid when it was called in? In the next paragraph again the husband says he told the wife afterwards that they “might be asked to repay it” and that he had to confirm in writing it was a loan. Whilst there is no doubt that his parents advanced the funds I am not satisfied that it is a loan that his parents would require to be repaid if it were not for these proceedings.
  5. When cross-examined about this he said that this was an interest-free loan which is parents told him you have to pay back when they asked for it.
  6. The paternal grandmother says her husband needed money for business expenses he incurred in China. She asked the husband and wife to repay the $200,000. The husband transferred $150,000 to her bank account in several transactions to her Bank A and Bank B bank accounts.
  7. The husband transferred $150,000 from their joint account in $10,000 tranches to his parents’ account on 25 February 2013. The wife says he did this without her consent. There is no doubt that the husband transferred these funds. The wife says that the husband told him his father was experiencing financial difficulties and needed the money urgently. The parties were still in a relationship at the time. The husband says he told the wife about this and she agreed with it. The husband said there was no written document demanding repayment of the loan.
  8. The husband then says he asked to borrow $110,000 after the paternal grandmother sold her commercial property in Melbourne so that he and the wife could reduce their interest payments. He says that this time the paternal grandmother did not require a written document for this loan. This sum was transferred on 17 January 2014.
  9. The wife says the paternal grandmother returned $110,000 to them on 17 January 2014. She says the paternal grandmother told her that $10,000 was for interest. The wife complains that the paternal grandmother said they could not afford to repay the $50,000 but then spent $50,000 on a watch for the paternal grandfather’s 60th birthday.
  10. The paternal grandmother says the husband and wife asked her to lend them $110,000 in early 2014 so they could reduce the interest payments on their mortgage. She transferred $110,000 to their Bank A account on 17 January 2014. She says she went with the wife to the bank to transfer the funds. She annexes the documents. She denies the wife’s assertion that this was a gift. She also says that the husband and wife retained the rental income from the Property A property for themselves.
  11. The other matter that speaks against these as being genuine loans is the husband’s evidence in his trial affidavit at [201 - 203] that his parents funded his and the wife’s expenditure on travel and luxury items. The wife conceded that the husband’s parents contributed the sums he set out at [203] of his affidavit from 2004 to 2008 but then said it does not mean that she and the husband spent it all as the paternal grandmother also had legal proceedings on foot. However she did not state this in her affidavit and did not produce any documents in support of her position.
  12. The husband’s actions in transferring $150,000 to the paternal grandmother in 2013 is not necessarily indicative of it being a repayment of a loan. The flow of funds back and forth is consistent with the paternal grandfather having a cash flow problem. Particularly in light of the credibility issues, I am not satisfied on the balance of probabilities that the $200,000 advance was a loan. It is however a significant contribution on the husband’s behalf.

Wife’s alleged loan to a friend in June 2013

  1. On 20 June 2013 the wife removed CNY 104,200 from her account. The husband says this was about AUD $20,840. He complains that the wife has not disclosed what she did with these funds. The wife was cross-examined about this.
  2. The wife’s evidence was not credible. She said she lent the funds to a friend they both knew being the husband of her bridesmaid. She said she could not remember his surname. She said he borrowed from lots of people and he ran away with the money. She then said she lent the money to both her bridesmaid and her husband.
  3. She said she was in contact with her friend on webchat until her friend blocked her. Her evidence is that she cannot get the money back. She says the husband knew about it at the time.
  4. The bank statement annexed to the husband’s affidavit at BL-13 shows the withdrawal on 20 June 2013 which was most of the funds in the account. When this was put to the Wife she said at that time her friend was looking after her son by herself. They grew up together. When it was put to her that she did not refer to this in her affidavit she said she responded to the husband’s concerns about this through her lawyer.
  5. I do not find the wife’s evidence about this credible. However I am not satisfied that this amount should be added back. This occurred during the relationship.

Chinese wedding ceremony

  1. On 26 April 2009 the husband and wife had a Chinese wedding ceremony in Shanghai at the (omitted). It is Chinese tradition for newlyweds to receive money in red packets.
  2. The paternal grandmother gives evidence that she paid $37,300 for the wedding. In addition she says they received $40,000 in monetary gifts from the red packets from their guests. She says she gave the $40,000 to them and did not require any reimbursement for the wedding expenses. The wife addresses this at [47] of her trial affidavit. She says the received about AUD $50,000 in red packet gits from both sides of the family and friends. She says it paid for the wedding which she says cost AUD $18,711. She then says that the husband’s parents paid the balance of approximately $40,000 into their Bank A offset account on 29 June 2009. Her own figures do not add up. The wife says that the receipt the paternal grandmother produced is fake.
  3. The paternal grandmother says that the wife’s parents did not contribute to the costs of the wedding and that she did not receive any red packets from their guests. It seems unlikely that no red packets were received from any of the wife’s guests but that does not mean it was part of the $40,000. I am unable to make a finding about the contributions made on the wife’s behalf.
  4. The paternal grandmother was cross-examined about the wedding costs in the emails with the wedding planner. She says the figures in the emails were preliminary figures in the early stages of planning the wedding. The receipt from the (omitted) is not proper receipt of law but rather is its price menu. I cannot be satisfied as to the true cost of the wedding and what was paid by the paternal family.

Migration bond

  1. The husband was required to place $14,000 in a 10 year fixed deposit as part of the requirements for his parents’ immigration application. The bond matures in October 2017.
  2. The wife acknowledged that this sum was required to pay the migration bond for the husband’s parents’ but says it was sources from joint funds. She says it came from the $80,000 the parties had in 2004. This seems unlikely. In cross-examination she acknowledged that she has not provided any documents in support of her assertion.
  3. The paternal grandmother says she provided those funds to her son. She annexes her bank account statements showing withdrawals on 30 August 2007, 31 August 2007 and 3 October 2007. All other entries are blocked out. She also annexed the deposit for the bond made in the husband’s name on 21 October 2007.
  4. The paternal grandmother seeks an order that the bond be paid to her when it matures.
  5. I find that on the balance of probabilities that the paternal grandparents provided the funds for their migration bond.

Living in Shanghai

  1. The wife says she and [X] moved to Shanghai to live with the husband on 23 March 2012. They lived in the husband’s father’s apartment. The wife says they contributed to household expenses.
  2. The wife took up full time employment from August 2012 until 18 December 2013. She has not worked since then.
  3. She and the husband returned to Australia to live on 25 July 2014.
  4. Neither the husband nor the wife earned high incomes during the marriage. They relied on their parents for support.

Business A

  1. There was a significant issue in dispute as to whether or not the husband has now, or did have, an interest in the business which I will refer to as “Business A”.
  2. In the husband’s affidavit filed on 2 September 2014 he deposed that he owned Business A prior to the marriage. In his trial affidavit he said he was mistaken in his earlier evidence. He sets out what he says is the correct history. It seems that is based on information he obtained from his father.
  3. The wife’s case is that Business A should be included in the asset pool. She says the husband owns the Business A legally and beneficially. The difficulty with this position is that there is no current valuation evidence of Business A. The evidence also is that Business A is no longer owned by the husband. Surprisingly, the written submissions filed on behalf of the wife does not engage with the law on this issue raised in the paternal grandmother’s submissions.
  4. The wife was cross-examined about her affidavit evidence with respect to the Business A. She was cross-examined about an affidavit affirmed on 8 July 2015, a few days after her trial affidavit affirmed on 3 July 2015. In the second affidavit she refers to a conversation she says she and the husband had with the husband’s father in 2004 when they were in China. The wife claims that the husband’s father told them that he was giving the Business A to them as a gift. She claims he told them that he wanted to put it in their joint names but that would be complicated so it was put in the husband’s sole name. In cross-examination she said that was a telephone call when the husband’s father was overseas. That contradicts her affidavit. The wife’s evidence was not credible on this point. She does not accept the paternal grandfather’s evidence that he never owned the Business A.
  5. When cross-examined the husband agreed that he received the rental income from the Business A. He was noted as the owner and for all intents and purposes was treated as the owner. No expenses for the Business A were deducted from the rent before he received it.
  6. He agreed that in the affidavit he swore on to September 2014 at [98] he included the Business A in the asset pool and attributed a figure of $363,640 as its value with a mortgage of $272,730.
  7. In 2005 the rent was $5,000 a year. Later it increased to $9,500 a year.
  8. The paternal grandfather says he is the general manager of the (omitted). (“the (omitted) company”) He says he is not a shareholder or director. He says it is a foreign owned company by (omitted). He also has his own company called (omitted).
  9. He says his employer required him to arrange the purchase of a Business A or a shop off the plan. The vendor of Business A told him that foreign owned companies were not allowed to purchase real estate in China. He says he told his employer. He then went on to say that it would not be proper for him to buy Business A so suggested that it be bought in his son’s name. He says a trust agreement was signed between his son and the company.
  10. When the husband signed the agreements with respect to the Business A he was a full-time university student in Australia. He said the mortgage over the Business A was not taken out until several years later. He said his father told him that the (omitted) company needed money and asked him to sign the mortgage papers. He says he does not know what the (omitted) company needed the money for. He agreed that his father was an officer of the (omitted) company and its general manager at the time.
  11. The husband says that his previous lawyer asked him if he had any overseas assets in his name and he said he had the Business A.
  12. The husband agreed that between 2002 and 2015 he thought the Business A was his. He was asked why then he agreed to take out a mortgage over it. He said because his father asked him and his father told him the (omitted) company needed the money. He said that his father may have told him about the true ownership of Business A but he may have forgotten. He was unable to say when his father told him this.
  13. The husband received a letter of demand from the (omitted) company requiring him to transfer the Business A to the company. He agreed that his father explained to him and explained that the (omitted) company was the true owner of the Business A. He said he believed his parents. He was then asked why it was necessary for the (omitted) company to issue proceedings in China when he agreed that the (omitted) company was the true owner. He said his lawyer in Australia told him because he was in Australian divorce proceedings he could not agree to anything. He agreed with the proposition that in his mind from that time he had no defence to the Chinese case because he did not pay for the Business A. In spite of this he defended the Chinese case and said that he had to do so because of the divorce case in Australia.
  14. The husband rejected the proposition that that he only signed the trust agreement with respect to the Business A after 7 September 2014. He also rejected the proposition that the mortgage document was a sham and rejected the proposition that he and his parents concocted the story to lessen the asset pool available for distribution between the parties.
  15. The husband agreed with the proposition put to him that at the time he swore that affidavit he thought it was telling the truth that the Business A was his. He agreed that when he asserted in 2015 that he never owned the Business A that it was a big surprise to the wife and that from her point of view it was a dramatic change of his financial circumstances. He also agrees that this is an example of why the wife does not trust him.
  16. There are aspects of the paternal family’s story about Business A that do not make sense. They say that the paternal grandfather arranged for their son to hold ownership of Business A on trust for the (omitted) company. The (omitted) Company allowed the husband to keep the rental income from Business A in return. It does not make sense if this were just a business transaction that the (omitted) company would be content for the husband to receive the rental income when he did not work for the (omitted) company and did not make a contribution to that business.
  17. The paternal grandmother was vice chairman of the board of the (omitted) company directors from May 1996 to November 2014. She says this was a nominal position only as the paternal grandfather had the business relationship with the (omitted) company’s owner. She says she was never involved in any management decisions. Again it does not make sense that if the relationship was simply a business one that she would be required to take on such a role. Certainly she did not show a detailed knowledge of the company or the arrangements which is consistent with her role only being nominal. She says the requirements under Chinese law at the time were that companies needed three directors and at least some of them needed to be Chinese. The managing director was from Hong Kong and was considered a foreigner as Hong Kong had not been returned to China at that stage. She gives other evidence which is just hearsay from the paternal grandfather.
  18. The paternal grandmother’s evidence about her involvement with the company was at times confused. She claimed that although she was a director she was not actively involved in the company. I have some difficulty accepting this evidence given her activities as a businesswoman in Australia and the fact that she came to Australia on a business visa.
  19. The paternal grandfather was cross-examined at some length about the (omitted) company. He has his own company (omitted) and works for the (omitted) company. He says they are two different entities.
  20. It was clear that the paternal grandfather spoke the least English of all the witnesses. The cross-examination of the grandfather also understandably focused mostly on his business interests in China and his involvement with the Business A. It was apparent during the course of this cross-examination that there were some difficulties with interpretation of technical business language. The interpreters engaged in this case by the court were all professional and be did their best to interpret. At times this was very challenging for them because the instructing solicitors in the case would at times challenge what they were interpreting. It was clear that the problems that arose were not due to the interpreter not properly interpreting but at times there being words and concepts that did not easily translates from one language to the other when talking about business terminology.
  21. What also became clear during the course of cross-examination is that (in the dialect of Mandarin that was being used) there is no distinction between the verbs for the past and present in Mandarin. Therefore, when the paternal grandfather was questioned with respect to time frames it was confusing as to whether or not he was talking about the past or present. I am satisfied that when his affidavit refers to him being involved in the company in the present tense which he denies in the course cross-examination, that this is most likely to be because of this difference in language I am not satisfied that he was being evasive or deliberately untruthful.
  22. He gave evidence that the title of Vice President was just a title and did not give him much authority. He said he got the job because of the family connections through his wife’s cousin. In addition to his wife being involved in the (omitted) company, his sister also does accounting work and bookkeeping for the (omitted) company. It is at this point that the interpreters raised a number of difficulties with translating the paternal grandfather’s answer with respect to accounting was ambiguous because the word would mean bookkeeper or accounting or cash.
  23. At peak times the (omitted) company had up to 500 workers. In answer to the question that as general manager he was in a position of authority over all the managers, the paternal grandfather said he was in charge of the work that each Department carried out their duties and at some point he would gather together information and then report to the chairman. He says the chairman asked him to look around first and negotiate the price. The chairman wanted to sell extra garments at the Business A.
  24. He then said after the Business A was purchased the developer required them to rent it back to the developer. Business A was bought off the plan in 2002 and they were issued the ownership certificate in 2005. At times the evidence with respect to the Business A was difficult to follow.
  25. The paternal grandfather agreed that he paid the deposit for the Business A and said he provided documents confirming that. He referred to the change in government control of Hong Kong in 1997 and said that since 1997 Hong Kong has been a semiautonomous region of China and referred to the one nation two policies. He said from the Chinese mainland perspective Hong Kong has not changed and that Hong Kong and Macao are still seen as foreign territories.
  26. None of the parties provided any expert evidence with respect to these issues and company law in China.
  27. The paternal grandfather gave evidence that it was the chairman of the (omitted) company who decided to purchase the Business A. He says the chairman purchased it as an investment.
  28. The paternal grandfather acknowledged that he was employed as the general manager of the (omitted) company for many years and that he had other positions within the company including vice chairman and director. He said that at the time Chinese law required a number of directors on the board and that is why he was named as director. He said his job was to act as general manager that in the beginning this involved purchasing materials and in later years he started selling garments in accepting orders. He said his boss the chairman was responsible for the strategic decisions of the company. He says he left the company in about November 2014.
  29. The paternal grandfather could not give a satisfactory answer to the question of why if the (omitted) company bought the Business A as an investment it would pay the rent to his son. He said when the chairman asked him to put his name on the Business A, he told him it was not convenient and proposed putting it in the husband’s name and the chairman agreed to that.
  30. When he was cross-examined by the husband’s counsel about the rent being paid to his son, he again said the company made that agreement with his son, the rent wasn’t much and after all his son was put in a position of responsibility.
  31. I have had great difficulty with this aspect of the paternal grandfather’s evidence.
  32. In 2015 the (omitted) company took action in a court in China and obtained orders that the husband return the Business A to the company. Business A was transferred to the (omitted) company on 18 December 2015. The husband did not consent to the orders and took several months to comply.
  33. Ultimately the Court’s focus is on the relevance of the outcome to these property proceedings. The wife agrees the husband received rental income from the Business A. She makes much of the fact that the husband initially said that he was the beneficial owner of Business A. Her case is that he is still the beneficial owner of Business A.
  34. He annexes the documents with respect to the initial purchase and trust agreement between his son and the company. He provides a narrative in his affidavit and annexes several documents in support.
  35. To some extent the wife’s suspicion about these arrangements is understandable.
  36. Annexure JLL-10A is the civil judgment issued by the Shanghai Pudong New Area People’s Court on (omitted). The Court sets out its findings of fact in that judgment. It refers to the documents before the Court and the evidence of the parties. The husband was the defendant in those proceedings and was legally represented.
  37. There is no evidence to suggest that this judgment is not a legitimate document, nor was that suggested by any of the parties. It may well be that the husband either did not understand or did not concern himself with the details of the arrangements and that he did what his father asked.

The parties’ legal and equitable interests

  1. The parties own a unit at Property A Sydney. The parties agree it should be sold. It is subject to a mortgage of $498,427.
  2. Taussig Cherrie Fildes hold $156,925 on trust for the parties.
  3. There is also bond with Bank B for $14,000. This was the migration bond. The paternal grandmother says she paid for this and she should receive it back. I have addressed this at [189-193]. This should not be included in the pool.
  4. The evidence with respect to the husband’s interests in a business in China is most unsatisfactory. Getting to the bottom of this issue has been made much more difficult by the fact that generally the witnesses in this case lacked credibility. I will return to this issue in detail.
  5. The wife concedes in her trial affidavit that she paid $6,000 in legal fees on the credit card for which she is a secondary card holder and the husband is the primary card holder. She did this when she first commenced proceedings. The card has a $6,000 limit. She agreed that the husband has paid the interest on this card. At [126] of her affidavit the wife says she has no capacity to pay the $6,000 debt because she relies on the generosity of her parents. She says her parents have been working extra hours in their business to provide their support. Yet in oral evidence she said her parents did not need her to work in their business. The husband seeks an order that the wife pay to the husband $6,000 plus the interest so he can pay out the card. The wife could have easily repaid this given her evidence that her parents have given her significant financial assistance with her legal fees. It is appropriate to make the order the husband seeks and that it should not be included in the asset pool.
  6. In his trial affidavit the husband includes the money he alleges he has borrowed from his parents post separation totalling $190,435.39. He also seeks to include $46,228 which were the funds the wife withdrew from the parties’ joint accounts at the time of separation. I have addressed this at [136-142] and will add back $44,091.
  7. I am not satisfied that funds his parents advanced the husband post separation should be taken into account. It is unlikely that his parents would require him to pay this amount. He is currently reliant on Centrelink benefits and what he receives from the property settlement.
  8. The main asset of the husband and wife is the Property A property. Neither seeks to retain the property. After the selling costs the parties will at best receive $500,000.

Section 75(2) factors

  1. The husband and wife are of similar ages. Neither are working currently but both have the capacity to do so.
  2. The wife says she is not looking for work as she is looking after [X]. She volunteers at the temple two to three days a week for four to five hours a day. [X] is at school, there is no reason why she cannot obtain at least part time work.
  3. The wife is doing a conveyancing course for four hours a week. When asked why she was not doing the course full time, she said it was not necessary. She then said the course is only part-time. When asked if she was looking for work she said no because she needs to get [X] settled into her routine as she is not yet.
  4. The wife’s answers to these questions is an example of the wife giving inconsistent answers that she changed during the course of cross-examinations in an attempt to assist her case.
  5. I do not accept that [X] is not settled in her routine. There is no evidence to support the wife’s contention.
  6. The husband says he is currently studying an online course being a (omitted course) and says he is seeking employment in similar field to where he has worked previously being (omitted). He says he started to look for work in April 2016. He agreed that he did not look for work from 2014 when he returned from China until April 2016. He claims he supported himself during that period with loans from his parents for legal fees and living expenses. He agreed that he was living independently of his parents. He says that he does not keep track of how much his parents have lent him and that they give him money as he needs it.
  7. I have no evidence before me as to what the parties’ respective earning capacities will be upon the completion of their studies. If there is a disparity in the future either can apply for child support. Both have generous parents who no doubt will continue to provide financial and other support. As a result of the parenting orders I make, the parents will have equal care of [X].
  8. I will not make an adjustment under s.75(2) of the Family Law Act 1975.

Legal principles applying to property cases

  1. Until the High Court decision in Stanford & Stanford [2012] HCA 52; (2012) 247 CLR 108 (“Stanford”), the position in respect of the process to be applied to the resolution of matrimonial property cases was said to be well settled with a preferred approach as set out by the Full Court of the Family Court of Australia (“Full Court”) in Hickey & Hickey & Attorney-General (Intervener) [2003] FamCA 395; (2003) FLC 93-143 at 78,386 [39].
  2. The High Court of Australia (“High Court”) considered the operation of s.79 of the Family Law Act 1975 (Cth) (“Family Law Act”) in the matter of Stanford. In this case, the majority stated at [35]-[36] that:
  3. The High Court found three fundamental propositions with respect to the application of s.79 of the Family Law Act 1975, which can be summarised as follows:
    1. Firstly, in order to ascertain whether it is just and equitable to make a property settlement order, it is necessary to identify the existing legal and equitable interests of the parties in the property. The High Court emphasised the word ‘existing’.
    2. Secondly, although s.79 gives the court a broad power to make property settlement orders, it may not be exercised in an unprincipled fashion. There must be no assumption that the parties’ interests are or should be different to their existing interests.
    3. Thirdly, when considering whether making a property settlement order is just and equitable the court must not assume that one or the other party has the right to a property adjustment order. The court must give separate consideration to s.79(2) in addition to the matters referred to in s.79(4).
  4. In Stanford the High Court indicated that, in the vast majority of matrimonial property cases, the requirements of s.79(2) will be readily satisfied, largely as a result of a consideration of the circumstances of the parties concerned, particularly the nature of their separation.
  5. The High Court also pointed out that what is just and equitable is different in every case.
  6. I am satisfied that in the circumstances of this case it is just and equitable to make orders adjusting the parties’ financial interests.

Written submissions with respect to financial issues

  1. In the wife’s written submissions she seeks to retain the Property A Property. Again she did not seek this in her case outline and did not raise it during the hearing. Whilst she had the property valued, it is not in evidence. If she wishes to buy the property she can do so at the auction.
  2. The wife refers to the (omitted) investments and attributes a value of $11,800 in her asset pool set out in both her affidavit and case outline. The husband was not cross-examined about this. I am not satisfied that this should be added back.
  3. Unfortunately the wife’s submissions did not engage with all the issues I had to determine and in some respects did not accurately reflect the evidence. I do not suggest this was deliberate. One example is with respect to the contributions made by the parties’ respective parents. It is not necessary to set refer to the submissions in detail.
  4. The wife’s submissions were filed after the other parties. Inexplicably the wife’s submissions do not engage with the arguments and case law raised by the paternal grandmother with respect to the Business A. The wife simply says that whilst the Business A is no longer in the husband’s name it should be notionally added back to the pool. There are several problems with this approach.
  5. I am satisfied that neither the husband nor the wife made any contributions to the Business A. They benefited from income the husband received from it during the marriage. There is no valuation before the Court with respect to the Business A. Even if there was, there is nothing to suggest that the Chinese Court order is not valid.
  6. The wife does not suggest that she made any contribution to the Business A. She acknowledges that the husband received rental income from it for years. The wife conceded that the husband did not pay money for it.
  7. The paternal grandmother’s submissions with respect to law in relation to foreign assets were most helpful. In this regard I refer to [30-34] of those submissions.
  8. There is no doubt that the Court has the power to make in personam orders to enforce personal obligations in a foreign country. This does not offend the ‘Moçambique rule’ which arises from British South Africa Company v Companhia de Moçambique (1893) AC 602.
  9. Ms Wheeler refers to the case of Tian & Fong which has some similarities to this case. In that case the Full Court held that the trial judge fell into error by including a property in the wife’s name located in Shanghai as part of the asset pool in light of the evidence that the wife had not made contributions to that property and did not engage with the evidence as to the true ownership of that property.
  10. The Full Court of the Family Court has discussed the issue of addbacks in several decisions including Bevan v Bevan [2013] FamCAFC 116 at [79], Masoud & Masoud [2016] FamCAFC 24 at [90 to 94], and Vass & Vass [2015] FamCAFC 51 at [138] and [139].
  11. It is clear from those decisions that the determination as to whether or not to add back notional property (such as funds unilaterally expended by a party) to the pool or to take that expenditure into account under 75(2)(o) is a matter of discretion for the trial judge in the particular circumstances of the case.

Conclusions with respect to financial issues

  1. The wife submits that her family made equal, if not greater, financial contributions than the husband’s family. This proposition was never put to the husband. The wife did not call her parents to get evidence. Such a submission is not supported by the evidence.
  2. In the case before me it is clear that the Business A is no longer in the husband’s name. It is also clear that neither the husband not the wife contributed to it.
  3. I am satisfied that contributions made on behalf of the husband, including initial contributions, together with the advance of $200,000, which the wife concedes they made, and the income from the Business A are significantly greater than the financial contributions made on the wife’s behalf by herself and her family.
  4. There is no current valuation of the Property A Property before the Court. As it is to be sold this is not important. The assets to be divided between the husband and the wife are:
Approximate equity in Property A
$500,000
Amount held in Taussig Cherrie Fildes trust account
$156,925
Amounts taken by wife
$44,091
Total assets
$701,016
  1. I find that the husband should receive 63% of those assets in recognition of his greater contributions.
  2. The wife has had the benefit of the $44,091.
  3. $44,091 plus $156,925 equals $201,016. The husband will receive 63% of this, $126,640.08 from the Taussig Cherrie Fildes’ trust account. The wife will receive $30,284.92 less the $6,000 plus interest she needs to pay the husband.
  4. If the amount in Taussig Cherrie Fildes’ account is greater than $156,925 due to interest, the remainder should be divided as to 63% to the husband and 37% to the wife.

I certify that the preceding two hundred and seventy-five (275) paragraphs are a true copy of the reasons for judgment of Judge Harland

Date: 4 August 2017

[1] Bennett V, “The International Family: How to Secure Rights in Respect of Children Overseas” (Paper presented at 14th National Family Law Conference, 18-22 October 2010, Canberra), p 21.

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