FAMILY COURT OF AUSTRALIA
| ZENG & LAM | [2017] FamCA 66 |
FAMILY LAW – CHILDREN – Where parenting orders are sought in respect to the child who is 17 years old and has a mild intellectual disability – Where both parents seek sole parental responsibility of the child and for the child to live with them – Where the wife makes allegations of family violence against the husband and those allegations are made out – Where the husband says the child would be at risk of psychological harm if in the wife’s care – Where the risks posed by the wife to the child are not of the same magnitude as the risks posed by the husband – Where the husband and the child have not spent any significant time together since January 2015 notwithstanding his parents have been separated under the one roof during that time – Where there is some need to protect the child from spending extensive periods of time with the husband – Where orders are made for the wife to have sole parental responsibility for the child and the child to live with her – Where orders are made for the child to spend time with the husband every second weekend.
FAMILY LAW – PROPERTY – Where both parties seek a division of property in their favour – Where each party seeks to retain the former matrimonial home and the other party to receive an investment property with a cash adjustment – Where both parties have provided evidence that they can raise enough finance to retain the former matrimonial home – Where the contributions made by each party in the marriage were equal – Where there should be a five per cent adjustment in favour of the wife for s 79(4)(d)-(g) considerations – Where the wife is to receive 55 per cent of the assets of the parties and the husband is to receive 45 per cent – Where orders are made for the wife to have the first option of retaining the former matrimonial home – Where the husband will be given the option to retain the former matrimonial home should the wife not raise the necessary funds within a two month period – Where household contents are divided by way of a ‘pick a pile’ order – Where orders are made for the parties to pay the costs of the Independent Children’s Lawyer such payments to be a charge on the respective properties of each party; to be deferred until the sale of the respective residences of the parties and Legal Aid NSW shall be entitled to lodge a caveat pursuant to that charging order.
Family Law Act 1975 (Cth)
| APPLICANT: | Mr Zeng |
| RESPONDENT: | Ms Lam |
INDEPENDENT CHILDREN’S LAWYER: Mr Ladopolous
| FILE NUMBER: | SYC | 2086 | of | 2014 |
| DATE DELIVERED: | 10 February 2017 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 21 – 25 November 2016 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Litigant in person |
| COUNSEL FOR THE RESPONDENT: | Ms Barnett |
| SOLICITOR FOR THE RESPONDENT: | Sun Lawyers |
| SOLICITOR FOR INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
Parenting
The wife have sole parental responsibility for the child, X, born … 1999 (“the child”) except the wife shall not change the child’s name nor make changes to the child's living arrangements that make it significantly more difficult for the child to spend time with the husband.
The child live with the wife.
Commencing on the second weekend following the date of these Orders, unless the wife and the husband agree otherwise in writing, the child shall spend time with the husband each alternate weekend as follows:
3.1.from the end of school on Friday (or, if the child is not attending school that day, from 3.00 pm), with the husband to collect the child from school (or, if the child is not attending school that day, from the wife’s home);
3.2.until the start of school on Monday (or, if the child is not attending school that day, until 9.00 am), with the husband to deliver the child to school (or, if the child is not attending school that day, to the wife’s home).
The wife and the husband ensure the child is at liberty to telephone the other parent at any reasonable times that he may wish to do so.
The wife shall:
5.1.keep the husband advised of the names and addresses of the child’s treating doctors;
5.2.inform the husband in writing as soon as practical of any specialist medical appointments including appointments with any dentist, optometrist, psychologist, psychiatrist, counsellor or therapist ("specialist medical consultant") in relation to the child; and
5.3.ensure that the husband is provided with a copy of any report by any such specialist medical consultant in relation to the child, within 14 days of the wife’s receipt of the report.
Both the husband and wife shall be entitled to:
6.1.attend any appointments with any of the child’s treating doctors or specialist medical consultants; and
6.2.discuss the child’s condition with such treating doctor or specialist medical consultant,
however such attendance(s) shall be at the discretion of the treating doctor or specialist medical consultant.
The wife shall ensure that the husband is notified as soon as practicable if, while in her care, the child is admitted to hospital or is involved in a medical emergency.
The husband shall ensure that the wife is notified as soon as practicable if, while in his care, the child is admitted to hospital or is involved in a medical emergency.
These Orders hereby authorise any school which the child attends from time to time to provide both the wife and the husband with copies of all reports, circulars, notices and documents in relation to the child including copies of all school reports, reports on school progress and behavioural issues and notices received in relation to functions, parent teacher nights and like activities to which parents are invited as well as any and all information which may be sought from time to time by the wife or husband in relation to the child.
Both the wife and the husband be permitted to attend any of the child’s school events to which parents are ordinarily invited.
The wife and the husband notify each other of any change in their telephone contact numbers, such notification to be made in writing and within three (3) days of any change.
The wife and the husband notify each other of any proposed change to their place of residence, such notification to be made in writing and no less than fourteen (14) days prior to the proposed change.
The wife and the husband shall:
13.1.be restrained from:
13.1.1.discussing these proceedings in the hearing of or presence of the child;
13.1.2.speaking about the other parent or the other parent’s family or member of the other parent’s household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of the child;
13.2.take all reasonable steps to prevent any other person:
13.2.1.discussing these proceedings in the hearing of or presence of the child;
13.2.2.speaking about the other parent or the other parent’s family or member of the other parent’s household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of the child.
The wife and the husband shall be restrained from:
14.1.physically disciplining the child or physically restraining the child (including tying his hands for training purposes); and
14.2.showing the child any document filed in these proceeding or any documents related to these proceedings.
The wife shall ensure that the child attends an appointment with the Independent Children’s Lawyer, as arranged by the Independent Children’s Lawyer, for the purposes of having these Orders explained to him.
Within 14 days of the date of these Orders, the Independent Children's Lawyer shall provide a copy of the following documents to Ms C:
16.1.Family Report dated 8 May 2015 prepared by Family Consultant H;
16.2.these Orders; and
16.3.these Reasons for Judgment.
Pursuant to s 65DA(2) and s 62B Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Property
Pursuant to s 79 of the Family Law Act 1975 (Cth), an order be made in accordance with paragraphs 19 to 30 below.
Within a period of two (2) months from the date of these orders, the wife pay to the husband the sum of $131,069 and discharge any responsibility the husband has in respect of the mortgage on the property situated at D Street, Suburb B (“the Suburb B property”).
Contemporaneously with the wife fulfilling the requirements of the preceding paragraph, the husband will do all acts and things and sign all necessary documents to discharge any responsibility the wife has in respect of the current mortgage on the property situated at F Street, Suburb G (“the Suburb G property”) and transfer to the wife his right, title and interest in the Suburb B property.
Contemporaneously with the implementation of the two previous paragraphs, the wife is to transfer to the husband her right, title and interest in the Suburb G property.
Upon the wife transferring the amount referred to in paragraph 19 and discharging the mortgage in respect of the Suburb B property, the husband is to forthwith vacate the Suburb B property.
In the event the wife does not make the payment referred to in paragraph 19 within a period of two months, then within a further period of two (2) months:
23.1.The husband pay to the wife the sum of $290,321 and discharge any responsibility the wife has in respect of the mortgage on the Suburb B property.
23.2.Contemporaneously with the husband fulfilling the requirements of the preceding subparagraph, the wife will do all acts and things and sign all necessary documents to discharge any responsibility the husband has in respect of the current mortgage on the Suburb G property and transfer to the husband her right, title and interest in the Suburb B property.
23.3.Contemporaneously with the implementation of the two previous subparagraphs, the husband is to transfer to the wife his right, title and interest in the Suburb G property.
Upon the husband tendering the amount referred to in paragraph 23.1 and discharging the mortgage in respect of the Suburb B property, the wife is to forthwith vacate the Suburb B property.
In the event that after a period of four (4) months neither party has acquired the other’s interest in the Suburb B property, the parties shall do all things and sign all necessary documents to sell the Suburb B property by private treaty at a price agreed upon between the parties and failing agreement, at a price to be determined by a nominee of the President of The Australian Valuers Institute and the net proceeds of sale will be distributed as follows:
24.1.Payment of the costs of sale;
24.2.Discharge of the mortgage on the Suburb B property;
24.3.86.85 per cent to the wife;
24.4.13.15 per cent to the husband
AND
24.5.The wife will transfer to the husband her right, title and interest in the Suburb G property
AND
24.6.The husband will discharge any liability the wife has in respect of the mortgage on the Suburb G property.
The wife shall be entitled to sole right, title and interest in her Japanese motor vehicle.
The husband transfer any interest he has in the hatchback vehicle to the wife if she requires him to do so and the wife shall be responsible for the hatchback vehicle and, if applicable, the disposal of that motor vehicle.
Each party shall be entitled to their respective superannuation interests.
The wife shall forthwith prepare two lists of generally equivalent value of the personal property, furniture and effects of the husband and the wife, situated at the Suburb B property as at the date of these orders, excluding that which is ordinarily solely used by any of the children of the marriage and present the lists to the husband. Within seven days the husband is to choose one of the lists and notify the wife of that choice in writing. Upon the husband choosing one of the lists, the items in that list will become his sole property and the items in the other list will then become the sole property of the wife. In the event the husband fails to notify the wife of his chosen list within seven days, the wife shall be entitled to have the items in one of the lists as chosen by her and as notified to the husband in writing.
Each party be solely entitled to the exclusion of the other to all other property, chattels and superannuation in their respective names or possession as at the date of these orders and that each party indemnify the other in relation to any debt associated with any asset that is kept by each of them respectively.
If either party refuses or neglects to sign (within fourteen (14) days of a written request to do so) any documents necessary to effect the terms of these Orders, the Registrar of the Sydney Registry of the Family Court of Australia is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act1975 (Cth) to execute such documents on behalf of such party.
The wife shall pay by way of costs to Legal Aid NSW a sum of $8,951.77 which payment shall be deferred until the wife disposes of her interest in the property she receives as a result of the implementation of these orders. A charging order is made in relation to that debt on that property and Legal Aid NSW shall be entitled to lodge a caveat pursuant to the charging order.
The husband shall pay by way of costs to Legal Aid NSW a sum of $8,951.77 which payment shall be deferred until the husband disposes of his interest in the property he receives as a result of the implementation of these orders. A charging order is made in relation to that debt on that property and Legal Aid NSW shall be entitled to lodge a caveat pursuant to the charging order.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Zeng & Lam has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 2086 of 2014
| Mr Zeng |
Applicant
And
| Ms Lam |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The parties currently reside under the one roof with two adult children of the marriage and the child X born in 1999, currently aged 17 (“the child”). The parties seek that I make parenting orders in relation to the child. He has a mild intellectual disability and has problems expressing himself due to language difficulties. He may also have Autism Spectrum Disorder. His treating psychologist opines he has post-traumatic stress disorder arising from his father’s behaviour.
The parties also seek that I make a property settlement order. Both parties seek that they retain the home in which the whole family currently lives and the other party receive an investment property with a cash adjustment.
APPLICATIONS
The orders sought by the husband are set out in Schedule 1. The husband also agreed with orders 4 to 15 as sought by the Independent Children's Lawyer. He opposed order 16 on the basis that he had formed a very poor opinion of psychologist Ms C.
The husband indicated that he would be flexible in relation to special requests by the wife for the child to spend additional time with her.
The orders sought by the wife are set out in Schedule 2. The wife seeks orders for the child to reside with her so that the child is in her care when he turns 18. The wife hopes this would put her in the position to continue to look after him even after he turns 18. The orders I make will not have operation after the child is 18 and any continuation of the orders would be a matter for another jurisdiction. The wife’s proposal is that the child does spend some time with his father with such time to be facilitated by the parties’ child, Mr Z. The wife does not seek orders for the child to have overnight time with the husband due to her concerns of the risk of physical harm to the child if in his care.
At the end of the hearing the wife amended her position and joined with the Independent Children's Lawyer in seeking an order for sole parental responsibility for the child and agreed with all orders sought by the Independent Children's Lawyer apart from the Independent Children's Lawyer’s proposal as to what time the husband would spend with the child. In that regard the wife maintained her position as set out in [3] of Schedule 2.
The orders sought by the Independent Children's Lawyer are set out in Schedule 3. The Independent Children’s Lawyer proposes that the wife have sole parental responsibility for the child and for the child to live with her and the husband to spend time with the child from after school Friday until Monday morning. The Independent Children’s Lawyer also proposed that there be free telephone communication between the child and his father.
The Independent Children's Lawyer made an application for costs as quantified in Exhibit 17.
DOCUMENTS RELIED UPON
The evidence relied upon by each of the parties is set out in Schedule 4. In addition, the parties and the Independent Children's Lawyer relied upon documents tendered during the hearing.
SHORT HISTORY
The husband was born in 1956 and is currently 60 years old.
The wife was born in 1959 and is currently 57 years old.
The parties married in 1985.
The parties’ first child, Mr Y, was born in 1992 and is currently 24 years of age.
The parties’ second child, Mr Z, was born in 1996 and is currently 20 years of age.
The parties’ third child, X, was born in 1999 and is currently 17 years of age.
The parties separated under the one roof in June 2010. They were divorced in June 2014. As mentioned, they still live under the one roof.
CREDIT
Whilst there was some difficulties with the wife’s evidence, overall there were far more difficulties with the husband’s.
There were a number of inconsistencies in the husband’s evidence. For example, in relation to the incident on 18 April 2015 (discussed below) the husband gave a number of different versions and did not provide an adequate explanation as to these inconsistencies.
English is not the wife’s first language and I accept some of the COPS entries are based upon misunderstandings when no interpreter has been present. Counsel for the wife submitted that where there were exaggerations in the wife’s evidence or in her actions, she was able to provide an explanation as to why and her evidence is coloured by her experience of living with the husband and the things he has done in the past which could explain why she is sceptical, concerned and anxious about his present conduct. I accept there is some force in that submission.
The parties have different memories and perspectives about the history of family violence in the relationship. I generally accept the wife’s evidence about the history of family violence which in important respects is corroborated by Mr Y, the eldest child of the parties.
Mr Y, gave oral evidence. I was impressed by Mr Y’s demeanour and the manner in which he gave his evidence. I bear in mind that Mr Y is very firmly in the wife’s camp. I accept that Mr Y felt that his mother was entitled to justice arising from Mr Y’s lived experience in the household. Having said that, he gave his evidence in a straight forward manner and he reported some inappropriate behaviour by his mother. I accept that Mr Y witnessed multiple incidents of family violence in the household that he lived in as he was growing up.
DETAILED CHRONOLOGY
The husband was born in China in 1956 and is currently 60 years old.
The wife was born in 1959 in China and is currently 57 years old.
The parties married in 1985 in City J, China. After their marriage, the parties lived in City J for about four years before they both moved to Australia in about 1989, although in other places in the wife’s evidence she says March 1992 but no attention was given to the inconsistency and it matters not.
In March 1993 the parties established a business, K Pty Ltd.
The parties’ first child, Mr Y, was born in 1992 and is currently 24 years of age.
In about 1995 the parties bought a property at F Street, Suburb G, NSW (“the Suburb G property”) for about $170,000.
The parties’ second child, Mr Z, was born in 1996 and is currently 20 years of age.
The parties’ third child, X, was born in 1999 and is currently 17 years of age.
In about 2000 the parties purchased the matrimonial home at D Street, Suburb B, NSW (“the Suburb B property”) for about $430,000.
In December 2003 an incident of family violence occurred where the husband assaulted the wife which is discussed in more detail below.
The parties stopped running their business in 2003. The company was deregistered in June 2005.
In 2004 when the child commenced kindergarten, his teacher reported that he had language deficiencies. The parties subsequently arranged for the child to be assessed by a doctor at Canterbury Hospital who recommended additional training to develop the child’s language ability. The parties organised the child to attend additional training but his language did not improve.
In about 2006, when the child was seven years old, he was diagnosed with a mild intellectual disability.
In 2006 an incident occurred where the husband slapped the wife on her face.
In about 2007 the wife built a shed in the Suburb B property back garden to be used as a secondary kitchen for the family.
In 2008 an incident of family violence occurred where the husband pushed the wife and almost caused her to fall downstairs (discussed in more detail below).
In 2010 the wife underwent surgery to her right shoulder.
In February 2010 the husband hit the child on his cheek (discussed below).
In about June 2010 the parties separated but continue to reside under the same roof (the husband living upstairs and the wife living downstairs). They divorced in June 2014.
In January 2015 the husband tied the child’s hands together doing Martial arts training on multiple occasions over a number of days.
On 18 April 2015 police attended the parties’ home after the husband squeezed the child’s cheek (discussed below).
On 13 September 2015 an incident occurred where the husband asked the child to remove a jumper and the wife called the police (discussed below).
On 17 September 2015 orders were made in the Federal Circuit Court for the wife to be allowed to remove the child from the Commonwealth of Australia for the purposes of travelling to China between 1 October and 28 October 2015. Orders were also made authorising the wife to apply for and receive an Australian passport for the child without the husband’s consent. The wife was ordered to provide certain information to the husband prior to their departure from Australia and ensure the child communicated with the husband twice a week whilst in China.
An Apprehended Violence Order was in force against the husband between 17 November 2015 and 16 May 2016.
On 14 December 2015 orders were made for the husband to spend time with the child for one hour each Monday, Wednesday and Friday between 4.00pm and 5.00pm to assist the child with his education. Orders were also made restraining the husband from assaulting or striking or using any form of physical discipline on the child. On this date the matter was transferred from the Federal Circuit Court to the Family Court of Australia.
On 20 December 2015 an incident occurred where the child broke some tiles in a bathroom. The police attended the parties’ home and the child was admitted to hospital because of concerns in respect to his mental health (discussed below).
On 30 May 2016 the wife called police after the child hit a glass table, causing it to crack (discussed below).
FAMILY VIOLENCE
The wife makes the following allegations of family violence against the husband.
Family violence involving the wife
In about December 2003 the wife says that an incident occurred where the husband jumped on their bed, forcefully grabbed her by the shoulders and threw punches at her chest. The following day the wife drafted an agreement in Chinese which both parties signed on 20 December 2003. That agreement is annexed to her affidavit together with a translation which provides that “In order to protect each other’s rights and freedom, and guarantee a good living environment for the children, we hereby enter into this agreement that each of us will live in a separate room, and we shall not interfere with the other’s life”.
The husband denies that any incident of violence happened in or around December 2003. He did not dispute the authenticity of the written document and did not give any alternative explanation about why it came into existence. I accept the wife’s evidence about the incident in December 2003.
In about 2006 the wife gives evidence that the husband lost his temper and yelled at the wife and then slapped her on the face. The husband denies this allegation by the wife. I accept the wife’s evidence that the husband slapped her face on this occasion.
The wife alleges that another incident of family violence occurred in 2008. She says that while the parties were having a heated argument, the husband pushed her with such force that she fell back on the floor near the staircase but her foot got stuck on the bannister preventing her from falling down the stairs. Mr Y witnessed this incident and gave a similar version, saying that the husband’s push almost caused the wife to fall down the stairs. The husband denies that this event occurred. I accept the wife’s version of this incident.
The wife also makes more general allegations that the husband exerted control over her social life and did not want her to socialise with others. I find this is so.
In addition to the above incidents, the wife alleges that the husband exerted financial control over her throughout their marriage. She says that the husband only gave her monies to purchase groceries and once they closed their business, he accompanied the wife and paid for the groceries himself. The husband stated that he normally gave the wife $50 to spend and when she had expended that amount, he would top that amount up. The husband also said that the wife had access to an account which had $100 in it which he topped up back to $100 from time to time. The husband attempted to assert that the wife had access to a credit card but gave no details as to how that was used by her. The overall impression gained from the husband’s evidence was that he kept a very tight financial control upon the wife and she was entirely reliant upon him providing small amounts of money to her from time to time for her basic needs.
In 2010 the wife attended upon a surgeon in relation to an injury to her shoulder. The surgeon advised it would cost $6,000 to operate immediately or alternatively, the wife could be placed on a public waiting list for about a year. The wife says that the husband refused to pay for her to have the operation immediately. The husband asserts that it was the wife’s decision to go on the waiting list for a year in order to save the money notwithstanding that she was in considerable pain. I did not accept that evidence from the husband. When taken with the other evidence about the fiscal control exerted by the husband, it is highly likely that the wife’s version about this event is accurate.
Similarly, the wife says that in 2013 the husband refused to give her money to attend a steam room at the local pool to assist her with the pain she was experiencing in her shoulder. The husband denied that this had occurred but I accept what the wife says.
The husband conceded that he had told the wife not to drive the children to school unless the weather was inclement. He gave a number of reasons why he thought that that had particular advantages but it is an example of him mandating to the wife how she was to use petrol.
I accept that even after the party’s separated under one roof and up until the wife obtained her own Disability Support Pension in July 2013, the husband exercised financial control over the wife.
Incidents involving the child
February 2010
In February 2010 the wife says that the child was having a shower whilst brushing his teeth and she told him to turn off the shower. She says the husband then went into the bathroom and closed the door and she then heard a slapping sound. The child then came out of the bathroom without any clothes on. The wife and Mr Y observed red marks on the child’s cheek and over his body and they concluded that the husband had hit the child.
The wife asked Mr Y to contact the police, who attended about half an hour after the incident. The police spoke to Mr Y and the husband about the incident. Mr Y says the police gave the husband a warning but did not pursue any further action. There is no COPS entry for this incident.
The husband denies that this event occurred. I was impressed by Mr Y’s evidence in relation to this event and accept that this incident occurred.
January 2015
An Apprehended Violence Order was in force against the husband between 17 November 2015 and 16 May 2016. The order was applied for by the police after they became aware in late September/early October 2015 that the husband had tied up the child’s hands with shoelaces doing martial arts training in January 2015.
The police interviewed the parties, Mr Y and Mr Z in August and September 2015. After the first interview on 30 August 2015, the police concluded that it would be appropriate to make an application for an interim AVO which they obtained on 3 September. However, after the second interview on 6 September 2015, the police concluded that they would not be proceeding with any further action as they did not believe that the child was fearful of the husband. Notwithstanding this conclusion, the police in fact proceeded to apply and obtain the final Apprehended Domestic Violence order, but it is unclear to me the basis upon which this application was pressed.
The husband says that he attempted to utilise martial arts to improve the child’s intellectual disability and tied his hands together to prevent them from moving during the exercises. In order to explain the inconsistency between his oral evidence (that he only tied the child’s hands once) and him telling the police that he tied the child’s hands on three occasions over two days, the husband said, that he first asked the child if it would be alright if he tied him with the shoelace; the second time he asked the child if it would be alright if he tied him in a certain way and the child said it was ok and then he did tie him on the third occasion. I found that explanation implausible. It is likely that what the husband told the police contemporaneously with the event happening is more accurate.
The husband says that he now understands that his behaviour on this occasion was inappropriate in Australia and says that he will not engage in such behaviour in the future.
The wife gave conflicting evidence in relation to when she found out that the husband had been tying up the child over a period of four days. In her oral evidence she said that she first found out this information when she and Mr Z were speaking to police in September 2015 and Mr Z told police in front of her that the child had been tied up for four days. However, in her written evidence the wife says that in January 2015 when she went upstairs and found the child in the husband’s bedroom with his hands tied together, the child told her that he had been tied up for a few days. The wife did not adequately explain this inconsistency in her evidence as she attempted to draw a distinction between “a few days”, “several days” and “four days”.
The wife gave evidence that when she helped the child downstairs with his hands tied, his hands had turned purple and there were deep red marks on his wrists. She also gave evidence that the child had repeatedly mentioned the word “pain”. Notwithstanding that, the wife did not immediately untie his hands but took two photographs on her mobile phone of his bondage before untying him. The wife said that she was shaking while she was taking the photographs and she was very distressed. She then subsequently went to the bathroom. When she returned the child had accessed her mobile phone and had deleted the photographs. The wife asserted that he said that he had done so because they were blurry and would not have been able to be used as evidence. The other likely explanation is that the child was embarrassed by what his mother had done. The family consultant opined that the child may have been motivated to delete the photographs because he perceived that they might be used to heighten the conflict between his parents.
The wife re-enacted the bondage on the following day and took a photograph which subsequently became Exhibit 10. The wife told the child that she had to take additional photos because they needed to send them to the Independent Children's Lawyer as evidence against the husband.
The family consultant criticised the wife for taking photographs of the child with his hands tied in order to simulate what she had observed the husband had done to the child. In her view that was not child focussed behaviour.
The wife was asked why, if she had found out about the incident in January 2015, she waited to inform the police until August 2015. The wife conceded that she did want to go overseas but not with the child. I formed the impression that the wife was fearful of leaving the child alone in Australia with his father and approached the police to see what might be able to be done about protecting the child whilst she went overseas. Subsequently however the wife did travel overseas with the child.
18 April 2015
On 18 April 2015 the police were called to the parties’ home after the husband squeezed the child’s right cheek.
The child had opened the fridge to pour himself a glass of milk. The husband told the child to use the opened bottle of milk rather than open a new bottle. However, the child opened the new bottle of milk. The police record that at that time the husband approached the child and “gently squeezed his right cheek with his right hand and repeated his instructions”. Shortly after that time the child went and complained to his mother. The wife says that she observed a red mark on the child’s right cheek but the police recorded that they could not see any mark. The wife explains this by saying the police arrived about 40 minutes after the incident had occurred.
In his oral evidence the husband asserted that the squeeze he gave to the child’s cheek was loving and affectionate. This evidence was inconsistent with the husband’s written evidence where he first stated “little bit pinch (sic)” but later denied touching the child. However, the demonstration that he gave in the witness box would indicate to me that the husband probably got annoyed with the child’s lack of compliance with his direction and he took him by the cheek to impress upon him the instruction that he had given and to indicate to him that he expected that instruction to be complied with. In those circumstances I find that the grabbing of the child’s cheek was more forceful than what the husband was prepared to admit.
13 September 2015
On 13 September 2015 the wife called the police in relation to an incident where the husband had told the child to take off his jumper as he had too many layers on for the warm weather; the child had refused and the husband had insisted he do so. The police observed the child to be happy on this occasion and advised the husband to avoid the wife as best he could while they were living in the same residence.
The wife says that she thought the husband’s behaviour was unfair on this occasion as the child was old enough at the time, being almost 16 years old, to decide for himself. The wife further justified her calling the police by saying that the police previously told her that if anything happened to the child to just call them.
The Independent Children’s Lawyer asked the wife whether she thought it was facilitative of the husband’s relationship with the child to call the police on this occasion. The wife said that she thought it was important for the child to develop some self-protection and stand up to his father when he disagreed with his opinion. She denied that she had called police in an attempt to improve her case against the husband in these proceedings.
The wife can be rightly criticised for calling the police on this occasion. It was inappropriate for her to use the police as a method to arbitrate an altercation between the husband and the child. However, I accept to some degree, counsel for the wife’s submission that the wife’s behaviour has to be seen in the context of the dynamics of the household and that she had taken police at their word that they would assist her if she called them. In any event, the wife has not repeated this behaviour since this time.
19 December 2015
On 19 December 2015 the child broke some tiles from the bathroom wall. The wife asked the child why he had broken the tile and says that the child told her that if he died his father would not bother him about studying anymore. In her oral evidence the wife said that around this time the child had asked the wife to kill the husband. However, this was not included in any of the wife’s written evidence and was not corroborated in the hospital records. I am unable to say if this was an embellishment by the wife. I accept the wife became concerned that the child was suicidal at this time.
The wife called emergency services the following day. Police attended and the child was later admitted to hospital by ambulance. The hospital records (Exhibit 4) indicate that the wife told the hospital that the child had stated that he “felt like killing himself” “as it would make life easier in the home for her” but that the wife felt that the child was “half joking” when he made that comment. The wife’s oral evidence was not consistent with the hospital records. She said that she had believed the child to be serious when he told her that he wanted to hurt himself. However, the wife explained that no interpreter was organised for her at the hospital and the police would have briefed the hospital staff about the incident. It is unclear as to whether the entries in the hospital records emanate from what police told the hospital they understood the wife to have said or if they are instructions received directly from the wife. There was no interpreter to assist the wife in either interview.
The discharge summary notes that the child had indicated that he wanted to kill himself but then said that this was a joke and the child denied any thoughts of self-harm. The child told hospital staff that he was merely picking at the bathroom tile when it broke.
I accept that the child said something to his mother about self-harm. His mother reacted to that by ringing emergency services. The child must have presented in some disturbed state because he was taken by ambulance to the hospital and that was organised after the police arrived and I infer either at their instigation or certainly with their approval. Given that there is no other report of this nature, it is unlikely that any expression of suicidal ideation had any profound basis and that it was something that the child said to convey the emotions he was feeling as a result of the anxiety that was being created in the household. There was no genuine thought by the child at this time that he would kill himself.
30 May 2016
On 26 May 2016, the AVO listing the wife and the child as protected persons and the husband as the defendant expired and was not renewed by Suburb L Local Court. On 30 May 2016 the wife called the police after the child hit a glass table with his right hand, causing it to crack. In her oral evidence the wife said that the child was not bleeding, but his skin was cut and was unsure if this was an attempt by the child to injure himself. When police attended the property, the wife advised them that she wished to renew the AVO against the husband as the child was stressed due to the ongoing issues between his parents and it may make him feel better. The police declined the request and recorded that on the wife’s own admission, the husband had not been involved in the incident where the glass table cracked.
The Independent Children’s Lawyer and the husband submitted and I accept that calling the police on 30 May 2016 was an inappropriate action and an overreaction by the wife.
Allegations of family violence made by the husband against the wife
The husband makes an allegation of violence against the wife arising from one incident on 16 December 2015. On this date, pursuant to orders made on 14 December 2015, the husband was to tutor the child for one hour. The parties arranged for the husband to tutor the child. However, the wife did not allow the child to go upstairs to see the husband and told the husband that the child did not want to go. The husband asked the child if he wanted his father to teach him and the child said that his mother didn’t allow him to go upstairs. The husband recorded this conversation on his mobile phone. However, he says the wife grabbed his phone and threw it on the floor, breaking it (notwithstanding the floor being carpeted). The husband called the police who attended later that day. The police spoke to the child who stated “they [the husband and the child] fight every day, its (sic) nothing new”. He told police he did not want to go upstairs to study as his father was too strict on him. The husband disagreed that they fought every day but agreed that he and the child fought regularly. The husband asserted however that the statement the child made to the police (not in his presence) was made under his mother’s influence.
Arguably the wife could have done more to encourage the child to go for an hour’s tuition with his father in accordance with the court order, however, the escalation of the matter to a circumstances where the police were called was largely due to the husband’s insensitivity to the child’s reaction on this occasion to him having to go and study with his father. The husband showed no insight that he may have provoked the incident by openly recording what was happening.
In his oral evidence the husband alleged that the wife has verbally violent towards him.
Conclusion in Respect to Family Violence
In 2003, 2006 and 2008 the husband was responsible for specific incidents of physical family violence against the wife. The husband more generally exercised financial and social control over the wife. In February 2010 and April 2015 the husband was physically abusive to the child. In January 2015 the husband inappropriately tied the child up on multiple occasions over a period of about four days.
B’S MENTAL HEALTH
The child has a mild intellectual disability. The family consultant also observed the child to have some social skill deficits and a limited level of comprehension. He has been found to have some features of ADHD.
The child commenced attending upon a psychologist, Ms C, in May 2016. In a report dated 16 May 2016 Ms C concludes that the child “appears to be suffering from PTSD as a result of the domestic violence he has experienced”. Ms C basis this conclusion on the history of family violence provided to her alongside interviews, observations and questionnaires of the wife and the child.
There are difficulties with what is in Ms C’s report. She did not give oral evidence in these proceedings and the only information she has been provided with in relation to the history of family violence came from the wife, not the child. A further difficulty with Ms C’s opinion is that the clinical instrument she used to test the child against the post-traumatic stress diagnostic scale produced a result that did not meet a diagnosis of post-traumatic stress disorder.
The family consultant expressed concerns with Ms C’s opinion that the child suffered from post-traumatic stress disorder and made critical comments about Ms C’s analysis of the aetiology of some of the child’s behaviours. The family consultant raised further concerns with Ms C’s recommendation that the child live separately from the husband for his “psychological wellbeing” without interviewing the child with his father. Little weight can be placed upon Ms C’s opinion that the child suffers from post-traumatic stress disorder.
THE APPROACH IN CHILDREN’S CASES
The objects of Part VII of the Family Law Act 1975 (Cth) (“the Act”) are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying those objects (unless contrary to a child’s best interests) are:
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
STATUTORY CONSIDERATIONS
Primary considerations
The benefit to the children of having a meaningful relationship with both of the children’s parents (s 60CC(2)(a))
The child will benefit if he continues to have a meaningful relationship with both his parents.
The need to protect children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2)(b), noting s 60CC(2A))
The history of family violence has been discussed above.
The wife is concerned that, should the child reside with his father, he will be exposed to the husband’s violence and inappropriate discipline. She says that the husband’s strictness was applied to each of their three children. The wife says that the husband was a very strict father and would easily get upset if the children did not follow his instructions. Mr Y corroborated the wife’s opinion that the husband was strict and says that he had a bad temper.
The husband initially gave the impression that he did not understand what the word “strict” meant, however the husband was able to clearly define what that word meant. The husband agreed that if he asks the children to do something they have to do it in an orderly manner and he doesn’t want them to have bad habits so he tells them in a stern way not to do certain things. The husband denied that he has a bad temper but I accept that the husband does have a bad temper.
In the family report Mr Y commented that the husband “put a lot of pressure on him to do well at school and, if he showed any defiance, his father punished him both verbally and physically”. The husband denied Mr Y’s allegation that he slapped Mr Y in the face after Mr Y did not complete a practice test for “opportunity class” when Mr Y was about 11 or 12. He also said that Mr Y was fabricating an assertion that the husband got angry and kicked him in the leg when the husband was teaching him tai chi. I find that Mr Y’s version is more likely. Having heard and observed the husband give evidence, I am satisfied that if Mr Y had not properly followed the husband’s instruction as to particular moves or stances, it is likely that the husband would have got angry and behaved in a way Mr Y has described.
Mr Y said that he would have “concerns for the child’s safety if he were to be in their father’s care because the child is likely not to meet his father’s expectations. He said that his father is more lenient with the child due to his developmental delay but that his father still expects results. I conclude Mr Y’s perceptions about his father as expressed to the family consultant and repeated in his evidence are accurate.
Conversely, in the family report Mr Z expressed the view that he did not consider the husband to be abusive and said that “he has never felt worried about the child’s safety with respect to his parents’ care.” Mr Z did not believe that the incident where the husband had tied the child’s hands together was “anything overly violent” and was consistent with “Chinese culture”. I find that it is likely that Mr Z has been unduly influenced by his father and his perceptions have been swayed by a learned acceptance of behaviour that is, in reality, abusive.
The husband says that the child would be at risk of psychological harm if in the wife’s care. He says that the wife has prevented the child from spending time or speaking with him. This behaviour by the wife was also noted in the family report by the family consultant. The husband alleges that the wife intimidates the child and tells him that his father will beat him if he stays with him. The husband has ceased assisting the child with his studies to avoid the psychological pressure that he says the wife places upon him.
The risks posed by the wife to the child’s future psychological wellbeing are not of the same magnitude as the risks posed by the husband. Once the parents are no longer living under the one roof and final defined orders are made as to what time the child spends with each parent, then some of the difficulties discussed in the preceding paragraphs are likely to abate.
The additional considerations
Children’s views (s 60CC(3)(a))
In the family report, when discussing the possibility of living primarily with his mother or his father, the child said to the family consultant that he would prefer “neither” and rather wanted to purchase his own house. However as his “final option” the child said that he would live with his mother and have his two brothers visit them. The child then changed his mind again and said “Mum” then “both” then “half”. The family consultant stated that overall “it seemed that the child was more open to the possibility of living primarily with his mother than living primarily with his father but he seemed confused and conflicted. When asked about the option of spending time with his father if he were to live with his mother, the child said “Mum won’t let me”. At another point in the discussion, the child said “I can’t live with Dad if Mum doesn’t accept me doing it””.
The family consultant opined:
[The child] remains unable to express a clear view regarding his future living arrangements. He has limited comprehension of what might happen when his parents physically separate. This is due to [the child] having a mild intellectual disability, expressive and receptive language disorders and possibly features of an Autism Spectrum Disorder (undiagnosed). [The child] seems to be more inclined to want to live with his mother than with his father but these opinions appear to be in the context of direction and influence from his mother. [The child] is aware that his parents have different approaches to their parenting of him. Whilst he has given some indication that he perceives his father to be angry, he has not given any clear indication that he perceives his father to be abusive toward him. However, [the child] cannot be relied upon to know whether his father’s behaviour is abusive or not. It may be that, whilst others would deem [the husband’s] behaviour to be abusive, [the child] would not necessarily share that perception due to him being accustomed to such behaviour. The observations of [the child] with each of his parents revealed a sense of frustration in [the child], with each parent seemingly behaving with a specific purpose and without regard to [the child’s] response.
Relationships of the children with the parents and other persons (s 60CC(3)(b)) participate in making decisions about major long-term issues in relation to the child, and to spend time with and communicate with the children (s 60CC(3)(c))
The wife is the child’s primary carer. The child slept in her bed until he was 12 years old. I find the child has a stronger attachment to the wife than the husband whilst acknowledging the family consultant’s observation that the child can become irritated with his mother.
Prior to 2015 the husband’s relationship with the child was better than it is today. The parents disagree about the nature of the husband’s involvement with the child before 2015. The husband says he dropped the child to and collected him from school; assisted him with his homework; looked after his health; assisted him with his exercise and arranged activities after school. The wife says that prior to January 2015 the child spent time with the husband for two hours on school days doing homework. The truth probably is somewhere in between the two versions.
The parties do agree however that since January 2015, the child and the husband have not spent any significant time together.
In oral evidence the husband said that in any one day he might have up to 10 conversations with the child lasting no more than a maximum of five minutes. In the last month he said he has not spent any time alone with the child. In the last year he only spent time alone with the child on about five occasions. On no occasions in the last year has he taken the child out of the house on any outing and the longest period he has had the child at a time when the wife is not been in the house in the last year was about half an hour.
The wife confirmed that in the last 12 months the husband has only spent about 10 or 20 minutes with the child each day (she estimated that was an increase to what was happening in 2015).
The family consultant acknowledged the difficulties for the child in maintaining a relationship with both his parents. The family consultant opined that one significant advantage of the child living with his mother was that she has the ability to facilitate a relationship between the child and his two brothers in a way the husband does not.
The child has a good relationship with his two brothers. The family consultant stated that the child’s developmental delay means he may require support beyond the timeframe that his parents can support him. Further, in the context of the parties separating, “it is vital that the child be given every opportunity to maintain his relationships with his brothers.”
The husband agreed that the child’s relationships with his family members are of particular importance given that he doesn’t have close friends at school and particularly his two brothers, Mr Z and Mr Y, are very important to him. The husband thought that the child’s relationship with Mr Z was comparatively more important than the child’s relationship with Mr Y.
Mr Y has made it clear that he intends to live with his mother after this case has concluded. As Mr Y is “clearly aligned with his mother” the family consultant stated that if the child is to maintain his relationship with Mr Y it would only be possible if he lives with his mother. Mr Y’s relationship with the child would therefore be affected if the child lived with his father. Mr Y’s regular contact with the child would be limited to electronic means, apart from occasions when the child would spend time with his mother. Mr Y was fairly realistic about the time that he would have available to interact with the child given Mr Y’s age and his work and social commitments. Mr Y described his interaction with the child by saying that he often stops and helps when he can to the best of his abilities and the time he offers the child depends on what the child asks him to do. Mr Y also said that he has more interaction with the child on the weekends when he is not working. The child’s long term relationship with Mr Y is one which is of importance. It will be fostered if the child lives with his mother.
Mr Z’s involvement and where he might live
Annexed to the wife’s affidavit is a statement from Mr Z dated 18 September 2016 in which Mr Z writes that “I … am a student at [M University] and am expecting to graduate by the end of this year. I will probably seek employment next year and can definitely arrange to bring the child to his father on weekends (around 9am - 4pm)”.
On the last day of the hearing the husband produced a document dated 24 November 2016 signed by Mr Z (Exhibit 20) which Mr Z had provided the husband after they had had a conversation on the fourth night of the trial. The statement that Mr Z had signed is in the following terms:
To family court
I believe that my father [father’s name] was perhaps too strict and easily agitated in the past. However I put this to his night time shifts at work which generated enormous stress and often argued with my mother. After quitting his job and following the divorce, I agree with him that he has changed for the better. Thus, I have decided to give him an opportunity to show that he has changed by living with him and if so, he would make a more suitable single guardian compared to my mother for my younger brother, [the child]
This document is clearly the product of a discussion between the husband and Mr Z that evening. Inconsistent with Mr Z’s statement that his father has “changed” is the statement that Mr Z has decided to give his father an opportunity to demonstrate that he changed.
Mr Z’s decision in this statement is inconsistent with the plan he conveyed to the family consultant. The family consultant states that Mr Z initially said that he intended to live with his father whilst he completed his university study and then planned to live with his mother. However, after Mr Z returned from lunch with his mother and brothers, the family consultant writes, “Mr Z said that he had informed his mother about his decision to live with his father and that his mother had become angry and upset and told him that he was making a bad decision”. Mr Z then went onto say that he would live with whomever the child lived with.
Exhibit 20 and Mr Z’s comments to the family consultant are indicative of Mr Z’s ambivalence and his changing attitudes about his parents and the difficulty he has in negotiating his relationship with each parent.
It would be unsafe to rely upon the statement extracted by the husband from Mr Z on the fourth night of the trial. If anything, what that statement demonstrates is the inappropriateness of placing Mr Z in a position where he would be responsible for reporting to his mother about his father’s parenting of the child.
To require Mr Z to supervise the child’s time with his father would place too onerous a burden on Mr Z especially in the context of Mr Z already struggling to balance his relationship with his parents. Another concern is placing Mr Z in the position of identifying any inappropriate behaviour by the husband towards the child and having to intervene. The family consultant had concerns about Mr Z being able to identify what was appropriate and inappropriate as he did not for example believe that the husband tying the child’s hands together was inappropriate.
In final submissions, counsel for the wife submitted that while Mr Z would be present during time the child spent with the husband, there would not need to be an order for supervision. Rather Mr Z would be effective in facilitating the child’s time with his father and support his brother in spending time with the husband. In terms of the wife’s proposal for Mr Z to supervise the child’s time with the husband, the Independent Children’s Lawyer submitted that this was problematic. I do not support the proposal by the wife that Mr Z accompany the child in some type of supervisory capacity during the child’s time with his father.
Extent to which each parent has fulfilled their obligation to maintain the children (s 60CC(3)(ca))
Up until about January 2015 the husband carried out his responsibilities in caring for the child. Since the wife obstructed him from spending time with the child, he has not cared for or spent significant time with the child.
The husband says that when the child was four years of age he could not speak and the husband put in significant effort assisting him with his speech.
Since early or mid-2015, acting upon recommendations made by the family consultant, the wife started taking the child to a youth centre at Suburb N to assist in his social and living skills. The child attends the youth centre for a couple of hours every Thursday after school. The wife also took the child to see Dr Samson Kwok, a paediatrician at O Medical Centre, Suburb N, following a recommendation in the family report, who has since diagnosed the child with Attention Deficit Hyperactivity Disorder. Since May 2016 the wife has also taken the child to see a psychologist, Ms C, at the Suburb N City Medical Centre.
School records provide some insight into the husband’s attitude to and involvement in the child’s formal schooling.
Exhibit 3 is a record from the child’s student counsellor. The husband was taken to an entry on 14 September 2009 which recorded that the husband told the school that he understood the results of the assessment relating to the child’s difficulties “but felt that with ‘training’ the child could improve these results”. It was explained to the husband that improvement would be unlikely. The husband decided to take the child out of the school, Suburb B Public, and enrol him in Suburb P Public School so that he could repeat the year.
After the child commenced to attend Suburb P Public School, the husband confirmed that between 2013 and the middle of 2014, when the husband claimed he was in charge of the child’s education, he did not on any occasion attend the school to meet with the Deputy Principal or school counsellor or go to any parent/teacher night. He said that he didn’t do so because in his view the child’s school performance was adequate.
The husband was asked questions about a note from a school counsellor at Suburb P Public School dated 25 June 2012. A recommendation had been made by that counsellor that consideration be given to an application for the child to go into a class for mildly intellectually disabled children when he started high school in 2013. The husband asserted that he had had a discussion with the principal at Suburb P Public School who advised him that the child should go into a mainstream class. The husband’s evidence about this conversation with the principal is not supported by any record.
The husband initially denied that he knew about the child moving from a mainstream class before it happened. On further testing however it became clear that the husband had had a conversation with the deputy principal where he was told that that was the intention prior to the child being moved from a mainstream class. The husband also confirmed that prior to the child being moved he saw the report of Mr Q, school counsellor/psychologist dated 18 August 2014 (Exhibit 7) which contains a recommendation that there be a meeting to discuss intervention measures available to help the child and school personnel manage the rest of the schooling.
The husband was asked questions about a note in the child’s school records dated 25 August 2014 (Exhibit 5). The note related to an interview between the wife and the school counsellor. The note records that Mr Z and the wife were to meet with the Deputy Principal to discuss the child’s situation. The note goes on to record that the husband was welcome but had refused to attend on other occasions. The husband confirmed that he had been invited to that meeting but he found out that the wife was going to it and he decided that because the wife was going to the meeting he was not going to attend. The husband was asked whether or not he had attempted to make any other alternate arrangements to have a separate meeting and indicated that he had not.
I conclude the wife was more involved and concerned about the child’s formal schooling than was the husband. The husband’s focus was more on the education and training he wished to give the child himself.
Likely effect of any change in the children’s circumstances (s 60CC(3)(d))
The family consultant conceded that given the husband’s minimal involvement in parenting the child since mid-2014, a change in the primary arrangement would be destabilising for the child as the child would have grown accustomed to that parenting arrangement. She said that although it would be a significant change, it would not be entirely unexpected by the child who the family consultant opined was aware of the current existing litigation between his parents.
The family consultant says:
It is important to note that neither parent has parented [the child] on their own. At this time, the parents remain living together and the financial responsibilities for the child and the daily routines in the household remain intertwined. It is difficult to predict what impact the parents’ physical separation might have on [the child], particularly if it involves him having to move house.
The husband showed little insight as to the impact that his proposal of the child only spending one day and no overnight time with the wife each week. The husband asserted that that impact could be ameliorated by electronic communication on a daily basis. Given that the husband asserted that in his view the wife causes psychological harm and places negative pressure on the child, the husband’s attitude was that if the child was removed from his mother’s influence, the husband’s ability to train the child and improve the child’s academic performance and social performance would be enhanced.
I find that the child would find it difficult to cope if he commenced living with his father.
It is important to note that neither parent has parents the child on their own. At this time, the parents remain living together and the financial responsibilities for the child and the daily routines in the household remain intertwined. It is difficult to predict what impact the parents’ physical separation might have on the child particularly if it involves him having to move house. At paragraph [170] of her affidavit filed 30 September 2016 the wife gives the following evidence:
Although I believe [the child] may find it difficult to adapt to such arrangement at the beginning as he has not spend any meaningful time with [the husband] since January 2015, I will try and tell [the child] to maintain a good relationship with his father. Given that the child will be accompanied by [Mr Z] during that time, I believe that [the child] would gradually get used to and cope well in that arrangement.
If Mr Z does in fact live with his father, it will lessen the impact on the child during any periods when the child spent overnight time with his father.
Practical difficulties and expense of the children spending time and communicating with a parent (s 60CC(3)(e))
There is some distance between Suburb B and Suburb G (if the parties choose to live in those respective properties) but not so far that would make it practically difficult for the child to spend time with both parents.
The capacity of each of the parents (and any other person) to provide for the needs of the children, including emotional and intellectual needs (s 60CC(3)(f)) and the attitude to the children and the responsibilities of parenthood demonstrated by each of the children’s parents (s 60cc(3)(i))
In the family report, it was noted that the wife had expressed her view that she did not think that the child would benefit from a relationship with his father.
The wife is aware of her limited English skills and says that she encourages the child to study independently but also monitors his study to ensure he is keeping up and assists him when he has problems with his homework.
In relation to the wife’s capacity to care for the child, the family consultant states:
[The wife’s] intentions also appear to be to provide [the child] with opportunities to learn and develop to his full potential. She has been actively involved with [the child’s] school, she is particularly focussed on expanding [the child’s] social skills and she has adequately followed up on recommended services. [The wife] may be less able to provide structure and containment for [the child] but she might have greater emotional sensitivity than [the husband]. [The wife] acknowledges [the child’s] limited ability but she may have unrealistic expectations regarding his capacity to engage socially, particularly if the child does indeed have an Autism Spectrum Disorder. [The wife] prioritises [the child’s] safety and wellbeing and appears to be anxious and agitated by what she perceives to be [the husband] abusing [the child]. [The wife] is rigid in her thinking on this issue and seems to perceive [the husband’s] behaviour as posing far more of a risk to [the child] than what it does in reality … Her thinking appears to be so rigid and anxious that she prioritises her efforts to prove that [the husband] is abusive which eliminates any capacity on her part to rationally appraise the situation. [The wife’s] attitude and behaviour is such that … [the child] … [is] feeling pressured … not to spend time or have a relationship with [his] father, irrespective of [his] own feelings and desires … [the wife] may in fact be psychologically harming [the child] by not allowing him to have a relationship with his father.
She further states that:
…since January 2015, [the wife] has taken primary responsibility for the child’s care. [The husband] appears to have made a decision to withdraw from the child’s care in an effort to protect him from the conflict between the parents which is appropriately child-focussed behaviour. [The wife] appears to have asserted herself as providing primary care to [the child], to the complete exclusion of [the husband]. Whether this is a child-focussed and protective course of action, or an effort to gain advantage in the parenting dispute, is unclear. The extent to which either parent is capable of solely providing for [the child’s] needs in an independent household is difficult to assess as neither has done it at this point in time.
The husband agreed that the wife loved the child and the child loved his mother. The husband asserted the wife’s parenting capacity was limited because it was the husband’s view that she had a mental problem. The husband was unable to identify any other positives about the wife’s parenting capacity. The husband believes that the wife previously suffered from severe depression and he is unsure whether such issues will reoccur. He alleges that the wife has other mental health issues and points to behaviours where for example she forged evidence and made up stories, entered the husband’s room without permission and hid over $100,000. There is no satisfactory corroborative evidence to support these allegations.
The husband asserts that the wife has undue influence over the child. However, he agreed that one benefit of the child spending time with his mother was to give her the opportunity to take the child out to develop his social abilities.
The husband believes that his parenting capacity is far superior to the wife’s and that he is a better role model than is the wife. The capabilities that he said that he was better at than the wife were his English capabilities; social capabilities; behavioural capabilities and education capabilities. The husband did comment that one of the wife’s better capabilities was being able to argue. The husband says that due to his superior education to the wife’s he is better able to assist with the child’s studies. He says when he was able to assist the child in his studies, he performed very well and since he has played a lesser role in the child’s care his marks have declined. The husband says that his education and English skills as compared to the wife’s better equip him to manage the child’s intellectual disability.
Mr Y described his relationship with his father as “on business terms” but made it clear that his relationship with his father was not good. A matter which demonstrates the poor nature of the relationship between the husband and Mr Y and reflects poorly on the husband’s parenting capacity, related to the husband’s view that Mr Y should be paying board. Mr Y gave evidence that he supports the family and particularly his mother by buying food and household supplies on a weekly basis. The husband commenced proceedings against Mr Y in the Small Claims Division for money that the husband alleged Mr Y owed him for living in the Suburb B property. Mr Y successfully defended those proceedings. The husband asserted that his lack of any relationship with Mr Y at the current time was because Mr Y worked full time and when he came home all he did was play video games.
The husband says that since the wife has had the primary care of the child his health has deteriorated, his school marks have declined and he has been absent from school for greater periods than previously.
Part of the reason why the husband only wants the child to be with the wife one day a week is so that he can implement a rigid and strict regime of training and education. This “training” is described in the family report as follows:
[The husband] described the child’s training as involving “[a form of martial arts] (a Chinese philosophy and practice involving the flow of life energy), gym exercise, psychology and study. This includes eye exercises, massage, physical exercises, school based homework and additional homework including reading, reciting facts and logical thinking. He said that, if the child were to live with him, they would do this training each afternoon and on the weekends, with some time for watching television and daily routines. He said that he would also train [the child] in social ability by taking him to museums and art galleries. [The husband] said that the child’s memory is adequate but his understanding is not.
The husband was asked questions about a schedule he had attached to an earlier affidavit in relation to the tuition regime he expected the child to follow in 2014. That regime was: on a school night the child would do four hours of training and teaching with the husband after school and he would also do an hour and a half of physical exercise after school. On the weekend and on school holidays he would do training and teaching with the husband for seven hours and do physical exercise for an hour and a half, leaving him with three and a half hours of free time. The husband said that that timetable wouldn’t necessarily be what he would require if the child was ordinarily living with him. He said that he would be able to do what he could without restriction including doing assignments and study with the child and doing physical exercise and then taking him out to visit friends and attend community activities and take him to other places such as museums and art galleries. However, in his oral evidence the following day the husband modified this evidence and said that if the child lived with him, he would involve the child in physical training for an hour a day (half an hour in the morning and half an hour after school) and two hours of study after school.
As an illustration of the husband’s parenting methods the family consultant observed the following interaction between the husband and the child:
[The husband] proceeded to do an eye exercise with [the child], involving him rotating his [the husband’s] arm and [the child] following the movement with his eyes. [The child] had clenched fists, a scowl on his face and he mumbled inaudibly but he followed the direction of his father. [The husband] massaged [the child’s] face and stomach, during which [the child] groaned and asked if they were finished. [The husband] then asked [the child] to recite geographic relationships of countries and oceans (for example, Asia is north of Australia) and some mathematical calculations. [The child] complied and answered his father but he appeared frustrated and stressed, bouncing and stamping his foot and hitting the top of his head with his hand. After the observation period, [the child] said that the interaction was the normal way they do things, except that his mother was not present and yelling. He acknowledged that he felt frustrated. He said that, from his mother’s perspective, his father does things the wrong way but, from his perspective, regarding both his parents, there are no rights or wrongs. When asked how he felt about his father’s approach with him, [the child] said “just fine, I accept it”.
The husband accepted that the family consultant had accurately observed what had happened but asserted that the child behaved that way because he was nervous in the unnatural environment of a court building. This was to be contrasted with the evidence of the family consultant where she noted, after the husband demonstrated his training with the child in the interview, that the child did not look like he felt positive about the training but the husband responded that that was because his mother had told him that such training is “all bad”. The family consultant was concerned by the husband’s comment in cross examination that his ability to train the child would result in the child becoming “normal”.
The family consultant opines that:
[The husband’s] intentions appear to be to provide [the child] with opportunities to learn and develop to his full potential. He appears to understand that [the child] is good at reciting knowledge from memory but not good at logical thinking and comprehension. [The husband] seems to believe that, with his training, [the child] can improve his deficits. The potential benefits and the alleged risks of [the husband’s] approach to ‘training’ the child are complex. [The husband] seems able to provide structure and containment to [the child], which are important for a teenager with a developmental delay. It appears that he has assisted [the child] to excel in his strength areas, that is, numerical operations. But [the husband] seems to have limited emotional sensitivity and to be quite intrusive in his interactions with [the child]. [The husband] seems to have limited emotional sensitivity and to be quite intrusive in his interactions with the child. [The husband] appears willing to push [the child] to extend himself, which may be beneficial for his academic learning but he lacks emphasis on social learning and interaction, which are also important skills for [the child’s] future ability to live independently. [The husband] acknowledges [the child’s] limited ability but he may have unrealistically high expectations of [the child’s] capacity to improve his intellectual skills that cause him to use methods, such as smacking him and tying his hands together, which are likely inappropriate and possibly abusive. There are cultural aspects of the ‘training’ that are thought to be very important by [the husband] but are dismissed by [the wife], both of whom are of Chinese origin. It is unknown what physical, cognitive or emotional benefits these aspects might have for [the child].
If more money were required to retain the Suburb B property, Mr Y said he could increase his working hours from three days per week to full time so as to increase the borrowing that he could secure.
The wife says that should she retain the Suburb B property she would rent out the room currently occupied by the husband and convert the family room on the ground floor into a living room and rent it out. She estimates that this would provide her with additional income of approximately $300 per week which she would apply towards repayment of the loan.
Item 2 – The Suburb G Property
Since about 2000, when the parties purchased the Suburb B property, they have leased out the Suburb G property.
At the current time the husband asserts that it costs him about $2,000 per annum to maintain the Suburb G property (that is, outgoings on the property by way of mortgage payments, rates, insurances and repairs exceed rental income on the property by about $2,000 per annum). That mathematical calculation was tested and the husband may well be correct. If he is not correct then it is the case that very little net income is currently being received from the Suburb G property.
Item 3 – The Japanese
I have adopted the wife’s figure in relation to the value of her motor vehicle.
The husband indicated that he would like an order that he receive this motor vehicle. That is inappropriate. The wife obtained this motor vehicle after the parties separated and has been using it as her car since that time.
Item 6 – Mortgage on the Suburb G property
Exhibit 9 indicates that the current mortgage on the Suburb G property is $114,390. This is updated from the previous balance sheet which indicated a balance of $120,000.
Additional monies
The wife alleges, that due to the control the husband exerted over their finances, he has hidden away cash, she estimates of about $500 to $1,000 a month from 2003 until 2013. The husband wasn’t asked any questions about this and I am unable to make any finding that the husband has hidden cash.
Hatchback motor vehicle
This car is parked outside the premises of the property. It is currently not registered. The husband asserts it would be very difficult to have it registered. The husband does not want it. It has a value of $500 on the balance sheet. I intend to remove it from the balance sheet as an item and given that the husband does not want it I will make it the wife’s responsibility to dispose of it.
Household contents
The husband’s financial statement indicates that his estimate in 2014 for his household contents was $4,000. The husband wasn’t prepared to endorse that evidence. I intend to take all household contents off the balance sheet.
Savings and husband’s credit cards
Cash held by each party is of little value. The husband did not establish how current debts on his credit cards were incurred and did not assert that the debts were referable to outstanding amounts on credit cards at the date of separation. Accordingly, I do not include these items.
WHETHER AN ORDER ALTERING INTERESTS SHOULD BE MADE
The parties have separated and their partnership has ended. After the separation, there was no longer a continuing commitment to the mutual use of assets and a shared responsibility for liabilities. As the balance sheet set out above demonstrates, the assets and liabilities remaining with each party are $1,690,000 held jointly; $17,740 held by the husband and $19,470 held by the wife with $117,390 in joint in liabilities.
I find that in all the circumstances, it is just and equitable to make an order altering property (including adjusting liabilities).
CONTRIBUTIONS
In final submissions, counsel for the wife said that a small adjustment should be made in favour of the wife. She said that this should firstly be made due to her post-separation contributions, particularly from mid-2014 onwards, but also due to being subjected to domestic violence. She submitted that if it is accepted that the husband exerted financial control and the wife’s evidence about the husband refusing to pay $6,000 for the wife to have a shoulder operation sooner rather than later causing the wife pain for an increased period of time, then it can be concluded that her contributions in the role of homemaker were significantly more arduous in that period.
Initial Contributions
Prior to the parties’ marriage, neither of them had any significant assets.
Financial Contributions
The husband was responsible for bringing most of the income into the family during the marriage. He also kept a very tight control on the management of family income.
When the parties lived in City J the wife worked at a university. When the parties moved to Australia they both worked in the Suburb U and Suburb V area. The wife continued to work full time until she was seven months pregnant with Mr Y. After she gave birth to Mr Y she took about one month leave before returning to work.
In March 1993 the parties established K Pty Ltd which operated a business until 2003. The company was deregistered in June 2005. Both parties worked seven days a week in this business. After Mr Z was born in 1996, the wife did less work for the business (working about 10 days per month) and the parties commenced hiring people to work in their business. At this time, the business expanded. After the child was born in 1999 the wife ceased working and had the primary responsibility of caring for the parties’ three children. The wife says that after the child was born, there was a reduction in their client base and their business significantly reduced. She says the husband started to work less hours.
Since 2003 the parties relied on income from Centrelink and rental income from the Suburb G property.
The husband says that he provided more monies towards the purchase of the Suburb B property. Whilst this may be true, they were funds generated by his personal exertion during the marriage.
The husband initially denied that he kept a tight control over the wife’s use of money during the marriage until 2013 when the wife commenced to receive her current disability support pension. As already discussed, I find that he had that control.
Non-Financial Contributions
The wife says that she was the primary carer of the parties’ children and was responsible for the majority of household duties.
The husband agreed the wife was responsible for cooking for the child for the majority of the time the parties were together and for all other household chores.
The husband says that he stopped working after the child was assessed with a mild intellectual disability in about 2006 (the year the business was deregistered) as he wanted to devote his time to assist the child.
The husband asserted that he was involved in the care of the child up until 2015 when the wife took over entirely responsibility for the child’s management.
Whilst the wife was in China with the child in 2015 the husband had communication with the Child Support Agency. Exhibit 8 evidences the fact that as a result of that discussion, the agency recorded that the child was 100 per cent in the husband’s care and that he paid 100 per cent of the costs for the child. This was at a time when, although the parties were living under the one roof, the wife was providing all of the care for the child. I do not accept the husband’s denial that he represented to the agency at that time that he was the child’s full time carer.
Overall the wife made greater contributions than did the husband in the role of homemaker and parent.
The evidence is sufficient to establish hat difficulties with her shoulder made her contributions significantly more arduous.
Post Separation Contributions
Since the parties’ separation, they have continued to reside under the same roof in the Suburb B property.
Since their separation in June 2010 the husband continued to receive income from Centrelink payments. The wife started to receive her own Disability Support Pension in July 2013.
The husband continues to pay the household expenses including the mortgage repayments for the Suburb B property and the Suburb G property. The wife paid for groceries for the family since she started to receive her Disability Support Pension. She continued to cook for and eat with the husband until their divorce was granted.
The wife remains the primary carer and homemaker and has had the primary care of the child since 2015.
Conclusion on contributions
The parties were together for 25 years and each made a myriad of contributions in that time. Overall I find those contributions were equal.
FUTURE NEEDS - SECTION 79(4)(d) - (g) MATTERS
The wife is currently unemployed. She has not worked since the child was born in 1999. She has not obtained any qualifications to enable her to find any specific employment. She describes her English level as basic. The wife receives the Disability Support Pension due to a shoulder injury which makes performing some of her daily functions difficult.
Up until April 2016 the husband was receiving a carer’s allowance in relation to the wife, notwithstanding that they separated in 2010 and were divorced in 2014. The husband said that that finished when the wife informed Centrelink that he was not her carer. After that time the husband applied for and received an Austudy benefit and is currently studying English at TAFE.
The husband was non-committal in relation to his future earning capacity. He indicated that he likes to study. He said that his work over the years had precluded him from having opportunities to study in Australia which he now wishes to pursue. He did not have a clear long term vision as to his future employment ambitions. He said that he couldn’t go back to the physical work that he had previously been involved in. I accept that at the husband’s current age, employment might be more difficult than when he was younger. The husband however is healthy and still has the physical ability to do some gainfully remunerated work. The husband is however adopting the position that in the event that the child is placed with him, he will need to be there as the child’s full time carer/trainer. If the child is not placed with him, the husband indicated that he has no intention to return to the workforce but that would be his decision and in my view it would be eliminating any ability for him to exercise the earning capacity that he has, such as it is.
The husband also said that if the child was with him it would affect his ability to re-join the workforce. Consistently with the parenting orders I have made, I have the expectation that the wife will have the long term role of being the child’s primary carer.
Taking into account all s 79(4)(d)-(g) considerations I find there should be a five per cent adjustment in favour of the wife.
JUST AND EQUITABLE
Based upon my findings in relation to contributions and s 79(4)(d) – (g) considerations, the wife should receive 55 per cent of the assets of the parties and the husband should receive 45 per cent of those assets.
There is an issue between the parties as to who should receive the Suburb B property and who should receive the Suburb G property. I indicated during the hearing it was my intention to give one party a period of two months to finance the acquisition of the Suburb B property. If that party was unable to raise that finance then the other party would have the option of buying the Suburb B property within a further two months. If neither party was able to achieve the finance then the Suburb B property was to be sold.
The husband provided evidence from his brother that his brother had set aside cash funds that were more than sufficient to allow the husband to buy out the wife’s interest in the Suburb B property (discussed above).
However, given that I have found that it is in the child’s best interests that he reside with his mother, it would be best for the child if his mother be able to retain the Suburb B property. Mr Y has given evidence, which I accept, that he has the capacity to raise the necessary finance to assist his mother in the acquisition of the Suburb B property (with him taking a five per cent interest in the Suburb B property as part of that refinancing arrangement). Consequently, the wife will be given first option to acquire the Suburb B property.
In those circumstances a 55 per cent division to the wife could be achieved by a distribution of assets in the following way:
| Husband gets 45.0 per cent | |||
| Assets | |||
| Item No. | Description | Percentage | Value |
| 2 | F Street, Suburb G | 100 per cent | $690,000 |
| 4 | AMP Superfund | 100 per cent | $17,740 |
| Liabilities | |||
| Item No. | Description | Percentage | Value |
| 7 | Mortgage on F Street, Suburb G | 100 per cent | $114,390 |
| Husband receives | $131,069 | ||
| Net Assets | $724,419 | ||
| Wife gets 55.0 per cent | |||
| Assets | |||
| Item No. | Description | Percentage | Value |
| 1 | D Street, Suburb B | 100 per cent | $1,000,000 |
| 3 | Japanese motor vehicle | 100 per cent | $1,000 |
| 5 | AMP Superfund | 100 per cent | $18,470 |
| Liabilities | |||
| Item No. | Description | Percentage | Value |
| 6 | Mortgage on D Street, Suburb B | 100 per cent | $3,000 |
| Wife pays Husband | $131,069 | ||
| Net Assets | $885,401 | ||
In the event that the wife does not raise the necessary funds within a period of two months, the husband will have the option to buy the Suburb B property. In order for that to be achieved the wife would have to take the equity in the Suburb G property, after discharging the husband’s responsibility for the mortgage on the Suburb G property and what she does with the Suburb G property after that would be a matter for her. In those circumstances the distribution of assets would be as follows:
| Husband gets 45.0 per cent | |||
| Assets | |||
| Item No. | Description | Percentage | Value |
| 1 | D Street, Suburb B | 100 per cent | $1,000,000 |
| 4 | AMP Superfund | 100 per cent | $17,740 |
| Liabilities | |||
| Item No. | Description | Percentage | Value |
| 6 | Mortgage on D Street, Suburb B | 100 per cent | $3,000 |
| Husband pays Wife | $290,321 | ||
| Net Assets | $724,419 | ||
| Wife gets 55.0 per cent | |||
| Assets | |||
| Item No. | Description | Percentage | Value |
| 2 | F Street, Suburb G | 100 per cent | $690,000 |
| 3 | Japanese motor vehicle | 100 per cent | $1,000 |
| 5 | AMP Superfund | 100 per cent | $18,470 |
| Liabilities | |||
| Item No. | Description | Percentage | Value |
| 7 | Mortgage on F Street, Suburb G | 100 per cent | $114,390 |
| Wife receives | $290,321 | ||
| Net Assets | $885,401 | ||
In the event, after the expiration of a period of four months, neither party has acquired the Suburb B property, then it would be sold. In those circumstances, given the wife has said she would not live in the Suburb G property but the husband said that he would, the husband should receive the Suburb G property. In those circumstances the distribution of assets would be as follows:
| Husband gets 45.0 per cent | |||
| Assets | |||
| Item No. | Description | Percentage | Value |
| 1 | D Street, Suburb B | 13.15 per cent | $131,464 |
| 2 | F Street, Suburb G | 100 per cent | $690,000 |
| 4 | AMP Superfund | 100 per cent | $17,740 |
| Liabilities | |||
| Item No. | Description | Percentage | Value |
| 6 | Mortgage on D Street, Suburb B | 13.15 per cent | $395 |
| 7 | Mortgage on F Street, Suburb G | 100 per cent | $114,390 |
| Net Assets | $724,419 | ||
| Wife gets 55.0 per cent | |||
| Assets | |||
| Item No. | Description | Percentage | Value |
| 1 | D Street, Suburb B | 86.85 per cent | $868,536 |
| 3 | Japanese motor vehicle | 100 per cent | $1,000 |
| 5 | AMP Superfund | 100 per cent | $18,470 |
| Liabilities | |||
| Item No. | Description | Percentage | Value |
| 6 | Mortgage on D Street, Suburb B | 86.85 per cent | $2,605 |
| Net Assets | $885,401 | ||
An order will be made that the husband vacate the Suburb B property upon the wife tendering the required amount to the husband and discharging the husband’s liability in respect of the mortgage on Suburb B property. Similarly, if the wife does not exercise the first option that has been given to her and the husband acquires her interest in the Suburb B property, she is to vacate the Suburb B property forthwith upon him tendering the requisite amount and discharging her liability in respect to the Suburb B property.
In relation to the contents of the Suburb B property, the wife will prepare two lists and the husband will pick one list. The lists are not to include any chattels or contents which are ordinarily solely used by any of the children of the marriage.
CONCLUSIONS / ORDERS
The Independent Children's Lawyer’s application for costs
The Independent Children's Lawyer made an application for each party to pay an amount of $8,951.77 by way of payment of the Independent Children's Lawyer’s costs as particularised in Exhibit 17.
Both parties are in receipt of Government benefits but as set out above, the wife will receive assets valued at $885,401 and the husband will receive assets valued at $724,419. Almost the entirety of the value of those assets are tied up in the Suburb B and Suburb G properties. The wife consented to the orders sought by the Independent Children's Lawyer on the basis that the payment of the sum sought would not be made until her residence was sold. The husband did not consent to an order being made submitting that the home in which the parties lived was excluded by the Commonwealth Government from the criteria for an income tested pension. The Independent Children's Lawyer indicated that he was prepared to wait for his money.
Section 117(2) of the Act provides that a court may make an order as to costs as the court considers just. In doing so the court must consider the matters set out in s 1172A of the Act. In this case neither party was assisted by Legal Aid and none of the other considerations are of relevance apart from the financial circumstances of each of the parties to the proceedings. Those circumstances are discussed earlier in these reasons.
The provisions of s 117(4)(b) of the Act need to be considered. That section provides that in proceedings in which an Independent Children's Lawyer has been appointed, the court must not make an order against a party in relation to the costs of the Independent Children's Lawyer if the court considers that a party to the proceedings would suffer from financial hardship if the party had to bear a proportion of the costs of the Independent Children's Lawyer. There may be hardship if the payment sought by the Independent Children's Lawyer was required to be paid immediately. However the Independent Children's Lawyer has agreed to defer collection of the costs until the sale of the respective residences of the parties.
The effect of s 117(5) of the Act is that the court must disregard the fact that the Independent Children's Lawyer is funded under a Legal Aid scheme established under a Commonwealth Law or approved by the Attorney-General. The effect of that subsection is to treat the Independent Children's Lawyer as being impecunious.
Accordingly, the financial circumstances of each of the parties in relation to the assets owned by them is far superior to the deemed position of the Independent Children’s Lawyer under s 117(5) of the Act
I find that it is just that each party pay the amount sought by the Independent Children's Lawyer on the basis that that money will remain tied up in the property in which the parties lived until that property is sold at which time the amount of costs are to be paid. The amount owed by each of the parties will be charged against each of their respective properties and Legal Aid NSW will be entitled to lodge a caveat pursuant to that charging order.
I certify that the preceding two hundred and fifty seven (257) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 10 February 2017.
Associate:
Date: 10 February 2017
SCHEDULE 1
I request to live with the child [B]. (a) On school days, I request six days per week; mother picks up [the child] from my place on Saturdays’ morning and I will pick him up on Saturdays’ evening from his mother place; (b) On school holidays or public holidays, We are half and half; first half, [the child] is in my place and second half, he is in his mother place. (c) Such other times, like: birthday, tours, overseas, etc, as agreed between father and mother.
I request to have sole parental responsibility for [the child].
If [the child] is sickness, both father and mother have equally parental responsibility.
I, husband, request to own the house of [D Street Suburb B] NSW … and wife own the house of [F Street Suburb G] …;
I request to own a set of TV (with VCR), two sets of computer, one vacuum cleaner, two heaters, and one electric fan; etc.
I request to own a set of Italian sofa ($2,500), one tea table, [a] piano ($1,500), 4 wardrobes, 3 single beds, 3 bedside cupboards, a marble table, 7 bookcases (with books), one camphor wood chest, 5 desks, 10 chairs, and 2 suitcases; etc.
I request to own [a Japanese motor vehicle], because [Ms Lam] cancelled the registration of our hatchback 1990 on 20/7/2016). I will pay the difference.
I request to own some kitchen stuff, one bicycle, lawn mower, and some tools; etc.
I request [Ms Lam] returns back the money $5,600, $1,720, and about $6,200 (my father gave to me when he died on 2001, Chinese money 30,000 RMB);
I request [Ms Lam] pays me spousal maintenance about $30,000 (up to now), as she didn’t give me any money from July 2013. We live under one roof, I pay all the bills (see my affidavit filed 24 Dec 2015, paragraph 11).
I request to own one half of the shares of IAG ($2,500?), as NRMA gave us the shares about 11 years ago when they became public company.
I request [Ms Lam] pays me the loss of investment (Suburb G’s house). 2013-14 lost$2,777; 2014-15 loss $1,299; 2015-16 lost $2,446 and plus 1/7/2016 – now lost E$1,000. The total is $2,777 + $1,299 + $2,446 + E$ 1,000 = $7,522; $7,522 / 2 = $3,761.
I request [Ms Lam] pays the extra living expenses $420, as she asked somebody to live in our house without my permission for 2 persons lived 2 days and 2 persons lived 40 days (she did these things very rudely and outrageously).
I request [Ms Lam] returns back a set of Beethoven’s music, a set of 007 DVD and my clothes which she entered into my room (without permission) and took away all of the stuff in my wardrobe (now the wardrobe is empty).
I request [Ms Lam] pay me $1,000 as she has about $2,000 jewellery which she got during our marriage period.
I request [Ms Lam] pay me the superfund’s difference $365.
I request [Ms Lam] pay me tax return money $70, as the money is ours, she got all of them ($140).
I request [Ms Lam] pay me totally $11,310 for our second son [Mr Z] study in university.
I request [Ms Lam] pay me extra 2 per cent of the value of our asset pool. Because she forged several times evidences to court. Her purpose is to get more property. I consider that because she is against the law, I should get more property in turn to educate her.
SCHEDULE 2
Parenting
That the parties have equal shared parental responsibility for the child, [B], born … 1999 (“[the child]”) including making decision about the major long term issues in relation to the care, welfare and development of [the child].
That [the child] live with the Mother.
That [the child] spend time with the Father between 9:00am and 4:00pm on one day during each weekend such day to be agreed between the parties subject to the availability of [Mr Z Zeng] (“[Mr Z]”) and failing agreement such day to be determined by [Mr Z] in accordance with his availability.
3.1.For the purpose of this Order 3, the time that [the child] spent with the Father will be supervised by his elder brother, [Mr Z Zeng], born … 1996.
Property
That the Father transfer to the Mother the whole of his right, title and interest in the property situated at [D Street, Suburb B], NSW (the “[Suburb B] Property”).
That in order to give effect to Order 4 above, the Mother’s solicitor prepare the Transfer for the [Suburb B] Property and all other documents necessary to give effect to these Orders including authorities and documents necessary for Commonwealth Bank of Australia, the mortgagee on the [Suburb B] Property, to discharge mortgage.
That the Father execute and return all documents as required in Order 5 above to the Mother’s solicitor within fourteen (14) days of receiving the documents.
That within thirty (30) days after the date of these Orders, the Mother’s solicitor shall, simultaneously with receiving the Father’s signed Transfer for the [Suburb B] Property, provide evidence to the Father’s solicitor of the discharge of the mortgage on the [Suburb B] Property.
That the costs and disbursements of an incidental to the Transfer of the [Suburb B] Property be paid by the Mother.
That simultaneously with the transfer in Order 4 above, the Mother transfer to the Father the whole of her right, title and interest in the property situated at [F Street, Suburb G], NSW (the “[Suburb G] Property”).
That in order to give effect to Order 9 above, the Father or the Father’s solicitor prepare the Transfer for the [Suburb G] Property and all other documents necessary to give effect to these Orders including authorities and documents necessary for [W] Limited, the mortgagee on the [Suburb G] Property, to discharge mortgage.
That the Mother execute and return all documents as required in Order 10 above to the Father or the Father’s solicitor within fourteen (14) days of the receiving the documents.
That within thirty (30) days after the date of these Orders, the Father or the Father’s solicitor shall, simultaneously with receiving the Mother’s signed Transfer for the [Suburb G] Property, provide evidence to the Mother’s solicitor of the discharge of the mortgage on the [Suburb G] Property.
That the costs and disbursements of and incidental to the Transfer of the [Suburb G] Property be paid by the Father.
That in the event either the Father or the Mother for any reason fails to executed the documents or any one of them necessary to give effect to these Orders, the Deputy Registrar of the Family Court of Australia at Sydney Registry be appointed, pursuant to Section 106A of the Family Law Act to execute the Transfer on behalf of the Father and to do all acts and things necessary to give force and effect to these Orders and the party whose failure has caused this Order to give effect shall pay the costs of the other party on an indemnity basis in relation to obtaining the Deputy Registrar’s signature.
That within sixty (60) days (the “due date”) of the making of these Orders, the Mother pay to the Father the sum of $45,000.
That other than as is specifically provided in these Orders each party be solely entitled to the exclusion of the other to all property in the possession of or registered in the name of such party as at the date of these Orders including but not limited to (choose in action) or money standing to the credit of any party in any financial institution, shareholdings, motor vehicles, superannuation or interest in any trust or estate.
Costs.
SCHEDULE 3
PARENTAL RESPONSIBILITY
That the mother have sole parental responsibility for the child X born … 1999 (“the child”).
LIVE WITH
That the child live with the mother.
SPEND TIME WITH
That, commencing on the second weekend following the date of these Orders, unless the mother and the father agree otherwise in writing, the child shall spend time with the father each alternate weekend as follows:
(a)from the end of school on Friday (or, if the child is not attending school that day, from 3:00 pm), with the father to collect the child from school (or, if the child is not attending school that day, from the mother’s home);
(b)until the start of school on Monday (or, if the child is not attending school that day, until 9:00 am), with the father to deliver the child to school (or, if the child is not attending school that day, to the mother’s home).
COMMUNICATE WITH
The mother and the father ensure the child is at liberty to telephone the other parent at any reasonable times that he may wish to do so.
AUTHORISATIONS AND PROVISION OF INFORMATION
HEALTH
That the mother shall:
(a)keep the father advised of the names and addresses of the child’s treating doctors;
(b)inform the father in writing as soon as practical of any specialist medical appointments including appointments with any dentist, optometrist, psychologist, psychiatrist, counsellor or therapist ("specialist medical consultant") in relation to the child; and
(a)ensure that the father is provided with a copy of any report by any such specialist medical consultant in relation to the child, within 14 days of the mother’s receipt of the report.
That both the father and mother shall be entitled to:
(a)attend any appointments with any of the child’s treating doctors or specialist medical consultants; and
(b)discuss the child’s condition with such treating doctor or specialist medical consultant,
however such attendance(s) shall be at the discretion of the treating doctor or specialist medical consultant.
That the mother shall ensure that the father is notified as soon as practicable if, while in her care, the child is admitted to hospital or is involved in a medical emergency.
That the father shall ensure that the mother is notified as soon as practicable if, while in his care, the child is admitted to hospital or is involved in a medical emergency.
EDUCATION
That these Orders hereby authorise any school which the child attends from time to time to provide both the mother and the father with copies of all reports, circulars, notices and documents in relation to the child including copies of all school reports, reports on school progress and behavioural issues and notices received in relation to functions, parent teacher nights and like activities to which parents are invited as well as any and all information which may be sought from time to time by the mother or father in relation to the child.
That both the mother and the father be permitted to attend any of the child’s school events to which parents are ordinarily invited.
CONTACT DETAILS
That the mother and the father notify each other of any change in telephone contact numbers, such notification to be made in writing and within three (3) days of any change.
That the mother and the father notify each other of any proposed change to their place of residence, such notification to be made in writing and no less than fourteen (14) days prior to the proposed change.
RESTRAINTS AND INJUNCTIONS
That the Mother and the Father shall:
(a)be restrained from:
(i)discussing these proceedings in the hearing of or presence of the child;
(ii)speaking about the other parent or the other parent’s family or member of the other parent’s household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of the child;
(b)take all reasonable steps to prevent any other person:
(i)discussing these proceedings in the hearing of or presence of the child;
(ii)speaking about the other parent or the other parent’s family or member of the other parent’s household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of the child.
That the Mother and the Father shall be restrained from:
(a)physically disciplining the child or physically restraining the child (including tying his hands for training purposes); and
(b)showing the child any document filed in these proceeding or any documents related to these proceedings.
OTHER
That the Mother shall ensure that the child attends an appointment with the Independent Children’s Lawyer, as arranged by the Independent Children’s Lawyer, for the purposes of having these Orders explained to him.
That, within 14 days of the date of these Orders, the ICL shall provide a copy of the following documents to Ms C:
(a)Family Report dated 8 May 2015 prepared by Family Consultant H;
(b)these Orders; and
(c)Reasons for Judgment.
SCHEDULE 4
Husband
Financial statement filed 1 May 2014
Financial Questionnaire filed 20 June 2016
Affidavit filed 16 September 2016
Affidavit filed 24 December 2015
Affidavit filed 10 August 2015
Affidavit filed 14 May 2015
Affidavit filed 2 October 2014
Wife
Financial statement filed 19 September 201
Financial Questionnaire filed 29 June 2016
Affidavit filed 30 September 2016
Affidavit filed 10 March 06
Affidavit of Mr Y filed 30 September 2016
Affidavit of Mr I Zeng filed 30 September 2016
- AGLC
- Zeng and Lam [2017] FamCA 66
- Case
- [2017] FamCA 66
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included determining the best interests of the child, X, in relation to parental responsibility, living arrangements, and time spent with each parent. The court also had to consider the division of property pursuant to section 79 of the *Family Law Act 1975* (Cth), which involved assessing the contributions of each party to the marriage and their future needs, as well as addressing any existing family violence within the relationship which influenced the evidence presented.
Watts J made detailed parenting orders, granting the wife sole parental responsibility for the child, X, with specific limitations regarding name changes and living arrangements that would impede time with the husband. The child was ordered to live with the wife, and a schedule for alternate weekend time with the husband was established. The orders also included provisions for communication, medical information sharing, school involvement, and prohibitions against discussing proceedings or denigrating the other parent in the child's presence. In relation to property, the court ordered a division of assets, including the Suburb B and Suburb G properties, a Japanese motor vehicle, a hatchback vehicle, and superannuation interests. The orders provided a primary mechanism for the wife to pay the husband a sum of money and discharge his mortgage responsibilities on the Suburb B property, with alternative arrangements if this did not occur within specified timelines, including the potential sale of the Suburb B property. Each party was to receive their respective superannuation interests and other personal property, with provisions for the division of household furniture and effects. The court also made orders regarding costs payable to Legal Aid NSW by each party, secured by charging orders on the properties they received.
Orders
Orders of the court
Parenting
1.
The wife have sole parental responsibility for the child, X, born … 1999 (“the child”) except the wife shall not change the child’s name nor make changes to the child's living arrangements that make it significantly more difficult for the child to spend time with the husband.
2.
The child live with the wife.
3.
Commencing on the second weekend following the date of these Orders, unless the wife and the husband agree otherwise in writing, the child shall spend time with the husband each alternate weekend as follows:
3.1. from the end of school on Friday (or, if the child is not attending school that day, from 3.00 pm), with the husband to collect the child from school (or, if the child is not attending school that day, from the wife’s home);
3.2. until the start of school on Monday (or, if the child is not attending school that day, until 9.00 am), with the husband to deliver the child to school (or, if the child is not attending school that day, to the wife’s home).
4.
The wife and the husband ensure the child is at liberty to telephone the other parent at any reasonable times that he may wish to do so.
5.
The wife shall:
5.1. keep the husband advised of the names and addresses of the child’s treating doctors;
5.2. inform the husband in writing as soon as practical of any specialist medical appointments including appointments with any dentist, optometrist, psychologist, psychiatrist, counsellor or therapist ("specialist medical consultant") in relation to the child; and
5.3. ensure that the husband is provided with a copy of any report by any such specialist medical consultant in relation to the child, within 14 days of the wife’s receipt of the report.
6.
Both the husband and wife shall be entitled to:
6.1. attend any appointments with any of the child’s treating doctors or specialist medical consultants; and
6.2. discuss the child’s condition with such treating doctor or specialist medical consultant,
however such attendance(s) shall be at the discretion of the treating doctor or specialist medical consultant.
7.
The wife shall ensure that the husband is notified as soon as practicable if, while in her care, the child is admitted to hospital or is involved in a medical emergency.
8.
The husband shall ensure that the wife is notified as soon as practicable if, while in his care, the child is admitted to hospital or is involved in a medical emergency.
9.
These Orders hereby authorise any school which the child attends from time to time to provide both the wife and the husband with copies of all reports, circulars, notices and documents in relation to the child including copies of all school reports, reports on school progress and behavioural issues and notices received in relation to functions, parent teacher nights and like activities to which parents are invited as well as any and all information which may be sought from time to time by the wife or husband in relation to the child.
10.
Both the wife and the husband be permitted to attend any of the child’s school events to which parents are ordinarily invited.
11.
The wife and the husband notify each other of any change in their telephone contact numbers, such notification to be made in writing and within three (3) days of any change.
12.
The wife and the husband notify each other of any proposed change to their place of residence, such notification to be made in writing and no less than fourteen (14) days prior to the proposed change.
13.
The wife and the husband shall:
13.1. be restrained from:
13.1.1. discussing these proceedings in the hearing of or presence of the child;
13.1.2. speaking about the other parent or the other parent’s family or member of the other parent’s household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of the child;
13.2. take all reasonable steps to prevent any other person:
13.2.1. discussing these proceedings in the hearing of or presence of the child;
13.2.2. speaking about the other parent or the other parent’s family or member of the other parent’s household in a denigrating, offensive, insulting or unpleasant fashion in the presence or hearing of the child.
14.
The wife and the husband shall be restrained from:
14.1. physically disciplining the child or physically restraining the child (including tying his hands for training purposes); and
14.2. showing the child any document filed in these proceeding or any documents related to these proceedings.
15.
The wife shall ensure that the child attends an appointment with the Independent Children’s Lawyer, as arranged by the Independent Children’s Lawyer, for the purposes of having these Orders explained to him.
16.
Within 14 days of the date of these Orders, the Independent Children's Lawyer shall provide a copy of the following documents to Ms C:
16.1. Family Report dated 8 May 2015 prepared by Family Consultant H;
16.2. these Orders; and
16.3. these Reasons for Judgment.
17.
Pursuant to s 65DA(2) and s 62B Family Law Act 1975 (Cth), the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
Property
18.
Pursuant to s 79 of the Family Law Act 1975 (Cth), an order be made in accordance with paragraphs 19 to 30 below.
19.
Within a period of two (2) months from the date of these orders, the wife pay to the husband the sum of $131,069 and discharge any responsibility the husband has in respect of the mortgage on the property situated at D Street, Suburb B (“the Suburb B property”).
20.
Contemporaneously with the wife fulfilling the requirements of the preceding paragraph, the husband will do all acts and things and sign all necessary documents to discharge any responsibility the wife has in respect of the current mortgage on the property situated at F Street, Suburb G (“the Suburb G property”) and transfer to the wife his right, title and interest in the Suburb B property.
21.
Contemporaneously with the implementation of the two previous paragraphs, the wife is to transfer to the husband her right, title and interest in the Suburb G property.
22.
Upon the wife transferring the amount referred to in paragraph 19 and discharging the mortgage in respect of the Suburb B property, the husband is to forthwith vacate the Suburb B property.
23.
In the event the wife does not make the payment referred to in paragraph 19 within a period of two months, then within a further period of two (2) months:
23.1. The husband pay to the wife the sum of $290,321 and discharge any responsibility the wife has in respect of the mortgage on the Suburb B property.
23.2. Contemporaneously with the husband fulfilling the requirements of the preceding subparagraph, the wife will do all acts and things and sign all necessary documents to discharge any responsibility the husband has in respect of the current mortgage on the Suburb G property and transfer to the husband her right, title and interest in the Suburb B property.
23.3. Contemporaneously with the implementation of the two previous subparagraphs, the husband is to transfer to the wife his right, title and interest in the Suburb G property.
Upon the husband tendering the amount referred to in paragraph 23.1 and discharging the mortgage in respect of the Suburb B property, the wife is to forthwith vacate the Suburb B property.
24.
In the event that after a period of four (4) months neither party has acquired the other’s interest in the Suburb B property, the parties shall do all things and sign all necessary documents to sell the Suburb B property by private treaty at a price agreed upon between the parties and failing agreement, at a price to be determined by a nominee of the President of The Australian Valuers Institute and the net proceeds of sale will be distributed as follows:
24.1. Payment of the costs of sale;
24.2. Discharge of the mortgage on the Suburb B property;
24.3. 86.85 per cent to the wife;
24.4. 13.15 per cent to the husband
AND
24.5. The wife will transfer to the husband her right, title and interest in the Suburb G property
AND
24.6. The husband will discharge any liability the wife has in respect of the mortgage on the Suburb G property.
25.
The wife shall be entitled to sole right, title and interest in her Japanese motor vehicle.
26.
The husband transfer any interest he has in the hatchback vehicle to the wife if she requires him to do so and the wife shall be responsible for the hatchback vehicle and, if applicable, the disposal of that motor vehicle.
27.
Each party shall be entitled to their respective superannuation interests.
28.
The wife shall forthwith prepare two lists of generally equivalent value of the personal property, furniture and effects of the husband and the wife, situated at the Suburb B property as at the date of these orders, excluding that which is ordinarily solely used by any of the children of the marriage and present the lists to the husband. Within seven days the husband is to choose one of the lists and notify the wife of that choice in writing. Upon the husband choosing one of the lists, the items in that list will become his sole property and the items in the other list will then become the sole property of the wife. In the event the husband fails to notify the wife of his chosen list within seven days, the wife shall be entitled to have the items in one of the lists as chosen by her and as notified to the husband in writing.
29.
Each party be solely entitled to the exclusion of the other to all other property, chattels and superannuation in their respective names or possession as at the date of these orders and that each party indemnify the other in relation to any debt associated with any asset that is kept by each of them respectively.
30.
If either party refuses or neglects to sign (within fourteen (14) days of a written request to do so) any documents necessary to effect the terms of these Orders, the Registrar of the Sydney Registry of the Family Court of Australia is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act 1975 (Cth) to execute such documents on behalf of such party.
31.
The wife shall pay by way of costs to Legal Aid NSW a sum of $8,951.77 which payment shall be deferred until the wife disposes of her interest in the property she receives as a result of the implementation of these orders. A charging order is made in relation to that debt on that property and Legal Aid NSW shall be entitled to lodge a caveat pursuant to the charging order.
32.
The husband shall pay by way of costs to Legal Aid NSW a sum of $8,951.77 which payment shall be deferred until the husband disposes of his interest in the property he receives as a result of the implementation of these orders. A charging order is made in relation to that debt on that property and Legal Aid NSW shall be entitled to lodge a caveat pursuant to the charging order.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.