FAMILY COURT OF AUSTRALIA

WONG & WEI (NO. 2)	[2009] FamCA 1177	

FAMILY LAW  -  CHILDREN  -  residence  -  strategic application  -  best interests
FAMILY LAW  -  PROPERTY  -  asserted but uncorroborated liabilities  -  notional inclusions  -  contributions
FAMILY LAW  -  COSTS  -  obfuscation  -  failure to make full financial disclosure  -  solicitor/client costs ordered	

Family Law Act 1975 (Cth) ss 60B(1), 60CC(1), 61DA, 65DAA(1) and (2), 60CC(3), (4) and (4A), 79, 79(4)(a) to (c), 74(d) to (g), 75(2)(na), 106A, 117(2) and (2A)
Family Law Rules 2004, r.10.15, 13.01, 13.04, 13.07, 13.14	

Kohan  &  Kohan (1993) FLC 92-340
Colgate-Palmolive Company and Anor  v  Cussons Pty Ltd (1993) 46 FCR 225
Re LGM and CAM (2006) 35 FamLR 598
Johnson, BG  v  Johnson, K (No. 2) (Costs) (2000) FLC 93-040	

HUSBAND:	Mr Wong	

WIFE:	Ms Wei	

FILE NUMBER:	MLC	3853		of	2007	

DATE DELIVERED:	3 December, 2009	

PLACE DELIVERED:	Melbourne	

PLACE HEARD:	Melbourne	

JUDGMENT OF:	BROWN J	

HEARING DATE:	2 and 4 November, 2009	

REPRESENTATION

tHE husband:	In person	

COUNSEL FOR THE wife:	Mr. Robinson	

SOLICiTOR FOR THE wife:	Westminster Lawyers	
Orders   
parenting
(1)	That all previous orders in respect of the child of the marriage … born … December, 1999 (“the child”) be discharged.  
(2)	That the husband and wife have equal shared parental responsibility for the child.  
(3)	That the child live with the husband as follows :
	(a)	during school terms, from 12:30 pm. on Saturday until 5:00 pm. on Sunday in each alternate weekend, such time to recommence on the first weekend of each school term;
	(b)	during school terms, for half an hour or such longer period as is agreed at the conclusion of school on Tuesday and Friday PROVIDED THAT the husband shall give notice of his intention to spend such time with the child no later than 7:00 pm. on the preceding day and that such notice be given by SMS text message to the wife;
	(c)	for half of each school holiday period as agreed between the parties and, failing agreement, from 12:30 pm. on the middle Saturday until 5:00 pm. on the Sunday prior to the commencement of school PROVIDED THAT the husband provide the wife with written notice of his intention to exercise such time no later than two weeks prior to the commencement of the school holiday period;
	(d)	if the child would not otherwise be with the husband on Fathers’ Day, from 10:00 am. until 5:00 pm. on Fathers’ Day;  
	(e)	if a public holiday does not fall during a period of school holidays or a weekend, for six hours on the public holiday at times to be agreed and failing agreement from 9:00 am. to 3:00 pm.;  and
	(f)	as otherwise agreed between the parties from time to time.
(4) 	That the child live with the wife at all times other than those set out in paragraph (3) hereof.  
(5)	That the wife keep the husband advised of a mobile telephone number to which he can send an SMS text message pursuant to paragraph (3)(b) hereof. 
(6) 	That subject to any agreement between the parties to the contrary, the husband collect the child from Chinese school at the commencement of time on a Saturday and otherwise collect and deliver the child to the park at M at all other times.  
(7) 	That the husband be restrained from transporting the child in any vehicle not equipped with an appropriate seat belt.
(8) 	That the child be at liberty to communicate by telephone with the parent with whom he is not living at any reasonable time.  
(9) 	That the parent with whom the child is not living be at liberty to communicate by telephone with the child PROVIDED THAT such telephone call be made prior to 8:30 pm.  
(10) 	That each of the parties be and are restrained from denigrating the other or allowing any other person to denigrate the other in the presence or hearing of the child.  
(11)		That until further order the husband and wife by themselves, their servants or agents be and are each hereby restrained from removing, attempting to remove, or causing or permitting the removal or attempted removal of the child  born on … December, 1999 from the Commonwealth of Australia AND IT IS FURTHER ORDERED that the Australian Federal Police place the name of the said child on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch list until further order of the Court.  
(12)	That as soon as practicable the solicitor for the wife serve a sealed copy of this order upon the proper officer of the Australian Federal Police at Melbourne, AND IT IS REQUESTED that Australian Federal Police give force and effect to this order.  
(13)	That all extant applications be otherwise dismissed.
(14)	That these proceedings be removed from the List of matters awaiting finalisation.
(15)	That pursuant to s.62B and s.65DA(2), of the Family Law Act 1975, 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 document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.
(16)	That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

property
(1) 	That the property situated at and known as S property in the State of Victoria, being the whole of the land more particularly described in Title Volume … folio … (“the S property”) be sold altogether out of court (“the sale”) and the husband forthwith do all acts and things and sign all necessary documents to effect the sale and by way of consequential arrangements that shall be made for the purpose of effecting the sale, and subject to agreement between the parties to the contrary :
	(a)	the S property shall be listed for sale by an estate agent nominated by the wife;
	(b)	the S property shall be offered for sale by public auction, without reserve, within ten (10) weeks of this date;  and
	(c)	the S property shall be offered for sale on a sixty (60) day contract.
(2)	That pending 	settlement of the sale of the S property pursuant to paragraph (1) hereof;
	(a)	the husband be entitled to possession of the S property and such entitlement be conditional upon him providing access to the estate agent appointed pursuant to paragraph (1)(a) hereof and to all persons who seek to inspect the property following its placement with the agent (both on days on which the property may be advertised as being open for inspection and at other times);
	(b)	the husband maintain the S property in good order and condition;
	(c)	the husband remove no fixtures from the S property;
	(d)	the husband not lease, assign or encumber the S property, save for the sole purpose of securing funds advanced to pay to the wife pursuant to these orders;  and
	(e)	the husband holds his interest in the S property on a trust for sale, pursuant to these orders.  
(3) 	That upon completion of the sale the proceeds of the sale be applied as follows :
	(a)	first, to pay all costs, commissions and expenses of the sale and to pay any council and water rates and charges outstanding in respect of the S property;
	(b)	second, to discharge the mortgage (which the court notes stands at .06 cents at this day);
	(c)	third, the balance then remaining shall be held in the names of the parties on trust pursuant to these orders in the trust account of the solicitors for the wife.  
(4) 	That a pool be notionally created by adding together the following sums :
	(a)	funds held in trust pursuant to paragraph (3)(c) hereof;  and
	(b)	$40,316 (representing the found value of shares in the wife’s name, shares in the husband’s name, car in the possession of the husband and funds in and notionally in the possession of the husband).  
(5)	That as soon as practicable after the settlement of the sale the funds held in trust which form part of the pool be disbursed as follows :
	(a)	to the wife a sum which, added to $3,300 is equivalent to 47.5% of the pool;
	(b)	the sum of $18,353 to the wife in satisfaction of the costs order contained in paragraph (11) hereof;  and
	(c)	the balance to the husband.  
(6) 	That the wife retain to the exclusion of the husband :
	(a)	all investments in her name in the Chinese money market;
	(b)	her superannuation interest in Hesta Superannuation;
	(c)	all household furniture and chattels in her possession.  
(7) 	That the husband retain to the exclusion of the wife :
	(a)	his interest in Ford motor vehicle, registration number …;
	(b)	his superannuation interest in AustralianSuper;
	(c)	all household furniture and chattels in his possession. 
(8) 	That the husband indemnify the wife and forever hereafter keep her indemnified in respect of any liability of whatsoever nature and kind arising from any interest in or involvement with Y Pty Ltd. 
(9)	That unless otherwise specified in these orders:
	(a)	each party be solely entitled to the exclusion of the other to all property and chattels of whatsoever nature and kind in the possession of such party as at the date of these orders and for that purpose bank accounts are deemed to be in the possession of the person whose name appears on the bank’s record thereof;  insurance policies are deemed to be in the possession of the beneficiary thereof;  superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for the payment out of such entitlements;  and the chattels in the S property are deemed to be in the possession of the husband;  and
	(b)	each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
(10) 	That if a party fails or refuses to execute a deed or instrument necessary to give force and effect to these orders:
	(a)	a registrar of the Family Court of Australia at Melbourne is hereby appointed to execute all deeds and documents in the name of the party in default and do all acts and things necessary to give validity and operation to these orders;  and
	(b)	the party in default is ordered to pay any and all foreseeable damages to the other party caused by his/her default;  and
	(c)	the party in default is ordered to pay all reasonable costs incurred by the other party for the purpose of enforcing this order and proving his/her damages.  
(11) 	That the husband pay towards the wife’s costs the sum of $18,353 and that sum be paid to the wife from the sum otherwise due to the husband in the property proceedings, as set out in paragraph (5)(b) of these orders.  
(12)	That all extant applications be otherwise dismissed.
(13)	That these proceedings be removed from the List of matters awaiting finalisation.
(14)	That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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

Family Court of Australia at melbourne	

FILE NUMBER:  MLC 3853 of 2007

MR WONG	
Husband

And

MS WEI	
Wife

REASONS FOR JUDGMENT
1.	Mr Wong (the husband) is 51 and Ms Wei (the wife) is 44.  Both were born in China.  In 1991 the husband moved to Australia, obtaining permanent residency some ten years later.  Since emigrating, he has returned to China on numerous occasions, travelling on a Chinese passport.  On one such trip, in November 1998, he met and commenced living with the wife;  they married in China in 1999.  The parties’ only child was born in China in December, 1999.  The husband returned to Australia after their marriage and over the next three years he travelled to China for about one month in each year to spend time with his wife and child.  It was not until 2002 that the wife was able to obtain the necessary visas for her and the child to move to Australia, which they did on 2 September, 2002.  The parties separated eighteen months later.  
2.	The parties are unable to agree on the time the child should spend with his father or the child’s future travel to China;  the court is asked to determine these questions.  The court must also determine the parties’ competing applications for property orders. 

EVIDENCE
3.	Findings are made on the balance of probabilities having regard to the evidence and my observations of the demeanour of witnesses. In what follows, statements of fact constitute findings of fact.  Passages quoted from documents before the court are reproduced verbatim; grammatical or spelling errors are neither noted nor corrected.  
4.	The wife relied on an amended application for final orders, an affidavit and a statement of her financial circumstances filed 6 October, 2009 and a second affidavit filed 28 October, 2009.  She also relied on an affidavit of Dr C, filed on 9 October, 2009 and an affidavit of Mr G, filed 28 January, 2009.  Mr. G is a certified valuer and valued a real property in S registered in the husband’s name.  The husband did not seek to cross-examine Dr. C or Mr. G.  
5.	In her affidavits the wife referred to a number of affidavits of translators, filed in the course of earlier hearings;  these verify the translations of documents (from Chinese to English) which are annexed to the affidavits she filed on 6 October, 2009 and 28 October, 2009.  
6.	The wife’s affidavits referred to hearings before a number of judges (including me, Dessau J. and Young J.) and to advice given to the husband in the course of those hearings as to the necessity for full financial disclosure, the onus of proof and his obligation to present evidence from creditors to support his claims of outstanding debts in China and from a medical practitioner if he alleged his health impacted on his capacity to work.  Transcripts on the file of hearings before Young J. on 17 September, 2008, Dessau J. on 27 October, 2008 and me on 7 April, 2009 support the wife’s accounts.  
7.	The husband relied on two affidavits sworn by him and filed on 18 August, 2009 and 23 October, 2009, together with a financial statement filed on 23 October, 2009.  
8.	Admitted into evidence was a family report prepared by Mr. K, family consultant, dated 18 August, 2009. Mr. K had earlier prepared an issues assessment, dated 4 March, 2009. Neither party sought to cross-examine Mr. K.  
9.	Each of the parties had available the services of an interpreter.  The wife gave some evidence in English but spoke through the interpreter most of the time.  The husband preferred to speak English and used the interpreter only when he felt it necessary.  The whole of the final submissions of counsel for the wife were translated by his interpreter.  A separate interpreter was provided to each of the parties for the duration of the trial.  All were accredited to NAATI 3 level.  
10.	Mr. K noted the angry and inflammatory discourse between the parties and that they had made little progress towards developing a more co-operative and constructive relationship.  In his opinion that was unlikely to change in the short to medium term future.  The hostility of each to the other was apparent in the witness box.  
11.	While easily side-tracked into criticism of the husband and keen to draw inferences adverse to him, I am satisfied the wife endeavoured to answer questions openly and honestly.  Her accounts of financial transactions were consistent and, I am satisfied, reliable.  
12.	The wife and husband did not agree on the time the husband spent with the child after separation or the reasons contact did not occur on occasions.  For example, although orders provided for the father to see the child on Wednesday afternoons at the swimming pool, this rarely occurred.  The husband attributed this to the wife sabotaging the arrangement and not attending the pool with the child.  The account the child gave Mr. K was consistent with that of the wife;  he said his father would not attend to spend that time with him, that his father “doesn’t really come because he’s busy” and although he recalled his father attending on infrequent occasions at the swimming pool, he could only say they occurred “a long time ago”.  I accept the wife’s evidence on this issue, and also prefer her account of other facts in issue when it differs from that of the husband.  
13.	In contrast with that of the wife, the husband’s evidence was internally inconsistent and, not infrequently, strained credulity.  This was particularly so when he was questioned about his financial position and his alleged liabilities in China.  Cross-examined he moved from responsive answers to rhetorical questions, inaccurate statements of legal principle and bombastic assertions.  
14.	A simple illustration is the husband’s evidence of his employment.  During the marriage and for much of the litigation the husband worked as a taxi driver.  His evidence was of ceasing that employment in July 2009 as the stress associated with his job impacted on the diabetes mellitus with which he had been diagnosed.  Soon after entering the witness box on a Monday he was asked about his occupation and gave evidence of currently undertaking truck driving work.  Asked whether he worked for himself or for someone else, he said he worked for an uncle.  
15.	Towards the end of his cross-examination on Wednesday (the Tuesday was a public holiday) counsel for the wife returned to the question of the husband’s employment and asked him who he worked for.  He gave evidence of working for a friend and spelt the friend’s name.  He said he did not know the name of the business.  The following exchange took place :
MR ROBINSON:	Is he your uncle?
THE WITNESS:	Uncle?  What you talk about?
MR ROBINSON:	Well, that is a simple question.  Is he your uncle?
THE WITNESS:	No.
MR ROBINSON:	When you told this - - - 
THE WITNESS:	I already tell you I drive for my friend.
MR ROBINSON:	When you told this Court on Monday that you were working with your uncle, was that - - - 
THE WITNESS:	Who tell you that?
MR ROBINSON:	You did, Mr [Wong].
THE WITNESS:	No.  No, I never work – I do have an uncle.  I don’t have an uncle, how can I work with my uncle?
MR ROBINSON:	You do not have an uncle, but you have cousins.
THE WITNESS:	No, no.  I have no uncle at all, but I work with – with a friend.
16.	I accept that in many cultures a person who is not a blood relative may be referred to as uncle.  If that were the case, one would expect the nomenclature to remain constant.  It was clear from the husband’s demeanour that he had forgotten the answer he gave in the first minutes of his evidence.  
17.	Of more significance was his evidence of the loans he alleged were made to him by relatives in China, and of funds allegedly received by the wife, which shifted and slid as cross-examination revealed holes and inconsistencies in his accounts.
18.	I have no confidence in the husband’s capacity for objective recollection or his commitment to tell the truth.  Rather, I am satisfied he was prepared to say anything which he thought would advance his case, regardless of its truth or whether it was inconsistent with earlier evidence given by him.  

LITIGATION HISTORY
19.	The parties separated on 21 March, 2004.  On 14 April, 2004 parenting orders were made in the Melbourne Magistrates’ Court providing for the child to live with the wife and to spend five hours with the husband each Sunday and two hours each Wednesday.  At that time an intervention order was made in proceedings brought by the wife against the husband.  The intervention order, to last for two years, was made by consent.  
20.	The wife’s evidence was that the child’s name was added to the Airport Watch List pursuant to orders made on 22 April, 2004.  At that time there were no proceedings in this court or the Federal Magistrates’ Court.  Both parties agree there is an existing order which enjoins them from removing the child from the Commonwealth of Australia until further order.  The order may have been made in the course of the proceedings in the Melbourne Magistrates’ Court.  
21.	After separation the wife made an application for child support.  The husband then brought proceedings in the Federal Magistrates’ Court in August 2004 in which he sought paternity tests;  those proceedings were discontinued later that year when DNA tests confirmed he is the child’s father.  
22.	On 13 September, 2006 an application for consent orders was filed in this court, pursuant to Rule 10.15 of the Family Law Rules 2004.  It named the husband as the applicant and the wife as the respondent.  The orders sought were in these terms :
1.	The settlement is the final for both parties.  It is not applicable in future.  
2.	The both parties will share the costs of education equally for their son […] until he is 18 years old.  And [the father’s] properties at [S] Vic. and other personal assets are bound to this liability, which could be pursued because of breaching of this order. 
3.	With agreement between both parties, either of them is allowed to take their son to travel outside of Australia
23.	Much of the documentation required for such an application was not completed by the parties; among the omissions was information about the parties’ respective financial positions and current assets.  In a letter dated 14 September, 2006 a registrar advised the parties that the application could not be approved, pointing out in some detail what needed to be done before such an application could be considered.  The parties were told that court orders must be clear, unambiguous and capable of enforcement and that a fresh application could be made.  None was ever filed.  
24.	The wife’s evidence was that she signed the forms without benefit of legal advice or an interpreter, because the husband told her to do so.  
25.	Later that year the wife sought and obtained a further interim intervention order.  On the return date of 15 December, 2006, the proceedings were settled by the husband giving an undertaking in similar terms to those routinely contained in an intervention order;  the undertaking was to expire on 15 June, 2007.  
26.	On 7 March, 2007 on the application of the wife, a divorce order was made;  it became final on 8 April, 2006.  
27.	On 5 April, 2007 the wife filed an application in the Federal Magistrates’ Court, seeking final property orders.  In a response filed on 15 June, 2007, the husband sought final property and parenting orders.  On 19 June, 2007 the matter was transferred to this court.  
28.	On 11 September, 2007 a further interim intervention order was made in favour of the wife, the earlier undertaking having expired.  On 18 February, 2008, after a contested hearing, a fresh intervention order was made for a period of two years.  In his affidavit filed 23 October, 2009 the husband deposed that it was not true (as the wife had deposed in her affidavit filed 6 October, 2009) that the magistrate found that the “threatening behaviour” occurred, saying :
On 18 February, the Magistrate made it clear that rather than the criminal court, the decision was based on possibilities.

29.	The magistrate may well have explained to the husband the difference between the criminal and civil standards of proof, however the civil standard is proof on the balance of probabilities, not possibilities.  The transcript of the magistrate’s judgment, while incomplete, shows the wife’s account to be accurate, the magistrate finding :
For those reasons, I am satisfied that [the husband] has made threats of a serious nature to [the wife] and that those threats amount to threats of violence to her. That those threats are intimidating and were intended to be intimidating. 
30.	I will refer later to the applications the wife had to make in this court in an attempt to obtain full financial disclosure by the husband and the valuation of real estate.  
31.	On 7 April, 2009 the case was listed as what is sometimes referred to as the first day of a less adversarial trial.  Mr. K’s issues assessment was before the court and he gave brief additional evidence.  The court ordered the preparation of a family report.  Interim parenting orders were made that day providing for the child to spend time with the husband on alternate weekends from 12:30 pm. on Saturday until 5:00 pm. Sunday and from 4:00 pm. to 7:00 pm. on Wednesdays.  Orders were also made that day for the preparation and filing of trial material.  

APPLICATIONS FOR FINAL PARENTING ORDERS 
32.	The wife sought that the hcild live with the husband from 12:30 pm. on Saturday until 5:00 pm. on Sunday on each alternate weekend, for half of each school holiday period, on Fathers’ Day and as otherwise agreed.  If the husband was prepared to collect the child on Friday afternoon and take him to Chinese school on Saturday morning, the weekend time could start on Friday.  She was content for the husband to see the child after school on days when the child did not have to attend extra-curricular activities, but sought that the husband advise her the previous day of such proposed attendance.  She proposed that the child live with her for the balance of the time and that he be at liberty to telephone the parent with whom he was not living at any reasonable time.  Although the wife initially sought the discharge of the injunction which restrains both parents from removing the child from Australia, and that each be permitted to take him from Australia for the purpose of temporary travel, she subsequently withdrew those applications and sought to maintain the existing injunction.  
33.	The unchallenged evidence of Mr. K was that the parties agreed on parenting arrangements at the conclusion of the issues assessment in March 2009;  the child would remain in his mother’s care and spend time with his father on a regular and consistent basis.  The husband reneged on that agreement, advising the court on 7 April, 2009 that he proposed the child live with him every weekend and the whole of the school holidays and with the wife on school days.  The same ambivalence was demonstrated by the husband in the course of sessions for the preparation of the family report.  The husband told Mr. K that he did not wish to proceed with his application for the child to live with him on a fulltime basis, and did not wish to have increased time with the child, but subsequently spoke of orders for shared care, while telling Mr. K his application for residence was “tactical in nature”.  Although the husband maintained during the trial that he wanted the child to live with him half the time, and that times and dates should be nominated to ensure such an overall division, the actual orders he sought would not have achieved that outcome.  
34.	In specific terms the husband proposed that the child spend every weekend with him.  Although at one point he said that weekend time would need to commence on a Friday afternoon (as he initially sought) if he were to be guaranteed half of the time with the child, the husband’s evidence was that it would be “more convenient and economical” to have the wife take the child to Chinese classes on Saturday mornings and for him to collect the child (as he now does) at the conclusion of those classes on Saturday, take him for tutoring on Saturday afternoon and spend the balance of Saturday and Sunday with him.  He did not seek to have the child stay with him until Monday morning.  Although he said he wanted to be able to speak with the child after school, he was not prepared to agree to contact on a particular day or days, saying that it would not be every day, and perhaps it could be “half an hour on any day that [the child] needs me or I can make it”.  He would not agree to give notice the previous day.  The husband agreed that the child should spend half of school holiday periods and Fathers’ Day with him and also sought half of all public holidays, together with the right for him and the child to ring each other any time either of them wanted.  

Legal principles 
35.	The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars.  The first is the importance to children of having a meaningful relationship with both parents;  the second is the need to protect children from physical and psychological harm.  These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).  
36.	When deciding what parenting orders to make it is the best interests of the child which are the paramount consideration.  In determining where those best interests lie, the court must consider the primary and additional considerations set out in s.60CC.
37.	There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA).  The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent.  The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence.  The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.  
38.	If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests and reasonably practicable (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests and reasonably practicable (s.65DAA(2)).

Primary Considerations
39.	When determining what is in a child’s best interests the primary considerations are :
(a)	the benefit to the child of having a meaningful relationship with both of the child’s parents;  and
(b)	the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
These are consistent with the objects set out in s.60B(1).
40.	The orders sought by each of the parties would ensure that the child maintains a meaningful relationship with the other.  Indeed, the wife was content for the husband to have more time with the child than he was prepared to take.  
41.	I accept the wife’s evidence of the violence directed at her in Australia.  The intervention order made in September 2007 has lapsed and it is vital the conduct which gave rise to it is not repeated by the husband.  Violence directed at a parent can have a detrimental effect on a child, either because the child sees or knows of it or because it impacts on the abused parent’s functioning and parenting capacity.  
42.	The court can find, based on Mr. K’s evidence, that the anger, angst and dysfunctional interactions generated by the parents are likely to have a greater detrimental impact on the child than any of the criticisms the parties make of each other’s practical parenting.  
43.	The wife’s evidence was that the husband makes derogatory comments about her to the child, which distresses the child.  The wife’s evidence was that the child rang her from his father’s home in February 2009, saying he was afraid as the father had threatened to throw a knife at him.  The wife deposed that she did not believe the husband would indeed throw a knife at the child but she was concerned that he threatened to do so and scared the child.  
44.	The child told Mr. K in late February 2009 that his father had made threats towards him and that “usually every week” his father “talked a lot about who are you going to choose (i.e. to live with)”.  He also gave as one reason for not wanting overnight time with his father that he felt his mother feared his father would not take adequate care of him.  It is clear both parents have embroiled him in their conflict.
45.	It was the husband’s case, clearly presented to Mr. K, that the wife used him to gain residency in Australia and that she was motivated by greed and a desire for financial advantage in the account she gave of the marriage and its aftermath.  In the affidavit filed 23 October, 2009 he deposed that :
Getting around the law system, under the assistance of Salvation Army, the wife successfully avoided two years waiting period and got permanent visa.
This reference was directed to the wife’s evidence of her need to obtain an independent visa as they separated within 18 months of her arrival in Australia.  
46.	The husband did not deny saying insulting things about the wife to the child but rationalised them on the basis that the child asked questions about people who acted in certain ways.  Dealing with his alleged denigration of the wife to the child, the husband deposed :
The child once clearly described how one of his mother’s friends used commercial marriage successfully obtaining the permanent residency and turning pre-marriage property into the matrimonial assets.  I did call these people with illegal or immoral conducts “shit people”.  
47.	The wife’s evidence was that the husband constantly questioned the child about her personal life and what she was doing and that on 26 October, 2008, the child told her that his father had said that she was a “shit person and shit mother”.  I accept the child made this statement and it is more probable than not that the “friend” of whom the husband allegedly spoke was in fact the child’s mother. 
48.	Similarly, the wife’s evidence was that the husband called her a “prostitute” and that the husband told the child that she could make money by way of prostituting herself.  The husband denied that during an interview with Mr. K and no information was forthcoming from the child, although Mr. K noted that that did not rule out the incident occurring.  That something like it did occur is consistent with another statement of the husband in his own affidavit when, responding to this allegation, he said “the child once asked what the whore means.  I did tell him as dictionaries tell”.  

Additional Considerations
(a)	any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
49.	The child made it very clear to Mr. K on two occasions that he wants to remain living with his mother.  He impressed Mr. K as a very loving and compliant child who is very mindful of the tensions which exist between his parents.  He seeks their approval in whatever he does and is very aware of them being hurt or put out.  He is happy to fit in with any arrangements that his parents make, as long as they are both in general agreement and he is kept informed.  However, he is very clear that he wishes to live predominately with his mother. 
50.	The child is now almost ten.  While his views are not determinative, they must be given real, not notional, weight.  
(b)	The nature of the relationship of the child with:
(i)	each of the child’s parents;  and
(ii)	other persons (including any grandparent or other relative of the child);
51.	Mr. K noted in the issues assessment that the child’s primary attachment is to his mother and that the child’s description of his father lacked the detail, warmth and earnest descriptions apparent when the child talked about his mother.  By the time he was seen for the family report, the child was spending each alternate Saturday night with his father and said that despite his initial misgivings, this had actually worked out well.  
52.	I can find that the child remains primarily attached to his mother and has an appropriate relationship with his father.  
53.	The child has never travelled to China so has had no contact with relatives there.  Despite the husband’s initial evidence of an uncle, neither parent has relatives in Australia. 
(c)	the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

(f)	the capacity of :
	(i)	each of the child’s parents;  and
		(ii)	any other person (including any grandparent or other relative of the child);
	to provide for the needs of the child, including emotional and intellectual needs;

(i)	the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
54.	It is convenient to deal here with these s.60CC(3) factors relating to parental capacity and attitude.  I will also consider the matters contained in s.60CC(4) and (4A) of the Act, which are as follows :
(4)	Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents: 
(a)	has taken, or failed to take, the opportunity: 
(i)	to participate in making decisions about major long‑term issues in relation to the child; and 
(ii)	to spend time with the child; and 
(iii)	 to communicate with the child; and 
(b)	has facilitated, or failed to facilitate, the other parent: 
(i)	participating in making decisions about major long‑term issues in relation to the child; and 
(ii)	spending time with the child; and 
(iii)	communicating with the child; and 
(c)	has fulfilled, or failed to fulfil, the parent's obligation to maintain the child. 
(4A)	If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred. 
55.	I place weight on Mr. K’s evidence that the mother is a most diligent and loving parent, who provides for the child a very stimulating and challenging environment in which he is developing his full potential.  In Mr. K’s opinion her “performance as a parent” is beyond doubt and he endorsed her continuing full time involvement in the child’s life.  Mr. K’s evidence was that the child presented as a most pleasant child;  he is articulate, settled, well mannered and progressing well physically, emotionally and academically.  Mr. K did not hesitate to ascribe a large portion of credit for this to the wife’s parenting.  
56.	Mr. K did not overlook the positives for the child in the relationship he has with his father but he did “seriously question” the validity and genuine nature of the husband’s application for care of his son. I place weight on Mr. K’s opinion that the husband appeared to have very little insight into the possible psychological implications and repercussions for the child were his application to be realised.  
57.	Each of the parties was critical of aspects of the other parent’s parenting.  By way of illustration, the husband complained to Mr. K that the wife was bringing the child up like a girl because the child wore cream (it was sun block) and the wife complained about the child being cold at his father’s home, a complaint which was confirmed by the child but which was remedied by an additional blanket.  
58.	I must find that the husband has not taken advantage of orders which provide for time with his son and that he is keen to see him on his terms.  It is uncommon in such cases to hear a parent who, ostensibly, wants a shared care arrangement but creates stumbling blocks to weekend time commencing on Friday afternoon rather than Saturday afternoon, and is uninterested in it extending to Monday morning.  Although the wife is very critical of the husband it is she who has consistently offered more time than he has been prepared to take.  
(d)	The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from :
(i)	either of his or her parents;  or
		(ii)	any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
59.	I have already referred to Mr. K’s evidence of the child’s wishes and his support for the child remaining in the primary care of his mother.  I do not find that the husband genuinely seeks either sole residence or a truly shared residence arrangement.  The father proposed to Mr. K that the child spend only seven hours a fortnight with his mother, if the child moved to live with him.  As Mr. K noted, such a proposition totally ignores the historical aspects of the child’s care under his mother’s wing and ignores the immense changes that the child would have to face were such a proposition to be realised.  The proposal demonstrates a distinct lack of insight into the child’s attachment to his mother and his need to spend time with her.  I am satisfied a removal from the wife’s primary care would be devastating for the child.  
(e)	The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
60.	The husband’s evidence was that he could not agree to spend more time with the child on a pre-determined basis as he could not predict his employment obligations and needed to be able to act on a spontaneous basis.  According to him, he earns only $250 a week.  He produced no documents to support his assertions as to his present financial position or his work commitments.  Nevertheless, there is no point in a court making orders aimed at compelling a parent to spend more time with a child than he or she is prepared to take.  
(g)	The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
61.	The child’s parents share a cultural background.  Both support the child’s attendance at Chinese school on Saturday mornings.  It is clear that both place emphasis on the importance of education and extra-curricular activities.  At one point the husband said that the child needed to spend more time with him because he was a messy boy (both in terms of his room and his homework) and needed the input of a father who was orderly and well organised and, effectively, able to put his hand on whatever he wanted.  The husband’s confident self assessment sat very uncomfortably with later evidence he gave in respect of his financial dealings, to which I will refer later.  Nevertheless, the court can find that while the parents may not work well together, both are keen to ensure that their son is familiar with his heritage;  both would like him to travel to China and meet relatives at some time;  both see his education and personal development as matters of importance.  
(j)	any family violence involving the child or a member of the child’s family;

(k)	Any family violence order that applies to the child or a member of the child’s family, if :
	(i)	the order is a final order;  or
	(ii)	the making of the order was contested by a person;
62.	I have already referred to the various intervention orders and undertakings.  
(l)	whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
63.	Since their separation the child’s parents have been involved in litigation in the Magistrates’ Court of Victoria, the Federal Magistrates’ Court and this court.  It is trite to say that litigation is stressful and that personal and financial stressors generated by it have the capacity to impact on parenting.  It is vital that final orders are made in respect of the child’s parenting.  
64.	The wife initially sought the discharge of the injunction which restrains both parties from removing the child from Australia without the consent of the court.  She resiled from that application when the trial commenced and in final submissions sought that the injunction remain on foot.  
65.	The husband sought its removal so he could take the child to visit relatives in China.  The wife submitted that there was no guarantee the husband would return the child to Australia;  his relatives are all in China, he has “explored business opportunities” there on a number of occasions, he has travelled to China at least twice since their separation and China is not a party to the Hague Convention. 
66.	The husband agreed that the wife did not trust him and spoke of the importance of each of them giving notice of travel to the other.  It seemed that he sought that each be able to spend equal time with the child were the child to travel to China;  that is, if the wife took the child to China, he should be able to join them and take the child to spend an equivalent period of time with his parents.  
67.	If the injunction is maintained, the potential for further proceedings is increased as an order would need to be sought to allow one or other, or indeed both, parents to take the child out of Australia.  On the other hand, if they agreed on travel, which the husband seemed to think they could, such an order could be speedily obtained, by consent.  
(m)	any other fact or circumstances that the court thinks is relevant;
68.	It is important that the Court considers the objects and principles set out in s.60B.  

Presumption of Shared Parental Responsibility
69.	The orders set out in the wife’s amended application for final orders filed 6 October, 2009 did not seek sole parental responsibility.  The presumption of shared parental responsibility applies.  
70.	Although the husband frequently spoke of shared care and of tallying up days to achieve such a result, the orders he sought would not result in the child living half the time with him and I do not find that he genuinely wishes that outcome.  His intermittent claim for equal time is a velleity and one I am satisfied is repeated in order to place pressure on the wife.  
71.	Were the husband to genuinely seek shared residence, I could not find that to be in the child’s best interests for reasons previously advanced.  
72.	The wife was content for the husband’s weekend time to start on Friday evening and conclude by the husband returning the child to school on Monday morning, which would allow him to play a role in the child’s school life.  Similarly, she was happy for the husband to spend time with the child at the conclusion of a school day, as long as she and the child had notice.  
73.	The orders proposed by the wife would ensure that the child spends substantial and significant time with his father, as defined in the legislation.  It is the husband who seeks to limit that time to, in the main, Saturdays and Sundays, public holidays and school holidays.  He did wish to be able to meet the child after school whenever it suited him and on that basis could have some involvement in school life, although his failure to take advantage of the orders for time on Wednesday afternoons to date does not auger well for any such arrangement.  In any event, if the court finds that the child should live predominately with his mother, it should not impose on the husband orders which provide for more time than he says he is prepared to take.  In that sense any further time than that sought by him is not reasonably practicable.  

Conclusion
74.	I am satisfied the child’s best interests require him to live primarily with his mother and live with his father on alternate weekends during school terms, from the conclusion of Chinese school on Saturday until Sunday evening.  Orders will also provide for the child to spend half of school holidays with his father and Fathers’ Day and at other times as agreed.  The parties will have equal shared parental responsibility for the child.
75.	I do not find it in the child’s best interests to spend every weekend with his father.  It is important he is able to spend some weekend time with his mother and time in the neighbourhood in which he lives most of the time and goes to school.  His friendships there will become increasingly important as he enters adolescence.  
76.	Each of the parties seek orders which would allow the parties to ring the child, and the child to ring the parties.  The wife sought that the order make it clear that phone calls need to be made at a reasonable time, her evidence being of calls made by the husband at unacceptably late hours.  I am satisfied that the child’s best interests will be fostered if he is able to ring a parent with whom he is not living at any reasonable time;  if the parent with whom he is not then living wishes to telephone him, such calls will need to be made before 8:30 pm.  
77.	I do not find it in the child’s best interests that his father can simply turn up at school at random and expect the child to be present, and able to spend time with him.  The child has a very full schedule of extra curricular activities and he made it clear to Mr. K that he wanted to be informed of the arrangements which were made for him.  The wife proposed that the husband give 24 hours notice by SMS if he wanted to see the child after school.  Tuesday and Friday are the days on which the child does not have extra curricular activities after school.  The husband’s position was, generally, that his work commitments preclude him giving such notice and, more specifically, that notice by SMS would be “pretty hard for him”.  Rather than giving them notice, he said that if the child were not there “I have bad luck” and “I will not complain about that”.  Pressed as to his position, he said he did not want to make an appointment.  
78.	Having regard to Mr. K’s evidence of the child’s desire to know about the arrangements made for him by his parents, I am satisfied his best interests require notice.  The husband may spend half an hour with the child after school on a Tuesday or Friday provided he gives notice by SMS to the wife by 7:00 pm. the previous day.  
79.	The wife sought an order that the husband be restrained from transporting the child in a truck or any other vehicle not appropriately equipped with seat belts.  The husband did not agree that this had occurred and referred to the law which requires the child to be contained when in a vehicle.  I do propose to make the order sought by the wife.  If the husband’s evidence is correct, this will not impose any additional obligation on him.  If his evidence is incorrect, it will reinforce the necessity to comply with the law, a law based solely on the safety of those travelling in a vehicle.  
80.	The wife also sought that each of the parties be enjoined from denigrating the other in the child’s presence or hearing.  Her affidavit contains evidence of denigration directed at her and she spoke to Mr. K of this, too.  While the husband did not deal specifically with each allegation, he generally denied making insulting and derogatory comments, or deposed the remarks were of a general nature and not made about the wife.  The intervention order obtained in 2007 has expired.  Having regard to my earlier findings and to Mr. K’s evidence of the importance of shielding the child from parental acrimony and the capacity of that acrimony to impact detrimentally on him, I am satisfied an injunction should be made as sought, to bind both parties.  
81.	I find substance in the wife’s concerns about the child’s potential travel to China without her, or spending time in China away from her.  The husband has little respect for her parenting or her role in the child’s life.  Her application for property orders angered him and I am satisfied he tried to use an application for residence as a tactical tool, probably to pressure her to settle the financial proceedings.  The court could not exclude the potential for the husband to seek to punish the wife by removing the child from her.  That potential would increase if the property orders made by the court are contrary to the husband’s perception of a fair result.   
82.	I am satisfied all current orders which relate to the child should be in one document.  To that end I will restate the injunction restraining both parties from removing the child from Australia save pursuant to court order, being satisfied his best interests require the continuation of the order.  

APPLICATIONS FOR FINAL PROPERTY ORDERS
83.	The husband submitted that either no orders should be made or that orders should reflect the terms of the orders the parties sought to have made by consent in 2006.  At one point he did say that each should receive half of the assets but that proposal was premised on the court finding matrimonial liabilities of close to $400,000 and that the wife had already received some $285,000.  The wife sought that she receive 75% of the asset pool, as found;  she denied receipt of $285,000 and did not agree the alleged liabilities should be taken into account.

Acquisition of assets and liabilities
Assets wife brought to marriage
84.	I accept the wife’s evidence that at the commencement of the relationship she owned a one-bedroom apartment in China.  After the child was born, that property was sold for 80,000 Yuan as it was too small.  She deposed that “we (the husband and wife)” paid 130,000 Yuan for a second property, using the 80,000 Yuan obtained from the sale and borrowing 50,000 Yuan from her family to make up the difference.  She deposed that in 2002 when she moved to Australia, they sold the property, repaid her family the borrowed money and invested the remaining money (approximately 150,000 Yuan or AUD $25,000) in the Chinese money market in her sole name.  
85.	The evidence is that in 2004, prior to the parties’ separation, the Chinese money market crashed and the shares in the wife’s name lost most of their value.  I accept her evidence of the effort she has made to access those shares and original documentation verifying their value and the impossibility of doing anything further without personally attending the Chinese authorities in China.  I accept her evidence that the shares are now worth approximately 20,000 Yuan, corroborated by the published figures in the Chinese newspaper obtained for her by her sister.  
86.	When the wife came to Australia she brought with her approximately US $2,000, the maximum currency figure a Chinese national could remove, together with a small number of personal belongings, including some books, a stereo and a fridge.  The cash was spent on items for the home and the child.  

Assets husband brought to the marriage
87.	Shortly prior to the parties meeting, the husband purchased a property at S for $100,000;  the transfer of land is dated 19 December, 1997.  A copy of the mortgage statement obtained by the wife notes a mortgage of $25,690.41 at 21 November, 1998, that being the month the parties commenced cohabitation. 
88.	The parties never lived together with the child in the S property.  They lived in rented premises and the S property was leased.  The mortgage over it was paid off in the course of their marriage.  Another statement obtained by the wife shows a closing balance of .06 cents on 1 March, 2004.  
89.	The court can assume the husband owned household furniture and chattels as he had lived in Melbourne for at least seven years when cohabitation commenced.  It is probable he had an interest in a superannuation fund, to which I will refer later.  He also owned some shares, probably in Australia Kimberley Diamond Ltd.  
90.	The court cannot find what other cash or investments the husband had at this time.  According to a schedule of loans to which reference is made later, he had borrowed $70,800 from Chinese lenders before the parties met.  I will refer later to the lack of evidence of the alleged loans but the court could not exclude the potential for the husband to have had cash or investments at that time.  He gave no evidence of assets in his possession then (save the house, shares and superannuation in Australia).  The court can only act on the evidence.  

Asset Pool
S property
91.	The S property is valued at $350,000.  
Chinese money market
92.	In a letter to the wife’s solicitors dated 28 June, 2008, the husband said this about the investment in the Chinese money market :
The share is not on the list of stock exchange of China anymore.  We do not believe you are able to provide it, because it does not exist.  We need your explanation for why you deliberately provide the false information, and refuse to tell how the shares vanished from the Market.
93.	I accept the wife’s evidence of the value of the shares as evidenced by the newspaper stock figures.  I find that the wife’s shares in the Chinese money market have an approximate value of $3,300, placing weight on both the documents provided by her and on my credit findings.  
Real property in China
94.	There was reference in the husband’s evidence to a property in N in China and, at times, the husband seemed to assert the property was presently owned by the wife, or by them both.  The wife deposed that in the Notice Disputing a Fact, filed on 16 March, 2009 (“the Notice”), the husband admitted that he had an interest in that property but claimed it was jointly owned with her.  She deposed to having no current interest in a Chinese property and of knowing nothing of it.  She did not know if the husband was referring to the property previously owned by her or a separate property owned by him.  
95.	The Notice is annexed to the affidavit filed by the husband on 23 October, 2009.  In [37] of his affidavit filed 23 October, 2009 the husband deposed that the wife bought a property at N in China in 1999, in her name.  In a separate paragraph he deposed that the wife was “the cash controller” of the family and continued : 
she bought the properties under her own name without any consent from me.  It includes the property in [N], the investment in Chinese money market.  The wife tried to hide the fact all the time.  
96.	Notwithstanding the evidence in [37] of that affidavit that the property in N was bought “under the wife’s name”, in the Notice which the husband annexed to it he stated :
That the only real estate in [N] China is owned jointly with the applicant [8] 
and
That the parties only cohabitated in [N] [17]. 
97.	In her oral evidence the wife said that the property (N property) was the second property bought by her (with the proceeds of the property owned prior to cohabitation and a loan from her family) and subsequently sold.  
98.	The evidence does not establish that either the husband or the wife has an interest in that property or any other real property in China.  I do not take it into account.  I accept the wife’s evidence of the sale of a real property owned by her, the purchase of another and its sale.  
Husband’s shares
99.	The husband has shares in Indo Mining;  these represent, as a result of various corporate sales and mergers, the shares originally held in Australia Kimberley Diamond.  The wife’s evidence was of them having an approximate value of $650.  In his financial statement filed 23 October, 2009 the husband estimated their value at $600 but did not take issue with the figure of $650 advanced by the wife.  The husband’s evidence was that those shares were bought in 1993.  
Husband’s car
100.	The husband owns a Ford motor vehicle.  In her affidavit the wife estimated its value at $5,000.  In his financial statement filed 23 October, 2009 the husband estimated its value at $1,500 but in oral evidence attributed a value of $2,500 to it, an admission against interest.  It will be included at that figure. 
Household contents
101.	The wife sought to include the household contents of each of the parties in the asset pool, attributing a value of $3,000 to those in the husband’s possession and $1,000 to those in her possession.  In his financial statement the husband valued his household contents at $1,700;  the wife maintained the estimate of $1,000 in her financial statement filed 6 October, 2009.  
102.	The husband deposed in [37] of his affidavit filed 23 October, 2009 to household contents in the wife’s possession which “I bought after the separation $8,570.  $4,000 after the depreciation.”  He tied that statement to [49] and [50] of the wife’s affidavit in chief;  in those paragraphs she dealt with his withdrawal of sums in a CBA Dollarmites account.  I take him to mean that some $8,750 of the money spent on or for the child (which came from the Dollarmites account after separation) was used to purchase items which went into the wife’s home.  In this category could be included numerous items in the list contained in [5] of the Notice which is annexed to his affidavit, items which the wife agreed were provided by him, including a piano, bikes, TV, DVD and various electronic toys. 
103.	Having regard to the five years which have elapsed since separation and the lack of any supporting evidence, I do not find it appropriate to include household contents in the pool.  In referring to a lack of evidence I do not suggest that the wife or husband should have obtained valuations, the cost of which would have out-stripped the no doubt modest household assets of each.  Nor am I satisfied that the piano or other items provided for the child should be included as matrimonial assets.  The child loves his piano lessons, both parents contribute to the cost, and the piano should be in the home in which he spends most time, as should be his toys and items primarily used by him. 
Bank accounts
104.	In his financial statement filed 23 October, 2009 the husband deposed to having an estimated sum of $2,500 in an NAB account and $5,500 in a Westpac account.  No account numbers were provided.  In her affidavit filed 6 October, 2009 the wife included a term deposit in the husband’s name of $15,742 in the asset pool advanced by her.  In her case summary she listed four sums allegedly “held or dissipated by the husband”, as follows :
(a)	$15,742 previously held in a term deposit.
(b)	$20,000 previously held in another term deposit. 
(c)	$28,226.47 previously held in a Cash Investment Account.
(d)	$15,000 previously held in a Dollarmites account.
105.	In his opening, counsel for the wife said (a) should be deleted, as it formed part of (c).
106.	A deal of the evidence went to payments in and out of bank accounts and term deposits.  
Funds in (or notionally in) the wife’s hands
107.	The husband maintained the position that the court should make orders in terms set out in the application for consent orders, filed in September 2006.  He alleged that the wife kept $285,000 at separation and asserted that the settlement which would have been achieved (according to him) if the orders sought had been made, was premised on that fact.  In [3]of the Notice annexed to his affidavit he said :
That at the time of separation, the cash held by the applicant was more than $280,000.  Any reasonable person can tell the value of the property in [S] at that time was more than $280,000.  The respondent made concession towards this under-valuation in terms of the case was being wound up in peace. 
108.	In a letter to the wife’s solicitors dated 19 October, 2008, the husband referred to the figure of “285,000 disposed to the applicant while the consent order signed”. 
109.	The figure of $285,000 was also contained in another letter from him to the wife’s solicitors dated 13 April, 2008. 
110.	In the Notice annexed to his affidavit, the husband said (vis a vis the figure of $280,000 which appears in that document) that “that last sum of cash was paid out just before the consent order signed”.
111.	In another letter to the wife’s solicitor dated 28 June, 2008, the husband referred to documents which, according to him, had not been provided by the wife.  These included “the transaction dockets for that $285,000 AUD cash (the share purchase included) and the current newspaper with the information of the holding shares.”  An inference is that some of the $285,000 was expended on “the share purchase”.  The only shares identified to which that could relate are the shares in the Chinese money market.  
112.	The totality of his evidence supports a finding that the husband alleges that the parties agreed in or about September 2006 that each would keep what they had on the basis he owned the S property (and would keep it) and the wife had taken or been given at least $280,000 cash (which was hers to do with as she pleased) at (or at times prior to) separation.
113.	Cross-examined the husband was not able to explain how he reached the figure of $280,000 or $285,000, not able to point to a specific source of funds taken by the wife and not able to specify when funds were taken by her or put into her hands.  At times he said or implied that borrowings from his family in China were given to her in China and either hidden or used by her.  Taxed with his evidence that sums borrowed from family in China were immediately changed into Australian dollars, he seemed to say that they were changed back to Yuan when given to her, a nonsensical sequence.  At other times he said he was given Yuan by lenders when cash was given to him when he was in China and Australian dollars when funds were given to him in Australia.  
114.	Cross-examined about the $285,000, the husband was asked when he gave the wife the money.  He said that “I didn’t say I give her the $285,000” but that “I give her my earnings and then the money I get, OK, from outside borrowings, whatever.”  Asked about his evidence of giving her money borrowed in China, he said “I left some money in my own pocket and then I give them both (borrowings and income) over to the wife”.  Later he said he included in the figure money given to the family when the child was one month old and savings of the wife, possibly including the proceeds of the sale of the “first property” (that being a reference to the house she owned at the time they commenced cohabitation). 
115.	The wife denied taking or receiving or having access to $280,000 or any sums as alleged by the husband.  It was her evidence he controlled their finances, she knew nothing of the alleged loans and she had only $300 in a bank account when she left him.  
116.	The onus is on the husband to satisfy the court it is more probable than not that the parties had $285,000 or $280,000, and that the wife took or had access to these sums.  He falls far short of satisfying the onus.  The sum of $285,000 (or $280,000) will not be notionally added to the pool.  
Funds in or notionally in the husband’s hands
117.	While no evidence before the court corroborates the husband’s account of funds taken or kept by the wife, there is ample evidence of funds taken from bank accounts by him after separation.  
118.	When the parties were together, they opened a Dollarmites account with the Commonwealth Bank in the child’s name.  They made payments of $100 a week (sometimes multiples of that after a week or so delay).  The wife’s evidence was that the husband gave her the money to put into that account, but that she did not have access to it (that is, authority to withdraw money) or see statements for it.  Payments continued to be made from the husband’s income after the parties separated.  
119.	A copy of the account statement for the period 9 April, 2005 to 10 October, 2005 obtained by the wife notes an opening balance of $13,375.13.  $2,788.97 was credited to the account in that period, made up of deposits of $100 or multiples of that figure, plus interest credited.  
120.	Bank records obtained by the wife show that the sum of $15,000 was withdrawn from the account on 8 August, 2005, leaving a credit balance of $1,111.10.  Statements from the CBA obtained by the wife note the investment of $15,000 in a term deposit on 8 August, 2005 in the name of the child and an investment balance of $15,742 when the sum was reinvested on 8 April, 2006.  The overwhelming inference is that the sum was withdrawn by the husband on 8 August, 2005 and invested in a term deposit in the child’s name.  
121.	Further statements obtained by the wife show that the sum of $15,742.11 was withdrawn from the term deposit on 8 December, 2006.  Another $447.57 interest was credited to the (by then defunct) term deposit, being interest earned in the year ending 30 June, 2007 (that is, from 1 July, 2006 to 8 December, 2006).  Thus the principal and interest available totalled $16,189.68.
122.	The husband did not deny withdrawing $15,000 from the Dollarmites account and deposed that it had been expended on and for the child.  Paragraph 5 of the Notice annexed to his affidavit lists purchases for and expenditure on the child as follows :  
Piano						$4,000
Accessories (for the piano)		  	     500
Piano lessons ($25 by 104 weeks)	 	  2,600
Local school fees :				     700
     800
  1,000
  1,200
Swimming lessons 			     	     700
Tutoring (educational coaching) 		  3,000
Chinese weekend school			     300
New LCD					  1,000
New DVD					     160
New Camera Canon Auto			     700
Bikes 						     370
Bike						       80
Vacuum cleaner				     600
Heater						       80
PSP Gameboy				     300
WII	and accessories			     500
Avon	 					       80
Washing machine 				     200
					         $18,870
123.	In addition, the husband referred to expenses for which he did not have receipts, such as clothing, books, “wife’s parent babysitting cost”, entertainment and medical expenditure.  I cannot say what period that additional expenditure relates to.  
124.	In the Notice the husband confirmed he retained the $15,000 and spent it on the items on the list. 
125.	Further documents obtained by the wife show that on 8 December, 2006 (the day the term deposit was closed) the sum of $16,189.68 was credited to a CBA Cash Investment account in the name of the child (account number …..2846).  The item is described as “term deposit w/d”.  
126.	On 11 December, 2006 the husband withdrew $28,226 from Cash Investment account number …..2846 and the account was closed.  I am satisfied the whole of the $15,000 originally drawn from the Dollarmites account, and the interest which accrued on that sum after it was placed on term deposit, ended up in CBA account …..2846.  Thus, to include as sums in the husband’s hands both $28,226 and the original $15,000 in the Dollarmites account (or $16,189, if the interest is included) would be to count the $15,000 (or $16,189) twice.  
127.	Further documents obtained by the wife from CBA record a separate investment balance of $20,000 in a term deposit in the name of the child at 1 July, 2006, which accrued interest of $718.56 to 30 June, 2007.  The whole of that sum was withdrawn on 3 January, 2007.  
128.	Asked about withdrawing the $20,000 and interest from the term deposit in January 2007, the husband said he could not remember but if the papers said that, it was true.  He said he did not declare it in his financial statement “because I spent it”.  
129.	Save for the Dollarmites account, the wife knew nothing of the other accounts to which I have referred.  
130.	Save for the $15,000 in the Dollarmites account the husband was unable to give any cogent explanation of the origins of the sums which went into these accounts, the sums he took from them, the sources into which sums he withdrew went and, save for the schedule of payments made for or on behalf of the child, their disposition.  
131.	In final submissions the husband asserted that the signature pursuant to which the sum of $20,718 was withdrawn on 3 January, 2007 was not his (his evidence was that the “signing not mine”) but he recalled withdrawing two lots of money from the bank.  It is probable one was the figure of $28,226, which included the $16,189.68 accrued from the $15,000 taken from the Dollarmites account, and the other his withdrawal of $20,718.  
132.	The wife sought that the sums of $15,000, $28,226 and $20,718 be notionally added back to the pool, along with the $1,100 remaining in the Dollarmites account.  I am satisfied that to include the $15,000 as a separate figure would be to count it twice.  Further, I am satisfied that the $15,000 which the husband deposed he spent on or for the child should not be notionally added back to the pool.  Some part of that sum accrued in the Dollarmites account prior to separation, some in the seventeen months between separation and the withdrawal of the $15,000;  the interest from the term deposits accrued after separation.  The source of the $16,189 was the husband’s income.  I find it more appropriate to take into account, when assessing the contributions made by the husband to and for the child, that the funds he used to purchase items and services for the child included funds which accrued during the marriage, to which the wife could be said to have made a contribution.  
133.	I am aware the husband deposed to spending $18,870, rather than the $16,189 which came from the term deposit in the child’s name and take into account when assessing his contributions that he has provided items for the child and made contributions to educational and extra curricular activities above the child support paid.  
134.	I am satisfied that the sum of $20,718 should be notionally added back to the pool, together with $12,037, representing the $28,226 withdrawn from the term deposit on 11 December, 2006, minus the $16,189 withdrawn on 8 December, 2006. 
135.	As found, the husband deposed in his statement of financial circumstances, in total, to $8,000 held in two bank accounts.  The court cannot identify a source of those funds;  they could be remnants of the $28,226 or $20,718 or could have accrued in the five years since separation.  They will not be separately included in the pool.  
Y Pty. Ltd.
136.	Searches by the wife’s solicitors revealed that the husband was an officer of a company called Y Pty. Ltd., from 12 July, 2000 until 6 January, 2002.  The husband’s evidence about the circumstances in which he came to occupy that position was risible.  According to him, he agreed to let someone use his name to register a company;  he did not know the identity or anything about the woman who asked him to sign the necessary document or documents;  he met her when he was looking for accommodation but could not remember where;  he asked if he would have “a liability” and she said “no”;  she told him you needed a “certain person” to register a company;  he did not know why an Armadale address was given for him in the document;  he gave her his date of birth;  he never saw her again.  
137.	It is reasonable for the wife to be sceptical about the husband’s explanation as he frequently painted himself as a person with business interests in China.  Annexed to the affidavit of the wife filed on 6 October, 2009 is a copy of a letter the husband sent to the Melbourne registry of the court, dated 29 September, 2007 seeking to adjourn a conciliation conference on the basis that :
due to the international trade fair held in Guang Zhoo between 15/1- to 31/10, the respondent has to travel to China for business purpose, and will be back on 27/11.  
138.	Cross-examined about his evidence of business trips to China, the husband deposed that he went there “meaning to do some business” and “looking for business opportunities”.  He agreed that he travelled to China in 2002, 2007 and 2008 and spent money trying to establish “some business” but said no business was established.  He denied he was involved in any business, in Australia or China.
139.	The evidence does not establish that the husband presently has an interest or involvement with any company or business, save for Indo Mining in which he holds shares.  Nor does it establish he is presently engaged in business activities. 
	Superannuation
140.	The wife has superannuation with Hesta with an approximate value of $1,600, to which she referred in her financial statement.  It is probable that sum accrued after separation. 
141.	The husband included an estimated figure of $13,000 superannuation in his financial statement, with no details of the superannuation plan.  It is clear from the transcript of an earlier hearing that he maintained the position that all he had to do was tell the wife the name of his plan and it was up to her to find out the extent and nature of his interest.  Her solicitors undertook the necessary procedures and tendered a letter to the wife from Australian Super, dated 12 March, 2009.  The letter notes that the husband joined the fund on 9 April, 1992.  The wife had sought information about the account as at 21 March, 2004 and was advised no such information was available.  On 1 July, 2008 the account had a value of $15,199.60.  By 12 March, 2009 the value was $12,665.52.  The whole of that sum was preserved and there was no tax-free component. 
142.	In a letter sent by the husband to the wife’s solicitor on 19 October, 2008 he said that he had only one superannuation account and contributions ceased in 1998.  There is no evidence to the contrary.  The fund has recently lost value;  there is no evidence of its value when the parties commenced cohabitation or of the increase (through investment rather than contributions) since then.  
143.	I do not find it appropriate to include either party’s superannuation in the asset pool. Neither paid into a superannuation fund during the period of cohabitation.  The husband’s contributions were all made prior to cohabitation.  There is no evidence his interest increased between cohabitation and separation.  It may have fluctuated, depending on market conditions.  At best the wife could claim some contribution to its increase through investment or inflation (if it increased) while they were together.  His interest will be considered as a financial resource available to him in the future.  
144.	For the wife’s part, her interest accrued after separation and the husband has made no contribution to it.  It is a very small financial resource.  

Liabilities
	Alleged liability to creditors in China
145.	The husband deposed to owing principal and interest of $392,510 to creditors in China;  the principal owed was $238,200.  According to him four of those loans were made prior to the parties commencing cohabitation, as follows :
93		[X Wong] the loan carried by the 
			delegation led [ZG] H0010	20,000

12/96		H0011	[X Wong] while APEC Forum	20,000

15/8/98		H0012		Loan from [X Wong]  	  9,500

15/8/98		H0013		Loan from [DW]		21,300

146.	The husband’s evidence was that nine further sums were borrowed in the period between the commencement of cohabitation and separation and a last loan was made in January 2005, as follows :
15/3/99		H0014		Loan from [X Wong]		  6,700
15/3/99		H0015		Loan from [RZ]		36,600
11/6/99		H0016		Loan from [X Wong]		  3,300
6/12/99		H0017		Loan from [C Wong]		58,300
24/2/2001	H0018		Loan from [X Wong]		  2,500
24/2/2001	H0019		Loan from [C Wong]		20,000
1/2002		H0020		Loan from [X Wong]		10,000
1/2003		H0021		Loan from [DW]	 	10,000
1/2004		H0022		Loan from [RZ]		10,000
1/2005		H0023		Loan from [C Wong]	  	10,000
147.	According to the husband, X Wong is his father, C Wong is his brother and DW and RZ are cousins.  The references commencing with H were attributed by the husband who could not explain why he did not start with H0001.
148.	The husband presented himself as an orderly man, who placed an emphasis on order and logical thinking.  Explaining why the child should spend time with him, he spoke of the child’s messiness (in relation to his homework and his home), and deficits in his logical thinking and attention to detail, and continued :
. . . And that’s why, I think, he need to stay with me more and have some change – have some change.  You know, I’m a person quite logical.  For example, I usually put a document in some certain place.  When I need it, I pick up straight away.  So, I know where it is.  I know where it is.  So – but [the child] has this weakness. So, that’s why I suppose I should spend more time with [the child].
149.	Whatever else could be said about the husband’s various accounts of the transactions which, he deposed, gave rise to a present liability of $392,510, they could not be characterised as orderly or logical.  According to him, on fourteen occasions between 1993 and 2005 he received significant loans from his father, brother and two cousins, loans which, in every case, carried interest at 5%.  Initially he said that every loan was evidenced in writing;  that is, a document was prepared which noted the lender, the amount, the exchange rate and the interest rate.  That document was kept by the lender and he (the husband) kept a document recording the same information, which he referred to as a “note”.  
150.	The alleged liability was raised by the husband early in the proceedings.  He was advised of his obligation to make full financial disclosure by the wife’s solicitors on numerous occasions, by Young J. on 17 September, 2008 and by me on 7 April, 2009.  Before me on 7 April, 2009 he was told that if he sought to rely on the alleged liability to Chinese creditors it was his obligation to produce evidence of that to the court.  Towards the end of an exchange when the court advised that he needed to produce admissible evidence, in affidavits, and that the creditors would need to be available for cross-examination, the following exchange occurred :
HER HONOUR:	You’re not having imposed on you any additional obligations to that which every other litigant has.  You say that there are debts that mean that you don’t have as much money as the court might otherwise think.  The wife doesn’t agree with that.  You have to satisfy the court that his money is owed, so you will need to produce evidence from the people who allegedly lent you the money saying when they lent it, on what terms, how much it was, when is it to be repaid;  all those sorts of matters.  if those affidavits are sworn or affirmed by people for whom English is not their first language, you’ll have to get them translated.  
INTERPRETER:	Your Honour, he feels that it is not his responsibility and obligation to provide the evidence to prove that he is owing money;  it should be the other party’s responsibility.  
HER HONOUR:	You can take that view, Mr [Wong].  I’m just telling you, as a matter of law, that if you want me to take into account a debt which you say you owe you have to prove it.  That’s Australian law.  
MR [WONG]:	Okay.  One thing I don’t understand is, you know, if somebody is saying to the court – they have to prove to the court, convince the court that I’m guilty or another party guilty, they can’t actually send the people to the court.  They say, “Please, you go to the court and prove you are innocent.”  So I don’t need to prove my innocence.
HER HONOUR:	It’s nothing about guilt and it’s nothing about innocence.  You want to satisfy the court that there are debts, which means the asset pool is not as it would otherwise seem.  
MR [WONG]:	Okay.
HER HONOUR:	You carry the onus of proving that as a matter of law.  If you don’t do anything, then the court will make the decisions.  There’s no point in me having a philosophical argument with you because that’s what the law is.  What I’m trying to do is give you a framework of the things that you will need to do if you wish to make the case that I think you want to make. Last analysis. It’s a matter for you, Mr [Wong].  If you don’t produce that evidence you shouldn’t expect that the court will find you owe the money.  
MR [WONG]:	Okay.
151.	The husband was advised on a number of occasions that he could issue subpoena if he thought that necessary to put evidence (documentary or oral evidence) before a court.  He was told that affidavits in Chinese could be translated into English.  He was told it was his obligation, not the obligation of the court or of the wife, to adduce evidence in support of the case he sought to make. 
152.	On 18 August, 2009 the husband filed an affidavit sworn by him.  There are three annexures to the document.  The first is a letter dated 3 August, 2009, addressed to “The magistrate of Family Court of Melbourne” and signed by the husband.  It is in these terms :

Dear Sir/Madam.
Re: (p)mlc3853/2007
To follow up the instruction related to the loan documents made by Brown J the Magistrate of Family Court, the respondent has contacted the creditors.  Due to the conflict of interest, the creditors refused the respondent’s requests providing the written evidences.  But they are ready and delightful to accept the subpoenas issued by the Court, and attend the hearing in Melbourne.
Attached is one of the refusals, clearly expressed their stance.
Regards.
153.	The second document is “one of the refusals”, as described by the husband in that letter.  It is undated, handwritten in reasonably fluent English and has attached to it an envelope addressed to the husband, post marked 2009.07.08 in China.  The husband deposed that the signature on the letter was that of his father but that he did not know who wrote the letter, which is not in his father’s hand.  The letter is as follows :
Dear my son,
Your request has been received.  I have considered your request sending you the documents related to the loans.  Unfortunately, I can not do it.  I personally do not believe this is a trick aiming to avoid the repayments.  It is told other lenders also received similar requests.  If the court really needs the documents they should have contacted us long time ago.  So far, we have received nothing from the Family Court of Australia, no letter, no subpoenas.  We still remember Skate the business to come from Spain received many subpoenas from the Court of Australia.  We also remember you did give the court our contact details.  The further details or documents should not be your concern.  Obviously you have done what you can.  I understand it is not easy to kick off a new life in new a country.  But the fact is that you have been there for nearly twenty years.  You got to remember all your borrowings are people’s life savings.  You probably still remember the education our family giving to you “if you love money, you got to work for it.  Steeling, robbery, deception are crimes.  These sorts of conducts are not tolerated, or accepted by this world”.
My son, I feel sorry that I can not help you when you need.  I wish I can take all these troubles with me instead of you.  But you are already a big man, a father;  you know your responsibilities and should have enough bravery and courage to face all sorts of challenges.  I remember you used to be champions on many occasions.  I believe you still are.
Yours truly,
Father
154.	Two things are particularly noteworthy.  The first is that no where in the letter does the writer, or the person for whom it was written, give one detail about the loan or loans made by him.  The second is that the objections raised are identical to those raised by the husband in earlier hearings:  it is the court who should subpoena the documents, the obligation is not his.  Putting aside the hearsay nature of the evidence, the letter addresses none of the essential facts in issue save for a reference to “the loans”.  
155.	The husband produced not one document to corroborate his account of receiving significant sums in China and Australia.  That he has operated bank accounts, and moved funds between accounts to maximise interest, is clear from the evidence relating to the Dollarmite account and the cash management account, and his own evidence of current accounts.  Late in his evidence he was cross-examined about recent banking transactions, including a deposit on 7 April, 2009 of $5,000, into a Bank of Melbourne account in his name (account no. …4035).  Asked where that sum came from, he said “my pocket”.  Asked “why”, he responded “why I cannot?”  Asked why he put $5,000 into the bank then, he replied :
I don’t know why.  I can’t tell.  Just like you ask me “why today do you have lunch or the beer?”  I can’t tell you that, Mr. Robinson.
156.	The only document the husband produced which refers to the loans is a schedule prepared using Excel software which lists fourteen loans, identified by numbers H0011 to H0023.  According to the husband, the source of the entries was, in each case, the note he brought home from China, or prepared in Australia when a loan was received here, evidencing the terms of the loan.  His evidence was that he destroyed each such note after entering the details on the computer.  He agreed that the entries were not made contemporaneously or even close to the time of each loan;  he could not even say when he commenced to keep the Excel spreadsheet or how long after a loan was made that he entered details relating to it.  He said that on occasions loans were confirmed some time after they were made and that confirmation was recorded in another “note”;  he spoke of “reconfirming” or “reaffirming” various loans.  Those notes were also destroyed.  
157.	At times the husband said that he would need to check his file and made reference to records when asked a specific question;  at other times he said he had no such records. 
158.	In a letter to the wife’s solicitors dated 19 October, 2008, responding to yet another request for documents evidencing the alleged loans, the husband advised :
The lenders have kept the documents for those loans.  Some loans were made by hand shaking, only the records were kept.  This is Chinese tradition.  Recently the respondent has been urged to explain the reason of these long delayed repayments.  
159.	I cannot say what “records” the husband referred to. 
160.	The asserted destruction of documents evidencing the alleged loans can be set beside the husband’s evidence of apparent retention of receipts which enabled him, long after the events, to specify his exact expenditure on items for the child such as bikes, electrical goods and fees.  In the Notice he noted he did not include “the expense without receipt”, such as clothing, books and entertainment.  
161.	Asked about evidence from the creditors, the husband said that “they are waiting for the subpoena to come through the court”.  He agreed he had not sent any subpoenas;  he said that he had already told the wife’s counsel (about the loans) and if counsel thought his evidence were not “right”, he should send subpoenas “through the courts”.  At that point the husband was reminded of the clear advice given to him by the court on 7 April, 2009 that the court would not send any subpoena of its own volition and that it was his obligation to either subpoena documents or put other evidence before the court.  While not disputing that advice, he said it was like asking him to go to court to prove his innocence and “I don’t have to go to the court to prove the innocence.  What a joke.”
162.	Giving evidence without access to his passport, the husband spoke of receiving numerous loans in China.  When his passport was produced, he agreed that he was not in China, and thus in a position to receive funds, on a number of dates contained in the schedule.  At times he was in transit when a loan was allegedly made.  Taxed with this he said the dates of a loan, recorded in the spreadsheet, did not have to be the date on which he received the funds. 
163.	Asked about sums he received in China, the husband could not say what was done with a single dollar.  He said he spent some of the money, he gave some to the wife and some he brought to Australia.  He could not say where he changed sums from Yuan to Australian dollars save that “sometimes a bank (unnamed and with no corroborative paper work) and sometimes with friends”.  He agreed he had never declared the importation of more than AUD $10,000 and said he would have done that if a sum in excess of AUD $10,000 was brought back from China.  While broadly agreeing that Chinese authorities allow only US $2,000 to be taken by a Chinese citizen from the country, he gave evidence (which was confused and inconsistent) of getting around that difficulty.  
164.	When entries in the husband’s passport proved he could not have been in China to receive loans from lenders who, he acknowledged, have never been to Australia, he spoke of three couriers who brought money into Australia;  people never mentioned before. 
165.	The husband was asked what he did with the money delivered to him by “someone” in Australia in January  2003, January 2004 and January 2005.  According to him he met a different person each time in the city;  once in the city square, once in McDonald’s in Swanston Street and once at some “café” somewhere.  He remembered the courier’s involvement only after cross-examination proved he could not have received these funds in China, as previously deposed.  
166.	Asked what he did with these funds (he alleged on each occasion he received $10,000) he said that he put the money in his pocket, that some went into retailers’ pockets and some into public transport pockets.  He could not recall if he put anything into a bank account and said “I spent it, I pay debts.  I can’t specify.”  
167.	At that point the husband was asked whether he gambled and he agreed he did, giving evidence of attending casinos in Melbourne, Sydney, Canberra, Adelaide and Cairns.  He said before the casino was built in Melbourne, it was simple to spend $60 on a bus and travel to Adelaide, to gamble there.  He said that counsel did not know how he gambled or if he won or lost and he would leave that to the taxation office and the court.  Later he intimated that he only ever won and referred to his “gambling income”.
168.	Early in his evidence the husband spoke of using some loans, or part of some loans, to pay off the mortgage on the S property.  He agreed he had produced no record of any such payments, saying “I change it, I spend it, that’s it”.  Asked to produce proof of mortgage repayments he produced one bank statement, taken from documents produced pursuant to a subpoena served on the bank by the wife.  It was the document the wife relied upon to prove the date on which the mortgage was effectively discharged.  Asked where the documents were that would evidence the payments, the husband said :
… all of them I pay into my mortgage.  All of them give to my wife once, could be twice, could be five times.  Could be spent.  I can’t specify which one and what’s the ratio I used to pay the mortgage off to give my ex or to spend because this was such a long time.  The money could be used but it hasn’t been paid back. 
169.	The husband went on to say that it was not reasonable to expect him to produce proof of payments into the mortgage account.  When it was put to the husband by counsel for the wife that he could not show one bank record relevant to the loan, the husband agreed, saying “I don’t have to”.
170.	Asked about two loans allegedly made on 15 August, 1998 ($9,500 from his father and $21,300 from DW) the husband said he probably just spent it and “I didn’t even give to her”. 
171.	The only documents which evidence the potential importation of any funds into Australia by the husband are his passports, documents produced by him on the second day of the trial at the request of counsel for the wife.  A stamp from the Shanghai branch of the Bank of China records permission to take US $2,000 out of China on 12 February, 2001.  The Excel spreadsheet records two loans made on 24 February, 2001, one for $2,500 from X Wong and one for $20,000 from C Wong.  
172.	Two other stamps from the Bank of China, dated 24 February, 1999 and 23 November, 1999 record permission to take the same sum of US $2,000 out of China.  The schedule includes no loans in February 1999 but two loans ($6,700 and $36,000) made on 15 March, 1999.  No loan is recorded in November 1999 but a loan of $58,300 is recorded as being made on 6 December, 1999.  
173.	The husband deposed that the stamps in the passports meant that he could use Chinese Yuan to buy US $2,000 but “that doesn’t mean … that is the only money the traveller is allowed to take out of China”.  Cross-examined about entries in the passport indicative of permission to take a total of US $6,000 from China, the husband said that the wife’s counsel needed to provide to the court the Chinese legislation or relevant rules. 
174.	The husband’s evidence was of receiving $20,000 from his father in Australia in December 1996 when his father was attending the APEC forum.  When it was put to him that the APEC forum in that year was in Manilla, he said maybe that was right but that his father came to Australia and stayed in the Crown Plaza Hotel.  
175.	It is possible the husband brought up to US $6,000 into Australia from China, having obtained the necessary permission.  It is possible he was given money by relatives in China prior to or after the parties’ meeting and even possible that he was given funds in Melbourne, however improbable is his late account of the three couriers.  However, the onus on the husband is not to satisfy the court that something is possible but that it is more probable than not  
176.	The husband purchased the S property in December 1997 and the initial equity (which on the evidence was probably around $75,000) must have come from somewhere.  The husband had been in Australia for about six years.  There was no evidence before the court of assets brought when he emigrated.  He alleged loans totalling $40,000 were made prior to the house purchase, $20,000 years earlier (1993) and $20,000 in December 1996. 
177.	Between the commencement of cohabitation and March 2004 the mortgage was paid off.  The only mortgage statement which shows deposits into the account is for the period 20 November, 1998 to 23 December, 1998.  In that one month interest amounted to $131.49 and deposits totalled $774.29.  If that were the usual pattern, it is easy to see that the mortgage would be paid off swiftly.  
178.	The court cannot conjure evidence from thin air.  It cannot make findings about the source of the initial equity in the property or mortgage repayments.  It would be tenuous to infer loans were the source of the initial equity (or part of it) or that payments (such as $278.39 and $495.90 made in November 1998) came from such a source.  
179.	According to the husband, each of the fourteen loans made between an unspecified date in 1993 and January 2005 was advanced at an interest rate of 5%, each was deemed to be made in Australian dollars and each was calculated at an exchange rate of “6 RMB to one AUD”.  
180.	The court can have no confidence whatsoever in the husband’s account of these loans.  The myriad inconsistencies, the changes to his evidence when an earlier story could not be sustained and the lack of documentation (of either the loans or the disposition of funds) undermine the mere assertions he makes.  The onus is on him to satisfy the court that it is more probable than not that these loans were made, the terms of the loan and the sums due.  He does not get close to fulfilling that onus. 
181.	The wife has borrowed some $34,350 to pay legal expenses to date and deposed to another $10,000 of unbilled fees.  These are her liability alone.  

Asset pool as found
182.	The found asset pool is thus :
S property (H)				$350,000
Chinese money market shares (W)	   	      3,300
Indo Mining shares (H)			         650
Car (H)					      2,500
CBA Dollarmites account			      1,111
Cash taken by husband			    20,718
     12,037
							$390,316
Less liabilities					nil
Nett assets					$390,316

Contributions
183.	I turn to the second steps in the exercise under s.79, namely an assessment of the parties’ contributions within the context of s.79(4)(a) to (c).  These provisions are as follows :

79(4)	In considering what order (if any) should be made under this section in proceedings with respect to any property of the parties to a marriage or either of them, the court shall take into account -
(a)	the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them;
(b)	the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of the, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them;
(c)	the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent;
184.	The husband was in paid work for the whole of the parties’ time together, save for the periods when he travelled to China prior to 2002.  I accept the wife’s evidence that he was responsible for financial matters and in Australia gave her $270 per week to pay for bills, food and clothing.  
185.	The wife was in paid work in China and at times a nanny assisted in the care of the child.  In Australia she was the primary homemaker and the parent responsible for the child.  She undertook occasional babysitting and cleaning and studied English at TAFE.  Her modest income went into the family.  She agreed that the husband contributed to her maintenance and that of the child when they were in China prior to coming to Australia.  
186.	The submission of the wife was that contributions of all types should be assessed as equal.  Counsel submitted that the equity in the S property brought to the marriage by the husband was about $75,000, which he calculated as 18.3% of the asset pool advanced by him at that point, which was $410,000.  He set against that the wife’s contributions brought to the marriage of $20,000 (made up of $12,000 equity in the property in China and the AUD $8,000 lent by her family, notwithstanding that debt was repaid), which he calculated at 5% of the asset pool advanced.  He then added the two percentages together, subtracted them from 100% and assumed that each of the parties made an equal contribution to the remaining 77%.  On this analysis, the contribution of the wife (in raw dollar terms) was about 43% and the husband’s about 57%.  He submitted that taking into account the passage of time, the contribution the wife made as a parent and homemaker, and the US $2,000 she brought to Australia when she emigrated, the percentage contributions should be assessed as equal.  
187.	This was a creative way to consider the assessment of contributions but I cannot find it to be sound.  The assessment of contributions cannot be a purely mathematical exercise, with an occasional tweak to acknowledge non-financial contributions.  Further, the loan by the mother’s family which enabled the purchase of the property after the child’s birth was repaid to them when she emigrated in 2002.  
188.	The reality is that the major asset the wife brought to the marriage has diminished in value, representing $3,300 in an asset pool of $390,316.  The asset the husband brought to the marriage has increased, and represents almost 90% of the asset pool.  It would be as arbitrary to say these figures should be used as a basis for contributions of all kind as it is to undertake the percentage exercise advanced by counsel.  
189.	The contribution the wife brought to the marriage was equivalent to AUS $25,000 when it was placed in the Chinese money market in 2002.  The husband brought a significant equity in the S property to the marriage.  The mortgage was paid off by 2004 and as the income the wife contributed to the family at that time was minimal, contributions must have come from income and/or capital contributed by the husband.  
190.	The wife contributed to her own maintenance and that of the child when they were in China and agreed that the husband provided financial support to them, too. 
191.	Until the child was almost three, the husband was only with him for one month a year and it was the wife who was otherwise solely responsible for the child.  After the wife and the child moved to Australia, she continued to be primarily responsible for the child’s care;  while the husband may have played a role, the child’s presentation to Mr. K on their first meeting was not indicative of a child for whom his father loomed large.  That can also be attributed to the fact that in the period between separation and the commencement of this litigation, the father did not spend much time with the child and it was only when interim orders were made in April 2009 that any overnight time was introduced.  
192.	The father has been paying very modest child support for the child.  He has provided items and contributed to services as set out in [122] of this judgment and gave evidence of other payments.  The court needs to bear in mind that a substantial part of the funds in the Dollarmites account accrued prior to the parties’ separation and, in that sense, the wife made a contribution to the items and services for which the husband claims credit. 
193.	While the husband has bought some big ticket items (such as the piano and accessories, television and DVD) and made some contributions to educational and recreational activities, and school fees, it is the wife who has been primarily financially responsible for the child since separation. 
194.	The husband tended to talk mainly in terms of financial contributions and financial liabilities. However, non-financial contributions must not be discounted.  Weight must be given to the wife for her contribution as a home-maker, as well as her contribution as a parent. 
195.	This was a short marriage.  Balancing all contributions from the date of cohabitation to the present day I am satisfied they should be assessed as being made 32.5% by the wife and 67.7% by the husband.  

Section 79(4)(d) to (g)
I turn to the matters referred to in s.79(4)(d) to (g).
	(d)	the effect of any proposed order upon the earning capacity of either party to the marriage;
196.	It is unlikely any order the court makes will impact on the parties’ earning capacity.  
	(e)	the matters referred to in sub-section 75(2) so far as they are relevant;
I will consider each of the relevant paragraphs :
		(a)	the age and state of health of each of the parties;
(b)	the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
197.	As the parties’ health is relevant to their respective earning capacity I will consider these factors together.
198.	The wife is 44 and lives in Ministry of Housing accommodation.  After separation she worked as a casual childcare assistant but on two occasions she injured her back and spent periods receiving Workcover payments.  When she swore her affidavit filed 6 October, 2009 she was receiving workers’ compensation payments of approximately $250 per week and Centrelink payments in about the same sum.  
199.	The wife deposed during the trial to working on a casual, at-call basis only, as a Chinese language teacher, earning $25 (gross) an hour for a maximum period of three hours on Saturday. She has returned to work at a crèche for one and a half hours a day, three days a week.  If her back improves, she hopes to return to a five day working week.  The crèche is only open for three hours a day, so at most she could work fifteen hours at $16.60 per hour (gross).
200.	The evidence of Dr. C, who has treated the wife since 3 June, 2007, was of devising a “return to work plan” with the wife in the month before trial.  She was certified fit to be engaged in some modified duties from 6 October, 2009, with no heavy lifting of more than 5 kg., no repetitive movements and allowance for rest when necessary.  It was pursuant to that plan that the wife resumed part-time work at the crèche.  
201.	If the wife’s back continues to improve, and she is able to work three hours a day on five days a week, her income will still be very low from that source.  The only additional income available to her presently is that obtained from the Chinese language school, which is not guaranteed.  
202.	The husband is 51.  Until July 2009 he worked as a taxi driver, declaring a taxable income of less than $20,000 per annum.  His evidence is of earning $250 per week now as a truck driver and that he changed occupations to “reduce his blood sugars”, a course he prefers to taking the medication prescribed for him by his general practitioner.  He is assessed to pay (and does pay) $30 per week child support for the child.
203.	At the hearing on 7 April, 2009 the husband raised the issue of his capacity to work and was told he needed to obtain a report and file an affidavit from his medical practitioner, and ensure the medical practitioner attended, if required for cross-examination.  
204.	Despite this advice the husband filed no affidavit by a medical practitioner.  In the witness box he sought to rely on a four line hand-written note by Dr. BR of the S Family Clinic, dated 30 April, 2009.  Headed “To Whom it may Concern”, it states :
This is to certify that Mr. [Wong]  D.O.B. […]/58 has Diabetes Mellitus and is on oral treatment for this.  
Counsel for the wife did not object to the document being tendered.  
205.	It is common knowledge that diabetes mellitus, routinely called diabetes, is a group of metabolic diseases characterised by high blood sugar levels which result from defects in insulin secretion or action, or both.  Reference is often made to type 1 and type 2 diabetes or insulin dependant and non-insulin dependant diabetes.  A person suffering type 1 diabetes must rely on insulin medication for survival;  for type 2 diabetes treatment can involve modification of diet, exercise and weight as well as medication.  These matters are within the realm of common knowledge and the language forms part of the vernacular.  
206.	The husband made it clear he is not insulin dependant.  He has been prescribed medication but elects not to use it, preferring to make changes to his life;  he spoke of changes in his diet and he gave up the sedentary life of a taxi driver for the more active one of a truck driver.  
207.	In the absence of expert evidence from the husband’s treating practitioner, the court can say little about the husband’s prognosis or how the diagnosis is likely to impact on him in the future.  It may limit his working capacity;  depending on how it is managed, it could reduce his life expectancy.  
208.	Each of the parties allege that his or her capacity for physical work is limited.  The wife has adduced medical evidence to support her claim.  That of the husband does no more than state a diagnosis.  Nevertheless, neither party has a significant earning capacity.
209.	I accept the wife was frank about her income.  I cannot make the same assessment of the husband, particularly having regard to his evidence about gambling and his refusal to disclose details and documents relevant to his work as a taxi driver and his income, despite numerous requests by the wife’s solicitors. 
(c)	whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
210.	The parenting orders made will provide for the wife to retain significant personal and financial responsibility for the child, who is not yet ten. 
(d)	commitments of each of the parties that are necessary to enable the party to support :
(i)	himself or herself;  and
(ii)	a child or another person that the party has a duty to maintain;
211.	Each of the parties has the usual commitments to support him or herself and the child.
(e)	the responsibilities of either party to support any other person;
212.	There is no evidence either party has any responsibility to support another, other than the child. 
(f)	subject to subsection (3) the eligibility of either party for a pension, allowance or benefit under-
	(i)	any law of the Commonwealth, of a State or Territory or of another country;  or
	(ii)	any superannuation fund or scheme, whether the fund or 	scheme was established, or operates, within or outside Australia;
	and the rate of any such pension, allowance or benefit being paid to either party;
213.	I have referred to the Centrelink benefits received by the wife and to the very modest superannuation interests of the parties. 
		(g)	where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
214.	Since separation the wife has lived in Ministry of Housing accommodation and there is little doubt that her standard of living is worse than that of the husband, who moved to the S property after separation.  That is a three bedroom home of some 14.85 squares with a covered pergola, entertaining area and large metal garage. The valuation report suggests it may not be well maintained but it offers the husband (and the child when he is there) comfortable accommodation.  
215.	It is not unusual for the standard of living of parties to drop after separation.  What is important is that such a drop not be borne disproportionately by one of the parties. 
		(h)	the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
216.	There is no evidence that either party intends to undertake any course of education or training.  While the husband spoke of investigating business opportunities, his evidence is of doing that for many years, in vain.  
		(j)	the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
217.	As the wife was available to care for the child, the husband was able to continue work as a taxi driver during the marriage.  However, that work is not now available to him and this sub-paragraph has no relevance.  
		(k)	the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
218.	This was a short marriage.  The period between cohabitation and separation was five years and four months;  the parties lived together in Australia for only eighteen months of that time, and the husband spent little time with the wife and the child in China prior to their emigration.  The move to Australia may have affected the wife’s earning capacity, as she has had to learn a new language and her language skills are not yet as good as she would like.  
219.	The court can find the husband’s English skills exceed those of the wife.  He was able to work as a taxi driver for years, a job which requires reasonable English comprehension and speaking ability.  The wife’s English is not nearly as good and may impact on her employment capacity.  It was not put that she would like to return to China, a course unlikely to commend itself to the husband who might reasonably object to the child leaving Australia.  
		(l)	the need to protect a party who wishes to continue that party’s role as a parent;
220.	As Mr. K found, the child’s presentation is a testament to his primary attachment to his mother and the care and environment she has provided for him.  He is demonstrating some independence (for example, she deposed that on some days he insists on coming home from school alone) but he will need parental care and guidance for some years to come.  The bulk of the day to day care will come from his mother and it is important she is available to offer it.  While the child’s relationship with his father is also important, his father is either not able or refuses to build his work commitments around time with his son. 
		(m)	if either party is cohabiting with another person - the financial circumstances relating to the cohabitation;
221.	There is no evidence either party is cohabitating with another person. 
		(na)	any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, or is to provide, or might be liable to provide in the future, for a child of the marriage;  and
222.	I have previously referred to the child support paid.  No assessment was before the court.  If the husband’s income is as low as he alleges, one can imagine the assessment reducing.  
		(o)	any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account;  and
223.	I take into account the submissions of the husband which relate to the application for orders to be made by consent in 2006.  It is clear from the transcript of the hearing before Young J. on 17 September, 2008 that Young J. endeavoured to explain the necessity for full financial disclosure and that, as orders were not made in 2006, any alleged agreement made at that time would not be binding.  Before me the husband continued to assert that orders should be made in those terms;  each of the parties should effectively keep what he or she has or had.  
224.	There was little evidence before the court of the circumstances which gave rise to the filing of the application seeking that orders be made by consent.  The wife’s evidence was that the documents were not translated for her and she did not have legal advice.  The husband deposed that the wife agreed to the orders because she knew that each of them had assets of about the same value, his represented by the then value of the S property and hers by the $285,000 received during the marriage or at separation.  On his account, if orders had been made as sought in 2006, the wife would have walked away with $285,000 and he would have been left with nothing but debt as the alleged loans exceeded the value of the S property.  It is interesting that that analysis took no account of the alleged loans to the creditors in China which, if they remained the liability of the husband alone (as he said they were), would have eroded almost the whole of his equity in the one asset in his possession, being the S property.  It is also noteworthy that the dealings with the Dollarmites account and the withdrawals of the $28,226 and $20,718 occurred after the parties were advised that orders would not be made by consent, as sought.  Presumably, if orders had been made in 2006, the husband would have kept these sums.  
225.	There may be cases where prior agreements which fall short of a binding financial agreement carry some evidentiary weight, particularly as they represent admissions of assets then in a party’s possession.  I do not find this to be such a case and place no weight on the orders sought at that time.  
	(p)	the terms of any financial agreement that is binding on the parties.
(q)	the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage
226.	The parties are not bound by any relevant financial agreement.  
	(f)	any other order made under this Act affecting a party to the marriage or a child of the marriage;  and
227.	I take account of the parenting orders which will be made at the conclusion of the proceedings.  
	(g)	any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, or is to provide, for a child of the marriage.
228.	I have previously considered questions of child support when considering s.75(2)(na). 

Conclusion
229.	The husband is seven years older than the wife which may impact on his earning capacity in due course, as could the progress of his diabetes.  The husband’s admitted income has always been modest and although the court could be sceptical of his declared income, particularly having regard to transactions recorded in his bank account, it could not find he is likely to earn a significant income.  Nevertheless, his earning capacity is greater than that of the wife.  The wife’s parenting obligations and lower earning capacity require an adjustment in her favour.  Taking all matters into account, she should receive by way of adjustment, an additional 15% of the asset pool, giving her an entitlement of 47.5%.  
230.	The court must then consider then whether the outcome is just and equitable.  Forty-seven point five percent of the asset pool as found is $185,400.
231.	The wife holds the shares in the Chinese money market valued at $3,300 in her name so is entitled to an additional $182,100.  She has significant debts for legal expenses and a miniscule superannuation interest.  
232.	The husband would be entitled to 52.5% of the asset pool, or $204,916.  He holds (actually or notionally) the totality of the pool, save for $3,300 representing the shares in the Chinese money market.  The Indo Mining shares, car, balance in the Dollarmites account and sums notionally held by him total $37,016.  He has a small superannuation interest.  
233.	Assuming a sale of the S property realised $350,000, the wife would receive $182,100 and the husband $167,900.  I am satisfied such a division is just and equitable. 

Section 106A order
234.	At the commencement of the trial counsel for the wife sought to amend the wife’s application to seek an order pursuant to s.106A of the Family Law Act 1975 which would allow a registrar to execute a deed or instrument in the name of a party if that party had been directed by the court to execute that deed or instrument and had refused or neglected to do so.  It was his submission that such an order was necessary, given the husband’s obfuscation, failure to make full financial disclosure and animosity towards the wife.  I did my best to explain the nature of such an order to the husband and made it clear that if such an order were made, it would refer to both parties;  that is, the registrar would be able to execute deeds or instruments in the name of either of them, if either failed to comply with an order.  
235.	I am satisfied such an order is necessary.  
236.	The property orders to be made by the court will require the sale of the S home.  
237.	The wife deposed to the lengths she had to go to obtain a valuation of the home, which culminated in the filing of applications in 2008 in which she sought an undefended hearing of her application for final property orders, as well as orders for financial disclosure and the valuation of the S property.  I am satisfied that the making of an order pursuant to s.106A now will limit the potential for future proceedings.  

Conduct of the sale 
238.	The wife should not be put in a position where further applications need to be brought to achieve the sale of the S property.  While both parties could be said to have an interest in maximising the sale price, the husband has little motive to facilitate the sale as it is his position that the wife should have no interest in the property.  In these circumstances I find it appropriate that the wife appoint the real estate agent and that the property be sold by public auction, without a reserve.  Orders will allow the parties to make other arrangements if they can agree.  

COSTS APPLICATION
239.	In her amended application filed 6 October, 2009 the wife sought that the husband pay her costs of and incidental to these proceedings on an indemnity basis.  Paragraph 30 of the affidavit filed by her on 28 October, 2009 sets out her calculation that the sum of $18,353.75 of her legal fees is directly attributable to the husband’s conduct as outlined in her earlier affidavit.  Annexed to the affidavit filed 28 October, 2009 is a statement setting out the fees and disbursements she has incurred and the highlighted entries are those which she submits would not have occurred but for the husband’s deliberately obstructive conduct.  Paragraphs 85 to 120 of the affidavit filed by the wife on 6 October, 2009 contain the bulk of the evidence on which she relies for that application.  
240.	Thus, the order sought by the wife at trial was not an order that the husband pay the whole of her costs, but that he pay the sum of $18,353.75 towards those costs, a figure calculated on an indemnity basis.  
241.	The court heard submissions referrable to the wife’s application for costs at the conclusion of the trial.  
242.	The general rule, set out in s.117 of the Act, is that each party to proceedings bears his or her own costs.  Section 117(2) provides that if, in proceedings under the Act, the court is of the opinion that there are circumstances that justify it in doing so, it may make such order as to costs and security for costs as it considers just.  Section 117(2A) sets out the matters which the court is required to take into account.  In determining whether to make a costs order the court must identify and balance all relevant factors.  I will refer to each :
(a)	the financial circumstances of each party; 
243.	It is necessary to look at the financial position of the parties after the orders have been made, which is summarised earlier in the judgment.
(b)	the receipt of Legal Aid;
244.	The wife is not in receipt of legal aid.  The husband was not represented by a lawyer.
(c)	the conduct of the parties in relation to the proceedings;
245.	I am satisfied the husband endeavoured to delay proceedings, failed to comply with the requirement to make full financial disclosure and failed to respond to reasonable requests made by the wife’s solicitor, preferring obfuscation and evasion.
246.	It is clear that despite direct advice from Young J., Dessau J. and me, the husband’s position was that it was not his responsibility to provide details of his financial affairs.  
247.	Responding to the costs application and in particular the failure to provide superannuation details, the husband agreed that he had written to the wife’s solicitors in April 2008 saying that if they wanted that, they could get it from Australian Superannuation.  Initially he said he told them to get the information because it was “too complicated” for him, as the superannuation company had told him it did not have time to do it.  The court spelled out the nature of the complaint;  he had to do more than give the wife’s solicitors the name of the superannuation company;  his obligation was to provide the information himself, not require the wife’s solicitors to seek it out.  He responded :
They complained that I have – that’s why I haven’t seen a law which said I had to give them a figure and then details.  The law said give them the information, so I give the information.
248.	A letter the husband wrote to the wife’s solicitors on 13 April, 2008, in response to one of their many requests for full financial disclosure, makes his position clear.  He acknowledged that he had within his control tax returns, mortgage repayments, “loans borrowed” and superannuation accounts.  He provided the name of Australian Superannuation and said the records could be found there.  He said he would not provide details of mortgage repayments :
Unless there is an affidavit sworn by the applicant with solid evidence which clearly indicates the connection between the property and the applicant.  The respondent is not going to provide the material for possible story making.
249.	The respondent said “the loans list has been provided, without rollover”:  that is a reference to the schedule he made, at some unspecified date;  no other records were provided.  He said his tax return for 2007 would not be provided until he received the wife’s return.  He said that he was “sole trades self employed” so had no pay details, which begs the question of how he prepared his tax returns.  
250.	Responding to that letter on 30 April, 2008, the solicitors for the wife noted that the husband had not provided them with any of the documents they had requested on numerous occasions and appeared not to understand his obligation to do so.  They enclosed copies of Family Law Rules 2004 13.01, 13.04, 13.07 and 13.14 which deal with the obligation to provide documents and the consequences of failing to do so.  The wife’s solicitors “strongly” advised the husband to seek legal advice and also set out clearly and courteously what needed to be done.  For example, in response to the husband’s refusal to provide any details relating to his employment, he was advised :
We note that you work as a taxi driver and you claim to be a self-employed sole trader.  If you are in fact self-employed, please provide evidence and details of your taxi licence and taxi, including details of the value of both.  If the nature of your work is as an independent contractor, please provide details of that contract including its terms as to remuneration.  If you are in fact employed by a taxi company as an employee, please provide your pay slips and contract of employment as requested.  Please note that we require copies of all documents pertaining to your work and income, regardless of the true nature of your employment. 
251.	The husband’s response to this request came in a letter sent to the wife’s solicitors dated 9 October, 2008, in which he advised :
All the taxi drivers are sole traders.  We do not have any pay lists, because we pay ourselves.  If the applicant is still interested in, the respondent can generate one according to the records.
252.	No records were ever tendered. 
253.	That letter is part of annexure WW22 to the affidavit filed by the wife on 6 October, 2009.  I will not quote the balance in full but it sets out with clarity the documents the husband was required by the relevant rules to provide.  
254.	In due course a few documents were provided by the husband.  However, this judgment demonstrates the enormous gaps in his financial disclosure.  All documents tendered which related to bank accounts, the acquisition of the S property, and the mortgage on that property were tendered by the wife, and obtained through subpoenas.  It was only due to the diligence and competence of her solicitors that the court was able to trace the disposition of some funds after separation, determine the husband’s equity in the S property when cohabitation commenced and make findings about cash deposits made by the husband in recent times.  
255.	The husband referred numerous times to an alleged failure by the wife to provide “profit and loss statements” about her shares in the Chinese money market.  She obtained the share listings in a local newspaper, which were then translated, and I accept her evidence of her inability to obtain anything further.  I am unsure what the husband meant by “profit and loss statements” in relation to these shares.  It was the solicitor for the wife who obtained information about the husband’s Indo Mining shares;  the husband did not provide (and I do not suggest he should) anything which could be called a “profit and loss statement” in relation to those shares.  
256.	The husband’s letter to the wife’s solicitors dated 10 May, 2008, which forms part of annexure WW24 to the affidavit filed by the wife on 6 October, 2009, makes it clear that the wife had provided purchase dockets of shares on the Shanghai stock exchange.  He asserted that the shares were no longer listed on the Shanghai stock exchange.  The wife’s solicitors advised that she was endeavouring to obtain a copy of a Chinese newspaper setting out the current share price and did that;  the husband’s response was simply to assert the shares did not exist. 
257.	The husband also complained of the wife’s refusal to provide documentation relating to the real property owned and sold in China. 
258.	The irresistible conclusion reading the letters which passed between the husband and the wife’s solicitors is that the husband was playing a strategic game.  By way of illustration, I summarise orders and correspondence after a hearing before Young J. on 17 September, 2008, at which the husband represented himself.  
259.	The transcript of the hearing demonstrates that Young J. made very clear to the husband his obligation to provide documents.  Young J. spelt out some categories of documents to be provided, including those relating to the taxi business and the S property.  The husband was told of his obligation to provide documents and told the likely consequences of a continuing failure to do so.  His Honour told him that if he failed to produce documents, it would inevitably lead to further applications and to applications for costs. 
260.	In a judgment delivered on 17 September, 2008, Young J. noted that documents needed to be filed, contributions disclosed, and valuations obtained.  He noted that the conciliation conference on 6 December, 2007 must have been close to meaningless as there was no proper record of assets and liabilities before the registrar.  He also referred to prior orders made on 3 September, 2007 by Registrar Field, requiring documents to be filed and exchange of documents and proper disclosure.  His Honour said that he would make an order requiring the wife to provide full and frank disclosure;  he noted her evidence that documents had been provided but made that order in case there were any further documents which needed to be disclosed. 
261.	When the husband did provide a number of documents following orders made by Young J. on 17 September, 2008 they were partial and sometimes deceptively described.  For example, he advised in the accompanying letter that he was providing his tax returns for 2003, 2004, 2005, 2006 and 2007.  What he provided was one Notice of Assessment issued on 18 December, 2006 for the year ending 30 June, 2006 (on which he blacked out his tax file number), a photocopy of a single page from his tax returns for the other years, being page 3 which gave a total figure for deductions and a total income and loss figure.  No assessment notices were received for 2003, 2004, 2005 or 2007.  The whole of the tax returns were not provided; there were thus no details of his employment, amongst other omissions.  He provided one bank statement for each of three bank accounts in his name;  one with NAB (account number ending 4238) for the period 2 August, 2008 to 1 September, 2008;  one for Westpac (account number ending 8072) for the period 28 April, 2008 to 25 July, 2008 and one for a second Westpac account (account number ending 4206) for the same period.  No other statements were provided despite numerous previous requests.  It is probable he took the view that having advised the wife’s solicitors of three account numbers, it was up to them to do the rest, which they did.  
262.	Amongst the orders made on 17 September, 2008 by Young J. were orders requiring the husband to make available or cause to be made available all the documents and records identified by the wife in her application filed 11 August, 2008.  Paragraph 5 of his Honour’s orders provided :
That the parties are to appoint a singe expert valuation expert at their joint expense to value, as at today’s date, the property at [S] and the husband is to co-operate with access to the home for that purpose. 
263.	On 18 September, 2008 the wife’s solicitors wrote to the husband referring to the orders and, to facilitate compliance with order 5, provided the names and addresses of three named valuers; they asked him to nominate one to be appointed as a single expert to value the S property.  
264.	On 23 September, 2008 the husband responded with a letter in the following terms :
To response to your letters dated 18/09/2008, the comments have been spelled out as follows :
1.	So far, the writer has not received any orders from the Court. 
2.	The writer trusts your claim that orders 5 regarding to the revaluation of [the husband’s] property located [S] has been made. 
3.	Your proposal has been refused with reasons as follows, a. the valuers are not the experts in the area, they do not work in the area every day;  b. the court and relevant codes do not regulate that in terms of family law matter, these sorts of valuers must be employed;  c. there are plenty of better options available. 
4.	To be friendly, the writer gives you four options to choose,  a. Barry Plant […]  b. Hancourt […]  c. […]  d. L.J. Hooker […].
5.	You have no right to send any letter of instruction to the valuers appointed by the writer, except your right is deemed by law or the Court decision. 
6.	You are probably invited to observe or witness the valuation to make sure there is nothing to hide, and every step is fair and justice. 
The respondent is looking forward to your prompt response. 
265.	On 24 September, 2008 the solicitors for the wife replied.  They noted that the husband had been present in court when the orders were made on 17 September, that he would have received a sealed copy of the orders from the court, but nonetheless enclosed a copy.  They noted that order 5 required the parties to appoint a single valuation expert to value the property and pointed out that the businesses suggested in his letter were real estate agencies, not qualified valuers.  Again they urged him to obtain legal advice and to select one of the valuers proposed in their earlier letter or suggest an alternative qualified valuer, not a real estate agent.
266.	On 28 September, 2008 the husband responded in these terms :   
To response to your letters dated 24/09/2008, the comments have been spelled out as follows,
1.	A certified valuer is only necessary to be called, if there is an disagreement between both parties on the value of the property;  (See your file the valuation report from Barry Plant and valuation report from L.J. Hooker)
2.	So far, there is no disagreement on the property value.  People do not have to spend their money at court for their consent;  otherwise, there should not be a consent order. 
3.	The order and Family Law rules does not indicate that only a certified valuer is deemed single expert valuer;  (See your file the valuation report from Barry Plant.  You would not do it, if it is);
4.	Barry Plant and L.J. Hooker are still nominated by the respondent to revalue the property;
5.	It is your liability to remind your client that you are spending her money for solving “no problem”;
6.	If the court does not accept the value assessed by the above mentioned experts and agreed by both parties, insists in creating the conflicts.  The appeal will be lodged to the higher court to be against Order 5 and the media will be called in to expose the joke.
The respondent is looking forward to your prompt response. 
267.	On 30 September, 2008 the solicitors for the wife wrote again, confirming that an order for the appointment of a single expert valuer had already been made, referring again to paragraph 5 of the orders of 17 September, 2008 and asking the husband to comply.  They advised that if he failed to co-operate and comply with the order the wife would have no choice but to amend her application currently before the court (this is a reference to the balance of the application, which had been adjourned by Young J. to 22 October, 2008) and seek the appointment of a single expert valuer. 
268.	On 3 October, 2008 the husband wrote to the wife’s solicitors as follows :
To response to your letters dated 30/09/2008, the comments have been spelled out as follows,
1.	After consulting the professionals, the respondent accepts your interpretation of Order 5 of appointing single expert to revalue the property.
2.	Please quote the rates offered by the valuers you recommended before.
3.	The instruction to the valuer must be accepted by the both parties.  Please detail your instruction.
Looking forward to your prompt response. 
269.	On 3 October, 2008 the solicitors for the wife provided confirmation of the valuers’ fees;  two were $880 including GST and one was $990 including GST.  The solicitors confirmed that the parties would each be responsible for half of the costs of the valuation and asked to be advised as soon as possible which valuer the husband sought to appoint. 
270.	On 9 October, 2008 the husband responded to that letter in these terms :
To response to your letters dated 03/10/2008, and 07/10/08, the comments have been spelled out as follows,
1.	I can not recall when Westminster lawyers started their property valuing business.  Please provide the written offer from those valuers and with their websites attached.  
2.	We are still waiting for further information which could lead us to the amount of $285,000 disposed in last property settlement. 
Looking forward to your prompt response.  
271.	On 13 October, 2008 the solicitors for the wife wrote to the husband, strongly recommending he obtain some advice.  They explained the process for the appointment of a single expert valuer, that a valuer is chosen and a joint letter of instruction from both parties is sent to that valuer.  They explained that valuers do not make written offers to the parties, advised they had already provided the information about rates, repeated contact details for each of the three valuers and provided the website of each.  They suggested if he had further enquiries about them he could make his own enquiries.  
272.	When the matter came before Dessau J. on 27 October, 2008 the matter had not moved any further.  
273.	The transcript of the hearing before Dessau J. shows that the husband complained that the information about the valuation fees came from the solicitors for the wife, not directly from the valuer.  Her Honour heard the case late in the day and made orders providing for the head of the Real Estate Institute to nominate a valuer.  There was some discussion about the provision of further documents.  She gave the wife leave to issue further subpoena, at which the husband said :
INTERPRETER:	I think I shouldn’t give anything  that the wife ask, whatever it might ask me.  I shouldn’t – I don’t need to provide everything she ask.  Before her providing the co-contribution statement, I shouldn’t provide my mortgage payment statement details – mortgage payments details – because they may use this as their resources. 
HER HONOUR:	I’m telling you, very, very straightforwardly, you do need to provide those details, and I’ll only say it once more because there’s no more discussion about it.  Whether assets are your assets or her assets, everything has to be disclosed to the court.  
INTERPRETER:	I have told the court and my wife’s solicitor that I have paid off the mortgage, but as to when I pay off – as to when it was paid off, I need them to disclose their contribution statement first. 
HER HONOUR:	Mr [Wong], I’m not going to have this discussion and I’ll explain why.  It’s already half an hour after court is supposed to finish.  I’m going to make the orders I need to make.  Secondly, it’s not up to me to have these discussions with you or to give you legal advice.  I have made it perfectly clear to you that parties are required to disclose information to each other.  There are no games and there are no tactics.  If you have made all the contributions or most of the contributions or some of the contributions or a small amount of the contributions, that will all be taken into account, and if you’re left with any concern about it, get your own legal advice.
I have told you the two things that matter.  One, you must make a frank disclosure to the court.  Two, if you’ve contributed more than [the wife] that will be taken into account by the court.  Okay?  I can’t keep discussing it.  So I’m making an order for the registrar to advise both of you of a telephone mention after 12 January, and you can all apply to the court in writing if you need to.  Right?
(d)	whether the proceedings were necessitated by a failure of a party to comply with previous orders;
274.	The wife had to bring applications to obtain orders for financial disclosure and a valuation of the S property;  I have summarised some of the correspondence in relation to those issues.  A conciliation conference was “meaningless” to use Young J’s word, as the husband had made no attempt to provide full financial disclosure. Letter after letter from the wife’s solicitors responded to the husband’s evasive and sometimes mischievous responses to earlier correspondence.
(e)	whether a party has been unsuccessful;
275.	Neither of the parties obtained the orders sought.  The husband’s application was that the wife receive nothing further than that which he alleged she had already taken;  the court’s determination is that she receive 47.5% of the asset pool, a pool which does not take account of the liabilities the husband alleged and which includes sums taken by him which he did not disclose.  The husband’s case had little or no prospect of success, a fact expressly pointed out by Young J. in September 2008.
276.	In her amended application the wife sought the transfer to her of the S property.  In final submissions her counsel proposed she receive 70% of the pool.  She received less.
(f)	an offer in writing;
277.	There is no evidence of such an offer.
(g)	such other matters as the court considers relevant;
278.	The husband complained that the wife’s solicitors posted, faxed and on occasions emailed correspondence to him, a course aimed, no doubt, at ensuring their receipt and pre-empting any argument he had not received them.  I do not find the items described in the costs schedule unreasonable or inappropriate.
279.	Young J. and Dessau J. each reserved costs on, respectively, 17 September, 2008 and 27 October, 2008.  
280.	As late as the last day of the trial, the husband continued to assert that he did not have to provide documents;  this was in relation to the application for costs.  The husband was not represented by a lawyer but he cannot hide behind that fact to avoid his obligations.  Two judges advised him of his obligation to provide full financial disclosure and the solicitors for the wife sent him copies of the relevant rules.  In the face of that information, he remained obdurate.  
281.	The wife’s initial application was that all of her costs be paid by the husband, however she reduced that claim to costs specifically referable to his conduct in the financial proceedings, seeking only those costs identified as referrable to his deliberately obstructive conduct, by way of an indemnity cost order. 

Indemnity costs
282.	The court should not depart lightly from the ordinary rules relating to costs between party and party.  In Kohan & Kohan (1993) FLC 92-340 the Full Court held that circumstances justifying the departure from party/party costs should be of an exceptional kind.  
283.	Not every case in which a party has failed to make full financial disclosure will ground an entitlement to costs, let alone indemnity or solicitor/client costs.  The discretion which the court has as to costs is to be exercised judicially, upon proper grounds.  The court will not lightly depart from the standard practice in the awarding of costs.  A departure from the settled practice in this court of awarding costs (on the relatively infrequent cases on which they are awarded) on a party/party basis is discretionary.  Beyond the need for a sufficient special or unusual feature in the case, no fixed rule can be laid down.  
284.	In Colgate-Palmolive Company and Anor v Cussons Pty Ltd (1993) 46 FCR 225 at 233-4 Sheppard J. distilled a number of principles or guidelines from the authorities then before him.  His Honour referred to the evolution of the settled practice of awarding party/party costs and referred to the necessity for some special or unusual feature before costs should be awarded on an indemnity basis.  At 233 he noted some of the circumstances which have been thought to warrant the exercise of discretion;  they include the making of allegations of fraud known to be false;  evidence of particular misconduct that causes loss of time to the court and to other parties;  the fact proceedings were commenced or continued for some ulterior motive, or in wilful disregard of known facts or clearly established law;  the making of allegations which ought never to have been made;  and the undue prolongation of a case by groundless contentions.  
285.	In Re LGM and CAM (2006) 35 FamLR 598 the Full Court considered an appeal from a decision of the trial judge ordering the appellant to pay the respondent’s costs of contempt proceedings on an indemnity basis.  The Full Court dismissed the appeal, finding that the trial judge’s order for costs did not turn wholly or so substantially upon the issue of her being “wholly unsuccessful” as to deny the order a foundation within the ambit of a reasonable exercise of discretion;  the Full Court found that a balanced reading of the trial judgment made it clear that it was the appellant’s conduct which provided the substantial foundation for the conclusion that circumstances justified the making of a costs order.  The Full Court confirmed (at 604) that no particular facts or circumstances must be established in order to constitute “circumstances” that “justify” an order for costs.  
286.	In Johnson, BG v Johnson, K (No.2) (Costs) (2000) FLC 93-040 the Full Court heard an appeal against the award of costs on an indemnity basis in a trial in which the trial judge found the husband had failed to make full and proper disclosure about the extent of his assets, which was found to have prolonged the proceedings.  The appeal was successful and the Full Court re-exercised the discretion.  It found that the circumstances justified making an order for costs in favour of the wife (although not an order that the husband should pay the whole of her costs) and there were good reasons why the husband should bear those costs on an indemnity basis.  At 87,626 – 87,626 the court found :
As was identified by the trial Judge, had there been a full and frank disclosure on behalf of the husband these proceedings would have been of much shorter duration.  Whilst the failure to give such full and frank disclosure may not axiomatically incur the wrath of an indemnity costs order, having regard to the financial circumstances of the parties in this case, and the very nature of the case presented by the husband, there are special and unusual features which justify the court in departing from the ordinary practice that each party should bear their own costs.
287.	I am satisfied for the reasons set out that this is one such exceptional case.  The submissions of counsel are supported by documents and court transcripts.  The demeanour of the husband in the witness box was consistent with a litigant playing a strategic game.  I have found his application for residence was a strategy, designed to place pressure on the wife.  
288.	In finding that the husband should pay costs on an indemnity basis, I place weight not only on his failure to provide financial disclosure and the impact that had on the preparation of the case for trial, but on his obfuscation and what I have found to be his deliberate game-playing with the solicitors for the wife.  The wife was fortunate to have able solicitors;  the correspondence before the court, to some of which I have referred, is lucid, cogent, courteous and always directed towards obtaining information and documents to which the wife was entitled or, in the case of the appointment of the valuer, a routine appointment as a case moves toward trial.  
289.	I am satisfied the husband should bear those costs on a solicitor/client basis.  Further, I am satisfied the costs should be paid from his entitlement pursuant to the property orders.  Having regard to the evasive nature of his evidence about his financial position and his evidence of gambling, an order in those terms should be made.  

I certify  that the preceding
289  paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown AM.

Dated the             day of              2009.

…………………………………………
Associate.