Chan & Lee
[2021] FamCA 135
•23 March 2021
FAMILY COURT OF AUSTRALIA
Chan & Lee [2021] FamCA 135
File number(s): SYC 2079 of 2018 Judgment of: REES J Date of judgment: 23 March 2021 Catchwords: FAMILY LAW – PROPERTY – Adjustment of property interests – Where the proceedings have been delayed by alleged interests in overseas properties – Where the court finds the former matrimonial home is the only significant asset –Where the husband made minimal contributions – Where the court finds the wife and her parents made significantly greater contributions to the acquisition of the property – Court determines a contributions based adjustment of 80 per cent in favour of the wife – Consideration of the wife’s future needs – Court determines an additional 20 per cent adjustment in favour of the wife – Order for the husband to transfer his interest in the matrimonial home to the wife. Legislation: Family Law Act 1975 (Cth) s 75(2) Cases cited: Oriolo v Oriolo [1985] FLC 91-653
Weir & Weir (1993) FLC 92-338
Number of paragraphs: 108 Date of hearing: 16 & 17 March 2021 Place: Sydney Applicant: In Person Respondent: In Person ORDERS
SYC 2079 of 2018 BETWEEN: MS CHAN
Applicant
AND: MR LEE
Respondent
ORDER MADE BY:
REES J
DATE OF ORDER:
23 MARCH 2021
THE COURT ORDERS:
1.That the husband do all acts and things required to transfer to the wife all his right, title and interest in the property known as B Street, Suburb C being the property in Lot … Strata Plan … (“the property”).
2.That the wife indemnify the husband in respect of any and all liabilities relating to the property including any liability by way of mortgage.
3.That the wife indemnify the husband in relation to any liability to her parents Ms D and Mr E pursuant to the Deed of Loan signed on 13 October 2013.
4.That other than as provided in these orders, each party shall retain any asset in his or her possession.
5.That the wife’s application for spousal maintenance be dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Chan & Lee has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Rees J:
Ms Chan (“the wife”) and Mr Lee (“the husband”) married in 2008 and separated on 16 May 2016. They were divorced in 2017. They have one child who is aged 11 years and lives with the wife.
The proceedings now before the Court relate to the division of their property.
The wife seeks 70 per cent of the property of the marriage, including the transfer to her, subject to the mortgage, of a property at Suburb C (“Suburb C”), the former matrimonial home, and ongoing spousal maintenance of $400 per week. She asserts that properties in China, in relation to which the husband is a registered owner, form part of the matrimonial property.
The husband seeks the sale of the Suburb C property and the division of the net proceeds with the wife to receive 60 per cent and the husband 40 per cent. He asserts that the properties in China do not form part of the matrimonial pool of property. However, the husband asserts that the property at Suburb G which is occupied by the wife’s parents but registered in the wife’s name, should be included in the asset pool.
The task of fact findings in these proceedings was made more difficult by the fact that each of the parties represented his or her self and neither spoke English as a first language. The affidavits which they each produced did not address the issues in admissible evidence and neither joined issue with the other.
The wife asserts that the husband has not made proper disclosure of his entitlement to real property in China.
On 21 July 2020, Orders were made in the following terms:
1.To the extent that they have not already been provided, within 14 days, the Respondent husband is to provide to the Applicant wife copies of the following:
a.His bank and credit card records in respect to the past three (3) years ending 30 June 2020;
b.His taxation records for the financial years ending 2018 and 2019; and
c.Any documents evidencing any property that he owns overseas.
2.Within seven (7) days, the Applicant wife is to serve on the Respondent husband an updated balance sheet setting out those assets and liabilities that she is aware of that she contends constitutes the matrimonial property pool.
3.Within 21 days, the husband is to complete a Response, by way of noting up to the wife’s contentions, in respect to the balance sheet.
4.The matter remains in the pool of matters awaiting allocation of a hearing date with no loss of priority.
On 1 September 2020, I made the following orders:
1.That the matter is listed for Callover before the Honourable Justice Rees at 10am on 4 December 2020.
2.That not later than 4pm on 21 November 2020 the parties are to file the following documents:
2.1 A valuation of the Suburb C property by a properly qualified valuer who is agreed between the parties and paid equally half each by the parties.
2.2 An affidavit setting out the evidence upon which each party wishes to rely about the contributions that each party has made to all of the property of the marriage from the beginning of the relationship until now.
2.3 All of the documents which each party says proves their case translated by a qualified interpreter into English.
2.4 An affidavit of any witness upon whom a party seeks to rely.
2.5 A Financial Statement in accordance with the Family Law Rules 2004.
At hearing, both the wife and the husband represented themselves, each with the assistance of an interpreter.
The wife relied on two affidavits by herself, sworn 21 November 2020 and 9 March 2021, a Financial Statement sworn 21 November 2020 and affidavits by each of her parents.
The husband relied on an affidavit sworn by him on 2 March 2021 which incorporated a Financial Statement. Although the husband deposed that his father is alive and living in City J, his father did not swear an affidavit or give evidence in the proceedings.
The wife was granted Australian permanent residence in 2007.
The parties married and commenced their co-habitation in China and, after their marriage, they lived in an apartment owned by the husband’s parents at H Street, City J (“H Street”). The records obtained from City J show that the husband owned one third of H Street.
The husband, in so far as I understand his evidence, does not dispute the wife’s assertion that he owned one third of the property but rather asserts that his father, as head of the household, has the right to treat the property as his own.
The wife’s parents lived with them. The wife worked in finance and the husband worked in real estate. Their child was born in 2009. The wife’s parents assisted with childcare.
The wife asserts that the husband, jointly with his parents, owned an apartment at K Street, City J (“K Street”). The wife relied on a document obtained from official records indicating that the property had been purchased in 2006 and the husband owned one third of the property. Again, as I understand the husband’s evidence, he does not dispute the wife’s assertions as to his legal ownership but asserts that his father, as head of the household, can, and does, treat the property as his own.
In September 2010 they migrated to Australia with their child and the wife’s parents. Neither the wife nor the husband was able to find employment for a time. The husband then found employment as a cleaner. The wife had casual employment from time to time. The wife asserts that they were supported by her parents who remained in Australia until May 2011. They lived in rented accommodation.
The wife’s parents stayed in Australia for about a year then returned to City J.
Although the husband, in answers to cross-examination, asserted that the parties had either $200,000 or RMB200,000 (the evidence is not clear) from savings and wedding presents which they brought with them from China to Australia, there is no evidence to support that assertion. Neither was the husband able to explain the source of the funds other than to say that he gave his earnings to the wife and she managed their money. The wife deposed that the husband earned about $20,000 per annum in China. I accept that the parties had no significant funds of their own when they came to Australia.
After the family moved to Australia, the husband’s parents moved into H Street and K Street was rented out. The wife asserts that the husband’s parents kept the rent from K Street which was about $700 per month.
The wife’s father deposed that, when he and the wife’s mother came to Australia, they brought with them $37,000 from their savings and, from those funds, they gave the wife and the husband $15,000 to pay living costs as neither was working. The bank statement of the joint account of the husband and the wife shows a deposit into their account of $15,500 on 13 October 2010. The statement shows a subsequent deposit of $6,732.58 which the wife’s father deposed also came from him.
In October 2011, the wife’s parents lent the husband and the wife $91,592 (not $92,092 as they asserted) to assist in the purchase of the property at Suburb C. The amount was provided in two parts. Bank statements annexed to the affidavit of the wife’s mother show a deposit into the account of the husband and the wife of $46,092.50 on 17 October 2011 and a second deposit of $45,500.
There is a further deposit of $46,000 into the bank account of the husband and the wife described as “[wife’s mother] living cost lend” in December 2012. I accept that this was an advance from the wife’s parents.
In 2012 the husband started working in hospitality.
Settlement of the purchase of Suburb C took place in August 2013. The property was registered in the joint names of the husband and the wife.
A Deed of Loan was prepared by lawyers and signed by the husband and the wife and her parents on 13 October 2013, in the presence of witnesses. That Deed acknowledges the receipt by the husband and the wife of $30,500 in 2010 and $92,092 in 2011. The Deed provided for interest to be paid at the rate of 6.5 per cent per annum and for the loan to be repayable on demand.
The husband in cross-examination denied any knowledge of the loan and denied signing the Deed of Loan. Both the wife’s parents were cross-examined by the husband about the circumstances of the signing of the document and both were adamant that they were all present in City J in a restaurant when the document was signed and that it was signed in the presence of the witnesses. The husband did not deny that he was in City J at the relevant time. The husband conceded that the wife undertook all the financial management and made financial decisions for both of them. He conceded that he signed any document which the wife gave him to sign. I accept, on the balance of probabilities, that the husband signed the Deed of Loan. However, I also accept that the document was in English and the husband would not have understood what he was signing. More importantly, however, I accept that $92,000 provided by the wife’s parents was used to buy Suburb C and that they intended the advance to be a loan and repayable.
The balance of the purchase price was borrowed from a bank.
The wife asserts that she and the husband paid the interest jointly from August 2013 to May 2014 and that thereafter she alone paid off the mortgage, with the assistance of her parents.
In 2013 the wife enrolled into a diploma in business and did some casual work. She deposed that she earned about $5,000. In 2015 she completed a Master’s Degree.
In 2013 and until May 2014 the husband earned about $4,000 per month which was contributed to family expenses.
Between May 2014 and May 2015, the husband lived in China. The wife and their child remained in Australia. The wife was not working and was engaged in her studies. The wife asserts that the husband provided her with no financial support when he was in China. It was left to the wife’s parents to support her and the child for that period.
In 2015, the husband’s mother died and the record indicates that the title of K Street was transferred to the husband and his father equally.
In 2016, the husband and his father sold K Street. The wife asserts that the sale price was $330,000 (although there is no admissible evidence to support that assertion) and that the husband and/or his father retained the proceeds. The husband does not give any evidence about the proceeds of sale or how they were treated. I infer that the husband’s father retained the whole amount.
The husband deposed, I assume in relation to H Street:
The head of the house, [his father] is still alive. He lives in his own property. I have no right or ability at all to transfer or deprive him of his property.
The wife asserts that her parents paid a total of $130,000 into the mortgage account so as to reduce the mortgage payments.
I infer that the wife was employed from May 2016.
In May 2016 the parties separated. The wife’s parents asked for repayment of the funds they had paid into the mortgage account and the wife withdrew $130,000 and repaid them.
The wife asserts that the husband took the whole of the money in their joint accounts, $36,200. Annexed to her affidavit is a statement showing the withdrawal of $36,200 on 31 October 2016. The husband agreed in cross-examination that he took $30,000 but, since there was only one withdrawal, I accept that he took the whole amount.
After the separation, the wife’s parents continued to assist in the care of the child.
Also in October 2016, a property was purchased in Suburb G in the name of the wife. Other than to allow her name to be on the title, the wife made no financial contribution to the Suburb G purchase. The whole of the purchase price was paid from funds held by the wife’s parents in China and a mortgage. The wife’s parents pay the outgoings including the mortgage payments.
Bank statements of the wife’s parents show a transfer into their bank account of some $245,426 in February 2016 and a further $25,000 in April 2016.
The wife asserts that the husband’s contact with the child was sporadic and minimal and that between December 2017 and March 2018 he saw the child twice and as of November 2020 the father spends time with the child on Sundays from 10am to 5pm. The husband, in cross- examination, insisted that he sees the child every week and has done so since some unspecified time in 2018. However, it was his evidence that he takes the child to the movies or to play sport. He did not suggest that he has ever taken the child overnight.
The wife made an application for Child Support in September 2016 and the husband paid $34.25 per month. In 2017 the wife sought a re-assessment but the husband could not be located. In 2017 the husband paid a lump sum of $2,000 at the wife’s request. The wife asserts that he did not pay Child Support in 2018.
In November 2019 the husband paid $120.25 in Child Support. In her Financial Statement, the wife deposes that she receives Child Support of $30 per week. That does not accord with the husband’s evidence in his Financial Statement that he pays $9.30 per week. The wife estimates the child’s expenses specified in Part N of the Financial Statement to be $602 per week. He attends a private school and tutoring and the wife has been responsible for the payment of the fees. The school fees for the 2020 school year were $8,825. Tuition fees are $300 per month and, in addition, the wife pays for piano lessons.
In February 2020, the wife and the child moved out of Suburb C and lived with her parents in Suburb G. The property was rented. The wife intends to move back to Suburb C.
In October 2020, the wife lost her job.
ALLEGATION OF NON-DISCLOSURE
The wife has consistently asserted, throughout the proceedings, that the husband has failed to make full and proper disclosure. She cites, by way of example, his failure to disclose his ownership of the H Street and K Street properties. Even when the wife, assisted by an order of the Court, obtained title searches of those properties from the land registration authorities in China, the husband maintained his denials that he was an owner of them.
He has not disclosed any information about the sale of K Street and there is no evidence in his case about the sale price or how those monies were dealt with, despite it having been demonstrated that he owned one third of the property, according to the title search.
In his Financial Statement sworn on 2 March 2021, which sets out his current financial position, the husband does not disclose any payment of rent. The evidence does not disclose where or with whom or in what circumstances he lives.
There is no evidence that he has complied with the orders relating to the provision of documents made on 21 July 2020, other than that he has provided in his tax assessments for the years 2018 and 2019.
In relation to the asserted non-disclosure of his interest in the two properties in City J, I do not accept that the husband has failed to disclose in the sense that is contemplated in cases such as Oriolo v Oriolo [1985] FLC 91-653 and Weir & Weir (1993) FLC 92-338. The wife knew, at all relevant times, of the husband’s interest in the two properties. The issue was the husband’s denial that his interest was as a beneficial owner. As I understand his case, the husband asserts that his father is solely entitled to the beneficial ownership of the two properties and thus to the proceeds of sale of one of them. He has maintained that position, even in the face of the records which the wife obtained as to the registered ownership of the properties. Other than his own opinion, he has not adduced any evidence to support his assertion and his father has not sworn an affidavit in the proceedings.
CONSIDERATION
The parties did not provide a joint Balance Sheet although the wife prepared a Balance Sheet. Doing the best I can with their respective Financial Statements, the balance sheet set out below contains their respective assertions:
Ownership Description Applicant’s value Respondent’s value ASSETS 1 Joint Suburb C property $575,000 $650,000 2 W Motor Vehicle 1 $21,000 NK 3 H Motor Vehicle 2 $20,000 $15,000 4 W Bank accounts $1,039 $3,992 5 H Bank accounts NK NK 6 W Interest in Suburb G property NIL $360,000 7 H Interest in H Street (one third) $400,000 NIL 8 H Share of proceeds of sale of K Street $110,000 NIL Total $1,127,039 $1,028,992 ADDBACKS 9 H $36,200 removed from Bank account at separation $36,200 LIABILITIES 10 W Student loan $26,826 NK 11 Joint Mortgage over Suburb C $280,000 NK 12 W Loan from parents $105,300 NK Total $412,126 NK SUPERANNUATION Member Name of Fund Type of Interest Applicant’s value Respondent’s value 13 W Super Fund 1 27,978 NK 14 H NK NK
I will deal with the competing assertions using the item numbers in the Balance Sheet.
Item 1 – value of Suburb C
The parties were ordered to instruct a valuer and to file the valuation by 21 November 2020. A valuation has been obtained from L Real Estate. The valuation report states that it has been prepared on the instructions of the husband and the wife. I propose to treat that report as the report of a joint expert and adopt the figure in the report.
Items 2 and 3 – motor vehicles
Neither vehicle has been valued. They are of approximately the same age and make. I propose to remove both vehicles from the balance sheet.
Item 4 – bank accounts
Each party has a small amount of savings. They have been separated for over four years and neither has made a contribution to the other’s savings. I propose to remove both from the balance sheet.
Item 6 – interest in Suburb G property
There has been no valuation of the Suburb G property. The value asserted by the husband is his value. There is no admissible evidence of value.
The wife is the registered proprietor of the Suburb G property but both of her parents have deposed that they provided the whole of the purchase money and have paid all of the outgoings. The wife’s father deposed that it was necessary for the wife’s name to be on the title because the bank would not lend any money to him and his wife as they were retired.
Documents establish that the wife, jointly with her father, borrowed $500,100 to complete the purchase and to pay costs of obtaining their residence visas of about $55,000.
Both of the wife’s parents deposed that they have met the payments on that mortgage.
Both the wife’s parents deposed that they used their savings to buy Suburb G for their retirement.
In those circumstances I am unable to find that the wife has any beneficial interest in Suburb G.
Although the husband, who represents himself, did not submit that the presumption of advancement applied to rebut the existence of a resulting trust, I am satisfied that it was not the intention of the wife’s parents that she should be the beneficial owner of Suburb G.
I accept that it is likely that the wife, as an only child, will inherit Suburb G eventually but that is a matter only to be taken into account.
This item will be removed from the balance sheet.
Items 7 and 8 – husband’s property in China
The documents tendered in the wife’s case establish that the husband had a one third share of both the H Street property and the K Street property.
There is no evidence that the husband made any contribution to the purchase of either property or to the upkeep of either property. The wife does not assert that he did. The husband in cross examination said that he had not contributed anything to those properties.
The documents establish that the H Street property was acquired in 2000 and was subject to a mortgage. K Street was purchased in 2006.
There is no evidence of the price for which either property was purchased.
There is no admissible evidence of the sale price of K Street.
There is no evidence of the current value of H Street.
The husband deposed that his father dealt with both properties as if he were the sole owner.
Similarly, it is likely that the husband will inherit his father’s interest in H Street. If there are any funds remaining from the sale of K Street, the husband may benefit on his father’s death. Again, that is a matter to be taken into account.
Although the husband is a registered proprietor of H Street, there is no evidence that he is presently able to receive any benefit from it.
I consider that the prospective inheritances of the wife from her parents and the husband from his father are factors that balance each other and I will remove these items from the balance sheet.
Item 9 – money taken by the husband at separation
I am satisfied that the husband removed $36,200 from the parties’ joint account on 31 October 2016.
I propose to take this sum into account as money which has already been distributed to the husband in considering the appropriate adjustment of property interests and to remove it from the Balance Sheet.
Therefore I find that the ascertainable assets of the parties are:
·Suburb C property $575,000
·Less debts $412,126
·Net assets $162,874
CONTRIBUTIONS
After their marriage, the parties lived in accommodation provided by the husband’s family from 2008 to 2010.
After they moved to Australia, the wife’s parents supported them.
In 2010 and 2011, the wife’s parents paid a total of $67,733 into the parties’ joint account, in addition to the money lent to purchase Suburb C.
There is no evidence that the parties had any funds to contribute to the purchase of the Suburb C apartment.
The wife concedes that, from August 2013 when they settled the purchase of Suburb C, the husband’s earnings serviced the repayments of the mortgage.
She asserts that, from May 2014 when the husband returned to China until May 2015 when he returned to Australia, he provided no financial support for her or their child and made no contribution to the costs of the Suburb C property. The husband brings no evidence to dispute that assertion and I accept it.
The wife asserts that, after 2015, when the husband returned to Australia, he worked but did not contribute his earnings to the family. The husband brings no evidence to dispute that assertion and I accept it. As the wife was studying and not working, I accept that it was her parents who supported her and the child and provided funds to maintain the Suburb C property.
The parties separated in May 2016 and thereafter, I accept, the wife was solely responsible, with assistance from her parents, for the mortgage and outgoings on the Suburb C property and, with the exception of very minimal payments of child support, for the maintenance of their child.
The wife also, until separation, was the primary carer for their child. She was not employed outside the home. When she was studying, her parents provided child care. I treat that contribution by the wife’s parents as a contribution on her behalf.
From May 2014 to May 2015 the husband lived in China and made no parenting contribution.
From May 2015 to May 2016 the husband lived in the Suburb C property and, I accept, made some parenting contribution although the evidence does not establish what the contribution was.
After May 2016 when the parents separated, the husband’s parenting contribution has been minimal.
The husband’s financial contributions to the Suburb C property were made from August 2013 to May 2014 and, possibly, from May 2015 to May 2016.
Overwhelmingly, the wife and the wife’s parents made the significant contributions to the acquisition and conservation of the Suburb C property.
I assess their respective contributions, over the whole period of co-habitation, to be 80 per cent to the wife and 20 per cent to the husband.
SECTION 75(2)
The most significant matter to be taken into account when determining what adjustment is appropriate is the wife’s continuing responsibility for the care and financial support of the parties’ child.
The husband currently spends time with their child each Sunday from 9am to 5pm. He does not have over-night time with the child.
The husband deposed that he pays child support of $9.30 per week. He makes no meaningful contribution to the child’s upkeep and the payment of school fees and tuition is left to the wife.
The child is 11 years old and the wife will be responsible for his care and his financial needs for, at least, another seven years, with minimal assistance from the husband. She will also be the person who houses him.
The husband, in his Financial Statement, deposed that he is employed as an Uber driver and earns $440 per week.
The wife is currently unemployed and her income comes from renting Suburb C and from government benefits. The rent received from Suburb C does not cover the mortgage payments. She proposes moving back into Suburb C because she and the child are sharing a bedroom at Suburb G. The evidence does not allow a finding as to when the wife may resume employment.
The wife will retain her superannuation of $27,978. She is now 40 years of age and will not have access to those funds for many years.
I also take into account the fact that, at separation, the husband removed and retained the parties’ joint savings of $36,200.
It is appropriate, in those circumstances, to make an adjustment in favour of the wife.
The husband’s 20 per cent share of the joint property is valued at $32,575. That amount will be allocated to the wife.
CONCLUSION
The wife will retain the property at Suburb C and will not be required to pay anything to the husband.
SPOUSAL MAINTENANCE
The wife seeks spousal maintenance in the sum of $400 per week.
The only evidence relied upon by the wife in relation to his capacity to pay was a post on social media where the husband asserted he had an income of $80,000 per annum. The husband, in cross-examination, said he made up that figure because he had not had a girlfriend for a long time.
I am not satisfied that the husband has any capacity to pay spousal maintenance and that application will be dismissed.
I certify that the preceding one hundred and eight (108) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 23 March 2021
Key Legal Topics
Areas of Law
-
Family Law
-
Property Law
Legal Concepts
-
Appeal
-
Remedies
-
Statutory Construction
0
0
1