Chau and Cao (No 2)
[2019] FamCAFC 254
•20 December 2019
FAMILY COURT OF AUSTRALIA
| CHAU & CAO (NO. 2) | [2019] FamCAFC 254 |
| FAMILY LAW – APPEAL – PROPERTY – Where the wife appeals from orders made by the primary judge dismissing the wife’s application for property settlement –Where the primary judge attributed appropriate weight to the wife’s parenting contributions – Where the primary judge did take into account relevant considerations – Where the wife cannot rely upon an argument in the appeal that she did not raise before the primary judge – Where the grounds of appeal lack merit – Appeal dismissed – Where the wife is to pay the husband’s costs in a fixed sum. |
| Family Law Act 1975 (Cth) Pt VIII |
| Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63 House v The King (1936) 55 CLR 499; [1936] HCA 40 Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28 |
| APPELLANT: | Ms Chau |
| RESPONDENT: | Mr Cao |
| FILE NUMBER: | SYC | 2741 | of | 2014 |
| APPEAL NUMBER: | EA | 31 | of | 2019 |
| DATE DELIVERED: | 20 December 2019 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Strickland, Aldridge & Harper JJ |
| HEARING DATE: | 27 September 2019 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 27 February 2019 |
| LOWER COURT MNC: | [2019] FamCA 97 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | WB Legal |
| COUNSEL FOR THE RESPONDENT: | Ms Christie SC |
| SOLICITOR FOR THE RESPONDENT: | Linden Legal |
Orders
The appeal be dismissed.
The appellant wife pay the costs of the respondent husband fixed in the sum of $32,735 in the manner following:
(a)The amount of $20,000 currently held by the solicitors for the respondent husband pursuant to an order made on 13 June 2019 be paid to the respondent husband forthwith;
(b)Within twenty-eight (28) days of the date of these orders, the balance of $12,735 be paid by the appellant wife to the respondent husband.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Chau & Cao (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 31 of 2019
File Number: SYC 2741 of 2014
| Ms Chau |
Appellant
And
| Mr Cao |
Respondent
REASONS FOR JUDGMENT
Introduction
By Notice of Appeal filed on 26 March 2019, Ms Chau (“the wife”) appeals against final property settlement orders made by the primary judge on 27 February 2019. The primary judge dismissed the wife’s application for property settlement orders filed on 8 May 2014, and discharged an order made on 8 August 2014 by a judge of the Federal Circuit Court of Australia restraining Mr Cao (“the husband”) from selling or otherwise dealing with real property situated in Suburb H and any of his investment shares.
The husband seeks that the appeal be dismissed with costs.
The Notice of Appeal contained seven grounds of appeal. At the hearing of the appeal, the wife abandoned four of her seven grounds of appeal (Grounds 1, 3, 4 and 7). For the following reasons, we find that there is no merit in any of the remaining grounds of appeal and the appeal will be dismissed.
Background
Some background is necessary to give context to the appeal.
The husband was born in late 1942 in Country B and is currently 77 years of age. He has Australian citizenship and lives in Australia.
The wife was born in mid-1952 in Country B, is aged 67 years, and lives in Country B.
The parties met and married in Country B in 1989. There was one child of the marriage, born in Country C in 1991, and currently aged 28 years.
The parties had an unusual relationship. Throughout the duration of their 25 year marriage they lived together under the same roof for less than 400 days in total in Australia and for four months after the birth of their son in Country C. For the remainder of their marriage, the parties lived apart and in different countries (at [4]).
The parties jointly cared for the child until he turned 21 months. Thereafter, the husband brought the child to Australia and became his primary carer with the assistance of the paternal grandmother, who lived with them in an apartment owned by the husband.
The parties did not acquire any assets together.
The marriage ended in 2014.
Relevant to this appeal, the parties agree that between 1996 and 1998 the wife sent a total of $360,000 of her own funds to the husband in Australia to invest on her behalf. There was no dispute that these funds were placed in bank accounts in the wife’s name in Australia (at [46], [75]).
There was unchallenged evidence from the husband that he returned to the wife a total of $274,690 by cheque, telegraphic transfer and bank transfer between 1997 and 2011, with an additional amount of $161,000 between 2011 and 2013 (at [50]). The primary judge found that the husband returned to the wife a total of $435,680 (at [51]). The husband, therefore, repaid to the wife $75,680 more than the sum of $360,000 that the wife had given him to invest on her behalf (at [57]).
The Appeal
The relevant principles governing interference by an appellate Court with a discretionary judgment are well known and found in House v The King (1936) 55 CLR 499. Appellate intervention is only warranted if some error is shown in the exercise of discretion by the primary judge. At 505 the High Court said:
… If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed … [i]t may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance…
There was no challenge to the primary judge’s application of legal principles or to her Honour’s interpretation of the provisions of Part VIII of the Family Law Act 1975 (Cth) (“the Act”).
Ground 2 – the primary judge gave “too little weight to the [w]ife’s parenting contributions from the birth of the parties’ child in December 1991 until June 1993.”
As a weight challenge, this ground faces great difficulty. A different view by an appellate Court only as to matters of weight will not justify a reversal of the decision of the primary judge (Gronow v Gronow (1979) 144 CLR 513 at 519).
It is clear that the primary judge gave express consideration to the fact that after the birth of the parties’ son, the parties jointly cared for him until June 1993 when the husband returned to Australia (at [160]). Thereafter, her Honour found that “the husband made almost all of the relevant parenting contributions” (at [161]), the wife did not “contribute her earned income to the enterprise of the family” and the wife did not “pay child support or contribute to the support of the child” (at [162]). Her Honour then found at [167]:
Having regard to my finding that the wife did not make a direct financial contribution and neither did she make a home making and parenting contribution which justifies recognition, I am unable to find that she made any indirect contribution to the acquisition, conservation or improvement of the assets, particularly, to the accumulation of the husband’s superannuation entitlements.
None of these factual conclusions were challenged on appeal.
It is clear that the primary judge accepted that the wife made a homemaking and parenting contribution between 1991 and 1993, but in the circumstances, concluded it did not warrant recognition in a property adjustment order.
The wife conceded in argument at the appeal hearing that no submission was put to the primary judge that the wife’s homemaking or parenting contributions should sound in a property adjustment of any particular size.
In addition, the wife made no attempt before us to specify what weight should have been given by the primary judge to the wife’s parenting contribution, nor to quantify how such a contribution should have been reflected in any property adjustment order.
We find that there is no merit in Ground 2.
Ground 5 – the primary judge “was in error when she failed to take into account the growth of the [w]ife’s contribution of $360,000 over a period of 15 years.”
Ground 6 – the primary judge “was in error when she failed to take into account that the [h]usband controlled all of the investments in Australia.
Grounds 5 and 6 can be dealt with together since, as the wife addressed them in oral submissions at the appeal hearing, they essentially raise the same issues and rely upon the same arguments.
There was no dispute that the husband controlled the wife’s $360,000 and he comingled these funds with his own. The wife sought to support both grounds of appeal by contending that because the husband controlled monetary investments in Australia while the wife lived elsewhere, the husband stood in a fiduciary position with regards to the wife’s money and should have provided, in the context of the proceedings in the Family Court of Australia, an accounting to the wife of how her $360,000 was invested and how much it returned as an investment while under his control.
As already recorded above, it was undisputed that the husband returned to the wife her investment of $360,000 together with a further amount of $75,680, prior to separation. There can be no doubt that the primary judge took account of the growth of the wife’s $360,000 prior to repayment by the husband.
The wife argued that she did not know how the $75,680 was calculated, and whether there was something additional which the wife was entitled to receive. The wife’s argument asserted that the husband could have kept some financial benefit which accrued from the investment of the wife’s $360,000, over and above the $435,680, which the husband had returned to her.
Such arguments have several obvious problems. The wife conceded before us that she had not raised any issue at trial about the absence of an accounting by the husband or the possibility that he had improperly retained some financial benefit derived from her $360,000. The wife agreed that no questions were put to the husband in cross examination concerning any such issue or possibility. The wife had access to the relevant bank accounts where her money was held and these would have made clear where the money went. The wife made no argument before the primary judge that the repayment by the husband to the wife of $435,680 did not represent a proper return by the husband of the wife’s original investment together with interest.
In these circumstances it is not open to the wife to raise these issues in the appeal (Metwally v University of Wollongong (1985) 60 ALR 68).
In any event, the wife was unable to articulate how an exercise in the nature of an accounting would have resulted in any different result before the primary judge.
We see no merit in Grounds 5 and 6.
We note here that in paragraph 12 of the wife’s Summary of Argument filed on 8 August 2019, the wife contended that the primary judge “unreasonably refused to allow a translation of a copy of a document the original of which was in Country B”. This submission was made in connection with a ground of appeal which was abandoned, which rendered the point otiose. Even if this problem is put to one side, the wife conceded in argument that the document in question was a translation that she herself had made of another document, which she had not disclosed, and which remained in Country B. It was not possible to make any reasonable assessment of the purported translation, and on any view, the tender of the document was properly rejected by the primary judge.
Conclusion
The appeal must be dismissed.
Costs
At the conclusion of the appeal hearing, we invited submissions as to the question of costs depending on the result. In the event that the appeal was dismissed, the husband sought an order for payment of the sum of $32,735 on a party/party basis.
The wife made no submissions as to why she should not pay the costs of the appeal, including no submissions about her financial circumstances. Thus, the wife will be ordered to pay the husband’s costs of $32,735.
The solicitors for the husband, presently hold $20,000 as security for the husband’s costs of the appeal, pursuant to orders made on 13 June 2019. Orders will be made to release this amount to the husband forthwith, with the balance of $12,735 to be paid by the wife within 28 days.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Aldridge and Harper JJ) delivered on 20 December 2019.
Associate:
Date: 20 December 2019
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