CHAU & CAO - [2019] FamCA 97

FAMILY COURT OF AUSTRALIA

CHAU & CAO

[2019] FamCA 97

FAMILY LAW – PROPERTY – Where the parties have lived separately for the majority of the marriage – Where the wife has lived in Country C and Country B, while the husband has lived in Australia – Where the parties had one child, who is now independent - Where the husband made an initial contribution of equity – Where the wife made no relevant initial contributions – Where the wife did not contribute her earned income to the enterprise of the family – Where the wife made no contributions to the acquisition, conservation or improvement of the husband’s assets -Where the wife provided money to the husband which was placed in Australian bank accounts – Where the money accumulated interest – Where the money was returned to the wife at her request – Where the wife alleges that significant funds were placed in Australian bank accounts on behalf of her family that have not been returned – Where this is disputed by the husband – Where the wife failed to make full and frank disclosure of income and assets – Where it was found that the failure to provide requested documents was deliberate – Where the wife’s failure to make full and proper disclosure meant it inappropriate to make any adjustment in her favour.

Family Law Act 1975 (Cth) ss 75, 79

Bevan & Bevan (2013) 279 FLR 1
Guinti & Guinti (1986) 11 Fam LR 160
Weir & Weir (1992) 110 FLR 403

APPLICANT:

Ms Chau

RESPONDENT:

Mr Cao

FILE NUMBER:

SYC

2741

2014

DATE DELIVERED:

27 February 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

11, 12 and 13 February 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Winfield

SOLICITOR FOR THE APPLICANT:

Access Legal Solicitors

COUNSEL FOR THE RESPONDENT:

Ms Christie SC

SOLICITOR FOR THE RESPONDENT:

Linden Legal

Orders amended pursuant to Rule 17.02 on 20 March 2019

Orders

IT IS ORDERED

That the application of the wife filed 8 May 2014 be dismissed.
That Order 5 made 8 August 2014 ~~2015~~ be discharged.

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 has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2741 of 2014

Ms Chau

Applicant

And

Mr Cao

Respondent

REASONS FOR JUDGMENT

Ms Chau (“the wife”) and Mr Cao (“the husband”) were both born in Country B. The husband migrated to Australia in 1973 and has become…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: CHAU & CAO [2019] FamCA 97
Case: [2019] FamCA 97
Decision Date: 27 February 2019

CaseChat Overview and Summary

In the matter of *CHAU & CAO*, Rees J of the Family Court of Australia considered a property dispute between a husband and wife. The parties had lived separately for the majority of their marriage, with the wife residing in Country C and Country B, while the husband remained in Australia. They had one child who was now an independent adult. The husband had made an initial financial contribution to the marriage, whereas the wife had made no relevant initial contributions and had not contributed her earned income to the family enterprise or the acquisition, conservation, or improvement of the husband's assets.

The central legal issues before the court were whether the wife was entitled to any adjustment in her favour regarding the parties' property, particularly in light of her alleged placement of significant funds in Australian bank accounts on behalf of her family, which the husband disputed. A further critical issue was the impact of the wife's failure to make full and frank disclosure of her income and assets, which the court found to be deliberate.

Rees J reasoned that the wife's failure to make full and proper disclosure was a significant factor. The court noted that the wife had provided money to the husband which was placed in Australian bank accounts and accumulated interest, but this money was subsequently returned to her at her request. Crucially, the court found that the wife's deliberate failure to provide requested documents and make full disclosure meant it was inappropriate to make any adjustment in her favour.

Consequently, the court ordered that the wife's application filed on 8 May 2014 be dismissed, and that Order 5 made on 8 August 2014 be discharged.

Orders

Orders of the court

IT IS ORDERED

That the application of the wife filed 8 May 2014 be dismissed.

That Order 5 made 8 August 2014 2015 be discharged.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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