Cheng & Mong

Case [2023] FedCFamC1A 196

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Cheng & Mong [2023] FedCFamC1A 196

Appeal from: Cheng & Mong (No 3) [2023] FedCFamC1F 577
Appeal number(s): NAA 202 of 2023
File number(s): SYC 2806 of 2020
Judgment of: MCCLELLAND DCJ, TREE & CURRAN JJ
Date of judgment: 15 November 2023
Catchwords: FAMILY LAW – APPEAL – PROPERTY – Whether the primary judge’s determination of a 75/25 contribution based division in favour of the husband was manifestly adequate – Whether the primary judge placed sufficient weight on the short duration of the marriage – Whether the primary judge placed sufficient weight on the direct financial contributions of the husband and the husband’s parents – Whether the primary judge placed sufficient weight on the husband’s parents’ non-financial contributions – Where Applications in an Appeal to adduce further evidence withdrawn – No error established – Appeal dismissed – No order as to costs.  
Legislation: Family Law Act 1975 (Cth) s 79
Cases cited:

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63

House v The King (1936) 55 CLR 499; [1936] HCA 40

Lovell v Lovell (1950) 81 CLR 513; [1950] HCA 52

Mallett v Mallett (1984) 156 CLR 605; [1984] HCA 21

Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17

Number of paragraphs: 40
Date of hearing: 30 October 2023
Place: Heard in Sydney, delivered in Parramatta
Counsel for the Appellant: Mr Jackson
Solicitor for the Appellant: AEON Law Firm
The Respondent: Litigant in person

ORDERS

NAA 202 of 2023
SYC 2806 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR CHENG

Appellant
AND:

MS MONG

Respondent

ORDER MADE BY:

MCCLELLAND DCJ, TREE & CURRAN JJ

DATE OF ORDER:

15 NOVEMBER 2023

THE COURT ORDERS THAT:

1.The appeal is 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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Cheng & Mong has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

MCCLELLAND DCJ, TREE & CURRAN JJ:

INTRODUCTION

  1. On 12 July 2023, a judge of the Federal Circuit and Family Court of Australia (Division 1) made final orders effecting a division of the parties’ property which, as at the date of the hearing, had…

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Cheng & Mong [2023] FedCFamC1A 196
Case
[2023] FedCFamC1A 196
Decision Date

CaseChat Overview and Summary

In this appeal, the husband, Mr Cheng, challenged the primary judge’s determination of a 75/25 contribution based division in his favour. The wife, Ms Mong, did not cross-appeal the orders made. The dispute involved the division of property acquired during the marriage, specifically a property in Suburb H, New South Wales, and a property in City C, Country B. The appeal was heard and dismissed by the Federal Circuit and Family Court of Australia.

The legal issues before the court were whether the primary judge’s determination of a 75/25 contribution based division was manifestly inadequate and whether the primary judge placed sufficient weight on the short duration of the marriage, the direct financial contributions of the husband and his parents, and the non-financial contributions of the husband’s parents. The husband argued that the primary judge did not sufficiently consider the short duration of the marriage and the financial contributions made by him and his family. The wife contended that the primary judge correctly assessed the contributions and duration of the marriage.

The court found that the primary judge had adequately considered the duration of the marriage, noting that it was a seven-year relationship and that the husband had not provided any argument as to the consequences of this fact. Regarding the financial contributions, the court found that the primary judge had specifically made findings about the direct financial contributions of the husband and his parents, acknowledging their significant contributions to the acquisition of the properties. The court concluded that the primary judge’s assessment of the contributions was accurate and that there was no error in her decision.

The appeal was dismissed, and the court ordered that each party bear their own costs. The reasoning of the primary judge was upheld, and no further evidence was adduced in the appeal.

Orders

Orders of the court

NAA 202 of 2023

SYC 2806 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR CHENG

Appellant

AND:

MS MONG

Respondent

ORDER MADE BY:

MCCLELLAND DCJ, TREE & CURRAN JJ

DATE OF ORDER:

15 NOVEMBER 2023

THE COURT ORDERS THAT:

1. The appeal is 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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

For the reasons that follow, the appeal will be dismissed.BACKGROUND The primary judge helpfully set out the background in her reasons at [15]–[16] as follows:The husband was born in Country B in 1979, and the wife in 1983. The parties met in early 2013, and married in 2013 in Australia. From 2013 to January 2015, the parties lived in a dwelling attached to the paternal grandfather’s business in Country U. In January 2015, the wife returned to Country B to live with her parents. X was born in 2015.The wife said she was the sole carer for X from birth until at least August 2017, when the parties relocated to Australia, as the husband came in and out of Country B on an infrequent and irregular basis given he was working in his father’s factory in Country U. The primary judge found that the husband only saw X (“the child”) for the first time in late 2015 and that the wife was the primary carer for the child. It was not in contest that the wife was not employed, and the husband was the sole source of income for the family. The primary judge further set out the background at [18] as follows:At the end of 2015, the parties purchased the property at F Street, District G, City C, Country B (“the City C property”) in the name of the husband’s aunt. The wife and X lived here from early 2016 until mid-2017. On 2 November 2016, the parties purchased the property at 1 J Street, Suburb H, New South Wales, Australia (“the Suburb H property”) in the husband’s sole name, which is where the husband’s sister lives. The purchase price for the Suburb H property was $1,695,000 and the husband obtained a mortgage in his sole name in the amount of $1,356,000. The primary judge found that the husband received $279,250 from his father and paid $339,000 towards the deposit of the Suburb H property, leaving a shortfall of $59,750. She found that the paternal grandparents did not contribute to the payment of stamp duty, leading to a total shortfall of $138,485. The primary judge concluded that sum can only have come from the parties’ savings. When the parties came to Australia on 17 August 2017, the parties lived at the Suburb H property. It was not in contest that the wife made no direct financial contribution to the matrimonial asset pool, as noted by the primary judge, but that she made indirect financial contributions. The parties separated on a final basis on 14 February 2020 when the wife left for Country B, as she says, on a temporary basis. Following her departure, the husband withdrew his support for her visa and since that time she has not returned to live in Australia, and the child has remained in the sole care of the husband. The husband received $1,369,937.24 from his mother on 22 August 2017, nearly one year after the Suburb H property was purchased. This was a significant contribution and while that was accepted by the primary judge, her Honour found that it was not utilised towards the mortgage for the Suburb H property and that the mortgage had only reduced by some $500,000 as at the date of the trial.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Ground 2 fails.CONCLUSION The appeal fails and is dismissed. COSTS The wife was self-represented on the appeal. The husband sought that if the appeal was unsuccessful that there be no order as to costs due to this fact. The wife made no submission as to costs. Each party should bear their own costs.

Ratio Decidendi

Legal Principle Established

It is convenient to consider the weight challenges and then consider the ground more generally.The complaint that the primary judge did not sufficiently give weight to “the relatively short duration of the marriage.” In his Summary of Argument, the husband contended that “[t]here is however no reference in the Reasons for the Judgment for the impact if any of such a relatively short marriage in the context of its duration”.[4][4] Appellant’s Summary of Argument filed 18 September 2023, paragraph 36. At trial, the husband’s Amended Case Outline filed 16 May 2023 recorded at page 11, “[a]lso not in dispute was the fact that this was a relatively short marriage of seven years, from 2013 until 2020”, although in oral submissions the relationship length was referred to as six and a half years. Plainly, the judge did have express regard to the duration of the marriage at paragraphs [15] and [21] where she records the date of marriage and date of separation. The husband’s contention in oral submissions that it was a very short relationship was not accepted by the primary judge. It was also not supported on the evidence. The following exchange occurred at trial:MR JACKSON: It’s a very short relationship, your Honour. They were together for literally a year or two, I think, or not much - - - HER HONOUR: It’s a seven-year relationship.[5][5] Transcript 13 June 2023, p.11 lines 21–24. The oral submissions thereafter referred to a “fairly” or “relatively” short relationship.[6] However the relationship was characterised, the primary judge accepted it spanned approximately seven years and noted that was uncontested. However, there was no submission made by the husband to the primary judge as to what should have been the consequence arising from this fact.[6] Transcript 14 June 2023, p.98 lines 31–39. It is evident that the primary judge accurately and uncontroversially recorded the period of cohabitation of the relationship. There is no reason to think she failed to properly weigh it as a relevant consideration. The complaint that the primary judge did not sufficiently give weight to “the extent of the direct financial contributions made by the husband, both by himself, and through his parents.” Throughout her reasons, the primary judge specifically made findings as to the direct financial contributions of the husband and his parents. Particularly, her Honour acknowledged the overwhelming financial contribution from the husband and his family, including: (a)At [47]:… [t]he husband conceded these monies provided to him, by his aunt, for the purchase of the City C property and by his parents for the Suburb H property, could not be characterised as loans but instead were contributions to the matrimonial asset pool, for which he should obtain a benefit by way of initial contribution. I accept that sensible position.(b)At [67]:While the concession was made to have these monies provided be treated as contributions, it is also a relevant fact that the paternal grandparents live in the Suburb H property and make no contribution to the ongoing costs and maintenance of this property, having provided significant monies initially to the husband.(c)At [69]:Thus, I do not regard to the entirety of the money advanced by the paternal grandparents to the husband as contributions, but rather in part a pre-payment by them of what they should pay for living in the Suburb H property. There is no doubt part of the advancement assisted the parties to purchase the Suburb H property when they did and that this is a relevant contribution by the husband via his parents.(d)At [74]:… There is also no doubt that the husband financially supported the wife at a high level during the marriage, as did his parents at times, and there can be no criticism of the husband in regard to the monies he paid to the wife to support her whilst she was living in Country B and together in Australia, and I reject the wife’s criticisms of the husband in that regard…(e)At [96]:The husband provided, by way of his income and assistance from his parents and perhaps his aunt, the totality of money to purchase both the Suburb H property and the City C property…(f)At [99]:Up to the birth of [the child], I find the parties made equal contributions. After the birth of [the child], I find the husband had a financial resource in his family to assist in the purchase of the City C property. The husband used his income to pay off the mortgage of the City C property while the wife lived there and cared for [the child]. The wife contributed to the maintenance of the City C property in the husband’s absence.(g)At [100]:The parties used their savings of approximately $138,485 at that time of the purchase of the Suburb H property, and the husband paid the mortgage whilst the wife and [the child] occupied the property, with the paternal grandparents. Thus, contrary to the wife’s position of having made no financial contribution to the acquisition of the assets, she has made a contribution. The husband had a financial resource, namely his parents, to assist in the purchase of the Suburb H property.(h)At [101]:After arriving in Australia, I find the wife continued her primary care of [the child], while the husband continued to earn the income. It is clear there was a significant direct financial contribution from the husband’s parents to the acquisition of the Suburb H property and thus the husband’s contributions to the acquisition of this property are superior to that of the wife. I accept that his parents have also made significant contributions to the ongoing conservation and maintenance of the Suburb H property; However, they also live at that property and enjoy the benefit of this to the exclusion of the wife.(Footnotes omitted)