Cheng & Mong (No 3)

Case [2023] FedCFamC1F 577

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Cheng & Mong (No 3) [2023] FedCFamC1F 577

File number: SYC 2806 of 2020
Judgment of: HENDERSON J
Date of judgment: 12 July 2023
Catchwords: FAMILY LAW – PROPERTY SETTLEMENT – Where the parties were in a relationship for approximately seven years – Where there is one child of the marriage – Contributions – Where the wife concedes the husband made overwhelming financial contributions to the assets during the marriage – Where the wife’s contributions were that as parent and homemaker – Where the wife’s parent and homemaker contributions abruptly ceased at the date of separation due to the husband’s actions – Finding that the division of the matrimonial pool is 75 per cent to the husband – Future needs – Where both parties have relevant future needs – Where the husband’s sole financial care of the child results in an adjustment of 5 per cent being made – Just and equitable – Where the proposed division is just and equitable.
Legislation:

Family Law Act 1975 (Cth) ss 75(2), 75(2)(c), 75(2)(k), 75(2)(na), 75(2)(o), 79(4), 79(4)(a), 79(4)(b), 79(4)(c), 79(4)(g), 102NA, 117B.

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 6.06(6), 10.17.

Cases cited:

Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116.

Cheng & Mong [2022] FedCFamC1F 260.

Cheng & Mong (No 2) [2023] FedCFamC1F 460.

Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381.

Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52.

Division: Division 1 First Instance
Number of paragraphs: 112
Date of hearing: 13–14 June 2023
Place: Sydney
Counsel for the Applicant: Mr Jackson
Solicitor for the Applicant: Aeon Law Firm
Counsel for the Respondent: Mr Duc
Solicitor for the Respondent: Ark Law Lawyers

ORDERS

SYC 2806 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR CHENG

Applicant
AND:

MS MONG

Respondent

order made by:

HENDERSON J

DATE OF ORDER:

12 July 2023

THE COURT ORDERS THAT:

1.Within 3 months of the date of these orders, the husband is to pay the wife the sum of $316,612.

2.In the event the husband does not comply with Order 1, the following is to occur:

(a)The husband is to sell either of the following:

(i)1 J Street, Suburb H, New South Wales, Australia; or

(ii)F Street, District G, City C, Country B;

(b)The husband is to make an election as to which property to sell within 7 days, and the husband is thereafter to notify the wife of this election; and thereafter

(c)The husband is to place the property on the market for sale with an agent of his choice within 30 days and is to provide the wife with a copy of the agency agreement, or equivalent document in Country B;

(d)Upon exchange, the husband is to provide the wife with a copy of the front page of the contract for sale document, including the sale price of the property,…

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AGLC
Cheng & Mong (No 3) [2023] FedCFamC1F 577
Case
[2023] FedCFamC1F 577
Decision Date

CaseChat Overview and Summary

In the case of Cheng & Mong, the husband sought an anti-suit injunction against the wife to prevent her from pursuing proceedings in another jurisdiction, as well as making various other claims related to their matrimonial property. The Federal Circuit and Family Court of Australia was tasked with deciding whether to grant the injunction and the other relief sought.

The legal issues the court had to resolve included whether the husband's evidence regarding the wife's role in caring for their child and performing domestic duties was credible, as well as the appropriate division of the parties' matrimonial assets. The court also had to consider whether an anti-suit injunction was necessary to prevent an unjust outcome in the proceedings.

The court found that neither party's proposed division of their matrimonial assets would result in a just and equitable outcome. The judge rejected the husband's evidence that he and the paternal grandfather had been primarily responsible for caring for the child and performing domestic duties in Country B, finding instead that the wife had been the primary caregiver and homemaker during that time. The court also found the husband's evidence about the wife's behaviour in Australia to be unreliable, based on hearsay and limited personal knowledge.

Ultimately, the court declined to grant the anti-suit injunction sought by the husband, finding that it was not necessary to prevent an unjust outcome in the proceedings. The court made orders regarding the division of the parties' matrimonial assets and other matters as set out in the judgment.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Neither party’s position would result in a just and equitable division of their matrimonial assets.THE EVIDENCE I accept entirely that when the wife was living in Country B, not only was she the primary carer of X, but that she carried out all domestic duties for X. I accept that when the husband and paternal grandparents were in Country B to visit the wife and X, they may have assisted in carrying out some domestic duties, otherwise that role fell upon the wife. I do not accept the position of the husband and the paternal grandfather that they, in some way, were exclusively caring for X and carrying out domestic duties in Country B when they visited the wife and X. It was a feature of the husband’s evidence that he worked hard at his father’s business in Country U and this is consistent with the wife’s evidence that the husband did not see X until he was around six months of age. The husband and the paternal grandfather gave evidence that they spent two weeks in Country B caring for X and doing homemaker duties, on an alternating basis, since the birth of X. I reject that evidence for the following reasons. Firstly, for several months after the birth of X, the wife lived with her mother and there was no need for the husband or the paternal grandfather to assist the wife with X or household tasks, other than at times when required. Secondly, I accept the evidence of the wife that the husband first saw X when he was around six months of age, which is consistent with the parties’ evidence of when they purchased the City C property. I accept that the husband and the paternal grandparents did visit the wife in Country B when she lived independently in the City C property, which these visits were on a more regular basis and they did assist the wife, who was then living on her own, in a unit, without the assistance of her family. Other than for this, there would have been no need for the husband and the paternal grandfather to visit Country B to assist the wife. Again, this is consistent with the wife’s position and the first time the husband entered Country B to see X was when he was around six months of age. I accept the parties moved to Australia and commenced living with the paternal grandparents at 2 J Street, Suburb H, with the homemaker duties been shared, in particular by the wife and the paternal grandmother, as both the husband and paternal grandfather were working. The wife described a lonely and emotionally deprived life in Australia and this was referred to in the parenting judgment.[4] This was a poignant description of her life and confirmed by the nature of the husband’s evidence, which was that:(1)The wife did not clean up any common areas in the house, but only cleaned up after herself;(2)The wife did not prepare meals for the family, but only did for herself;(3)The wife generally did not work hard and only looked after herself; and(4)She did not prepare meals for X or did not feed him at appropriate times as she was concerned only about her needs.I reject this cruel evidence. Given the husband said he left for work at 5am and was returning home at 8pm, he would have had no idea what was happening in the house other than what his mother may have told him. The husband’s evidence in this regard is based on hearsay and only on the weekends would he have direct knowledge of what occurred, as he and the wife would have shared the care of X as was appropriate.[4] Cheng & Mong (No 2) [2023] FedCFamC1F 460 at [60]–[61].

Decision

Reasons for decision

I will decline to make an anti-suit injunction against the wife as sought by the husband.CONCLUSION I make the orders as set out in the forefront of these Reasons for Judgment.

Ratio Decidendi

Legal Principle Established

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