Cheng & Mong (No 3)
[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, or such equivalent document in Country B; and
(e)Upon settlement, the net proceeds of the sale are to be paid in the following priority:
(i)Discharge any registered loan on the title to a financial institution; then
(ii)All sale costs and expenses, including agency fees and council rates; then
(iii)To the wife in payment of Order 1 plus interest pursuant to Order 3; and thereafter
(iv)The balance to the husband.
3.Pursuant to section 117B of the Family Law Act 1975 (Cth) and rule 10.17 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), interest shall accrue on the amount payable in Order 1 from the date it should have been paid until the date it is paid.
4.Subject to the above orders, as between the husband and the wife, in relation to all properties and financial resources in Australia and overseas, including Country B, the husband and the wife shall each respectively retain all interest in and entitlement to:
(a)All personal property now in his or her respective possession or control;
(b)All shares, debentures, units in unit trusts, accounts with any bank, building society or credit union in his or her sole name respectively; and
(c)All interests in insurance policies and superannuation funds standing in his or her name respectively.
5.Subject to the above orders, the husband shall remain solely liable for all liabilities in his sole name, including any and all such liabilities toward any third parties, and the husband shall indemnify and keep indemnified the wife in relation to these liabilities.
6.Subject to the above orders, the wife shall remain solely liable for all liabilities in her sole name and the wife shall indemnify and keep indemnified the husband in relation to these liabilities.
7.Leave is granted to the parties to provide only a copy of these orders and Reasons for Judgment to the courts in Country B.
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
HENDERSON J:
In the matter of Cheng and Mong, these Reasons for Judgment deal with an application for property adjustment between Mr Cheng (“the husband”) and Ms Mong (“the wife”).
The wife lives in Country B, having gone there to visit her family in early 2020 on a temporary basis. However, the wife is unable now to live in Australia, as the husband withdrew his sponsorship for her partner visa no later than 10 days after her leaving for Country B.
I have dealt with the parenting arrangements for the parties’ child, X, and delivered Reasons for Judgment on 8 June 2023 (“the parenting judgment”).[1]
[1] Cheng & Mong (No 2) [2023] FedCFamC1F 460 (Henderson J).
INTRODUCTION
When the matter first came before me, I could not deal with the property proceedings, as there was a decision outstanding in the Country B City C Court (“Country B Court”) as to whether they would assume jurisdiction in relation to the parties’ matrimonial assets, which includes real estate in both Australia and Country B, or, consistent with the decision of Smith J delivered on 2 May 2022,[2] agree that Australia was not a clearly inappropriate forum and permit the husband to continue his application for property adjustment in Australia in respect to the parties’ matrimonial assets.
[2] Cheng & Mong [2022] FedCFamC1F 260 (Smith J).
In early 2023, a judgment was delivered in the Country B Court in relation to the wife’s application that the proceedings for property settlement be heard in Country B and not Australia. Under the heading ‘Analysis of Reasonings’, the Country B Court says the following:
(2) What is the Proper Law applicable to the matrimonial asset structure?
(b)… Whereas there is no mutual domestic law to the parties, the law of the mutual land of residence shall be adopted. …
…
(d)… According to the above, it is difficult to say there is a common domestic law applicable to the parties because the Plaintiff has citizenship of our country and the Defendant’s domestic law is the law of Australia. As a result, the Proper law applicable in this case shall be the law of the common residence or the law bearing most nexus to the matrimonial relationship of the spouse parties.
(e)Therefore, the Proper Law application to the matrimonial structure of the parties in this matter shall be Australian law.
(As per the translation)
In the proceedings before the Country B Court, the wife is the plaintiff, while the husband is the defendant.
The wife has appealed that decision, and from a reading of the judgment of the Country B Court, I am inclined to accept that she has minimal prospects of success.
When I determined to hear these proceedings, the wife sought an adjournment pending the outcome of her appeal, which I refused.
The wife then sought an order that if I did not accede to her adjournment application, I should hear and determine the property in Australia but not the property in Country B. I refused that application as well finding that such an outcome would not result in a just and equitable outcome, but also neither the Country B Court nor this Court would determine to conduct this matter in that fashion.
THE HEARING
The hearing occurred over two days on 13 and 14 June 2023.
The husband was represented by Mr Jackson of counsel and the wife by Mr Duc of counsel pursuant to the provisions in section 102NA of the Family Law Act 1975 (Cth) (“the Act”).
The mother attended the hearing via Microsoft Teams from Country B where she has lived since early 2020.
DOCUMENTS AND EXHIBITS
The material read was as follows:
(1)For the husband:
(a)Amended Case Outline filed on 16 May 2023;
(b)Further Amended Initiating Application filed on 3 March 2023;
(c)Further Amended Reply filed on 23 May 2023;
(d)Financial Statement filed on 16 May 2023;
(e)Affidavit of the husband, Mr Cheng, filed on 3 March 2023;
(f)Affidavit of the husband, Mr Cheng, filed on 16 May 2023;
(g)Affidavit of the husband’s sister, Ms Q, filed on 3 March 2023; and
(h)Affidavit of the paternal grandfather, Mr P, filed on 3 March 2023.
(2)For the wife:
(a)Case Outline filed on 30 March 2023;
(b)3rd Further Amended Response to Initiating Application filed on 9 June 2023;
(c)Financial Statement filed on 25 May 2023;
(d)Affidavit of the wife, Ms Mong, filed on 3 March 2023;
(e)Affidavit of the wife, Ms Mong, filed on 14 March 2023;
(f)Affidavit of the wife, Ms Mong, filed on 16 May 2023; and
(g)Affidavit of the wife, Ms Mong, filed on 8 June 2023.
I note at this juncture that the documents the wife sought to rely upon were numerous and repetitive, and no amended Case Outline was filed on her behalf to indicate which documents she relied upon. This is no criticism of counsel for the wife as his involvement in this matter, pursuant to the scheme under section 102NA of the Act, was most helpful to the Court. It is simply an unfortunate circumstance with this scheme that litigants are often left to draft and file their own documents, often without the leave of the Court, and often at the litigant’s own discretion, as was the case here. The affidavits of the wife listed above were those read during the wife’s examination-in-chief and I granted leave to the wife to rely upon the affidavit filed on 14 March 2023.
(3)There was also an affidavit of Ms EE filed on 13 May 2023, who was appointed a single expert for the translation of the last decision from the Country B Court, from which the wife has appealed, titled ‘Civil Judgment of the [Country B City C] Court’.
Documents tendered and marked as exhibits was as follows, noting no exhibits were tendered in the wife’s case:
(1)For the husband, an updated Minute of Order (Exhibit H3); and
(2)For the Court, an amended version of Part H of the husband’s Amended Case Outline (“the balance sheet”) (Exhibit C1).
SHORT CHRONOLOGY
I set out a chronology in the parenting judgment, which should be read in conjunction with this short chronology.[3]
[3] Cheng & Mong (No 2) [2023] FedCFamC1F 460 at [13]–[58].
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 wife asserts that the husband only saw X for the first time in late 2015. Meanwhile, the husband asserts that since the wife returned to Country B in January 2015 until the parties moved to Australia in 2017, he went to Country B two weeks per month to care for the wife and X exclusively. In this same period, the paternal grandfather asserts that when the husband was not in Country B, he and his wife were in Country B, in effect carrying on the same role as the husband.
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.
In late 2016, the parties purchase the property at 1 J Street, Suburb H, New South Wales, Australia (“the Suburb H property”) for over $1,600,000 in the husband’s sole name, which is where the husband’s sister lives.
When the parties came to Australia in 2017, the parties lived at 2 J Street, Suburb H, which is owned by the husband’s sister.
The parties separated on a final basis in early 2020, when the wife left for Country B, as she says, on a temporary basis.
In early 2023, the Country B Court delivers judgment, inter alia, finding that Australian law is the proper jurisdiction to hear the parties’ matrimonial dispute.
In mid-2023, the wife files an appeal to the judgment of the Country B Court. This appeal is yet to be determined.
ISSUES
The issues for determination in this matter were as follows:
(1)The identification of the assets and liabilities to determine what the matrimonial asset pool is for division;
(2)The contributions of both parties, being the contributions initially and during the marriage, and post-separation, whether financial, non-financial and homemaker contributions; and
(3)Whether there are any future needs of the parties, and if so, what adjustment should be made for the party with the future needs.
THE PARTIES’ POSITIONS
The husband’s position was that he retain the Suburb H property and the City C property, and pay the wife the sum of $110,000, and thereafter, each party retain the assets in their possession and indemnify the other from liabilities in their name. From the balance sheet (prior to my determination of each item), the wife would receive some 7 per cent of the matrimonial asset pool.
Having dealt with the wife’s primary and first alternate positions, her second alternate position was for an equal division of the matrimonial asset pool.
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].
The husband’s evidence of the wife looking out for her own needs is consistent with her evidence that she was lonely, felt shunned by the paternal grandparents and was deeply unhappy living in Australia, being the sole parent of a young child, having no job and being unable to work or drive, and was in reality, housebound. This evidence did not satisfy me that the wife was not anything other than a devoted, competent, and caring parent to X as she attested.
The mother alleges family violence was perpetrated against her by the husband. As I said in the parenting judgment, I did not make such findings, but rather that the parties were in a deeply unhappy relationship. The mother was lonely and emotionally neglected by the husband and the paternal family. As I said in the parenting judgment:
61The mother alleged that the father was coercive, controlling and violent to her. The evidence did not support such findings, however, the mother’s emotional wellbeing was neglected by the father and his parents, and the mother felt unloved and not valued by her husband. The neglect of emotional wellbeing by the father and in the paternal home is a feature of this matter, and this neglect has also been suffered by [X].[5]
(As per the original)
[5] Cheng & Mong (No 2) [2023] FedCFamC1F 460 at [61].
In early 2020, the wife left Australia for Country B, having given no notice to the husband nor the paternal family and, most particularly, X. Ten days later, the wife came back to Australia for approximately five days and spent approximately 15 minutes with X at his preschool. Otherwise, the wife’s time with X has been minimal and sporadic. Between July and September 2020, the wife was able to enter Australia, and after spending two weeks in isolation upon entering, spent exceedingly limited time at a restaurant with X, whilst the husband and the paternal grandfather were hovering over her.
As I found in the parenting judgment, X was and is spending very limited time with the wife, both face-to-face and electronically, which this sad state of affairs lies solely at the feet of the husband.[6]
[6] See Cheng & Mong (No 2) [2023] FedCFamC1F 460 at [73], [84].
It is apparent for the first four years of X’s life, the wife was his primary carer and was a constant in his life, given the husband’s infrequent and irregular visits to Country B, and upon moving to Australia, the husband worked lengthy hours.
Balance Sheet
The asserted matrimonial asset pool was as follows:
Item Owner Description Husband’s Value Wife’s Value ASSETS 1 H 1 J Street, Suburb H $2,550,000 2 H F Street, District G, City C, Country B $765,000 3 W K Street, Town L, District M, Country B Not known 4 H Cash $22,900 5 W Cash $379 6 H Other personalty $3,000 $613 7 H Household contents $5,000 8 W Household contents $5,000 GROSS ASSETS $3,346,279 LIABILITIES 9 H Mortgage with Commonwealth Bank of Australia for Suburb H property $1,182,852 10 H Mortgage withy FF Bank for City C property $537,143 11 H Personal loan from aunt E$730,000 12 H Loans from father $2,384,124 13 H Credit cards $6,704 14 W Personal loan $52,410 15 W Credit cards $430 NET LIABILITIES $4,840,823 NET ASSETS (EXCL. SUPERANNUATION) ($1,494,544) SUPERANNUATION 16 H Superannuation Fund 1 $17,291 NET SUPERANNUATION $17,291 NET ASSETS (INCL. SUPERANNUATION) ($1,477,253) FINANCIAL RESOURCES 17 H Parents’ funds in GG Bank and HH Bank $13,000 NET FINANCIAL RESOURCES $13,000
Each of the parties asserted the other owned real estate in Country B. In particular, the husband asserted the wife owned real estate, citing speculative evidence in support. However, not one document was tendered into evidence that supported these assertions and I reject the assertion by both parties that the other owned real estate in Country B, aside from the City C property. Therefore, I reject the inclusion of Item 3.
I will not include either party’s cash in the bank nor any of the party’s credit card debt, as the parties have been separated for three and a half years, and these are the property and debts of each party solely. Therefore, I reject the inclusion of Items 4, 5, 13, 14, and 15.
The balance sheet that was tendered as Exhibit C1 did not include Items 6–8 and I will not include them.
In relation to Items 11 and 12, the 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.
This is an unusual case in that the wife agreed she has made no direct financial contribution to the matrimonial asset pool.
The wife agreed that the purchase of the Suburb H property and the City C property were funded by a combination of the husband, the paternal grandparents, and/or other paternal family members, and the wife conceded that her contribution was as a parent and homemaker for X and the husband.
In relation to the City C property, the husband asserts monies have been transferred to him as follows:
(1)The husband obtained a loan in Country B currency;
(2)The balance paid for by the husband’s aunt; and
(3)Between 2016 and 2020, further monies in Country B currency from friends and other relatives for mortgage repayments and outgoings for the City C property.
The husband’s aunt did not file an affidavit nor give evidence at the hearing, due to the husband’s assertion that her age prevented her deposing an affidavit. Yet, she would have been able to give evidence via audio/video link. Further, the husband deposed in his affidavit that he was “afraid as it [the purchase of the [City C] property] happened a long time ago it is possible that my auntie might not have kept all the records”, indicating the husband had yet to ask his aunt if she had any documents, contrary to his assertion he had done so.
While I accept the wife made no contribution to the City C property, whether the aunt paid what was asserted, I am unable to say.
I accept that during the marriage, the mortgage on the City C property was paid from the husband’s earnings, to which the wife has made a contribution.
There is no evidence of the paternal family providing the husband with a sum of Country B currency to maintain the City C property and I reject that figure.
The husband says the following monies were advanced to him:
(1)$169,500 from his father on 1 September 2016;
(2)$109,750 from his father on 12 September 2016;
(3)$94,937.24 from his father on 22 August 2017; and
(4)$1,369,937.24 from his mother on 22 August 2017.
The husband said that in 2016 he had discussions with his father about moving to Australia. The husband asserts that his father said to him:
… words to the effect of “I will start to cease my business in [Country U] and move funds to Australia. The funds could be lent to you for its purchase and maintenance and have a good life with [the wife] and my grandson in Australia.”
(Emphasis in bold added)
Meanwhile, the paternal grandfather gives no particulars of any discussion with the husband, other than to say:
… I lent my funds from the [Country U] business to help [the husband] in financing his purchase of [the Suburb H property].
(As per the original with clarification)
No evidence was given as to a loan agreement entered into between the husband and the paternal grandfather or his business, and the phrasing of “words to the effect of” is insufficient to satisfy that there was such an arrangement.[7]
[7] See Kane’s Hire Pty Ltd v Anderson Aviation Australia Pty Ltd [2023] FCA 381 at [123] (Jackman J).
The husband asserts that he paid the following sums of money to settle the Suburb H property:
(1)$169,500 as the first instalment of the deposit in September 2016;
(2)$169,500 as the second instalment of the deposit in October 2016; and
(3)$78,735 for stamp duty in October 2016.
The husband asserts that of the purchase price of over $1,600,000 he obtained a mortgage in his sole name in the amount of $1,356,000.
Going off the figures provided by the husband, he received some $279,250 from his father and paid some $339,000 towards the deposit of the Suburb H property, leaving a shortfall of $59,750.
Further to this, the paternal grandparents did not contribute to the payment of stamp duty, leading to a total shortfall of $138,485. This can only have come from the parties’ savings.
There is much made in the husband’s affidavit of his parents lending him money to pay the mortgage and maintenance of the Suburb H property. I accept that these sums have been paid into the husband’s bank account by his parents. However, the purpose for which these sums were paid remains unclear. For example, the advancement of $1,369,937.24 from his mother on 27 August 2017, nearly one year after the property was purchased, was not utilised toward the mortgage for the Suburb H property, as the mortgage has only reduced by some $500,000 as at today’s date.
The amounts the husband sought that I take into account, being advancements from his parents in the sum of $2,384,124, and his aunt in the sum of approximately $730,000.
Ultimately, the monies provided by the paternal grandparents was not pressed as a liability, and the monies provided by the husband’s aunt were conceded to be treated as a contribution by the husband.
In any event, I am not satisfied on the evidence as to the advancement by the husband’s aunt, given the lengthy hours he worked in his father’s business and that his father would have had surplus funds to advance him at that time. Further, I do not accept the husband’s evidence that he and the wife had no savings to contribute to the purchase of the City C property.
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.
The husband and his family cannot have it both ways. These monies were either a contribution to the acquisition and maintenance, or paid in advance to be cared for by the husband, or perhaps a combination of both. I prefer the latter description.
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.
Of relevance also is that the wife has been effectively excluded from the Suburb H property, by the conduct of the husband, in withdrawing his sponsorship for her partner visa some 10 days after she told him she had left Australia for Country B on a temporary basis. The husband and his parents have enjoyed the benefit of living in the Suburb H property to the wife’s exclusion.
A superannuation splitting order was not sought and therefore I will not include the husband’s superannuation in Item 16.
Finally, Item 17 was not raised and therefore will not be included.
I find that the matrimonial asset pool for division is as follows:
Item Owner Description Value ASSETS 1 H 1 J Street, Suburb H $2,550,000 2 H F Street, District G, City C, Country B $730,000 GROSS ASSETS $3,280,000 LIABILITIES 3 H Mortgage over Suburb H property $1,182,852 4 H Mortgage over City C property Country B currency
(AUD514,080)NET LIABILITIES $1,696,932 NET ASSETS $1,583,068
The husband’s evidence, and confirmed by the paternal grandfather, that the wife was selfish and only did work around the house for herself, is rejected. I have no doubt that the paternal grandmother assisted the wife and I have no doubt they both carried out the homemaker duties in the home whilst their husbands worked. 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. The wife was without work, had no income and required support. This is a relevant factor and indicates the standard of living that the parties had.
The husband asserts that he, via his parents, paid the wife a sum per month in Country U currency between October 2013 and July 2017. The husband asserted the total amount transferred in Country U currency. The husband also asserts that his mother paid the wife “maintenance fees” between June 2015 and July 2016 in Country B currency. This was proper given the husband was working full-time in Country U, whist the wife solely cared for X, albeit I accept that he and the paternal grandparents would visit her on occasion when she moved to the apartment.
It is clear on the husband’s evidence there was a shortfall of monies borrowed or contributed by his parents of $138,485 to provide in the deposit and payment of stamp duty for the Suburb H property. I find that this shortfall came from the parties’ savings, which the wife made a contribution to that money in her role as homemaker and as a parent with her care of X.
I reject the evidence of the husband and the paternal grandfather that the wife spent more time looking after herself than X. The wife’s email to the husband when she left for Country B was as follows:
[Mr Cheng],
I can no longer withstand you and your family’s high-pressure control and psychological abuse. This type of lifestyle is beyond the limit of any normal person.
After putting in a lot of effort and many attempts to communicate, I just can’t take it anymore! And I will not take it anymore.
So, I have decided to return to [Country B] to take a break.
During this period of time, please take care of our beloved son, [X]. Should [X] need anything, call or text me anytime.
(As per the certified translation)
The wife was the constant in X’s life. Everyone else in his life came in and out, and it was always his mother that was with him.
In those circumstances, I find for the first four years of X’s life, the wife was his primary carer. Once the wife left for Country B in early 2020 and the husband withdrew his sponsorship for her partner visa, effectively cancelling it, the wife was unable to carry out her role as the primary carer for X, and instead it was the husband, with the assistance of his parents and sister, who carried out the role as the primary carer for X.
I further find that the wife’s primary care of X was quite arduous in the early years in that she and the husband did not live together for at least the first two years of X’s life, as the husband worked in Country U and visited her and X in Country B on occasion. It was only when they the parties came to Australia that X lived with both of his parents in the one house.
The husband’s evidence was clear. He worked long hours, leaving home at 5am and returning at 8pm. However, the paternal grandfather said the husband worked eight hours a day. I do not accept that evidence and it is inconsistent with what the husband said.
Important to my determination is the parties’ income. I have great difficulty accepting the income the husband asserts he receives, being $680 per week. The husband asserts in his Financial Statement that he works part-time. I am not satisfied that the income he disclosed in his Financial Statement is an accurate reflection of his income for the following reasons.
The husband asserts that despite describing himself as an engineer in his oral evidence (but a tradesman in his Financial Statement) and earning $680 per week, he has expenses of approximately $2,856 per week. The husband then asserts that his father pays for approximately $1,500 per week for his benefit, being “living expenses, mortgage, rates and other disbursement [sic]”. This leaves a shortfall of $676 per week unexplained. The paternal grandfather’s evidence was that he and his wife have little money left after having given the husband what they have.
Secondly, the husband has made no attempt in either his affidavit material or his Financial Statement to provide evidence on his expenditure. The husband attempts to provide commentary in ‘Part O – Additional Information’ of his Financial Statement, but I have no regard to this information as it does not comply with rule 6.06(6) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Thirdly, it is impossible to accept that the husband was able to borrow $1,380,000 from the Commonwealth Bank of Australia in 2017 to purchase the Suburb H property, if he was working part time and earning only $680 per week.
I do not accept the husband’s evidence in relation to his income as disclosed in these proceedings however and cannot make a finding as to his income. However, the evidence tends to suggest his income is closer to, at a minimum, $2,856 per week required for outgoings than $680 as disclosed, and the evidence of the husband in this regard was far from satisfactory.
Looking at the wife’s position I accept entirely she earns a modest income of some $315 per week and has some debts.
The husband will be the sole carer and parent for X due to his unilateral conduct. This has resulted in the wife having to live in Country B, and this combined with the operation of Australia’s harsh migration laws, her limited holiday time and low income, will inhibit her ability to spend time with X more frequently.
The mother will not pay child support, and thus the husband will have the sole emotional and financial costs of caring for X.
I am not satisfied that the husband now has a significant financial resource in his parents, given the money they have provided him, as well as the paternal grandfather’s evidence they have little money left.
I am not satisfied the income the husband disclosed in his Financial Statement is accurate, as it was not supported by any documentary evidence and is inconsistent with his borrowing capacity and outgoings he pays.
The wife, on the other hand, has a very modest income, has some liabilities and no property of significant value.
The husband has two items of real estate – the Suburb H property and the City C property – and the invaluable support of his parents to assist him in the care of X, but he does this solely in the absence of the wife.
The husband has some modest superannuation and neither party sought a superannuation splitting at all. The wife will not have superannuation in Country B. The husband’s superannuation and assets in Australia will continue to increase in value.
THE LAW
Consistent with authority such as Stanford v Stanford[8] and Bevan & Bevan,[9] the four-step process in determining property adjustment applications under Part VIII of the Act is as follows:
•identification and valuation of the property of the parties;
•identification and evaluation of contributions to the property (including property no longer owned by the parties);
•identification and assessment of the various matters in s 79(4)(d) to (g) including, to the extent they are relevant, the maters in s 75(2);
•consideration of maters of justice and equity.[10]
(As per the original)
[8] (2012) 247 CLR 108 (French CJ, Hayne, Heydon, Kiefel and Bell JJ).
[9] (2013) FLC 93-545 (Bryant CJ, Finn and Thackray JJ).
[10] Bevan & Bevan (2013) FLC 93-545 at [60] (Bryant CJ and Thackray J, with Finn J agreeing).
I have formed the view that the wife was the sole and primary parent of X for the first four years of the marriage.[11] The husband played a very minimum role.
[11] Family Law Act 1975 (Cth) s 79(4)(c).
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.[12] However, the wife, in caring for X in Country B and Australia, in her role as parent and homemaker, contributed to the husband’s income, as well as their savings leading up to the purchase of the Suburb H property.
[12] Family Law Act 1975 (Cth) s 79(4)(a).
The parties had approximately $138,485 in savings at the time the Suburb H property was purchased and I have found the wife has made a contribution to that sum. The wife also made contribution to the City C property outgoings when the parties came to Australia in her role as parent and homemaker.
The wife has a far inferior earning capacity compared to that of the husband.[13] However, the husband will have the sole financial and emotional care of X,[14] particularly in circumstances where the mother will not pay child support,[15] and these are both relevant factors.
[13] Family Law Act 1975 (Cth) s 75(2)(k).
[14] Family Law Act 1975 (Cth) s 75(2)(c).
[15] Family Law Act 1975 (Cth) ss 75(2)(na), 79(4)(g).
Up to the birth of X, I find the parties made equal contributions. After the birth of X, 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 X. The wife contributed to the maintenance of the City C property in the husband’s absence.
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 X 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.
After arriving in Australia, I find the wife continued her primary care of X,[16] while the husband continued to earn the income.[17] 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.[18] However, they also live at that property and enjoy the benefit of this to the exclusion of the wife.
[16] Family Law Act 1975 (Cth) s 79(4)(c).
[17] Family Law Act 1975 (Cth) s 79(4)(a).
[18] Family Law Act 1975 (Cth) s 79(4)(b).
Having regard to all these matters, I assess the husband’s contribution-based entitlement to the matrimonial asset pool at the date of separation, being early 2020, to have been superior to the wife’s, and I assess his contribution-based entitlement at 75 per cent.
The husband is in a superior financial position to the wife and has a superior and undisclosed income to that of the wife. However, the husband has the full-time care of X and will receive no child support from the wife.
Although the husband has made a superior contribution to X post-separation, he has lived in the home to the exclusion of the wife and it was his conduct and behaviour that caused this sad set of circumstances to occur. I find this is a relevant factor to take into account,[19] as is the wife’s limited income.
[19] Family Law Act 1975 (Cth) s 75(2)(o).
I find there should be an adjustment to the husband of 5 per cent, having regard to his sole care of X into the future.
I find the wife’s entitlement to the matrimonial pool to be 20 per cent and the husband’s to be 80 per cent. As such, the wife’s entitlement is $316,612.
I find that is a just and equitable division of the parties’ matrimonial property and I will so order the husband to pay this sum to the wife.
In the event the husband does not pay this sum in the specified period, I will order the husband is to sell either the Suburb H property or the City C property. I will also order that interest will accrue on this sum payable from the day after the final day the sum was due payable.[20]
[20] Family Law Act 1975 (Cth) s 117B; Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.17.
OTHER ISSUES
The husband sought an anti-suit injunction against the wife in relation to the proceedings in Country B. While it has been determined that Australia is clearly not an inappropriate forum, it is unnecessary for an anti-suit injunction be made in circumstances where these Reasons for Judgment deal with to finality the property aspects of these proceedings and the Country B Court has ruled that the applicable law is that of Australia.
In any event, even if the wife’s appeal were successful in Country B, this would have no bearing on this Court in circumstances where Australia is clearly not an inappropriate forum and therefore this Court ought to make orders in relation to the parties’ matrimonial property.
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.
I certify that the preceding one hundred and twelve (112) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Henderson. Associate:
Dated: 12 July 2023
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