Duan & Ren (No 4)
[2025] FedCFamC1F 130
•12 February 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Duan & Ren (No 4) [2025] FedCFamC1F 130
File number(s): SYC 2533 of 2024 Judgment of: HARPER J Date of judgment: 12 February 2025 Catchwords: FAMILY LAW – PROPERTY – EX TEMPORE – INTERIM – Where both parties seek partial property settlement with the primary purpose of paying legal fees – Where the wife seeks partial property settlement in the amount of $400,000 – Where the husband concedes that there should be a partial property settlement to the wife but seeks to limit such payment to $200,000 as this amount is sufficient for the wife to pay legal fees – Where the Court is satisfied that there are potentially issues of factual and legal complexity which would warrant the involvement of senior counsel and likely extend the hearing beyond the time estimated by the husband – Where the husband seeks partial property settlement in the amount of $200,000 – Where the husband has had available to him considerable amounts of money held in offshore jurisdictions and holds most of the assets of significant value – Where orders are made for the husband to pay to the wife the sum of $400,000 – Where the Court declines to make orders for the husband to receive any partial property settlement. Legislation: Family Law Act 1975 (Cth) ss 79, 80(1)(h) Cases cited: Banduka & Banduka [2021] FedCFamC1F 191
Stanford & Stanford (2012) 247 CLR 108
Vang & Chung (No 3) [2024] FedCFamC1F 101
Division: Division 1 First Instance Number of paragraphs: 18 Date of hearing: 12 February 2025 Place: Sydney Counsel for the Applicant: Ms Tabbenor Solicitor for the Applicant: Alton Legal Solicitor for the First Respondent: Longton Legal Solicitor for the Second Respondent: No appearance ORDERS
SYC 2533 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DUAN
Applicant
AND: MR REN
First Respondent
MS MANDEL
Second Respondent
ORDER MADE BY:
HARPER J
DATE OF ORDER:
12 FEBRUARY 2025
THE COURT ORDERS THAT:
1.Within 14 days the parties are to take all necessary steps to pay to the trust account of the Applicant Wife’s (“wife”) solicitor the sum of $400,000 from the J Bank Bond account #...65.
THE COURT NOTES THAT:
A.There are existing injunctions in place which continue undisturbed pending further order of the Court.
THE COURT FURTHER ORDERS THAT:
2.All questions of costs of and incidental to the Amended Application in a Proceeding filed on 5 December 2024 and response thereto are reserved.
3.The Amended Application in a Proceeding filed on 5 December 2025 and response thereto are otherwise 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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 a pseudonyms Duan & Ren have been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HARPER J:
These are property proceedings between the applicant wife (“wife”) and the first respondent husband (“husband”).
The second respondent is said to be the current partner of the husband, to whom he sold a property at C Street, Suburb D in early 2024 for approximately $3.3 million.
The parties commenced a relationship in 2011 and separated in or about January of 2024. Therefore, the relationship lasted approximately 13 years. There is one child of the relationship who is currently five. The wife lives in Australia, while the husband lives in Country B. The wife is the primary carer of the child and there are no parenting proceedings presently on foot in relation to the child.
It appeared to be undisputed that the first respondent spends no time with the child, and there is an ADVO protecting both the mother and the child for a period of two years which commenced in late 2024.
There are before the Court today an Amended Application in a Proceeding filed by the wife on 5 December 2024 and a Response by the husband filed on 30 January 2025.
Both parties relied upon financial statements and affidavits in support which were filed late, but to which I will have regard on the basis that both parties filed some of their evidence late, and in those circumstances there appears to be no prejudice to either party from taking it into account.
The issues were refined at the interim hearing on 12 February 2025 down to a contention as to whether the wife should receive, as partial property settlement, $400,000 to be paid from a commercial bond account held at J Bank, being J Bank bond account #...65. Although there was some dispute as to the balance of that account, it appeared to be no less than $500,000 in an equivalent amount of US dollars.
The husband conceded that there should be a partial property settlement to the wife, but it should be limited to $200,000, while he claims there should be a payment to himself of $200,000. Both parties contend that the primary purpose of the money, if any, paid to them as partial property settlement would be used for the payment of legal fees.
The principles applicable to making an order for partial property settlement require consideration of ss 79 and 80(1)(h) of the Family Law Act 1975 (Cth). They are well known but the starting point is to identify the parties assets and liabilities according to ordinary legal and equitable principles (Stanford & Stanford (2012) 247 CLR 108 (“Stanford”) at [37]. The Court also considers the matters set out in ss 79(2) and (4) of the Act, on an interim application can form a “broad brush” view of the parties’ financial circumstances (Banduka & Banduka [2021] FedCFamC1F 191 at [89], [90]). The Court must be satisfied it is appropriate, just and equitable to make such an order. This includes a cautious approach and satisfaction that any order made will not exhaust the power under s 79, the interim order is capable of reversal or adjustment at final hearing and the remaining property will be sufficient to meet the legitimate expectations of both parties (Vang & Chung (No 3) [2024] FedCFamC1F 101 at [113] at authorities cited there).
As already observed, both parties agree that there should be some payment of partial property settlement to the wife. The only issue is the amount. The wife supported her claim to $400,000 on the basis of evidence about the projected cost of the proceedings to her to reach finality.
The balance sheet filed by the husband demonstrated that although the ultimate values appear to be quite significant, there is one property held in Australia which is owned as to 50 per cent by the husband and the second respondent at E Street, Suburb K with a value of about $1.2 million.
There is property held in Country B, but all this property is owned by the husband, apart from some modest assets, including an apartment in Country B, and some jewellery owned by the wife.
There was no dispute that, apart from the sale proceeds of C Street, Suburb D of $3.3 million, the husband has made payments from a US dollar account held in Country L in excess of $6 million for the purpose of participating in a property development in Country M.
The husband argues that the partial property settlement payable to the wife should be restricted to $200,000 because, on his assessment of the likely time necessary for the proceedings, that would be a sufficient amount. I am not persuaded by the husband's argument in this regard.
Having heard the submissions of the parties, and considering the draft joint balance sheet, I am satisfied that there are potentially issues of factual complexity and perhaps legal complexity which would likely extend the length of the hearing beyond the three days estimated by the husband and that would warrant the involvement of senior counsel. In those circumstances, I accept that the figure of $400,000 promoted by the wife is an appropriate figure, and I will order that that amount of money be paid to her from the account #...65.
Turning then to the husband's application for payment to him of $200,000, as already pointed out he clearly has had available to him considerable amounts of money held in offshore jurisdictions and from which he has been able not only to invest in excess of $6 million in a Country L property development, but also repay his mother an asserted loan of more than $3 million. He claims he still owes her more than $1 million, and presently has no access to funds from which to pay his own legal fees.
The wife contended that, having regard to the husband's financial statements and his evidence, there is considerable doubt and confusion about the real state of his financial position. For the purpose of this interim hearing, I accept that is broadly correct. I am not satisfied that he has demonstrated, in light of the fact that he has held most of the assets of significance in Australia and has made considerable disbursements of funds overseas, that he is unable to find an amount of A$200,000 for the purposes of paying his own lawyers.
Accordingly, I decline to make any order in favour of the husband.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Harper. Associate:
Dated: 28 February 2025
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