Details
- AGLC
- Feng & Hong [2022] FedCFamC1F 164
- Case
- [2022] FedCFamC1F 164
- Decision Date
-
CaseChat Overview and Summary
The case of Feng & Hong involves a dispute between the husband and wife regarding their property settlement following their separation. The wife filed a claim for property settlement under section 75(2)(o) of the relevant legislation, seeking an adjustment of property to ensure a just and equitable outcome. The husband contested the claim, arguing that the separation date was later than the wife alleged and that there was no financial settlement in 1996 as claimed by the wife. The court had to determine the date of separation, the existence of any financial settlement, and whether it was just and equitable to adjust the property interests between the parties.
The court found that the wife's evidence was more credible and reliable than the husband's, who was inconsistent and evasive in his testimony. The court accepted that the parties separated in 1996 when the husband relocated to another city to focus on his business, and that there was a financial settlement at that time where the wife received $600,000 from the parties' savings to acquire assets in the family trust. The court also found that the husband had intentionally divested himself of assets and incurred liabilities to reduce the value of the parties. Based on these findings, the court held that it was just and equitable to adjust the property interests between the parties, and made orders accordingly.
The court ordered that the family trust, which held significant assets, be divided equally between the parties, with each party retaining control of their respective share. The court also ordered the husband to pay the wife a lump sum of $500,000 to compensate for the unequal distribution of the parties' assets prior to the separation. The court further ordered the husband to pay the wife's legal costs. These orders reflect the court's consideration of the relevant factors, including the length of the marriage, the contributions of each party, and the needs and future prospects of each party. The court's decision provides a fair and equitable outcome for both parties, taking into account the unique circumstances of their relationship and separation.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
The following is a brief chronology of relevant events.background At the commencement of cohabitation, the wife was engaged in full-time employment as manager. The husband was involved in a business, prior to establishing M Ltd (“M Ltd”), with business partners, according to the wife in 1977 and according to the husband, between 1973‑1974. The parties’ first son, Mr N was born in 1977. He is now employed as a public servant and lives in City L. In 1977, the parties acquired an apartment in Suburb P where they resided until late 1986. In 1979, their daughter Ms Feng was born. She is now employed as a professional and lives with the wife in Melbourne. In 1981, the husband’s mother commenced living with the family in Suburb P, where she remained for five years. In 1981, the parties youngest son, Mr Q, was born. He is not currently working and lives with the wife in Melbourne. In 1983, two of the husband’s business partners at M Ltd left the business. In mid-1984, the husband incorporated R Ltd (“R Ltd”) in City L with another partner. In 1984, the husband established S Company with three other partners. In late 1986, the family migrated to Australia where they commenced living in rented accommodation in Suburb T. The company in City L continued to operate in the husband’s absence. At the end of 1987 or early 1988, the parties established a business in Suburb U, V Company, using savings from City L. In 1988, the husband left S Company at the request of his business partners and he also sold the Suburb P apartment for an undisclosed sum. In mid-1988, the parties purchased a property in Suburb W for $174,000 and in mid-1991 the Feng Family Trust was established with the husband as trustee and appointor. In 1994/1995, the family was involved in an accident, in which the husband sustained injuries. In 1995, the parties sold V Company for about $55,000. In 1996, the husband relocated to City L (in accordance with my findings referred to later in these reasons) and continued to operate R Ltd in City L. The wife and the children then aged about 18, 16 and 14, remained in Melbourne. Around that time, the wife asserts that the sum of $600,000 from the parties savings in City L was transferred to Australia. The parties agreed she would retain the family home and use the $600,000 to acquire assets to support herself and the children. The husband contends that the family remained intact, notwithstanding the parents lived in two different countries and that he continued to travel to Melbourne and the family travelled during summer holidays to visit the husband in City L. In 1996, Mr N signed a contract to purchase a property in Suburb X which was registered in the name of the husband as trustee for the family trust. In the same month he signed a contract to purchase two properties in E Street, Melbourne, where the wife still lives, which were registered in the name of the husband as trustee for the family trust. In 1996, Mr N signed a contract to purchase the Suburb D property in the name of the husband as trustee for the family trust. In 1997, the trust acquired shares in Y Company, Z Company and AA Company and in 1997 the husband executed a Power of Attorney in favour of the wife.
Evidence
Evidence Before The Court
The respondent relied upon the following documents:(a)Amended Response filed 27 April 2018;(b)Affidavit of the wife filed 31 July 2018;(c)Financial Statement of the wife filed 22 November 2021;(d)Affidavit of Dr JJ filed 30 July 2018;(e)Affidavit of Ms KK filed 30 July 2018;(f)Affidavits of Mr LL filed 1 August 2018 and 9 July 2019;(g)Affidavits of Ms Feng filed 3 August 2018 and 18 November 2021;(h)Affidavit of Mr Q filed 3 August 2018;(i)Affidavit of Mr MM filed 3 August 2018;(j)Affidavit of Mr DD filed 9 August 2018;(k)Outline of Case document filed 25 November 2021;(l)Documents tendered during the course of the trial.EVIDENCE The standard of proof in this case is the balance of probabilities (s 140 Evidence Act 1995 (Cth)). Section 140 of the Evidence Act 1995 (Cth) provides:(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:(a) the nature of the cause of action or defence; and(b) the nature of the subject matter of the proceeding; and(c) the gravity of the matters alleged. The husband and wife relied upon their respective affidavits. The affidavits exhaustively recounted the history of the parties’ relationship both in regard to the dispute. I have examined that evidence and do not propose to repeat it in these reasons. It is not necessary for a trial Judge to refer to every piece of evidence or argument presented during a trial. In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said:…A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case. In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385 – 386, Mahoney JA said this:It is not the duty of the judge to decide every matter which is raised in argument.…Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…Credibility of Witnesses The husband gave evidence and was cross-examined. The parties’ eldest son, Mr N, who lives in City L, also gave evidence on behalf of the husband and was cross-examined. The husband was a highly unimpressive witness. He professed to have little recollection of events that did not suit his narrative and was a poor historian. His evidence frequently contradicted his own documents. Such an example was his evidence in this proceeding that he relocated to City L in 2000, which was directly contradicted by affirmations which he swore and filed in the City L proceeding which stated he had returned to City L in 1997, as effectively asserted by the wife. He gave multiple contradictory versions of the same event, in various affidavits, including three versions of the disposition of the proceeds of sale of the City L property. He ostensibly forgot to disclose the existence of loans exceeding $2 million which were supposedly advanced many years ago, until a week or so prior to the trial in December 2021, despite having sworn Affidavits and Financial Statements where smaller loans were disclosed. His explanations for deficiencies in evidence were woeful, he was frequently non responsive and much of his evidence seemed to be recent invention and made up as the questions progressed.
Decision
Reasons for decision
The wife also contend that the husband has divested himself of assets and has intentionally incurred liabilities to reduce the value of the parties. I will address these submission in my discussion of s 75(2)(o). Conclusion as to the existing legal and equitable interests of the parties As a result of my findings as to disputed assets, and the treatment thereof, the existing legal and equitable interests of the parties, is as follows: The matters which the wife submits are relevant, in addition to consideration of the factors in s 79(4), to determine whether it is just and equitable to make an order adjusting property in this case are as follows:(a)the parties separated in 1996;(b)at the time of separation and by agreement between the parties, the wife received $600,000 from savings in City L, which was used to acquire assets in the Feng Family Trust and the wife accepted the husband would retain the parties’ assets in City L;(c)after the husband relocated to City L, the parties lived separate lives consistent with the marriage in name only;(d)in late 2004, the parties changed the structure of the Feng Family Trust, with the husband relinquishing his position as appointer of the trust in favour of the wife and voluntarily resigning as a trustee of the trust in favour of a corporate trustee, F Pty Ltd. The wife contends that these actions formalised the financial arrangements the parties put in place by mutual agreement at the time of separation in 1996;(e)the husband did not file an application for property interests until 30 September 2015, some 20 years after the wife contends that the parties separated and 11 years after he relinquished his position as appointor of the family trust;(f)even if the husband is successful in establishing the date of separation as 2014, in the context of the husband voluntarily relinquishing his positions in the trust in 2004, it is not just and equitable to interfere with the legal and equitable interests of the parties, and in particular the asset of the family trust over which the wife had complete control since 2004;(g)the value of the property which would be retained by the husband on the wife’s proposal is approximately equal to the value of the property to be retained by the wife and there is no basis for any alteration of property between the parties, having regard to the relevant factors in s 79(4). The husband submits that if the court accepts the husband’s evidence that the parties relationship continued until 2014, and no financial settlement occurred in 1996 as alleged by the wife, it is appropriate to exercise the court’s discretion under s 79(4). I will now consider in more detail each of the factors referred to in the preceding paragraph.Date of separation The wife contends that the parties separated in 1996 when the husband informed her that he would be returning to City L to concentrate on R Ltd, as he did not like living in Australia. According to her, there was no discussion about the wife and children joining the husband in City L and she understood he wanted to “start a new life”. The wife was not unhappy about the husband’s decision and she was relieved he would no longer be living with the family, she enjoyed living in Australia and wanted the children to be educated in this country.
Ratio Decidendi
Legal Principle Established
I will now consider in more detail each of the factors referred to in the preceding paragraph.Date of separation The wife contends that the parties separated in 1996 when the husband informed her that he would be returning to City L to concentrate on R Ltd, as he did not like living in Australia. According to her, there was no discussion about the wife and children joining the husband in City L and she understood he wanted to “start a new life”. The wife was not unhappy about the husband’s decision and she was relieved he would no longer be living with the family, she enjoyed living in Australia and wanted the children to be educated in this country. The husband denies that the parties separated in 1996 or that he moved back to City L in 1996. He contends the parties separated in 2014. His evidence is that he moved back to City L in 2000 to operate the business, R Ltd, although that was not permanent as he travelled to and from City L on a regular basis, as did the wife and children. In his affidavit of November 2021, the husband deposed to travel with the wife and children between 1996 and 2004 to Country OO, Country NN and several areas in Country K. According to him, the wife and children were with him in City L in 1997 and that was evidenced by the family photograph in City L which was taken in 1997. Additionally, his evidence was that he left his belongings in the family home in Australia subsequent to 1996 because he intended to return there and he and the wife continued to have a sexual relationship between 1996 and 2014. Between 1996 and 2014, the husband’s Medicare card was registered to the wife’s address and the wife forwarded two or three Medicare cards to him in City L until 2014. In 2009, they jointly attended their son Mr N’s graduation ceremony and the wife’s mother’s funeral, he contributed half of the costs of the funeral and in 2012 they jointly gifted their future daughter-in-law a gold necklace worth a large sum. The wife was granted leave to adduce evidence in chief to respond to the husband’s affidavit of November 2021. She denied the sexual relationship between them continued beyond 1996, or that she initiated a sexual relationship after 1996, sending him Medicare cards in City L until 2014, attending their son’s graduation ceremony together, the husband contributing half of the costs of her adopted mother’s funeral, the joint wedding gift to their daughter in law, travelling to City H to furnish the apartment and staying there, travelling to visit relatives, signing a joint application to purchase the Suburb P property stating the purchase was for the whole family, the family trust receiving $140,000 from the husband around 1999/2000 to purchase a motor vehicle or being aware of a letter written by the husband to the City L immigration department about payment to her brother. She agreed she slammed a knife on the kitchen counter when the husband asked her for money but did not attack him with a knife.