Gao & Yin - [2023] FedCFamC2F 523

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Gao & Yin [2023] FedCFamC2F 523

File number(s): PAC 4059 of 2019

Judgment of: JUDGE OBRADOVIC

Date of judgment: 8 May 2023

Catchwords: FAMILY LAW – PROPERTY – Where husband and wife lived apart for most of marriage – Where bulk of initial financial contributions made by the husband – Where most non-financial contributions to the welfare of the family made by the wife – Where wife continues to live in matrimonial home of significant value – Adjustment of property interests

Legislation: Family Law Act 1975 (Cth) s.79

Cases cited:
Bevan & Bevan [2013] FamCAFC 116

Chapman & Chapman [2015] FamCAFC 91

Halstron & Halstron [2022] FedCFamC1A 65

Hickey & Hickey & Anor [2003] FamCA 395

Russell & Russell [1999] FamCA 1875

Scott & Danton [2014] FamCAFC 203

Stanford & Stanford [2012] HCA 52

Teal & Teal [2010] FamCAFC 120

Division: Division 2 Family Law

Number of paragraphs: 158

Date of last submission/s: 16 December 2022

Date of hearing: 16-17 May 2022, 19 May 2022, 17 October 2022

Place: Parramatta

Counsel for the Applicant: Ms Coulton

Solicitor for the Applicant: Titus Lawyers

Counsel for the Respondent: Mr Hodgson

Solicitor for the Respondent: Cameron Legal
ORDERS

PAC 4059 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR GAO

Applicant

AND:
MS YIN

Respondent

order made by:

JUDGE OBRADOVIC

DATE OF ORDER:

8 MAY 2023

THE COURT ORDERS THAT:
1.By 4pm on 15 May 2023, the wife is to pay the husband the sum of $83,502.
2.By 4pm on 19 June 2023, the wife is to pay the husband a further sum of $1,161,000.
3.In the event that the wife fails to comply with order 2, then within 7 days of default, the wife shall:
(a)Do all acts and things and sign all documents necessary so as to effect a sale of the property at B Street, Suburb C in the State of New South Wales and more particularly described in Certificate of Title Folio Identifier … (“Suburb C Property”) with an agent and using a solicitor/conveyancer and at a price and method of sale agreed between the parties, and failing agreement:
(i)With an agent nominated by the President of the Real Institute of NSW;
(ii)A solicitor/conveyancer nominated by the president of the NSW Law Society;
(iii)At a price nominated by the husband; and
(iv)At a method of sale nominated by the husband.

4.Where the wife has failed to comply with order 2 and upon the sale of the Suburb C Property, the proceeds of sale shall be distributed:
(a)To pay the costs of sale;
(b)To pay outstanding rates; and
(c)The balance then remaining to be divided between the parties:
(i)To the husband 54%; and
(ii)To the wife 46%.

5.Forthwith, the parties do all acts and things and sign all documents necessary so as to effect a sale of the property D Street, Region E, Country F (“Country F Property”), with an agent and using a solicitor/conveyancer and at…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gao & Yin

Details

AGLC: Gao & Yin [2023] FedCFamC2F 523
Case: [2023] FedCFamC2F 523
Decision Date

CaseChat Overview and Summary

The case of Gao & Yin involved a property adjustment application made by Mr Gao under section 79 of the Family Law Act 1975. The court had to determine the appropriate division of the parties' assets following their separation. The primary asset in dispute was a property located at Suburb C, NSW, valued at $2,150,000, which was owned by Ms Yin. The court also had to consider the Country F Property, valued at $1,026,585, which was owned jointly by the parties. The husband argued that he should be allocated a larger share of the assets due to his significant financial contributions to the marriage, while the wife contended for a larger share due to her primary caregiving role and non-financial contributions.

The court assessed the contributions of both parties, considering both financial and non-financial contributions. It found that the husband had made the majority of financial contributions, particularly during the early years of the marriage and after the parties separated. Conversely, the wife made significant non-financial contributions, particularly in caring for their child and maintaining the Suburb C Property. The court allocated a 54% share to the husband and a 46% share to the wife, reflecting the overall contributions of both parties.

In light of the contributions assessment, the court ordered that Ms Yin pay Mr Gao $83,502 to equalise their non-property assets and a further $1,161,000 to adjust the value of the Suburb C Property. If Ms Yin failed to make these payments, the Suburb C Property was to be sold, with the proceeds divided according to the court's orders. The Country F Property was also to be sold, with the net proceeds divided between the parties. The court's orders ensured that each party would retain significant assets, allowing them to support themselves and house themselves appropriately. The outcome was deemed just and equitable in all the circumstances.

Orders