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 a price and method of sale agreed between the parties, and failing agreement:
(a)With an agent nominated by the husband;
(b)A solicitor/conveyancer nominated by husband;
(c)At a price nominated by the husband; and
(d)At a method of sale nominated by the husband.
6.Upon the sale of the Country F Property, the proceeds of sale shall be distributed:
(a)To pay the costs of sale;
(b)To pay outstanding rates and any liability against the property; and
(c)The balance then remaining to be divided between the parties:
(i)To the husband 54%; and
(ii)To the wife 46%.
7.Unless otherwise provided herein, the parties are declared the sole owner at law and in equity of any other assets, money, chattels or superannuation interest in their name or possession.
8.In the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these orders, the Registrar of the Court be appointed pursuant to s.106A of the Family Law Act 1975 (Cth) to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of Affidavit.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:
INTRODUCTION
This is an application made pursuant to s.79 of the Family Law Act 1975 (Cth) (“Act”) for property adjustment orders made by Mr Gao (“husband”). The respondent wife to the application is Ms Yin (“wife”).
The parties have property in both Australia and Country F and the parties have agreed that the exchange rate between the Australian Dollar and Country F local currency will be AUD $1 = CFC4.89 for the purposes of these proceedings. All references to dollars in these reasons will be to Australian dollars unless it is specified to be Country F currency using the prefix “CFC”.
The majority of the asset pool of the parties consists of a real property known as and located at B Street, Suburb C, NSW, Australia (“Suburb C Property”) and a real property known as and located at D Street, Region E, Country F (“Country F Property”).
BACKGROUND
The husband was born in Country G in 1950 and the wife was born in Country F in 1955.
The parties married in Country F in 1980.
In 1982, the husband purchased a property known as and located at H Street, Region J, Country F (“Region J Property”) for the sum of CFC281,000 and it was registered in his sole name.
In 1982, after the purchase of the Region J Property and until 1984, the parties separated on a temporary basis before recommending cohabitation.
There is one child of the marriage, Ms K, born 1986.
In 1991, the husband sold the Region J Property for the sum of CFC840,000.
The parties and Ms K migrated to Australia in 1992 with approximately $650,000.
Ms K studied in Sydney, graduated in 2009 and has since worked in Sydney for four years and from about 2013, in City M, where she currently resides.
In 1994, the parties purchased the Suburb C Property outright for the sum of $290,000. The title of the Suburb C Property was put in and remains in the wife’s sole name. The parties disagree as to the respective contributions to the purchase of the Suburb C Property. The wife and Ms K resided in this property from the date of purchase and the wife continues to reside in this property. The parties agree that the Suburb C Property is to be valued at $2,150,000 for the purposes of these proceedings.
One week after purchasing the Suburb C Property, the husband returned to Country F to live and work. He has not lived in Australia since.
Prior to leaving for Country F, the husband left the wife a sum of money. The parties agree that in 1995, a sum of $255,000 was placed in a 5 years term deposit with L Bank and the balance was in a joint saving account with ANZ Bank. On the husband’s evidence the total sum was $289,000, while on the wife’s evidence it was $270,000.
In 1997, the husband purchased the Country F Property for the sum of CFC2.05 million. The Country F Property was registered in the parties’ joint names as joint tenants. Again, the parties disagree as to the respective contributions to the purchase of the Country F Property. The Country F Property is unencumbered and the parties agree that it should be valued at $1,026,685 for the purposes of these proceedings.
From 1994 until about 2016, the husband visited the wife and Ms K. The frequency and substance, as well as any monetary contributions provided during these visits, are in dispute.
It is agreed between the parties that the husband was locked out and not allowed to return to the matrimonial home, being the Suburb C Property, in 2017 as the wife did not wish for him to stay at the house when he visited. He has not stayed there since.
The wife says that the parties separated when the husband returned to Country F in 1994. The husband says that the parties separated when the wife locked him out of the Suburb C Property.
The parties divorced in 2018.
The husband retired in 2014 and wants to move to Australia on a permanent basis to live out his retirement.
The parties agree the following assets form part of the pool:
Ownership Description Value Wife Suburb C Property $2,150,000 Joint Country F Property $1,026,585 Husband ANZ Accounts $9,010 Husband N Bank Accounts $2,300 Husband Commonwealth Bank of Australia Shares $72,758 Husband Shares (Country F) $32,173 Husband Household Contents $500 Joint Motor Vehicle 1 $2,500 Wife Household Contents $500 Wife ANZ Account #...43 $2,448 Wife N Bank Account #...31 $2,321 Wife N Bank Account #...00 $103,078 Wife N Bank Account #...52 $15,061 Wife N Bank Account #...51 $20,575 Total $3,439,809
The wife has an accumulation type interest in a superannuation fund worth $107,596. The husband does not have any superannuation.
The husband says there are no liabilities and, therefore, that the net pool, sans superannuation, is $3,439,809.
The wife says that there is a liability of $100,379 owing from her to Ms K being funds she holds on trust for Ms K. The wife says the net pool, sans superannuation, is $3,339,430.
PARTIES’ CASES
The husband’s case is that he made the bulk of the financial contributions before, during and after the relationship ended (whenever that may be). He submits that he brought to the marriage substantial savings arising out of his employment and that he contributed solely to the purchase the Region J Property, the Suburb C Property and the Country F Property. He says these funds came from his employment and business. The husband acknowledges that the wife made significant homemaker contributions - the husband only lived with the wife and Ms K until Ms K was 8 years old.
Accordingly, the husband says that contributions should be assessed as 55% to the husband and 45% to the wife and that there be no s.75(2) adjustment to either party. The husband seeks orders that the Suburb C Property and Country F Property be sold and the proceeds split accordingly and that all other assets, liabilities and superannuation remain in their respective names and possession.
The wife’s case is that she contributed financially during the marriage save for a period of two years after Ms K’s birth. She says that the Suburb C Property and the Country F Property were at least partially purchased using joint funds. She submits that she has been the primary carer for Ms K from the time of her birth and the sole caregiver since 1994, and almost solely responsible for non-financial contributions to the welfare of the family. She also says she was solely responsible for the upkeep to and renovations of the Suburb C Property. The wife submits that there should be a minor adjustment in her favour on account of s.75(2) factors because, inter alia, the marriage had an adverse impact on her earning capacity.
Accordingly, the wife says that contributions should be assessed at 70% to the wife and 30% to the husband and that there be a no more than 5% adjustment in the wife’s favour on account of s.75(2) factors. The wife seeks orders that she retain the Suburb C Property, that the husband retain the Country F Property and that all other assets, liabilities and superannuation remain in their respective names and possession.
PROCEDURAL HISTORY
The husband commenced these proceedings on 21 August 2019.
The matter was listed for a conciliation conference on 18 May 2021, however the parties were not able to settle the matter.
The parties also attended external mediation and were unable to settle the matter.
The matter was listed for a two day final hearing on 16 - 17 May 2022. The hearing was unable to be completed in this allocated period and was adjourned part heard to 19 May 2022. On 19 May 2022, the hearing was again not finalised and was adjourned part heard to 17 October 2022.
Oral submissions were unable to be finalised on 17 October 2022 and the Court ordered on that date for the parties to file written submissions and related documents by 14 November 2022 for the husband, by 28 November 2022 for the wife and by 5 December 2022 for the husband in reply. On 15 November 2022, the time for compliance was extended to 21 November 2022, 5 December 2022 and 12 December 2022 respectively.
The husband filed written submissions on 21 November 2022 in accordance with orders. The wife filed written submissions on 9 December 2022, and the husband filed submissions in reply on 16 December 2022, neither of which was in accordance with the timetable ordered by the Court.
Neither party takes objection to the late filing of submissions. As such, all written submissions have consequently been considered by the Court.
On 16 December 2022, the Court reserved its judgment.
RELEVANT LEGAL PRINCIPLES
The overall approach to the determination of an application for property adjustment orders pursuant to s.79 of the Act was set out by the High Court in Stanford & Stanford.[1] Such approach was subsequently considered by the Full Court of the then Family Court in Bevan & Bevan,[2] Chapman & Chapman[3] and Scott & Danton.[4]
[1] [2012] HCA 52 (“Stanford”).
[2] [2013] FamCAFC 116 (“Bevan”).
[3] [2014] FamCAFC 91 (“Chapman”).
[4] [2014] FamCAFC 203 (“Scott”).
In many matters which come before this Court, the requirement of whether it is just and equitable to make any orders is readily satisfied by the fact of the parties’ separation; as there is not, and will not thereafter, be the joint use of property by the parties. It is so in these proceedings.
Once the issue of whether it is just and equitable to make any order is resolved, the Court is to then consider the contributions made by the parties as defined in ss.79(4)(a) to (c), the matters set out in ss.79(4)(d) to (g) and in particular the subjective considerations as to the parties by having regard to the provisions of s.75(2) in so far as they are relevant.
The Court is then to consider the justice and equity of the actual orders to be made, in the context of the Court’s obligations to make appropriate orders as provided for in s.79(1) of the Act.[5]
[5] Russell & Russell [1999] FamCA 1875; Teal & Teal [2010] FamCAFC 120
The just and equitable requirement is “one permeating the entire process”. [6]
[6] Bevan at [86].
FINDINGS
For the sake of convenience, the findings as to relevant matters are set out in five broad sections below, noted under five separate headings. The findings should however, be read and understood as a whole.
Prior to Migration to Australia
The husband was employed full time by P Ltd from 1969 to 1988. From 1969 to 1981 he worked in sales and from 1981 to 1988 he was a manager.
Prior to the parties’ marriage in 1980, the wife was employed full time in the industry of the import and export of products.
From 1980 to 1982, the wife worked in a factory that manufactured products.
Until the purchase of the Region J Property, the parties resided with the husband’s mother in another property in Region J, Country F.
Between 1980 and 1982, the husband says that he made all financial contributions to the parties’ living expenses and that they both completed domestic duties. The wife says that she applied her income to living expenses and that she solely undertook domestic duties.
In 1982, the husband purchased the Region J Property with savings he had earned from his own employment and from returns from his investments. The purchase price was CFC281,000 and it was encumbered with a CFC30,000 mortgage. The husband paid this loan back prior to selling the property in 1991. The husband made the sole financial contributions to the Region J Property. While the wife was earning an income prior to marriage and thereafter, she did not make any direct financial contributions to the acquisition of this property.
After the purchase of the Region J Property until 1984, the parties temporarily separated. The husband resided at the Region J Property and the Wife lived with her parents. During this period until Ms K’s birth, the wife worked for a manufacturing company and applied her income to living expenses. The parties’ appear to have entered into a deed during this period whereby each party agreed to support themselves financially while living separately and the husband agreed to support the parties when they lived together. The parties appear to have supported themselves with their own respective incomes during this period.
In 1984, the parties resumed cohabitation. Subsequently, the husband says he made all financial contributions to the parties’ living expenses and that they both completed domestic duties. The wife says that she applied her income to living expenses too.
Ms K was born in 1986, at which point the wife ceased working and cared for Ms K for a period of two years. Some assistance was received by the parties from the paternal grandmother in respect of Ms K’s care.
The husband continued to work full time in the first few years of Ms K’s life. He would provide some care for Ms K when he returned home from work and on weekends.
In 1988, the husband resigned from his employment with P Ltd and the parties established their own company which was in the business of importing and exporting products, the Q Company (“Business”). The husband primarily ran the Business using his own skills honed through his previous employment. The Business was very successful.
The husband was the director and the wife was the secretary, typist and administrator of the Business. The wife’s involvement in the Business was limited to simple paperwork, and she was paid a full time salary from the Business despite not working full time. The full time salary paid to the wife from the Business was more than the average salary at the time. The wife retained her earnings. It is noted that the wife’s account of her dealings with the business was that she worked full time hours and was not paid any wages. In this instance, the husband’s evidence is preferred to the wife’s and the Court’s findings reflect this.
Ms K attended a child care centre whilst the parties worked in the Business and the husband paid the child care fees.
The parties agree that the Business was relatively successful and allowed for the saving of a substantial sum of money. The husband’s income from the Business was higher than the income he had previously been earning from P Ltd.
In 1991, the Region J Property was sold for CFC840,000.
In her oral evidence, the wife conceded that it was expected that the husband would make most, if not all, of the financial contributions to the home. When asked in what way she would financially contribute during this period, the wife said that she paid for bits and pieces from the supermarket when required. The wife said that the traditional arrangement was that the husband would pay for all living expenses for the family. It also became apparent during the wife’s oral evidence that she provided significant financial support to her own parents, which accounted for a large portion of where her own earning were being spent.
The parties’ incomes were paid into accounts in their respective sole names and there was little to no discussions between them about money or joint finances.
The Court finds, that during the entire period the parties lived together before migrating to Australia, that the husband paid for the parties’ living expenses and that the wife would from time to time make small purchases for the home. However, the wife’s income was by and large retained for her own benefit and not for the benefit of the parties.
The domestic duties were mostly the domain of the wife, although the husband did provide some homemaker and parent contributions.
Migration to Australia until 2017
In 1992, the parties migrated to Australia on an investment visa. The parties transferred the amount of $650,000 to an Australian bank account which consisted of the sale proceeds of the Region J Property, Business profits and other savings, which were primarily the husband’s. Approximately CFC900,000 was retained in financial institutions in Country F. Under cross examination, the husband estimated this amount to be approximately $150,000 that was retained in his sole name. The wife agrees that a substantial sum was retained but cannot recall the exact amount. It became clear during the wife’s oral evidence that she retained some $40,000 in Country F which the husband was not aware of.
The parties’ move to Australia appears to not have been as financially fruitful as hoped; the husband’s efforts at making money were largely unsuccessful and the wife did not work. By 1994, the husband had made the decision that he would move back to Country F to make more money.
The husband maintained under cross examination that it was not the parties’ intention to separate or end the marriage when he returned to Country F. The wife says that the parties agreed for the husband to return to Country F and that they had planned for him to send money to the wife periodically, which she says never eventuated. She also says that they had planned for the husband to return to Australia upon his retirement to live.
During the short period of the parties’ cohabitation in Australia, the wife says that she did most of the domestic duties and the husband says that these duties were shared. Regardless, the wife was the primary caregiver for Ms K during this period.
Prior to the husband leaving for Country F, he purchased, in his sole name, Commonwealth Bank of Australia shares from the $650,000 the parties brought to Australia for the approximate sum of $9,000. Those shares have never been sold and were valued at $72,758 at the hearing.
In 1994, the parties purchased the Suburb C Property outright for the sum of $290,000. This sum derived from the $650,000 transferred to Australia at the time of migration. The Suburb C Property was registered in the wife’s sole name from the date of purchase. The reason for this was because the husband was planning to live in Country F and it would be more convenient if the house was in the wife’s name as she would be the one permanently living in it. The husband organised the home to be repainted and recarpeted before the parties moved in.
One week after purchasing the Suburb C Property, the husband returned to Country F to find more fruitful means to make money. Soon thereafter, the husband returned to his previous position at P Ltd where he remained employed until his retirement in 2014. Ms K was eight years old at the time, and she and the wife remained residing at the Suburb C Property.
A large sum of money was to remain in Australia which the wife was free to use for living expenses for her and Ms K. The husband says this amount was $289,000 and the wife says that this amount was $270,000 consisting of $15,000 in a savings account and $255,000 in a term deposit with L Bank for a period of five years, paying $27,000 interest per annum. These funds derived from the $650,000 brought to Australia. As noted earlier in these reasons, the parties agree that $255,000 was placed into a 5 year term deposit with L Bank.
The wife says that she firstly exhausted the $15,000 savings and then lived off the interest of $27,000 per annum, over the next five years.
In or about 2000, after the funds in the L Bank term deposit matured, the wife placed the amount of $200,000 into a new term deposit with N Bank. She has not accounted for the balance of $55,000 in her evidence.
The wife did not work and exclusively performed the roles of homemaker and parent until 2006 when she starting working alongside her continuing homemaker and parent duties. She would, inter alia, drop and pick Ms K up from school and pay for Ms K to attend extra-curricular events. The husband accepts that the wife made these contributions.
The parties dispute the frequency, and the content of, the husband’s visits to Australia.
The husband says that he would visit the wife and Ms K once or twice per year, staying for about two weeks during each visit. He says that the wife would take Ms K to Country F to visit him during school holidays. The husband would stay with the wife and Ms K when visiting Australia and vice versa. He says that each time he visited the wife and Ms K, he would give them approximately $3,000 for living expenses and at other times foreign bank cheques, as well as spending money when she was in Country F and pocket money for Ms K.
The wife says that the husband visited Australia for only seven to ten days per year on average, he would rarely socialise or interact with the wife or Ms K when visiting, they never resumed a husband and wife relationship and that the husband never assisted with any homemaker or caregiving duties. She says that she rarely visited Ms K because she could not afford to travel.
When the husband visited Australia in 2004, the parties slept in the same bed despite other bedrooms being available.
On both parties’ cases, the husband visited the wife and Ms K in Australia regularly, and at a minimum of a week’s duration annually. On both parties’ cases, the wife and Ms K would travel to Country F occasionally to visit the husband, including when the husband was very ill in 1997 as noted below.
The husband’s financial endeavours in Country F appear to have been relatively fruitful.
In 1997, the husband purchased the Country F Property for the sum of CFC2.05 million, paying CFC1.45 million in cash and borrowing the remainder from his sister, a loan that was repaid by the husband in 2000. The husband says that the Country F Property was bought with funds solely accumulated by him from his own savings and investments. Under cross examination, the husband said that most of the funds left in Country F in 1994 when the parties moved to Australia, had been invested and then applied to the purchase of the Country F Property.
After executing the contract for sale for the Country F Property, but prior to settlement, the husband fell seriously ill, was hospitalised and required urgent operations. The wife and Ms K travelled to Country F to visit the husband for about a month following his first operation. The husband required a second operation and the wife flew Ms K back to Australia so she could continue her education and the wife then returned to Country F to be with the husband. Ms K stayed with a friend whilst the wife was in Country F. The wife had initially planned to assist the husband in his recovery but soon returned to Australia at the husband’s behest.
Because the settlement for the Country F Property was approaching, and the husband was still ill and in hospital, the husband directed his solicitor to add the wife’s name to the title of the Country F Property so that she could sign any necessary documents to ensure a successful settlement. The wife did not know the husband had purchased the Country F Property until this had taken place. Under cross examination, the wife maintained that she only agreed to go on the title of the Country F Property to assist the husband because he was in hospital.
The husband did not initially reside in Country F Property and rented it out to a private tenant from 1997 until 2010 for the approximate sum of CFC6,000 per month. While the Country F Property was being tenanted out, the husband lived with his sister rent free.
It became apparent during cross examination that the wife had retained accounts in Country F in her sole name with some savings in them. She estimated that she had approximately $40,000 in savings when the parties first migrated to Australia and that the accounts were closed in or about 1997 and the funds moved to Australia.
At some point, likely after 2000, the husband purchased shares which remain in his sole name.
The wife said, under cross examination, that she had exhausted all of the funds left in Australia by 2003. She was unable to particularise how these funds had been spent, in particular, how the sum of $200,000 was spent in a period of three years in circumstances where she had no rental or mortgage payments to make. Notwithstanding, she maintained that they were spent on the maintenance of the household and the family.
In mid-2004, the wife was diagnosed with an illness. She says that the husband was in Australia whilst she was having treatment for one of his regular visits but did not assist her.
In 2004, the husband visited Australia and purchased the wife Motor Vehicle 1 for the sum of $22,340. This vehicle replaced the motor vehicle that the wife had used since 1994. The wife says that the husband sold the previous motor vehicle and retained the proceeds. She says she does not know the source of the funds used to purchase Motor Vehicle 1. The husband maintained under cross examination that the funds did not come from the parties’ joint account but from his personal savings. The Court accepts the husband’s evidence about this.
In or about 2006, the husband says he gave the wife a cheque that was deposited in Ms K’s bank account that was intended to allow Ms K to buy a new Motor Vehicle 2. The wife says that the husband purchased Motor Vehicle 2 for Ms K and that it was registered in the wife’s name. Either way, the husband paid for the purchase of the vehicle.
Motor Vehicle 2 was sold in 2016 after Ms K had left Australia to live in City M. The proceeds of sale totalling $4,200 were deposited into one of the wife’s bank accounts.
In 2006, the wife began working at R Company, earning approximately $33,000 per year. She had not been employed prior to this since moving to Australia.
In 2010, the wife says that the husband told her he wanted to finalise a divorce between the parties. However, in mid-2011, the wife visited Country F for a holiday for a period of three weeks and she stayed in the Country F Property at the husband’s request.
In 2013, the husband gave Ms K “lucky money” and thousands of dollars to assist in her move to City M.
The husband retired in 2014 and did not receive any additional benefits or cash payments from his employer at the time. Under cross examination he estimated that he received approximately CFC200,000 annually from 1994 until his retirement.
The husband’s initial plan was to accumulate more savings in Country F and then move to Australia on a permanent basis and live with the wife after his retirement with the lump sum he had accumulated.
Between 2015 and 2017, the wife began renovating the Suburb C Property. She organised for the renovation of the bathrooms in 2016, installed a new kitchen and tiling in 2016, repainted the house in 2017 and laid new carpet in 2018. She also purchased and installed new light fixtures throughout the property and bought new curtains. The wife estimated that the renovations cost a total of approximately $100,000 which appears to be substantiated by receipts and invoices annexed to her evidence.
Under cross examination, the wife said that she paid for the renovations with savings from her employment with R Company, savings from her previous employment in Country F and funds her sister had paid her. It was not resolved how she managed to save a substantial sum of money from her R Company employment in circumstances where she only earnt approximately $33,000 per year.
The wife says that she told the husband that he could no longer stay at the Suburb C Property from the commencement of the renovations in 2015.
The parties exchanged letters when they lived separately. Under cross examination, the wife admitted that she still had affection for the husband during this period and would write to him, although he wouldn’t reply.
The wife said under cross examination that it was not until 2016 that she found out that the husband did not consider her to be his wife and that this made her upset.
Date of Separation
The parties’ divorced in 2018. The date of divorce noted on the husband’s application for divorce is in 2016. The wife asserted the date of separation was in 1994.
Whilst the parties’ marriage after the husband went to live in Country F was somewhat atypical, they were still married and considered themselves to be so. This is so even on the wife’s own evidence who referred to herself “Ms Gao” during that entire period, and knew herself to be married to the husband. Her oral evidence is that “I have always considered myself to be [Ms Gao] until the Court told me otherwise.”
The date of separation is not a matter which is in any way critical to the determination of the relevant issues. However, the Court finds that the parties did not separate until about 2016/2017 when the husband applied for a divorce.
After 2017 to Present
When the husband visited Australia in 2017, he says that the wife no longer wanted to see him, that she changed the locks on the Suburb C Property and that, thereafter, the husband stayed in hotels or with his brother when visiting Australia. The wife says that she was on holidays at the time, that she did not know the husband was intending to visit and that she changed the locks after the renovations were completed as many different tradesmen had been given access to the house.
The wife maintained and paid for all expenses and outgoings associated with the Suburb C Property since 1994, including payment of rates, taxes, utilities, insurances, repair, landscaping, structural repairs, fence repairs and building and pest inspections. Until 2004, the wife mowed the lawn and did the gardening herself. After some health issues in 2004 until present, a contractor was hired by the wife to complete these tasks. The husband does not dispute these contributions made to the Suburb C Property, but says that the large sum of money left for the wife when he returned to Country F in 1994 was the primary means by which the wife made these contributions.
The wife works on a permanent part time basis at R Company and has a gross income of approximately $580 per week. The wife also provides volunteer services to the public benevolent institution S Organisation, which is a special support service for people who speak the language of Country G in Australia.
Since 2011, the wife has travelled overseas approximately once per year for recreational purposes.
The husband retired in 2014 and has resided in the Country F Property since 2010. He intends to live in Sydney on a permanent basis and live out his retirement here.
Since the husband’s retirement to present, he has been meeting his living expenses from his savings.
In 2018, the wife had major surgery which has resulted in pain. She may need further surgery in the future. The wife attends therapy classes and sees a physiotherapist each week, costing $93.50 per week. The wife had also been diagnosed and successfully treated for an illness.
There is no expert evidence before the Court about the wife’s health nor, more importantly, about any impact on her capacity to earn an income arising from these health conditions.
The wife continues to reside in the Suburb C Property, where she has lived since 1994. She wishes to continue to live there and would like an opportunity to pay out the husband rather than sell the Suburb C Property, if the Court was to make an adjustment in the Husband’s favour such as to render that course of action necessary.
In the most recent financial statements available to the Court, the husband says he has a weekly income of $52 and weekly expenses of $220, and the wife says she has a weekly income of $590 and weekly expenses of $696.
The wife also has an accumulation type interest in a superannuation fund worth $107,596. The husband does not have any superannuation.
Whilst the wife stated under cross examination that she owed her sister approximately $40,000, this figure was not included in the parties’ joint balance sheet when written submissions were filed after the hearing and therefore is not included in the pool.
Funds Allegedly Held on Trust by Wife for Ms K
In or about 2003, Ms K commenced tertiary studies at T University. She attended university for five years full-time and was awarded a scholarship. The wife says that all these funds, totalling $100,379, are held on trust by her for Ms K. However, it became apparent during cross examination that the wife had expended some of these funds on legal fees and that she plans to pay those funds back to Ms K.
The wife says that instead of Ms K retaining her scholarship payments to pay for her tuition fees, the wife paid for Ms K’s tuition from “the savings” and retained the scholarship payments herself. The wife says she would transfer the scholarship payments of approximately $448 to $595 per fortnight to a joint account and that once the funds accumulated to $5,000 the wife would transfer the funds to various term deposits in the wife’s sole name to earn interest.
The husband submits that there is no evidence that such a trust or liability exists. He says that it defies logic that the wife would pay to Ms K these funds in the future when they were accrued between 2003 and 2008 and where Ms K lives in City M and is 37 years of age.
The wife’s evidence about these matters is vague at best and not supported by any documents. For example, the wife’s evidence does not trace through her bank accounts or term deposits the amounts said to have been accumulated in this way, she does not present any records which indicate how much money was transferred and when, nor does she put before the Court any documents evidencing the amount of scholarship received by Ms K.
As a whole, the evidence does not establish the existence of any trust as claimed.
DETERMINATION
The Pool
At final hearing, the pool consisted of the following:
Ownership Description Value Wife Suburb C Property $2,150,000 Joint Country F Property $1,026,585 Husband ANZ Accounts $9,010 Husband N Bank Accounts $2,300 Husband Commonwealth Bank of Australia Shares $72,758 Husband Shares (Country F) $32,173 Husband Household Contents $500 Joint Motor Vehicle 1 $2,500 Wife Household Contents $500 Wife ANZ Account #...43 $2,448 Wife N Bank Account #...31 $2,321 Wife N Bank Account #...00 $103,078 Wife N Bank Account #...52 $15,061 Wife N Bank Account #...51 $20,575 Wife Superannuation $107,596 Total $3,547,405 Assessment as to Contributions
The husband has made the overwhelming financial contributions at all stages of the marriage, particularly so at the commencement of the relationship and up until separation.
The wife has made the overwhelming parent and caregiver contributions, at all stages of the marriage, particularly after she remained living alone with Ms K in Australia from 1997.
The husband had substantial savings at the commencement of the marriage that were used to purchase the Region J property, and it was through his income that the relatively small debt associated with that property was paid off. After the Region J property was sold in 1991, and when the parties migrated to Australia in 1992, $650,000 was remitted to Australia from the proceeds of sale, Business profits and savings. Those moneys were used to fund the entirety of the purchase of the Suburb C Property, they were used by the parties to live off for the first two years, and the balance was left with the wife when the husband returned to Country F to work. Some $155,000 was retained by the husband in Country F which was later used by him to partly fund the purchase of the Country F Property. As such, the use to which the husband’s initial contributions were put has been significant in terms of the parties’ assets at hearing.
The wife has been responsible for maintaining the Suburb C Property while she was living in it. She was also responsible for doing some renovations to the property, however the funding for such renovations has not been established to the requisite standard by the wife’s evidence. In any event, there is no evidence that the renovations resulted in any capital improvement to the property. Apart from market movements over the years, which the Court is able to take judicial notice of, there is no evidence of any other direct or indirect contribution which has resulted in the improvement of the property’s value to that of over 7 times its purchase price.
The Court accepts the husband’s evidence about the financial contributions to the wife and Ms K between 1997 and 2017, in terms of lump sum payments made to them when he visited Australia, and other support he says he provided financially, including for the motor vehicles.
Apart from some minor and indirect part-contribution by the wife to the $155,000 which was left in Country F by the parties when they migrated in 1992, the entirety of the contributions to the Country F Property were made by the husband.
The husband retired in 2014, and has been living off savings since that time. He has continued to meet the costs associated with the Country F Property and has continued to be responsible for its maintenance and upkeep.
Whilst the wife did work while the parties lived in Country F, her earnings were significantly less than those of the husband. Her contributions to the Business were not on par with those of the husband, whose contributions were superior. While the wife did have her own bank accounts, she contributed little to the parties’ living expenses.
It is clear from the wife’s evidence that her earnings were always her own, and while the parties were together she was never expected to utilise her earnings for the family. She was able to have some $40,000 in savings left in Country F after migrating to Australia, moneys it seems the husband did not know about. When she transferred these moneys to Australia in about 1997, she utilised them for her own benefit and presumably for Ms K, although once again, it is not clear on the evidence.
On the wife’s evidence she spent the entirety of the $255,000 by 2003 in circumstances where:
(a)The evidence is that the original term deposit of $255,000 matured in 2000, and that after the husband left for Country F in 1997, the wife (and Ms K) lived off the interest, which was $27,000 per annum, after firstly exhausting the $15,000 she had in her savings account after the husband left;
(b)The wife took $200,000 and placed that into a term deposit in 2000. She has not explained how she spent the balance of $55,000; and
(c)She says by 2003, she had no money left. She has not explained how she spent the entire $200,000 in approximately three years or less.
Furthermore, the wife says that she needed to work after 2006 because she did not have money to live off. However, she does not explain how she was able to support herself and/or Ms K between 2003 and 2006. Therefore, the wife had access to other funds including from the husband as he says, and/or not all of the $200,000 had been spent.
It is also unclear on the evidence that, if the wife’s earnings have been approximately $33,000 gross per annum since 2006, how she was able to live off those moneys while at the same time saving over $100,000 to pay for the renovations in 2015-2018. Mathematically and theoretically it is possible, but on the evidence, unlikely.
The wife presently has over $140,000 across various savings accounts. It is more likely than not that some of the moneys currently held by the wife have their origins in the moneys brought by the parties to Australia when they migrated, rather than resulting from the wife’s savings since she commenced working for R Company, particularly if she paid over $100,000 for renovations in 2015-2018 as she says she did.
It is entirely unsatisfactory that in today’s day and age of banking records, the parties were not able to together agree on what moneys came from where, what their individual financial contributions were and what has been spent by each of them. The Court should not have to spend its time and energy in trying to determine facts which could easily have been agreed.
The wife has herself made financial contributions to the Suburb C Property, particularly since she started working in 2006. She has been responsible for meeting all costs associated with the property, although prior to her commencing work, such costs must have been met from the moneys which the parties brought into Australia and the moneys which the husband gave to the wife over the years.
As such, the husband’s contribution based entitlement over the years is assessed at 54% and the wife’s contribution based entitlement over the years is assessed at 46%.
Future Needs
The wife is 67 years old and the husband is 73 years old.
The parties each have their own health issues.
The husband has no superannuation and will not be in paid employment going forward. His earning capacity is very limited.
The wife will likely continue to work for some time, given that there is no evidence that she will not do so. Her earning capacity is limited, but as long as she continues to work she will continue to accrue superannuation.
There are no proposed superannuation splitting orders nor will any be made. The wife will retain her superannuation.
The Court rejects the submission that the marriage had an adverse impact on the wife’s earning capacity.
The parties have demonstrated a capacity to manage their finances and savings over the years.
No future needs adjustment will be made.
CONCLUSION AS TO OVERALL ADJUSTMENT
The net assets of the parties are valued at $3,547,405.
Based on the findings made as to contributions and future needs, the Court has assessed that there should be a 54% adjustment in favour of the husband and a 46% adjustment in favour of the wife. If such orders were made, the husband would receive assets to the value of $1,915,599 and the wife $1,631,806. Such adjustment is just and equitable.
No superannuation splitting orders will be made.
Excluding the real estate, the husband presently holds $116,741 while the wife presently holds $254,079.
While the wife would like to retain the Suburb C Property, there is no evidence that she can afford to retain the property if she is to pay the husband the amount of the adjustment under the orders to be made herein. However, whilst the submission was made that any such option would cause further delay to the settlement or resolution of the matter, there is no evidence to support such a submission.
The husband wants the parties to sell the Country F Property and he wants to move to Australia. There is no evidence as to how long this process is likely to take, nor that he would be disadvantaged in any way by being able to put in place appropriate steps while also giving the wife a small window of opportunity to manage her affairs in a manner which would allow her to retain the Suburb C Property where she has lived for close to 30 years.
As such, the wife will be given a period of time to pay the husband the amount of $1,161,000 (see below at [152](b)), and if she is not able to do so the Suburb C Property will then be sold.
So that the wife is given the opportunity of retaining the Suburb C Property, she will need to pay the husband the following amounts:
(a)$83,502, such that the parties each hold assets excluding the real estate, in the ratio of 54/46 to the husband; and
(b)$1,161,000, such that the interest in the Suburb C Property is adjusted as to 54/46 to the husband.
The Country F Property is to be sold, and the net proceeds divided 54/46 to the husband.
As such, the husband will receive:
Ownership Description Value Wife Suburb C Property $1,161,000 Joint Country F Property $554,356 Husband ANZ Account #...33 & #...22 $9,010 Husband N Bank Account #...88 & #...22 $2,300 Husband Commonwealth Bank of Australia Shares $72,758 Husband Shares (Country F) $32,173 Husband Household Contents $500 Payment from the Wife $83,502 Total $1,915,599
As such, the wife is to receive:
Ownership Description Value Wife Suburb C Property $989,000 Joint Country F Property $472,229 Joint Motor Vehicle 1 $2,500 Wife Household Contents $500 Wife ANZ Account #...43 $2,448 Wife N Bank Account #...31 $2,321 Wife N Bank Account #...00 $103,078 Wife N Bank Account #...52 $15,061 Wife N Bank Account #...51 $20,575 Wife Superannuation $107,596 Payment to the Husband ($83,502) Total $1,631,806
The property adjustment orders will leave each of the parties with significant sums of money in their names, which will allow them the opportunity of being able to support themselves and to appropriately house themselves.
In all of the circumstances, the result is just and equitable.
For all of those reasons, orders as set out at the forefront of these Reasons for Judgment will be made.
I certify that the preceding one hundred and fifty-eight (158) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Deputy Associate:
Dated: 8 May 2023
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