GRIFFITH & CHIU

[2021] FamCA 68

FAMILY COURT OF AUSTRALIA

GRIFFITH & CHIU [2021] FamCA 68

FAMILY LAW – PROPERTY – Marriage of two and a half years – Dispute as to whether a de facto relationship existed prior to the marriage – Where the wife seeks orders for the alteration of the parties property and ongoing periodic spousal maintenance – Where the Court finds no de facto relationship existed prior to the marriage – Where the Court finds that the husband made a greater initial contribution and greater contributions throughout the marriage – Where an adjustment is made for the wife under section 75(2) of the Family Law Act 1975 (Cth) – Orders made for the wife to receive a lump sum payment – Orders made for the wife to transfer her rights and interests in one property to the husband.

Family Law Act 1975 (Cth) ss 4AA, 75(2), 79
Evidence Act 1995 (Cth) ss 13, 63, 64
Family Law Rules 2004 (Cth) r 15.41

Stanford v Stanford (2012) 293 ALR 70

APPLICANT: Mr Griffith

RESPONDENT: Ms Chiu

FILE NUMBER: SYC 3336 of 2016

DATE DELIVERED: 17 February 2021

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 26-30 October 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Schonell SC

SOLICITOR FOR THE APPLICANT: Williams & Co.

COUNSEL FOR THE RESPONDENT: Mr Othen

SOLICITOR FOR THE RESPONDENT: Broun Abrahams Burreket

Orders

1. All outstanding Orders herein are discharged.

2. Within 28 days of the date of these Orders, the husband pay to the wife a sum of $150,000 (one hundred and fifty thousand dollars).

3. 3.1      The wife is declared to hold the property situate at and known as B Street, Suburb C in the State of New South Wales upon trust for the husband.

   3.2Simultaneously with such payment by the husband to the wife, both parties do all things and execute all documents required to effect the transfer to the husband of the whole of the wife's right to and interest in the property situate at and known as B Street, Suburb C in the State of New South Wales.

4. Within 28 days of the date of these Orders, the wife make available for collection by the husband the Motor Vehicle 1.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Griffith & Chiu has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3336 of 2016

Mr Griffith

Applicant

And

Ms Chiu

Respondent

REASONS FOR JUDGMENT

The proceedings

1. The applicant husband, Mr Griffith, and the respondent wife, Ms Chiu, are parties to litigation concerning property settlement and spousal maintenance.  At the conclusion of the trial the applicant sought orders and declarations which may be summarised as follows:

   1.A declaration that the husband is the sole owner of the property B Street, Suburb C, New South Wales;

   2.Discharge of an interim order that the husband pay to the wife spouse maintenance of $850 per week.

2. The respondent wife ultimately sought an order that the husband pay to her a sum of $800,000 by way of alteration of property interests.  She also sought an order that the husband pay to her spouse maintenance of $850 per week for three years.

Background

1. The husband was born in 1948 and is currently 73 years of age.  He is a self-employed legal practitioner.  The wife was born in 1963 and is presently aged 58 years.  She worked in hospitality until May 2016 and her capacity for gainful employment was an issue in these proceedings.

2. Both of the parties had been married prior to their relationship and are the parents of adult children.  They met in 2011 and married in 2013.  There are no children of the parties' marriage.  There was a dispute as to whether they lived in a de facto relationship at any time prior to the marriage.

3. The husband purchased the property C Street, Suburb D (“the Suburb D property”) in 1985 or 1986.  The parties lived in this home during the marriage and for a short period of separation under one roof after the breakdown of their relationship.

4. In April 2007 the wife purchased an apartment at Suburb F (“the Suburb F property”) for $308,000, which sum consisted partly of borrowings of $68,000.  On 11 January 2012 the K Bank mortgage payout figure was $62,541.  The wife leased this property to tenants during the parties' cohabitation and received all of the rental income.

5. In February 2012 the husband purchased a property at G Street, Suburb H (“the Suburb H property”) for $670,000.  In September 2012, after renovations were carried out, the husband sold this property for $788,000.

6. In May 2013 the property B Street, Suburb C ("the Suburb C property") was purchased in the name of the wife for $405,000.  The husband contended that he borrowed $253,000 from K Bank and provided the balance of the purchase price, together with stamp duty of $13,612, from his own resources.

7. The wife contended that she contributed $40,500 for the deposit and paid $13,735 on account of stamp duty in relation to the purchase of the Suburb C property.  She alleged that these funds came from repayment of a loan of $51,200 which she advanced to a friend, Ms J, in February 2009.  The wife contended that she also advanced of sum of $50,000 to another friend, Ms L, in January 2011.  Both of these alleged loans were disputed by the husband.

8. The husband maintained that he and the wife had a conversation in relation to the purchase of the Suburb C property, during which he said inter alia "it would mean you are holding the property in trust for me".  The wife denied that any such conversation ever took place.  The husband's detailed account of this alleged conversation is set out below in these reasons.

9. In August 2012 the husband purchased a residential property at PP Street, Suburb N (“the Suburb N property”) for $920,000.  At all times since its purchase, this property has been leased to tenants.

10. The wife contended that she received cash in a total amount of $50,300 as wedding gifts from her friends and family.  She claimed that her parents gave her "a red packet enclosing $16,000 in cash" during a pre-marriage trip to China and that she brought these funds with her to Australia.

11. There was a dispute between the parties as to the extent of the wife's involvement in renovations to the Suburb H, Suburb N, Suburb C and Suburb D properties.  The husband contended that the wife exaggerated her involvement and also alleged that some of these works did not occur at all.

12. It was common ground that the husband provided money to the wife prior to the marriage.  The wife alleged that she received $500 per week in cash, whereas the husband contended that he provided her with approximately $300 per month.

13. The husband deposed to a conversation with the wife in mid-2012, which was to the following effect:

    “How much is your mortgage on the Suburb F property?”  She said "About $60,000 and I would love to pay it off." … I said to the Respondent "What about if I gave you money each month so you could pay it towards the mortgage and the mortgage was reduced to a small balance that would be one problem off your mind".  She said "Yes that would help me”.

    (As per the original)

    The husband deposed that the wife said to him during this conversation

    I don't want to pay it all out in case I want to borrow against it later.

14. Documents annexed to the affidavit of the husband demonstrated that the wife did not reduce the mortgage on the Suburb F property after this alleged conversation.  In fact, she borrowed additional funds from the K Bank to assist with the purchase of a home unit by her daughter.  The wife's ex-husband, Mr P, deposed that he borrowed $250,000 from her in 2013 to assist their daughter with this purchase and that he repaid this money between December 2013 and June 2016.  The husband maintained that the wife told him nothing about these transactions.

15. The wife began employment in hospitality in October/November 2011.  She worked from 2.30 pm until 8.00 pm and earned approximately $700 gross per week.  From the date of the marriage, the husband provided a sum of $1,000 to the wife for the parties' living expenses and her personal use.

16. In late 2011 or January 2012 the parties travelled together to New Zealand for approximately one week.  In November 2012 they departed Australia and travelled to Europe, the United Kingdom and China.  The husband returned to Sydney on 10 December 2012 and the wife arrived at a later time, after visiting her family in China.

17. The wife contended that the husband asked her to marry him in March 2012 and that he took her to a jewellery shop, where she was fitted for a ring at his request.  The husband denied that he had any conversation in relation to a ring with the wife or that he took her to a jewellery shop.  The husband contended that, in mid-2012, he began to take the relationship seriously and proposed marriage to the wife.  A document shown to the husband in cross-examination indicated that he added the wife to his private health insurance cover on 22 June 2012.

18. Early in 2016 the husband met his current partner, Ms O.  In June 2016 the husband and his partner purchased an apartment at Q Street, Suburb R (“the Suburb R property”) for $625,000 as joint tenants.  Their daughter, X, was born in 2017 and it appears that they also have a younger child.

19. The husband deposed that he formed the view that the marriage was at an end on 1 March 2016.  The wife deposed that the husband informed her on 1 April 2016 that he wished to terminate the relationship.  On 2 May 2016 the husband wrote to the wife, on the letterhead of his legal practice, and informed her that she was required to vacate the Suburb D property within four weeks.

20. After an incident between the parties on 18 July 2016, the wife was charged with two counts of common assault, stalk or intimidating behaviour and larceny.  A provisional Apprehended Violence Order was issued against the wife, which meant that she was unable to return to the Suburb D property.  She was convicted of these offences in August 2017 and placed on a bond to be of good behaviour for twelve months.

21. From the time of purchase in 2013, all rental income from the Suburb C property was paid into the general account of the husband.  In late 2016 the husband learned that, in mid-2016, the wife caused all of these funds to be paid into her bank account.  The husband has continued to pay the mortgage instalments, without the benefit of the rental income.  On 5 December 2016 the parties consented to an interim order that the wife retain this rental income.

22. On 5 December 2016 the Federal Circuit Court ordered that the husband pay interim spouse maintenance of $850 per week to the wife.  It appears that this Order was opposed by the husband.

The evidence and witnesses

1. The applicant husband relied upon the following affidavits:

   1.        Mr Griffith (the husband) sworn 30 June 2020

   2.        Mr Griffith (the husband) sworn 30 June 2020

   3.        Ms S (the husband's secretary) sworn 2 July 2020

   4.        Mr T (real estate agent) sworn 26 June 2020

   5.        Ms W (daughter of the husband) sworn 18 September 2020

   6.        Mr V (partner of Ms W) sworn 18 September 2020

   7.        Mr Y (friend of husband) sworn 5 September 2020

   8.        Financial Statement of Husband sworn on 30 June 2020.

   Mr T and Mr Z were not required for cross-examination.

2. The respondent wife relied upon the following affidavits:

   1.        Ms Chiu (the wife) sworn 6 July 2020

   2.        Proof of Evidence of Ms Chiu (the wife) dated 26 October 2020

   3.        Mr P (ex-husband of the wife) sworn 28 September 2020

   4.Mr AA (ex-business associate of the husband) sworn 21 November 2016

   5.Mr BB (father of the wife) sworn 29 November 2016

   6.Dr CC (wife's treating psychologist) sworn 11 August 2020

   7.Dr DD (wife's treating psychiatrist) sworn 10 August 2020

   8.Financial Statement of the wife sworn 6 July 2020.

3. Objection was taken on behalf of the husband to the affidavit of the wife's father, Mr BB, as he was unavailable for cross-examination.  By letter dated 22 September 2020 the wife's solicitor gave notice that this witness was unavailable for cross-examination because of brain injury resulting from a car accident in June 2019.  This notice was supported by translations of unsworn documents which were said to be a medical report dated June 2019, a CT scan, a Diagnostic Report dated 20 June 2019 and "medical emergency" receipts.

4. For four reasons, I rejected the affidavit evidence of the wife's father.  Firstly, there was no sworn evidence that the wife's father suffered a car accident in June 2019 or at any other time.  Secondly, there was no sworn evidence as to the qualifications of the persons named in the medical report, nor of their recent contact with the wife's father.  There was no evidence that Mr BB's condition has remained static since June 2019.

5. Further, this purported evidence was inconsistent with the wife's description to the single expert psychiatrist of her father's state of health. Dr FF was instructed by the parties jointly to conduct an assessment of the wife and prepare a report as to her mental state and capacity for gainful employment. In August 2020 the wife told Dr FF that "her father was a public servant and he remains "pretty well" in terms of his health". For these reasons I concluded that the wife failed to establish that her father was incompetent to give evidence for the purposes of section 13 of the Evidence Act 1995 (Cth).

6. Additionally I took the view that the notice purportedly given by the wife's solicitor for the purposes of sections 63 and 64 of the Evidence Act was not "reasonable", as the letter was dated 22 September 2020 and the trial was due to commence on 26 October 2020.  The documents relied upon were dated June 2019 and there was no explanation as to why this notice was delayed until the eve of the trial.

7. Objection was taken also to the affidavits and reports of Dr CC and Dr DD, on the basis that they are not single experts. Both Dr CC and Dr DD were treating medical practitioners of the wife and, as such, they were able to give evidence which falls within the parameters defined by rule 15.41 of the Family Law Rules 2004 (Cth). Relevantly, this rule provides as follows:

   15.41 Application of Part 15.5

   (1)This Part (other than rule 15.55) does not apply to any of the following:

   (a)evidence from a medical practitioner or other person who has provided, or is providing, treatment for a party or child if the evidence relates only to any or all of the following:

   (i)the results of an examination, investigation or observation made;

   (ii)a description of any treatment carried out or recommended;

   (iii)expressions of opinion limited to the reasons for carrying out or recommending treatment and the consequences of the treatment, including a prognosis;

   (b)evidence from an expert who has been retained for a purpose other than the giving of advice or evidence, or the preparation of a report for a case or anticipated case, being evidence:

   (i)about that expert’s involvement with a party, child or subject matter of a case; and

   (ii)describing the reasons for the expert’s involvement and the results of that involvement;

   (c)evidence from an expert who has been associated, involved or had contact with a party, child or subject matter of a case for a purpose other than the giving of advice or evidence, or the preparation of a report for a case or anticipated case, being evidence about that expert’s association, involvement or contact with that party, child or subject matter;

   ...

   Accordingly, I admitted into evidence the affidavits of Dr CC and Dr DD but excluded those parts of their reports which fell beyond the scope of material permitted by Rule 15.41.

8. As noted, I had the benefit of a single expert report in relation to the wife by Dr FF dated 31 August 2020.  Dr FF described his instructions as follows:

   An issue in the proceedings is her capacity to obtain employment, having regard to her mental health diagnosis and prognosis.  I have been asked to undertake an assessment of Ms Chiu with a view to expressing an opinion with respect to diagnosis, prognosis and capacity for employment.

   Dr FF also gave oral evidence at trial.

9. The wife utilised the services of an interpreter at the trial and this choice attracted scepticism and criticism on behalf of the husband.  The wife conceded that she has lived in Australia for 30 years and been in the workforce in this country for 25 years.  She conceded that she did not use an interpreter in her workplace and that she conversed with the husband only in English.  The wife said that she used an interpreter at the trial because "I suffer from depression and my mind is not clear".  Senior counsel for the husband submitted that "an interpreter was used by the wife to avoid answering questions directly".  I am inclined to join in the scepticism expressed by senior counsel for the husband, even after taking into account the wife's state of mental health.  For reasons which appear below, I found the wife generally to be an unsatisfactory witness.

10. Ultimately, the only witness in the wife's case who was required for cross-examination was Mr AA.  He is a former employee, employer and business associate of the husband.  The only admissible evidence given by Mr AA related to alleged conversations with the husband in 2012, when he purportedly said that he and the wife stayed overnight in each other's homes in a regular pattern.  Mr AA also deposed that the husband told him in 2012 that the parties enjoyed a happy relationship and that he wished to marry the wife.  The husband denied that he had any such conversations with Mr AA.

11. In my view, the evidence of Mr AA was of little assistance in relation to the issue of the existence of a de facto relationship.  Most unfortunately, he was subjected to a humiliating appearance in the witness box which was of little or no forensic value.  Clearly, Mr AA has serious mental health issues and a very acrimonious relationship exists between himself and the husband.  I was not assisted by Mr AA's admission in cross-examination that a Law Society panel found that he had engaged in "disgraceful and dishonourable conduct".  Sufficient doubt was cast upon the reliability of his evidence by the fact that he required assistance in his Supreme Court litigation with the husband and his admission that he suffered from short-term memory problems when he swore his affidavit in support of the wife's case.

Approach to these proceedings

1. In Stanford v Stanford (2012) 293 ALR 70 the majority of the High Court of Australia held as follows: (paragraph 35)

   It will be recalled that s 79(2) provides that “[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order”.  Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section.  The requirements of the two sub-sections are not to be conflated.  In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.

2. Their Honours further observed as follows:

   In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship.  It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife.  No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship.  That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship.  And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end.  Hence it will be just and equitable that the court make a property settlement order.  What order, if any, should then be made is determined by applying s 79(4).

1. The parties intermingled their finances on a consensual basis between 2012 and 2016.  The marital relationship came to an end in 2016 and both parties now wish to terminate their financial interaction with each other.  In these circumstances, I am satisfied that it is just and equitable that there be orders for settlement of property.  The application of section 79(4) will determine what, if any, such orders should be made after consideration of all relevant matters.

2. It is first necessary to determine the nature, value and ownership or extent of assets, superannuation, liabilities and financial resources of the parties. All relevant contributions of each of the parties, within the meaning of paragraphs (a) to (c) of section 79(4) must be identified and weighed against each other. The matters set out in paragraphs (d) to (g) of section 79(4), particularly paragraph (e) which takes up by reference the provisions of section 75(2), must be considered and a determination made as to what, if any, alteration should be made to the entitlements of the parties as earlier assessed on account of contribution.

The assets, superannuation, liabilities and financial resources

1. At the conclusion of the trial, the parties submitted a draft Balance Sheet in the following terms:

Ownership		Description	Wife / de facto partner's value	Husband / de facto partner's value
ASSETS
1.	W	GG Street, Suburb F	690,000	690,000
2.	W	B Street, Suburb C	610,000	610,000
3.	H	C Street, Suburb D	3,600,000	3,600,000
4.	H	HH Street, Suburb JJ	1,000,000	1,000,000
5.	H	KK Street, Suburb LL	790,000	790,000
6.	H	MM Street, Suburb NN	600,000	600,000
7.	H	PP Street, Suburb N	1,965,000	1,965,000
8.	H	50% Interest in QQ Street, Suburb R	325,000	325,000
9.	W	CBA Account No. …69	3,086	3,086
10.	W	ANZ Account No. …37	3,155	3,155
11.	H	CBA Account No. …44	136	136
12.	H	CBA Account No. …34
13.	H	CBA Account No. …33 (RR Company)
14.	H	ANZ Account No. …75  50%	95	95
15.	H	St George Account No. …70 (SS Company)
16.	H	Motor Vehicle 1	31,800	31,800
17.	H	Motor Vehicle 2	7,000	7,000
18.	H	4 musical instruments	4,000	4,000
19.	H	1,873 ANZ Shares as at 23.10.2020 @ 19.78	36,936	36,936
20.	H	2,240 CBA Shares as at 23.10.2020 @ 69.90	156,576	156,576
21.	H	18872 TT Ltd Shares as at 23.10.2020 @ 2.86	53,973	53,973
22.	H	5115 UU Company as at 23.10.2020 @ 0.02	81	81
23.	H	67 VV Limited Shares as at 23.10.2020 @ 46.92	3,143	3,143
24.	H	WW Limited Shares as at 23.10.2020 @ 17.19	1,151	1,151
25.	H	Household Contents	5,000	5,000
26.	W	Household Contents (Suburb F property)	5,000	5,000
27.	J	Designer bag	10,000	20,000
28.	H	Gold 2 ounces as of 29/11/2016 (owned by Husband but in wife's possession)	0	5,375
29.	H	Silver 1kg as of 29/11/2016 (owned by Husband but in wife's possession)	0	1,214
30.	H	Gold and Silver bars (in husband's possession) - 1 ounce of Gold - 1 ounce of Silver	2,736 40	2,736 40
31.	W	Watch and Jewellery (not in husband's possession)
32.	W	Collection of silver coins (in wife's possession)
33.	W	Painting (not in husband's possession)
Total		$9,903,908	$9,920,497

ADDBACKS
34.	W	Rent from B St, Suburb C E$445 p/w from 1 June 2016 to 26 June and continuing	0	120,750
35.	W	Mortgage payments and strata levies for B Street, Suburb C	0	109,500
36.	W	Strata Levies	0	15,000
37.	H	50% interest in QQ Street, Suburb R	325,000	Nil
Total		$325,000	$245,250

LIABILITIES
38.	W	Mortgage to ANZ bank secured over GG Street, Suburb F Account No. #…12	6,342	6,342
39.	H	Mortgage to K Bank (Australia) Limited secured over C Street, Suburb D …60	998,720	998,720
40.	H	Mortgage to XX Bank …63 Account No. …50 Mortgage to K Bank Account No. …43	236,632 3,509 237,269	236,632 3,509 237,269
41.	H	Income Tax Assessment	0	30,000
42.	H	Credit Card	0	6,000
43.	H	Contingent Liability SS Company t/as RR Company ats Mr AA – Supreme Court proceedings	0	1,000,000
44.	H	YY Accountants	0	110,000
45.	H	Mr ZZ Barrister	0	140,000
Total		$1,482,472	$2,768,472

SUPERANNUATION
Member		Name of Fund	Type of Interest	Wife / de facto partner's value	Husband / de facto partner's value
47.	W	AB Super Fund	25,211	25,211
48.	H	BC Super Fund	12,187	12,187
Total		$37,398	$37,398

1. There was no evidence as to the value of a number of these assets.  The issue of the identity and valuation of the asset pool was further complicated by a disputed allegation on the part of the husband that the wife removed items from the Suburb D property, after the AVO was issued in July 2016.

2. The husband deposed that the wife removed the following items from the property without his consent:

2 Suitcases

2 Designer men’s Wallets

Bicycle

Memorabilia hat

1 Gold ducats coin

Watch

Photocopier/printer

        Ironing System

Pots and Pans

Complete set Cutlery set

Motor Vehicle 1

1 x 1770 pieces of 8 silver coin

1 x Apple iPhone

Wool blankets and linen

There was no admissible evidence of the value of these chattels.

1. The wife deposed that the husband has retained the following items of her personal property:

Picture Frame

Photo Frame x4

Collection of Stamps

Medicines and Chinese Medicines

Mini vacuum

Mirror (LED)

Heating

Fan

Wool Blanket (Designer), Wool felt and electricity blanket

Quilt cover and fitted cover, pillows and cover

Table lamp

Electrical toothbrush and foot care device

Perfumes, shampoo and conditioner

Green Jacket (Designer Brand) New

Navy Jacket (Designer Brand)

Black Jacket

Black Jacket

Jumper (Designer)

Jumper cashmere

Scarf

Sunglass New

Pearl necklace

Crystal medal

Camping supplies

Tools and washing car tool

Books

Sewing kit

Again, there was no evidence of the value of these chattels.

Assets

1. The parties agreed as to the value of all real estate assets, the husband's shareholding, and several bank account balances.  Three bank accounts, being items 12, 13 and 15, appeared in the Balance Sheet with no quantum ascribed by either party and will be disregarded for present purposes.

2. Similarly, I am unable to make findings in relation to items 32 and 33, as neither party made an admission against interest in respect of a collection of silver coins or a painting.  I will also disregard these items for the purpose of findings with regard to the Balance Sheet.

3. The husband is the registered owner of both the Motor Vehicle 1 and Motor Vehicle 2.  There was no evidence as to their values, thus I can make findings based only on the husband's admissions against interest as recorded in the draft Balance Sheet.  I find that the Motor Vehicle 1 and Motor Vehicle 2 have values of $40,000 and $7,000 respectively.

4. Similarly, there was no evidence as to the value of the husband's four guitars.  My finding will be a figure of $4,000, on the basis of his admission against interest.  I will adopt the same approach with regard to the household contents of each of the parties, which I find to be valued respectively at $5,000.

5. There was no evidence as to the value of a designer bag nor a Watch, which the wife conceded that she removed from the Suburb D property.  The husband deposed that the designer bag was purchased for $13,000 "a few years before" 2016.  Exhibit 9 would suggest that the purchase price was in fact $12,990.  The husband alleged and the wife disputed that he gave her cash and she then used her Amex card to purchase this bag.  I am inclined to accept the husband's evidence in relation to this purchase, due to my adverse assessment of the credit of the wife.  Accordingly, I will treat the designer bag as an asset of the wife with a value of $10,000 on the basis of her admission against interest.

6. In my view, there is no basis upon which I can make findings as to the value of gold and silver allegedly owned by the husband but currently in the possession of the wife.  I will disregard these items for the purpose of findings as to the assets of the parties.  The husband made admissions against interest in relation to gold and silver bars in his possession, thus I find that the value of these assets is $2,736 and $40 respectively.

7. There was no evidence as to which party acquired the Watch, nor its purchase price.  In my view, this asset should be disregarded for the purpose of findings as to the assets of the parties.

Proposed addbacks

1. The husband asserted that the wife received a total sum of $120,750 as rental for the Suburb C property since 2016 and that these funds should be treated as her asset.  I do not accept that the husband established that the wife received this amount of rental for the Suburb C property.  Senior counsel for the husband conceded that the only evidence in relation to this rental was as set out in paragraph 76 of his affidavit, which read as follows:

   76.In addition to the spousal maintenance and the rent from her Suburb F property, the Respondent has received the rent from the B Street property as follows:

   ●    1 June 2016 to 22 Oct 2016 @$440 p/w -         $8,932.00

   ●    23 Oct 2016 to 25 Spt 2018 @455 p/w -           $45,591.00

   ●    27 Oct 2018 to 25 Oct 2019@ $490 p/w -         $25,284.00

   ●    13 Dec 2019 to the date of swearing this

   Affidavit @ $430 p/w  $11,868.00

   Total  $90,675.00

   I was taken to no documents tendered in evidence which would support these conclusions of the husband.

2. Senior counsel for the husband conceded that he could point to no evidence in relation to his proposed addback of $109,500 on account of "mortgage payments and strata levies for B Street, Suburb C".  Senior counsel for the husband indicated that he did not press for an addback of $15,000 on account of strata levies.  Accordingly, I will disregard items 34, 35 and 36 in the draft Balance Sheet.

3. There was no explanation why the husband's 50% interest in the Suburb R property was included in the draft Balance Sheet as both an asset and a proposed addback.  The husband holds both a legal and equitable interest in this property and I see no reason to treat his 50% share other than as his asset.  The question of any contribution by the wife to its acquisition, conservation or improvement is a separate issue.

Liabilities

1. The parties agreed upon payout figures in respect of four mortgages held by the husband.  The draft Balance Sheet contained an entry of $6,342 for a mortgage secured on the title to the wife's Suburb F property.  The husband offered no comment in relation to this alleged liability but I will include the wife's mortgage debt in the Balance Sheet.

2. The husband's two credit card debts clearly are liabilities incurred after separation and, after four years, I consider that these amounts could have no connection with the wife.  I will disregard these two liabilities for present purposes.

3. The husband asserted that his income tax debt of $30,000 should be included as a liability.  I see no basis upon which the wife effectively should assume responsibility for part of a debt which the husband has incurred since separation.  I will exclude this item from the Balance Sheet.  I will exclude likewise the husband's debts incurred in the course of the Supreme Court litigation and his contingent liability to Mr AA.  Similarly, I see no reason why the wife effectively should share in the husband's loan incurred for payment of his counsel's fees in this litigation.

Superannuation

1. The parties agreed as to the value of their respective superannuation funds.  These funds have modest values of $25,211 and $12,187 for the wife and husband respectively.  Neither party proposed a splitting order, thus each party will retain these small fund balances.  There was no evidence as to the period during which the parties accrued their respective superannuation funds.  In these circumstances, I will exclude the modest superannuation funds from the Balance Sheet.

2. I thus find the assets and liabilities of the parties to be as follows:

ASSETS					($)
1.	W		GG Street, Suburb F		690,000
2.	W		B Street, Suburb C		610,000
3.	H		C Street, Suburb D		3,600,000
4.	H		HH Street, Suburb JJ		1,000,000
5.	H		KK Street, Suburb LL		790,000
6.	H		MM Street, Suburb NN		600,000
7.	H		PP Street, Suburb N		1,965,000
8.	H		50% Interest in QQ Street, Suburb R		325,000
9.	W		CBA Account		3,086
10.	W		ANZ Account		3,155
11.	H		CBA Account		136
12.	H		50% ANZ Account		95
13.	H		Motor Vehicle 1		40,000
14.	H		Motor Vehicle 2		7,000
15.	H		4 musical instruments		4,000
16.	H		1,873 ANZ Shares		36,936
17.	H		2,240 CBA Shares		156,576
18.	H		18,720 TT Ltd Shares		53,973
19.	H		5,115 UU Company Shares		82
20.	H		67 VV Limited Shares		3,143
21.	H		67 WW Limited Shares		1,151
22.	H		Household Contents		5,000
23.	W		Household Contents		5,000
24.	W		Designer bag		10,000
25.	H		Gold and Silver Bars		2,776
$9,912,109

LIABILITIES					($)
26.	W		ANZ Mortgage		6,342
2.	H		K Bank Mortgage …60		998,720
28.	H		XX Bank Mortgage		236,632
29.	H		K Bank Mortgage …43		237,269
30.	H		Account N …50		3,509
$1,482,472

The letters "H" and "W" above designate legal ownership of or liability for these assets and debts by the husband and the wife respectively.

Issues in the proceedings

1. Senior counsel for the husband identified seven issues which were said to be relevant to the resolution of these proceedings, as follows:

   1.Did the parties live in a de facto relationship between September 2011 and August 2013?

   2.Did the wife receive cash wedding gifts of approximately $50,000?

   3.Did the wife receive repayment of two loans each in an amount of $50,000?

   4.Does the wife hold the Suburb C property upon trust for the husband?

   5.What contributions did the wife make to the Suburb H, Suburb N and Suburb D properties?

   6.Is the wife's capacity to engage in gainful employment compromised by a psychiatric condition?

   7.Do considerations of justice and equity permit the making of any order for alteration of property interests?

1. The existence of a de facto relationship

1. In her affidavit of evidence-in-chief the wife deposed as follows:

   20....  It was agreed that from Monday to Thursday Mr Griffith would live with me at my apartment at GG Street, Suburb F ... in circumstances where Ms AC was still in High School and required my supervision and care.  From Friday to Sunday I lived at Mr Griffith's home at C Street, Suburb D ...  Ms AC lived with her father on weekends.

2. Pursuant to a grant of leave, the wife gave the following further

   
   

   evidence-in-chief in relation to the existence of a de facto relationship:

   2.14 September 2011 was Father's Day.  Mr Griffith said to me on Father's Day "I am very happy since I met you.  You're the person I am looking for.  We can try to live together."  I said "I would like that" or words to that effect.

   3.Mr Griffith also said to me during a lengthy discussion on that day about living together:  "I don't want to stay at home by myself.  It's lonely."

   4.My daughter Ms AC was still in high school on 14 September 2011 and she lived with me at that time from Sunday night until Friday each week.

   5.During the discussions we had about living together on Father's Day Mr Griffith said to me "I will come and stay at your house each Monday through Thursday," or words to that effect.

   6.From 14 September 2011, Mr Griffith came to stay with me at my Suburb F property each Monday and stayed there through to Thursday each week.  Occasionally, Mr Griffith did not come but most of the time he stayed with me each week on those days.

   7.From 14 September 2011, I stayed at Mr Griffith's Suburb D property from Friday through until Sunday afternoon, when I would return to my Suburb F property.

   (Emphasis in original)

3. The husband denied categorically that the parties lived in a de facto relationship prior to their marriage.  This denial was supported by affidavit evidence from Ms W, Mr V and Mr Y.

4. Ms W deposed as follows:

   7.Prior to 2011 and up until August 2013 I would go to my father's house at C Street Suburb D regularly to visit.  During my visits I never saw any person living at the home with my father.  I was aware my father lived alone.

   Ms W was unshaken in this evidence in cross-examination.

5. Mr V is the partner of Ms W.  Mr Chan deposed inter alia as follows:

   2.During 2010 until the Applicant, in these proceedings, Mr Griffith, married the Respondent Ms Chiu in  2013 I would regularly visit Mr Griffith with my partner Ms W at his home at C Street, Suburb D.

   3.At no time prior to August 2013 did I see the Respondent Ms Chiu at Mr Griffith 's home or see anything that indicated that Ms Chiu was living at Mr Griffith 's home at C Street, Suburb D.

   Mr Chan was unshaken in this evidence in cross-examination.

6. Mr Z has been a friend of the husband since approximately 1980.  He deposed that, during the period of the alleged de facto relationship, he spent time at the husband's Suburb D home as respite from his responsibilities as a carer for his father.  Mr Z deposed that his father suffers from dementia and that he used the husband's home for respite while he was at work.  Mr Z deposed as follows:

   9.Between 2010 and August 2013 I went to Mr Griffith's house about once per week.  I was told by Mr Griffith in late 2011 and early 2012 that he had started seeing someone but I had not seen her until they married in August 2013.

   10.During the time that I went to his home I was able to go to any place in the house.  I went to the bedroom area which is upstairs on the third floor of the property and slept sometimes on Mr Griffith's bed because from his bedroom the view of the river is very beautiful and relaxing.  Next to the bedroom is an ensuite bathroom.

   11.During the times I was in the bedroom area and ensuite area I did not see anything which indicated that anyone other than Mr Griffith was living in the home.  I knew Mr Griffith was living on his own for many years before he married Ms Chiu.

   Mr Z was not required for cross-examination.

7. The wife's daughter, Ms AC, lived in the Suburb F property with her during the period of the alleged de facto relationship.  Ms AC is now 26 years of age and could have given evidence in support of the wife's contention of a de facto relationship.  There was no explanation as to the wife's failure to adduce evidence from Ms AC.

8. As set out above, the wife gave a detailed account of alleged conversations between herself and the husband in which they agreed to commence cohabitation.  As submitted by senior counsel for the husband, this evidence sits uncomfortably with the wife's account to Dr FF of her memory and capacity for concentration.  Dr FF reported inter alia on his interview with the wife on 12 August 2020:

   She reported being unable to concentrate for more than ten to twenty minutes ...

   and:

   She reported a bad memory and forgetfulness.

9. With respect to Mr AA I place little weight on his evidence, for reasons set out above.  No other witness gave evidence in support of the wife's allegation of the existence of a de facto relationship.

1. Some guidance can be derived as to the issue of the existence of a de facto relationship from section 4AA(2) of the Family Law Act 1975 (Cth) (“the Act”). This section sets out a number of non-exhaustive considerations which are relevant to the determination of the existence of a de facto relationship for the purposes of Part VIIIB as follows:

   (2)      Those circumstances may include any or all of the following:

   (a)      the duration of the relationship;

   (b)      the nature and extent of their common residence;

   (c)      whether a sexual relationship exists;

   (d)the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

   (e)      the ownership, use and acquisition of their property;

   (f)       the degree of mutual commitment to a shared life;

   (g)whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;

   (h)      the care and support of children;

   (i)       the reputation and public aspects of the relationship.

(a)      the duration of the relationship

1. The wife contended that a de facto relationship existed between September 2011 and the date of marriage in August 2013, being a period of 1 year and 11 months.  The wife's evidence was that the parties first met in June 2011, hence her case must be that a de facto relationship commenced within a period of three months of the initial meeting of the parties.  The husband contended that he formed the view that the parties were in a committed relationship in mid-2012.

(b)      the nature and extent of their common residence

1. The parties had no common residence during the period of the alleged de facto relationship.  On the wife's case, the husband stayed at her residence from Monday to Thursday and she spent the remainder of each week at his home.  The husband denied any such arrangements and contended that he and the wife saw each other on Saturdays and Sundays.  He deposed that he had dinner at the wife's home on three or four occasions only, as he felt uncomfortable due to the strained relationship between her and her daughter.

(c)      whether a sexual relationship exists;

1. There was no direct evidence as to whether a sexual relationship existed between the parties during the period of the alleged de facto relationship.

(d)      the degree of financial dependence or interdependence, and any arrangements for financial support, between them

1. It was common ground that there was a degree of financial intermingling between the parties during the period of the alleged de facto relationship.  The wife alleged that the husband began to provide her with $500 per week in cash shortly after the alleged conversation regarding cohabitation in September 2011.  The husband contended that he began to provide approximately $300 per month to the wife in mid-2012, so that she could reduce her mortgage debt from about $60,000 to $3,000.  There was no evidence that the parties ever held a joint bank account.

(e)      the ownership, use and acquisition of their property

1. Each of the parties owned real estate prior to their relationship.  The wife owned an apartment at Suburb F.  The husband owned several parcels of real estate in September 2011 and purchased the Suburb H and Suburb N properties in 2012.  The husband was the sole owner of these two properties.  In May 2013 the parties acquired the Suburb C property in the sole name of the wife.

(f)       the degree of mutual commitment to a shared life

1. It would appear that each of the parties became committed to a shared future during 2012 and they became engaged during that year.  It was common ground that the wife began to live in the husband's home at Suburb D on a full-time basis only after the marriage in August 2013.

1. the reputation and public aspects of the relationship

1. The only evidence of any public representation by the husband of a de facto relationship was that of Mr AA.  As observed above, I have real reservations as to the reliability of his evidence.  In any event, the husband maintained that he never discussed his personal life with Mr AA and denied these alleged conversations.

2. In my view, the evidence adduced by the wife fell short of assisting her contention for a de facto relationship in terms of these considerations.  On the wife's case, the alleged relationship was of short duration and involved no common residence until the marriage took place.  The husband assisted the wife financially but I accept his evidence that his intention was to enable her to reduce her mortgage.  There was a significant change to the parties' financial arrangements following the marriage, when the husband provided a sum of $1,000 per week to the wife.  There was no evidence of any public aspects of the alleged de facto relationship.

3. I am satisfied, and I find, that the wife failed to establish that the parties lived in a de facto relationship prior to their marriage in August 2013.  The wife called no evidence from her daughter who lived with her during the relevant period.  No explanation was offered and I infer that evidence from the wife's daughter would not have assisted her case.  On the other hand, the husband called three witnesses who were not shaken in cross-examination and whose evidence militated against a finding of a de facto relationship.

4. It seems to me that the wife sought to bolster her case by her assertion of a de facto relationship prior to the marriage.  As indicated above, her evidence did not bear out this contention and was difficult to reconcile with the history which she provided to Dr FF.  The wife's contention that there was a de facto relationship, and the evidence which she adduced or failed to adduce in support thereof, go directly to my view that she was an unsatisfactory witness.

1. Cash wedding gifts of $50,000

1. According to the wife, she recorded each cash gift in an exercise book (Exhibit 13).  The husband said that he first saw this list when the document was shown to him in cross-examination and that he never observed any of this money.

2. The purported list of cash wedding gifts contained twenty entries.  None of these alleged givers of cash swore an affidavit in the wife's case and she offered no explanation of her failure to adduce any such evidence.

3. There was no evidence that the wife deposited any of this money into a bank account.  She contended that she kept these funds in a safe which she took from her apartment at Suburb F to the husband's home at Suburb D after the marriage.  The wife contended that she used this money to fund renovations to the Suburb C property in 2014 and the Suburb D home between June 2013 and March 2016.  The wife alleged that she spent $20,000 for renovations to the Suburb C property and $55,000 in respect of the Suburb D home.  The wife alleged that she sourced her contribution of $55,000 to the cost of the Suburb D renovations from the wedding gifts and rental from the Suburb F apartment.

4. It seems to me to be inherently unlikely that the wife retained these funds in a safe for a considerable period after receipt and then elected to contribute to the cost of property renovations.  In 2013 the wife borrowed $50,000 to refinance the mortgage on her Suburb F property and $250,000 to fund the purchase of her daughter's apartment.  If the wife held $50,300 in cash, she could have refinanced the mortgage from her own resources.  She made no reference to this alleged cash resource in her ANZ loan application.

5. For these reasons, I reject the wife's contention that she received $50,300 in cash as wedding gifts.  Again, I take the view that this aspect of the wife's case tends to suggest that she was an unreliable witness.

1. The wife's alleged loans of $51,200 and $50,000

1. The wife alleged that she advanced $51,200 to Ms J in February 2009 and that this loan was repaid in three instalments in February/March 2013.  The wife produced no documents to corroborate this advance nor any repayment of these funds.  She gave unconvincing evidence that she provided a sum of $51,200 in cash in Australian dollars to Ms J in China in 2009.  The wife claimed that she had given a sum of $50,000 to her mother by 2009 and $30,000 of the total amount advanced to Ms J came from this source.

2. The wife alleged that she advanced $50,000 in Yuan to Ms L in January 2011 in China.  She claimed that her parents sold a property and gave her "$30,000 and then shares", which was said to be the source of this loan.  The wife produced no documents to corroborate these transactions.  The wife alleged that this loan was repaid in cash in 2013, 2014 and 2015 and that she deposited this money into her mortgage account.  Statements for the period 9 October 2013 to 9 April 2015 showed lump sum deposits totalling $45,000, in addition to small periodic payments, into her mortgage account.

3. The wife said that both of the alleged recipients of these loans live in Sydney.  She gave no explanation for her failure to adduce evidence from either Ms J or Ms L.  I infer that any evidence which may have been given by either of these people would not have assisted the wife's case.

4. I do not consider that the deposits totalling $45,000 into the wife's mortgage account assist in a conclusion in her favour on this issue.  There was no evidence to establish the source of these funds, other than the uncorroborated word of the wife.  As indicated already, I found the wife to be an unsatisfactory witness generally.

1. Does the wife hold the Suburb C property upon trust for the husband

1. The wife alleged that the husband said to her "Have you got some money. I’ve found a property that I will buy for you and make you feel safe and secure". In her oral evidence, the wife said that the husband informed her that the Suburb C property was a wedding gift to her, "as a guarantee security for marriage".  The husband denied that he made any such statements.

2. As noted above, the husband gave evidence of a conversation in which he informed the wife, and she agreed, that she would hold the Suburb C property upon trust for him rather than as beneficial owner.  The husband's stated reason, being avoidance of land tax, is logical and the alleged conversation occurred at a time of mutual trust between the parties.

3. The husband deposed to the following conversation:

   19.  … Soon after we were engaged I had the following conversation with the Respondent, which was in early 2013.  I said to the Respondent "My friend, Mr T is a Real Estate Agent with AF Real Estate who told me about a deceased estate property at B Street, Suburb C he has for sale.  He thought I might be interested in it, but I already pay about $20,000.00 a year in land tax, if I bought it I might put it in your name, and we can use the income later from the property in our retirement.  It would mean that you are holding the property in trust for me.  I would provide the loan, stamp duty and the deposit and pay all of the expenses associated with it".  The Respondent said "I think that is a good idea.  Yes put it in my name".

4. The wife alleged that she contributed $54,260 to the acquisition of the Suburb C property, which consisted of $40,500 for the deposit and $13,735 for stamp duty.  She claimed that she provided these funds from loan repayments made by Ms J and that she paid the deposit and stamp duty in cash.  As indicated above, I do not accept that the wife advanced funds to Ms J.  Accordingly, I am not satisfied that the wife had funds available to enable her to contribute to the acquisition of the Suburb C property.

5. The husband contended that the purchase money and acquisition costs for the Suburb C property came from a drawdown on the mortgage account in respect of the Suburb D home.  The husband was unshaken in this evidence.

6. The husband deposed as follows in relation to the funding of the purchase of the Suburb C property:

   55.As of 2 April 2013 I owed the K Bank $561,418.25.  After the purchase of B Street, Suburb C on 17 May 2013 I owed the K Bank $811,418.25.  I drew down $253,004.48 towards the purchase of the B Street Property and used the balance of my own funds $141,196 to complete the purchase of B (sic) Street, Suburb C.  There were no legal fees as the staff in my firm did the conveyancing.  I provided the money for the Stamp Duty from my own funds and the total spent by me was $154,808.

7. The husband deposed that rental from the Suburb C property was paid into his general account from the time of purchase until 30 June 2016.  He gave uncontradicted evidence that the wife then directed the managing agent to pay all rental income into her account.  The husband has paid all mortgage instalments without the assistance of rental income since 30 June 2016.  There was no suggestion by the wife that she has paid any outgoings related to this property since its purchase in 2013.

8. In these circumstances, I accept the submission on behalf of the husband to the effect that the conduct of the parties was consistent with a shared belief that the wife held the Suburb C property upon trust for his benefit.  The wife acted unilaterally to divert the rental income to herself after the separation.  As noted above, however, on 5 December 2016 the parties consented to an interim order which permitted the wife to retain this rental income.

9. For these reasons, I find that the wife made no contribution to the purchase price and/or acquisition costs of the Suburb C property.  I accept the evidence of the husband of the conversation between the parties, in which they agreed that the wife would hold this property upon trust for him as beneficial owner.  For these reasons, I find that the wife holds the Suburb C property upon trust for the husband as beneficial owner.  In order to give effect to this finding, I will order that both parties do all things necessary to transfer to the husband the whole of the right title to an interest in this property.

1. The wife's contributions to the Suburb H, Suburb N and Suburb D properties

1. This issue will be considered below, in the context of the identification and weighing to the contributions of both parties.

The contributions of the parties

1. On any view of the evidence, the parties' relationship subsisted for only a short time.  The marriage itself lasted only from August 2013 until early 2016.

2. For reasons indicated above, I reject the wife's contention that the parties lived in a de facto relationship prior to the date of marriage.  I accept that they were in a committed relationship from a time in 2012 which could not be identified with precision.  They travelled to New Zealand together late in 2011 or in January 2012 and became engaged at some time during that year.

3. There is no doubt that the husband's initial contributions substantially exceeded those of the wife.  He owned four parcels of real estate, which appeared to be subject to mortgage encumbrances.  The husband also held an interest in a company which owned the premises where he conducted a legal practice.

4. At the commencement of the relationship, the wife owned an apartment at Suburb F which was encumbered by a mortgage.  For reasons set out above, I do not accept that she was owed approximately $100,000 by two friends.

5. During the relationship both parties held paid employment.  The wife worked part-time in hospitality and the husband practiced as an employed legal practitioner.  The husband's earnings well exceeded those of the wife and he provided her with funds for her own use prior to the marriage.

6. I accept the submissions on behalf of the husband, to the effect that the wife exaggerated her role in renovations to the Suburb H, Suburb N and Suburb D properties.  I found the evidence of the husband in relation to repairs and renovations to these properties to be cogent and convincing and that of the wife to be self-serving and designed to bolster her case.

7. The wife alleged that she made the following non-financial contributions to the Suburb H property:

   48.I organised and supervised improvements and renovations to the Suburb H property which included:

   48.1.Employing a plumber and electrician to lay new electrical wiring;

   48.2.   Repairing the fence;

   48.3.   Replacing the tiles in the front yard;

   48.4.Installation of a new kitchen including purchase and installation of a dishwasher;

   48.5.   Painting of the exterior and interior of the home;

   48.6.Trimming trees, removing rocks and landscaping a new garden;

   48.7.   Building a sunroom;

   48.8.   Repairing iron gate, timber flooring and windows.

8. The husband agreed that the wife carried out some painting work at the Suburb H property but added "as best she could but she had never painted before ..."  Otherwise, the husband denied that the wife carried out any of this work.  Ms W gave uncontradicted evidence that the wife "did very little to assist with the renovations as she seemed to have no idea of what needed to be done".  Ms W also gave unchallenged evidence that "Ms Chiu assisted with the sweeping and some general cleaning up".

9. The wife alleged that her non-financial contributions to the Suburb N property were as follows:

   58.I organised and supervised improvements and renovations to the Suburb N property as follows:

   58.1.Painting of the exterior and interior of the home;

   58.2.Repairing the toilet in the bathroom;

   58.3.Researching, ordering and collecting items in relation to the renovation;

   58.4.Replacing the handles on the bathroom doors and knobs on cabinets in the upstairs hallway;

   58.5.Repairing the fence on the balcony;

   58.6.Replacing the letterbox;

   58.7.Laying new carpet;

   58.8.Repairing the front door;

   58.9.Clearing the garden;

   58.10Cleaning the outdoor laundry in the backyard;

   58.11.Deep clean of the property following renovation; and

   58.12General cleaning of the property.

10. The husband denied that the wife carried out any of this work and contended that overall "she gave very little help with this property".  The husband said that this property was "carpeted and painted and rented very quickly".

11. The wife contended that she undertook renovation and repair work as follows to the Suburb D property:

    78.I organised, supervised and personally undertook some of the work to improve the Suburb D property between June 2013 and March 2016.  The improvements comprised the following:

    78.1.Repairing of walls and painting of the exterior and interior of the home;

    78.2.Repairing of windows, fences and swimming pool gate;

    78.3.Fixing and cleaning the backyard including, cutting and trimming of dead trees, fixing 92 steps so as to create a pathway from the backyard to the wharf.  My brother assisted me with work in the backyard when he was in Australia for 6 weeks.

    78.4.Replacing screen windows and screen doors;

    78.5Installing outdoor lights;

    78.6.Ordering cotton curtains and cushions from China and fitting of same;

    78.7.Ordering 3 floor lamps, quilt cover, 3 trays and sofa cover from China;

    78.8.Repairing garage roller door;

    78.9.Selection and purchase of plants for the garden and for the interior of the home;

    78.10.Replacing glass tops on tables and replacing shades on lamps;

    78.11.Trimming a large tree next to the boathouse and cleaning the boathouse of rubbish and the boathouse roof of leaves and rubbish;

    78.12.Arranging for a plumber to install gas pipe laying, repairing a water leak and replacing water taps;

    78.13.Replacing the front door and installing a new iron gate at the front of the property;

    78.14.Selection and purchase of antique furniture;

    78.15.Arranging for framing of artwork;

    78.16.Selection and purchase of a new washing machine;

    78.17.Installing a sun shade for the large balcony at the back of the house;

    78.18.Replacing marble and stonework in front of the house and the front door;

    78.19.Repairing the steps at the front entrance;

    78.20.Installing light sensors around the house;

    78.21.Installing a sky window in the bathroom and study;

    78.22.Purchase and installation of an electric toilet from Japan;

    78.23.Selection and purchase of outdoor furniture.

1. Largely, the husband denied that the wife carried out or organised this work.  The husband maintained that trimming of the trees required use of a chainsaw, thus he, not the wife, carried out this work.  The husband denied that the wife arranged for installation of steps which led from the house to the banks of the river.  The husband said that the wife may have spoken to some tradesmen in a Chinese language and agreed that she ordered lights and sofa covers from China and an electric toilet from Japan.

2. In her affidavit the wife deposed as follows in relation to the Suburb D property:

   16.Shortly after we commenced our relationship I recall Mr Griffith taking me to his property at C Street, Suburb D where we had a conversation to the following effect:

   Mr Griffith:   "I purchased this property for $320,000 in 1985.  It's now worth $2 million".

   Ms Chiu:         "How can such an old house be worth so much?"

   Mr Griffith:   "You don't know how real estate works, this house has a large land space, a big wharf and an ocean view.  If it were new, it would be double the price.  I bought mine as an old house so it's only half the price.  If you renovate then I can double the price.  I am very smart, if you stay with me you will learn how to make money"

   (Emphasis in original)

3. In relation to this alleged conversation the husband said as follows in cross-examination:

   The wife never said this to me.  My house was renovated in the late 1990s.  There was no such conversation.  I do not have a wharf, I look at the river not the ocean.

4. Having heard this evidence from the husband, the wife said as follows in relation to the contents of her affidavit in cross-examination:

   This conversation happened.  A track leads to the water, a boathouse and a small beach.  I believe there is a wharf.  Let's say it has a river view.

5. The wife exhibited to her affidavit a "bundle of invoices in relation to these renovations addressed to me".  In my view, these documents do not demonstrate that the wife used her own funds for these repairs and the purchase of items of furniture and appliances.  The husband gave plausible evidence that the parties shopped together for various items and that he then paid the purchase costs.  Similarly, the husband gave plausible evidence that he paid tradesmen who carried out work at the property.

6. The wife alleged that she arranged for and supervised the following work to be undertaken at the Suburb C property:

   72.In 2014 I arranged for and supervised the following work to be undertaken to the B Street property:

   72.1.   Painting of the whole of the interior of the unit;

   72.2.   Installation of new light fittings throughout the unit;

   72.3.   Installation of a new kitchen;

   72.4.   Installation of timber flooring throughout the unit;

   72.5.   Replacement of the toilet in the bathroom.

7. The wife alleged that she paid for all of this work from money which she received as wedding gifts.  The husband denied that she paid for any work at this property from her own funds.

8. The husband's account of the works carried out at the Suburb C property was set out as follows in his trial affidavit:

   51.I arranged some minor repairs to the B Street, Suburb C property with respect to the kitchen and the living room floor.  At the time of making those repairs the respondent merely provided me with a phone number of a Chinese kitchen supplier and floor repair service provider from the Chinese local newspaper.  The Respondent spoke to the kitchen contractor in the Chinese language as the contractor did not speak very good English.  When the work in the kitchen was completed I paid the cost of the repairs to the floor and the new kitchen cupboards.  The Respondent did not contribute any money to the property at B Street, Suburb C.  The Respondent merely spoke to the contractor to obtain a price and later I met the contractor and gave the Chinese contractor my permission to commence the work.

9. I am satisfied that the wife exaggerated her role in renovations to the Suburb H, Suburb C, Suburb N and Suburb D properties.  In my view, she did so in an attempt to gain the maximum benefit for herself in these proceedings.  I consider that the wife's evidence in relation to these renovations provides another basis for concern as to her credit.

10. The wife alleged that she cared for the husband on three occasions when he was hospitalised during the relationship.  She alleged that she prepared "a special Chinese prescription" when he suffered from diarrhoea for three weeks and that "after one month he was cured".

11. The husband denied that he was hospitalised on three occasions during the parties' cohabitation.  He said he was admitted for day surgery on one occasion and denied that the wife prepared for him any special food.  He denied that he suffered from diarrhoea for three weeks and said that he "took one tablet and was fine".  I accept the evidence of the husband as to the extent of the wife's care for him during periods of indisposition.  Again, it seems to me that the wife gave exaggerated evidence in an attempt to bolster her case.

12. Senior counsel for the husband conceded that the wife "made some homemaker contribution".  Obviously, these contributions of the wife were confined to the short period between August 2013 and March/April 2016.

13. Overall, I am satisfied that the wife exaggerated her evidence of financial and non-financial contributions on her part.  I accept that she made a time-limited contribution as homemaker and that she provided relatively insignificant assistance with renovations to the Suburb H, Suburb C, Suburb N and Suburb D properties.  The wife held paid employment throughout the marriage.  I have rejected the wife's evidence as to cash wedding gifts and repayment of loans allegedly made by her to friends prior to the marriage.  It must be the case that contributions weigh heavily in favour of the husband.

Section 75(2) factors

1. I will refer only to those factors set out in section 75(2) which have relevance to the present proceedings. Some such considerations, for example subsection 75(2)(l), are irrelevant to these parties.

2. The husband and the wife are aged 73 and 58 respectively.  Accordingly, they each have a limited future in the paid workforce.

3. The wife maintained that her capacity to engage in paid employment is adversely impacted by her mental health condition.  She outlined her daily routine to the single expert, Dr FF, as follows:

   In describing her daily routine, Ms Chiu stated that she has breakfast and takes her medication in the morning and then reads paperwork and documents relevant to the legal proceedings in relation to her divorce.  She stated that she has ongoing involvement in the preparation of such documents but may seek assistance in doing so from her friends or from her solicitor.  She spends approximately one hour engaged in such activities.  She then contradicted herself, stating that after ten minutes she feels unwell and will therefore take a break.

   Ms Chiu went on to explain that she then feels drowsy and she wants to sleep.  She has tried to sleep during the day but is unable to do so.  Typically, she eats two meals per day while previously she would eat three meals per day.  During the afternoon, Ms Chiu remains in her room.  Sometimes her friends visit.  She spends her evenings in her room.  She may watch the news.

4. In cross-examination the wife said words to the effect:

   I was trying to convey [to Dr FF] that I am so sick that I stay at home other than going on walks, to lawyers and doctors.

   She agreed with a proposition put in cross-examination that:

   In December 2016 the Federal Circuit Court made a spouse maintenance order because I said I was too sick to work.

5. In cross-examination the wife was taken to a number of ATM withdrawals from her Commonwealth Bank account and charges to her credit card between 2016 and 2020.  Inter alia, the wife made ATM withdrawals in 2016, 2017, 2018 and 2020 at Suburb AG, Suburb AH, Suburb AK, Suburb AL, Suburb AM, Suburb AN, Suburb AP, Suburb AQ, Suburb AR, Suburb AT and Suburb AU.

6. The wife's credit card statements for the period July/August 2020 showed that she made purchases in the suburbs of Suburb LL, Suburb AV, Suburb AG, Suburb BF, Suburb BG, Suburb AK, Suburb AW, Suburb AX, Suburb AN, Suburb AY and Suburb AP.  On 13 August 2020 the wife made a purchase at a designer Brand store at Suburb BG.  She conceded that she had told Dr FF on the previous day that she "could not go out".

7. The wife maintained that she was accompanied by friends when she travelled to these locations within the Sydney metropolitan area.  When asked about these activities of the wife, Dr FF said words to the effect:

   If I had been aware of that, I would not have considered her as impaired.

   Dr FF said also:

   It could be an indicator of social withdrawal.

8. In his oral evidence Dr FF agreed with senior counsel for the husband that he "was sceptical about what she told me and how she presented".  He said that he "could not exclude that she was feigning this illness".

9. Dr FF was provided with documents from the wife's treating psychiatrist, Dr DD.  Dr FF noted that Dr DD had maintained the wife's antidepressant medication dosage for some twelve months, a matter which he considered to support these conclusions:

   The fact that a specialist consultant psychiatrist has not undertaken to alter the approach to treatment for such a protracted period of time raises the likelihood that his impression of Ms Chiu's progress is different to that derived at the time of my assessment of her on 12 August 2020.  Namely, Dr DD's decision to maintain Ms Chiu on the current medication regime supports the conclusion that he is of the impression that she has responded effectively to treatment and that she is psychiatrically improved, if not fully remitted, with respect to symptoms.

   Furthermore, it would be usual practice in the clinical management of a patient suffering enduring psychiatric symptoms over a period of four years without any change in symptomatology – as Ms Chiu's account would suggest – to pursue further trials of medication.  In the context of a treatment resistant condition, which Ms Chiu's presentation would suggest, it would be usual practice to advocate psychiatric hospitalisation with a view to treatment with Electroconvulsive Therapy or Transcranial Magnetic Stimulation.  The overall discrepancy between the impression of severity derived from Ms Chiu's account on 12 August 2020 and that which has evidently been assessed by Dr DD, calls into question the extent to which Ms Chiu's account can be relied upon.

10. Dr FF expressed his conclusions as follows in his report:

    In conclusion, assuming Ms Chiu is suffering Major Depressive Disorder, for reasons described above, it is appropriate to conclude that her condition is of lesser severity than her account suggests.  With an evidence based approach to treatment, it is appropriate to accept that she will experience a resolution of her depressive illness within six to twelve months of completion of the legal process, if one accepts that it represents a continuing stressor undermining recovery.  It is therefore expected that within that timeframe, Ms Chiu will be fit to resume participation in part-time employment and that after a further period of six to twelve months she will be fit to undertake fulltime employment in a role of similar complexity to that which she was employed prior to the development of her current psychiatric condition.

11. In his oral evidence Dr FF expressed these opinions inter alia:

    It is correct that I have an open mind as to whether she suffers from a major depressive disorder ...

    Some factors in her presentation and treatment by Dr DD led me to the view that she may be exaggerating at least ...

    A depressive illness of four years' duration is very unusual – I would feel neglectful if I left a patient depressed for four years ...

    I would be reluctant to say she was feigning – I would say exaggerating.

12. Dr DD first consulted with the wife on 1 September 2016 and opined at paragraph 15, that she suffers from "a Major Depressive Episode precipitated by her marriage breakdown and the ongoing legal proceedings".  He opined that "I expect that she will have a full recovery with treatment, though this would likely be complicated by the lengthy legal proceedings".  In a letter dated 21 September 2020 (Ex 11) Dr DD clarified that "I expect Ms Chiu to have a full recovery from her major depressive episode within six to twelve months after the conclusion of the legal matters".

13. The wife's treating psychologist, Dr CC, opined at paragraph 18 that her "reported psychological symptoms remained consistent with those of a DSM-5 diagnosis of a Major Depressive Disorder with severe anxious distress and mood-congruent psychotic features".  Dr CC opined at paragraph 24 that "Ms Chiu likely needs ongoing psychological and psychiatric intervention before her current litigation concludes".

14. Each of the parties has the financial security of home ownership.  The husband has the additional financial security of ownership of a number of investment properties.

15. During the relationship, the wife received considerable financial benefits from the husband.  He provided money to enable her to reduce her mortgage but the wife elected to use these funds for other purposes.  The husband paid for international travel for the parties.  He provided $1,000 per week for the household living expenses and the wife's personal use.  The parties together enjoyed a comfortable lifestyle.

16. Since the separation, the wife has received spouse maintenance of $850 per week and rental income from the Suburb C property.  The evidence now available casts doubt upon whether the wife was unable to support herself adequately at the time of making of the order for spouse maintenance.

17. Overall, the financial imbalance between the parties suggests that section 75(2) factors weighs in favour of the wife. Her exaggerated portrayal of a psychiatric condition, however, militates against a generous allowance in her favour. On the other hand, Dr FF did not resile from his view that the wife will require a period of six to twelve months to recover from her depressive illness.

Conclusion

1. It seems to me that the contributions of the wife and the imbalance of section 75(2) factors in her favour warrant an order for alteration of property interests whereby she receives a lump sum payment by the husband. It is not mandatory that I determine the quantum of such payment by reference to percentage calculations of the net asset pool which reflect contribution and section 75(2) factor findings.

2. Having regard to all relevant matters, I find that the parties should retain the real estate assets of which they are each the registered proprietor and the items of personal property in his or her registered ownership, possession or control.  I have found that the wife holds the Suburb C property upon trust for the husband.  He is the registered owner of the Motor Vehicle 1.

3. In all of the circumstances, I am satisfied and I find that considerations of justice and equity will be served by an order for alteration of property interests whereby the wife receives a payment of $150,000 from the husband. In my view, such a payment will reflect the contributions made by the wife during the short relationship and the imbalance of section 75(2) factors in favour of the wife.

Spouse maintenance

1. The expert evidence now available casts doubt upon the wife's contention that she has been unable to support herself adequately since 2016 and that she will continue to suffer an impediment to engage in gainful employment in the future. Additionally, she will receive a payment of $150,000 from the husband in a short period of time. In these circumstances, I find that the wife failed to support herself adequately for the purposes of section 72 of the Act and I will dismiss her application for spouse maintenance.

I certify that the preceding one hundred and forty-three (143) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 17 February 2021.

Associate: 

Date:  17 February 2021