Heng and Long and Ors (No 2)

[2019] FamCA 876

FAMILY COURT OF AUSTRALIA

HENG & LONG AND ORS (NO. 2) [2019] FamCA 876

FAMILY LAW – PROPERTY SETTLEMENT – Just and equitable – Where these proceedings are in respect of the property and assets of the husband and wife in Australia and the interests, if any, of an associate of the husband and the husband’s daughter from his first marriage – Where significant sums of money were transferred to Australia from China by or on behalf of the husband and there is dispute about whose money it is and therefore what impact it has on these property proceedings – Where two businesses were set up in Australia by the husband and wife – Where property and assets were bought by the parties through these businesses and their respective interests (as well as interests of the Second and Third Respondents) in the properties and assets are in dispute – Where after a consideration of the property of the parties, their respective contributions to the marriage and their conduct leading up to and during the trial, including the husband’s lack of disclosure about his relationship with the Second Respondent, a just and equitable division of the property owned by the parties or either of them is a 60/40 split in favour of the wife.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

APPLICANT: Ms Heng

FIRST RESPONDENT: Mr Long

SECOND RESPONDENT: Ms Song

THIRD RESPONDENT: Ms Long

FILE NUMBER: BRC 12699 of 2016

DATE DELIVERED: 28 October 2019

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Forrest J

HEARING DATE: 11, 12 and 13 February 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Yu

SOLICITOR FOR THE APPLICANT: Mr Pi-En Hsu

THE FIRST RESPONDENT: Self-Represented

THE SECOND RESPONDENT: Self-Represented

THE THIRD RESPONDENT: Self-Represented

Orders

1. That the Applicant Wife shall retain as her sole property absolutely the following:

   (i)All of the remaining funds held on trust for her and the First Respondent husband by her solicitor, Mr Robert Pi-En Hsu, save for any interest earned on the principal amount invested since 8 February 2019;

   (ii)Two shipping containers and their contents that had been located at O Street, Suburb J in the State of Queensland (“the Suburb J property”) before its sale;

   (iii)The Motor vehicle 1that was in her possession at the time of the trial;

   (iv)All of the furniture and personal effects that were situated in the Suburb J property at the time of its sale;

   (v)All money standing in credit in any bank accounts in her name.

2. That subject to paragraphs (3) – (7) hereof, the First Respondent husband shall retain as his sole property absolutely the following:

   (i)The apartment situated at N Street, Suburb C in the State of Queensland more particularly described as Lot … SP… Title Reference … (“the Suburb C apartment”);

   (ii)The Motor vehicle 3 that was in his possession at the time of the trial;

   (iii)All of the furniture and personal effects that were situated in the Suburb C apartment at the time of the trial;

   (iv)All of his shareholding in F Pty Ltd;  

   (v)All of his shareholding in P Pty Ltd;

   (vi)All money standing in credit in any bank accounts in his name.

3. That within twenty-eight (28) days of the date hereof, the First Respondent husband shall pay to the Applicant wife the sum of $221,396.58 (two hundred and twenty one thousand, three hundred and ninety six dollars and fifty eight cents).

4. That within twenty-eight (28) days of the date hereof, the First Respondent husband shall pay to the Applicant wife the additional sum of $50,000 towards her costs of and incidental to these proceedings.

5. That within fourteen (14) days of the date hereof, the First Respondent husband shall, if he wishes, file and serve an affidavit deposing to the relevant facts and attaching any documents he considers necessary to satisfy the Applicant wife and the Court that the deposit of $89,200 paid by F Pty Ltd as trustee for the G Trust on a contract to purchase an apartment in D Development, E Street, Brisbane has actually been forfeited with the said trust losing all of its rights pursuant to that contract.

6. That within seven (7) days of being served with an affidavit pursuant to paragraph (5) hereof, the Applicant wife shall, if she wishes, file written submissions in which she concedes that the deposit has been forfeited or makes submissions as to why the Court should not accept the First Respondent husband’s assertions that the deposit has been forfeited.

7. That within twenty-eight (28) days of the date hereof, the First Respondent husband shall, unless excused by further order of this Court based on an acceptance that the deposit of $89,200 referred to in the previous paragraphs hereof has been forfeited, pay to the Applicant wife the further additional sum of $53,520 being 60% of the deposit paid, the benefit of which is retained by F Pty Ltd as trustee for the G Trust.

8. That in default of payment to the Applicant wife of the sums of $221,396.58, $50,000 for costs and, unless excused by further order of this Court, the further sum of $53,520 just referred to, within twenty-eight (28) days of the date hereof, the apartment situated at 11007/25 Bouquet Street, Suburb C in the State of Queensland more particularly described as Lot 11007 SP269128 Title Reference 51053610 shall be sold with those sums plus any interest payable on them pursuant to the Family Law Act 1975 (Cth) and Family Law Rules 2004 (Cth) to be paid to the Applicant wife from the proceeds of sale before any distribution of the balance proceeds to the First Respondent husband.

9. That should the First Respondent husband default in payment to the Applicant wife as obligated pursuant to paragraphs (3) – (7) hereof with the Suburb C apartment having to be sold, the Applicant wife shall have liberty to apply back to Justice Forrest of this Court for orders specifying how the terms upon which the sale of the said apartment is to be conducted including orders as to the appointment of an independent trustee for sale.

10. That any interest earned on the principal sum of money invested and held on trust for the Applicant wife and First Respondent husband by the Applicant wife’s solicitor since 8 February 2019 shall be distributed as to 60% to the Applicant wife and as to 40% to the First Respondent husband;

11. That the First Respondent husband as sole director and shareholder of F Pty Ltd, trustee of the G Trust and in his role as appointor of the G Trust shall take all steps necessary to cause the Applicant wife to be removed as a primary beneficiary of the G Trust as soon as practicable.

12. That the First Respondent husband shall indemnify the Applicant wife and shall keep her indemnified against all and any liability arising out of the operations of the G Trust, P Pty Ltd Pty Ltd, F2 Pty Ltd and F Pty Ltd however and whenever arising.  

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 Heng & Long and Ors 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 BRISBANE

FILE NUMBER: BRC 12699 of 2016

Ms Heng

Applicant

And

Mr Long

First Respondent

And

Ms Song

Second Respondent

And

Ms Long

Third Respondent

REASONS FOR JUDGMENT

1. These are proceedings for property adjustment orders commenced by the Applicant wife in late December 2016 in the Federal Circuit Court here in Brisbane. The wife commenced them against the husband, the Second Respondent, Ms Song (an associate of the husband) and the Third Respondent, Ms Long (the adult daughter of the husband by a previous marriage).

2. Interim injunctions were granted by a Judge of that Court, on the wife’s application, on 14 February 2017. Those injunctions restrained the husband from dealing with two real properties registered in his name in Brisbane – one a home on a very large block of land at Suburb J (“the Suburb J property”) and one an apartment in Suburb C. An injunction was also granted against Ms Song, restraining her from dealing with a property registered in her name in Suburb W. Some other injunctions were granted, including one that restrained the husband going onto the Suburb J property in which the wife and their two teenage children were living without her prior written consent. Another one restrained him from withdrawing or transferring any money from a “mortgage offset” account in which there was a large amount of money and ordered him to return any funds to that account that he had withdrawn from it on or after the date he had been personally served with the wife’s “application documents”. He was served with those documents on 26 December 2016.

3. On 8 June 2017, the matter was transferred by a Judge of the Federal Circuit Court to this Court. On that same day, the Federal Circuit Court Judge ordered the parties to sell the Suburb J property and for $50,000 to be paid from the sale proceeds to each of the wife and the husband as “partial property settlement”. His Honour also effectively lifted the injunction directed at the husband restraining him from withdrawing funds from the “mortgage offset” account and made an order permitting each party to draw up to $11,000 per calendar month, presumably to live off.

4. On 25 October 2017, the matter came before me. I again granted an injunction restraining the husband from drawing money from the “mortgage offset” account and ordered the funds in it to be applied immediately towards the mortgage debt on the Suburb J property. I also ordered the husband to transfer funds that he had withdrawn from that “mortgage offset” account and deposited into an account in his own name to be transferred to the wife’s solicitor’s trust account. The Suburb J property had been sold but the sale had not settled at that date. I discharged some of the Federal Circuit Court Judge’s earlier orders that provided for payment to each of the parties of $50,000 from the sale proceeds and the withdrawal from the “mortgage offset” account of $11,000 each per month by the husband and the wife.

5. In lieu, I made further orders that the proceeds of sale of the property be deposited to an interest bearing trust account of the wife’s solicitor and for $11,000 each month to be paid to each of the husband and the wife. I also ordered that $4,000 extra be paid to the wife so that she could secure suitable rental accommodation for herself and the children, with an additional $2,200 to be paid to the wife each month to cover the cost of the rental expenses. I also made specific disclosure orders against the husband, Ms Song and Ms Long, satisfied that they had not provided adequate disclosure to that point in time.

6. On 8 February 2018, a Registrar of this Court made further orders requiring compliance with disclosure obligations, including those obligations I had previously ordered. On 6 September 2018, I listed the matter for final hearing commencing on 11 February this year and made directions to ready the matter for trial.

7. I heard the matter over three days from 11 to 13 February this year. The wife was represented by solicitor and counsel. The husband, Ms Song and Ms Long all appeared without any legal representation.

The trial

1. The matter was made significantly more arduous to hear and determine as all four parties were Chinese with relatively poor command of the English language. In addition, the solicitor and barrister who appeared for the wife at the trial were Chinese and, respectfully, even the barrister’s command of English was not of the standard I consider necessary to be conducting a trial of the complexity of this one in this Court. Though the Court had the assistance of three Mandarin interpreters with NAATI Level 3 accreditation, the matter was nevertheless difficult to hear with all the interpreting that was required.

2. It became clear to me at some point in the latter months of 2018 or early months of this year, that the husband and the wife possessed visas of a class that entitled them to temporary residence in Australia only and that the temporary residence visas expired in late March this year. Informed of that fact and their respective intentions to return to the People’s Republic of China at that time, I determined to list the matter for trial regardless of ongoing assertions that disclosure obligations had not been met.

3. A further matter of intrigue emerged during the course of the trial. The Court was informed that the wife had also commenced Court proceedings in respect of property and parenting matters arising out of the parties’ marriage in a Court in China and that those proceedings were still on foot. Nevertheless, I was satisfied that both the husband and the wife wanted me to deal with their property interests here in Australia and to make orders that adjusted this property between them, thus ending their financial and property relations in this country. I understood that they both asserted that is what they expected and what the Chinese Court expected to happen. They both asserted that the Chinese Court would deal with their property interests and financial relationship in China.

4. In this respect, the Court was left in no doubt that each of the husband and the wife had property interests in China. Neither of them went into any particularity about that at all in the proceedings before me. It was clear that each expected that to be dealt with in China. Neither party made an application or any argument that the proceedings in this Court should be stayed pending the finalisation of the proceedings in the Chinese Court. Neither party applied for an anti-suit injunction in respect of the Chinese proceedings.

5. In these circumstances, I determined it to be in the interests of justice for the proceedings involving all four parties and their respective claims to property in this country to be heard and determined, thus finalising matters in dispute between them in respect of these Australian properties and ending their rights to bring any further such claims in Australian Courts.

Property in issue

1. There was no dispute between the husband and the wife about certain property interests in Australia. At trial that property consisted of the following:

Funds held on trust for the husband and the wife by the wife’s solicitors in an interest bearing account

$548,316.42

(balance at trial)

The apartment at N Street Suburb C (save that the husband and his daughter, Ms Long, claimed that Ms Long owned a beneficial interest in that property to the extent of 27% on a resulting trust)

$425,000

(valued by single expert)

Two shipping containers and their contents (stock of former retail business they had operated through a company)

$3,000

Deposits paid on two apartments purchased “off the plan” – one in the Brisbane CBD and one in Suburb H

$145,400

($89,200 for the CBD property and $56,200 for the Suburb H property)

Husband’s motor car – Motor vehicle 3 (though the wife contended the figure should  be $72,300 being proceeds of an insurance payout received by the husband in respect of Motor vehicle 2 that the wife had driven which had been written off in an accident)

$30,000

Wife’s motor car – Motor vehicle 1

$45,000

Furniture and personal effects retained by wife from Suburb J property

$4,145

(valued by single expert)

Furniture and personal effects retained by husband in the Suburb C apartment

$1,370

(valued by single expert)

Total

$1,202,231

1. At trial, there remained some significant disputes between the husband and the wife about other matters. They were as follows:

Addbacks argued for by Wife	Amount
Husband’s interest in the company, F2 Pty Ltd to Ms Song	$39,144
Money transferred from husband to Ms Song which she used to purchase a real property in her sole name	$136,000
Funds depleted or wasted by husband from ANZ account between December 2016 and March 2017	$30,873
Funds used by husband for his own benefit from the “mortgage offset” account	$100,650
University fees of Ms Long paid for by husband	$64,970
Payments to Ms Long during 2015 and 2016 without wife’s knowledge or consent	$170,900
Payments to husband’s ex-wife and her mother without wife’s knowledge between 2015 and 2016	$156,000
Money given by husband to Ms Song in second half of 2015 without wife’s knowledge	$20,000

1. Those amounts listed in that second table total $718,537. For the wife, it is argued that they should be considered partial property settlement already received by the husband in this matter. I understood the husband’s argument to be that none of those amounts should be accepted and considered as partial property settlement already received by him. I shall return to these matters later in these reasons.

2. I also understood the husband to argue, alternatively, that if I determine to include any of those add-backs as notional property of the parties, I should also determine that there are liabilities owed to some of the third parties. I shall return to this later in these reasons also.

3. At the conclusion of the trial, having regard to the fact that the husband and the wife were only weeks away from having to return to China, I made partial property settlement orders between the parties dealing with certain assets which were previously the source of dispute. These assets and who they were assigned to were as follows:

   i)The two shipping containers in the possession or control of the wife and all of their contents to the wife at the sum of $3,000;

   ii)The furniture and household chattels in the Suburb J property to the wife at the sum of $4,145;

   iii)The Motor vehicle 1 to the wife at the sum of $45,000;

   iv)The furniture and household chattels in the Suburb C property to the husband at the sum of $1,370; and

   v)The Motor vehicle 3 to the husband at the sum of $30,000.

4. Accordingly, these matters will be taken into account when the final orders that are just and equitable are determined.

Some relevant history

1. The husband was born in 1966 in City R, China. He is now 53 years old. In young adulthood he obtained university qualifications - an undergraduate degree in China and a Master’s Degree in the United Kingdom. He then worked in a business operated by a company apparently owned and controlled by his father. He then married and he and the woman he married had one child, Ms Long. She was born in 1996 in China and is now 23 years old.

2. The wife was born in 1973 in City S, China. She is now 46 years old. She and the husband met at a commercial exhibition in City T, China in 1996. At some point thereafter, they plainly began an intimate relationship. Their son was born in May 2001. He is now 18 years old.

3. The wife says that she and the husband started to live together in 2000. The husband disputes this and says they started to live together in 2002. There is no dispute that they married in July 2002 in City R. I preferred the credibility of the wife over the credibility of the husband in this matter for a number of reasons that will become clearer throughout the course of these reasons. Accordingly, I accept her evidence that they started to live together the year before their son was born.

4. After their marriage, the wife started working in the business operated by the company the husband’s family owned. The wife gave evidence that her husband was the General Manager and that she was a Manager. The business involved a factory and a trading company. The English translation of the name of the business suggests it was involved in the manufacture and sale of “decorative material”. I am not clear what that means exactly. It was, apparently, a successful business.

1. The couple’s second child, a daughter, was born in 2006. She is now 13 years old.

2. As well as working in the business, the wife was the parent principally responsible for caring for the two young children. In this task, the wife was also assisted from time to time by her elderly parents.

3. The former couple formed a desire to emigrate from China to Australia and to raise and educate their two young children here. It appears that Ms Long was also involved in these plans to come to Australia. In 2012, the husband and the wife applied to the Australian Government for “Business Owner Subclass 163 visas” for themselves, with the right to bring their two children and Ms Long (who was then only 16 years old) with them as well. About two years later, on 8 May 2014, they were each granted such a visa. Those visas are only temporary though. The holder can subsequently apply for permanent residence visas after two years if they meet the eligibility requirements. Obtaining the temporary visas meant that they were able to satisfy the Australian Government of their successful business record in China and of the likelihood that they would establish a successful business in Australia. The temporary visa entitled the holder to travel in and out of Australia any number of times during the validity period. Their visas were to expire on 27 March 2019.

4. In around late May or early June 2014, the husband first travelled to Australia. In August 2014, the wife, Ms Long and the other two children also travelled to Australia. In late September 2014, the wife, Ms Long and the couple’s daughter returned to China. Ms Long went back to live with her own mother. The husband and their son stayed in Australia with the boy attending school here.

5. From the middle of June 2014, the husband and wife began to cause money to be transferred from their accounts in China to a bank account the husband had established here in Australia. Significantly, there appears to be some Chinese Government restriction on the amount of money a Chinese citizen can send out of their country in a twelve month period. According to the parties in this case, that amount is limited to the equivalent of USD50,000 per person per year. I have no reason to doubt that.

6. On 16 June 2014, three lots of AUD53,485 were transferred from China to Australia – one each in the name of the wife, their son and their daughter. Over the next month, four more separate transfers were made totalling just over AUD210,000. They were made in the names of three friends and colleagues of the husband and wife and, interestingly, the husband’s first wife. On 8 August 2014, the husband deposited an amount of AUD374,980 into his account. It has not been explained to the Court how that much was able to be transferred. In fact, the record adduced into evidence shows it came into the ANZ Bank from a National Australia Bank account. No argument was made by the husband to dispute the wife’s evidence that the amount came from their Chinese assets.

7. The Suburb J property was purchased in late June 2014 for $1,350,000. A deposit of around $400,000 was paid on it using the funds just referred to and the sum of $945,000 was borrowed and secured by mortgage over the property.

8. Gradually, over the next year, further such transfers came into the husband’s account. The wife has adduced evidence which I accept reflects that all of the amounts transferred over that first couple of years added up to over AUD1,600,000 and that they came in through transfers made through her mother, her father, her brother, her sister-in-law, three former classmates of the husband, the husband himself, one of their companies in City U, Ms Long, the wife herself, colleagues of the wife, their daughter, their son and another friend of the husband.

9. The wife says they never used the husband’s own family as the husband had become estranged from them, particularly his father.

10. The last of these international transfers in the list provided by the wife is dated 28 January 2016. It was in the name of their son, though he was living in Australia at the time. It took the total to $1,694,508.

11. When the Suburb J property had been purchased, the “mortgage offset” account had been opened and, over time, monies were deposited to it so that eventually, by the end of 2014, it had about $950,000 in it, with the interest earned on those funds offsetting the interest payable on the housing loan they had taken out. That is the same “mortgage offset” account that began to be drawn upon after separation and these proceedings were commenced.

12. Later in 2014, the husband entered into a contract to purchase the apartment in Suburb C. He purchased it from a person who had contracted with the developer to buy the apartment “off the plan”. The apartment was purchased with a view to having the teenage boy start school at Suburb C State High School as it was in that school’s “catchment area”. As it was not finished, and they could not live in it, the boy was not able to start at that school and was enrolled at another Brisbane school instead. It is not clear to me how much money changed hands on the purchase of this interest in 2014. I do not accept the husband’s evidence that the apartment was purchased for Ms Long to live in when she studied at university in Brisbane a few years thereafter. I will return to this issue later in these reasons.

13. In October 2014, the company F Pty Ltd, was established by the former couple and the G Trust, a discretionary family trust, was also established with the company as its trustee. In November 2014, another contract was entered into to purchase another apartment in Brisbane. The trustee of this family trust contracted to buy an apartment “off the plan” in a building being constructed in the Brisbane CBD. The contract purchase price was $892,000 and the deposit the company paid was $89,200. That amount was paid from the funds that had been transferred from China to Australia in the months leading up to that time.

14. Towards the end of 2014, the husband notified the wife that he had made the acquaintance of an agent who was helping him find a business that they could buy to assist with their permanent migration. That person was Ms Song.

15. In late February 2015, a company was established called P Pty Ltd for the purpose of buying a retail picture framing business situated in a Westfield owned shopping centre in the eastern suburbs of Brisbane. The business was purchased in July that year by P Pty Ltd and a lease with the shopping centre entered into. The husband ran the business from that time on. There was no evidence of the price paid for the business or as to the source of the funds used to buy it.

16. In September 2015, the family trust, through its trustee, entered into another contract to purchase yet another apartment “off the plan” from the developer. That development was in Suburb H and the contract price was $562,000 with a deposit of $56,200 being paid. That money also appears to have been paid from funds transferred from China.

17. The wife’s evidence is that over the 2015 year the level of communication between her and the husband began to reduce and she was frequently unable to reach him when she tried to.

18. In December 2015, the husband told the wife that he had established a company called F2 Pty Ltd to undertake real estate business. He told the wife that the business partners were Ms Q and Ms Song. Nevertheless, the husband’s company, F Pty Ltd, took up 55% of the shareholding in this newly established company and Ms Song took up 45% of the shareholding.

19. The husband told the wife, that Ms Song, a Chinese woman with Australian citizenship, was going to travel to China on a business trip to develop contacts. Ms Song travelled in late December 2015 and the wife hosted her in their family home in City R for a few days. The wife gave evidence that supported a finding that she became a bit suspicious of Ms Song during that time, concerned how much of the family’s private information she had come to know. The wife said that she had been waiting for the husband to confirm a school enrolment for their daughter before bringing her out to live in Australia, but that after Ms Song’s visit, she decided to come to Brisbane straight away and bring their daughter with her.

20. In January 2016, P Pty Ltd purchased a Motor vehicle 1 for $52,000. That is the same car the wife possessed at time of the trial and which I ordered she retain. The former couple had also purchased a Motor vehicle 3. The wife drove this car and possessed it at separation but it was written off in a car accident later in 2016 or 2017. I will return to that.

21. On or about 30 January 2016, the wife travelled back to Brisbane with their daughter. Soon thereafter, the wife challenged the husband about his relationship with Ms Song. The husband gave the wife possession of his mobile phone and urged her to check it herself to see if she could find any evidence of a relationship between the husband and Ms Song. It was evident that the husband did not think the wife would find any.

22. The wife gave evidence that she was, however, able to access the husband’s phone and the messages sent between him and Ms Song via the popular Chinese smart phone application called “WeChat”. She adduced copies of those messages and their English translations into evidence. That evidence certainly supported a positive finding that the husband and Ms Song were involved in an intimate relationship and had been for some time.

23. Right up until the time of the trial, both the husband and Ms Song maintained denials that they were in an intimate relationship with each other. They both asserted that the wife must have cleverly fabricated the “WeChat” evidence to make it appear that they were in an intimate relationship. However, during the husband’s oral evidence at the trial, after I asked him a few questions from the bench, he remorsefully admitted that it was true that he and Ms Song were in an intimate relationship and that she was his partner and that they had sent the messages to each other. He asserted cultural embarrassment as the reason for maintaining the lie. At the start of her oral evidence, Ms Song remorsefully admitted these things, too. She told the Court that a great weight had lifted off her shoulders now that she was able to tell the truth about her relationship with the husband.

24. The wife also gave evidence that when she checked the husband’s mobile telephone she also found evidence of transfers of the “family’s cash assets from [the husband] to Ms Song’s account in Australia”. That evidence did not meet with such frank admissions from the husband and Ms Song. I will return to that issue later in these reasons.

25. The former couple remained living in the home at Suburb J until August 2016 when the husband did not return home after going to work one day. Later in the month, he cancelled the wife’s access to a subsidiary card on his credit card account and stopped paying living expenses for her and the children. In November 2016, the wife commenced legal proceedings in China and in December 2016 she commenced these proceedings in Brisbane.

26. As at 19 December 2016, the husband had two bank accounts that he used. One of them, an ANZ account in his sole name, had $92,736 in it and the other had $2,883.26 in it. By mid-March 2017, the husband had drawn $90,625 out of the first of those accounts. The wife accepts that $25,934 of that had been used to pay family expenses, most particularly the school fees of the private school their son was then attending and one their daughter was attending. However, she details $61,500 of drawings that she describes as being used for the husband’s own benefit. A sum of $10,000 of that was paid by him to solicitors.

27. However, bank statement records adduced into evidence actually show that $32,500 of that $61,500 was deposited into the P Pty Ltd business bank account. Perusal of the business’ bank account statements for that period reflects that the money was used to meet business expenses. Those statements certainly do not demonstrate that the P Pty Ltd business was making profits.

28. I accept that the balance of the money – about $20,000 – was used by the husband for his own living expenses during that three month period. The wife included a table in her affidavit showing the husband’s drawings from his other account. He was generally drawing cash in $1,000 lots every few days during that period.

29. The wife gave evidence in her affidavit of evidence in chief that she received payment of $50,000 from the “mortgage offset” account on 22 March 2017 pursuant to an order made on 15 March 2017. I accept that she received $50,000 as she says. The bank statement reflects that. However, the sealed copy of the Federal Circuit Court Judge’s orders of 15 March 2017 does not include an order that she be paid that amount. Two weeks later, however, on 27 March 2017, the Federal Circuit Judge issued amended orders which required the husband to pay to the wife $50,000 and for that amount to be drawn down from the “mortgage offset” account.

30. The wife used $29,459 to repay a friend from whom she had borrowed money to live off prior to receiving that $50,000 and used the rest to support herself and the children for some time.

The “mortgage offset” account

1. On 19 December 2016 the balance of funds held in the “mortgage offset” account was $947,353. There is no evidence that the husband withdrew any money from this account after being served with the wife’s application and before the injunction of 14 February 2017. There was still $947,000 in that account when the $50,000 was withdrawn on 22 March 2017.

2. Then, in apparent breach of the injunction of 14 February 2017, the husband began withdrawing money from the “mortgage offset” account. The wife set out the withdrawals in a table she included in her affidavit of evidence in chief. From 23 March to 7 June 2017, the husband withdrew $59,807.50 from the account, including at least $800 that he paid to solicitors who acted for him or Ms Song in these proceedings.

3. As I have observed already, on 8 June 2017, the Federal Circuit Court Judge made an order that permitted the husband and the wife each to have $11,000 per month from that account until the date of settlement of sale of the Suburb J property.

4. Then from 9 June 2017 to 24 October 2017, a lot more money was withdrawn from that “mortgage offset” account. The husband withdrew $60,500 and $72,000 totalling $132,500. The wife drew $105,000 in that same period. These amounts do not include $26,771 that was paid out to meet interest on the home loan, rates on the property and other family expenses. It does include the amount of $50,000 each was to be paid as partial property settlement when the property was sold (though I had discharged that order, it appears as if they both went ahead and did it anyway) and $11,000 per month from the date that was permitted by order of 8 June 2017 until the property was sold.

5. I am satisfied the husband drew $25,000 more than he was entitled to draw in that time pursuant to the Court order, giving him $25,000 more than the wife had in that period. He had already had almost $10,000 more than the wife had in the first half of the 2017 calendar year as well. This meant he had $35,000 more than the wife had from that “mortgage offset” account during the 2017 year in addition to the $20,000 extra funds that he had had by way of the drawings on his own account during the first months of 2017. I am therefore satisfied that he had the benefit of $55,000 more of their funds than the wife did in that period. However, I am satisfied, having seen the bank statements for the P Pty Ltd business that the husband paid most of these extra funds into the P Pty Ltd account in a vain endeavour to keep that business afloat.

6. The wife also shows through another table that the husband contributed a total of $39,143 to the account of the company F2 Pty Ltd between its establishment in late 2015 and 14 March 2016. The wife also asserts that Ms Song contributed $33,645 to that company’s account in the same period.

7. In the same period of time, $6,380 was paid by that company to P Pty Ltd, meaning that the husband contributed some $32,763 more to F2 Pty Ltd than he got out of it. The realty company paid out $34,031 to Ms Song. At the same time, Ms Song was being paid $606 per fortnight from P Pty Ltd for a month before starting to be paid $600 per fortnight from F2 Pty Ltd. Clearly, F2 Pty Ltd was set up as a means of providing financial support to Ms Song and to attempt to give her an income. I have no doubt that the husband used some of the funds he was drawing from the former couple’s accounts to contribute towards the financial support of Ms Song during this period.

Ms Song and the purchase of a property at Suburb W in her sole name

1. The evidence adduced by the wife, including the WeChat messages between the husband and Ms Song and the bank statements from Chinese bank accounts, satisfies me that on 29 December 2015 the husband transferred the equivalent of AUD69,500 to Ms Song’s Chinese accounts from his Chinese accounts and caused that to be sent to Ms Song’s account in Australia on 7 January 2016. That money then found its way into the husband’s Australian ANZ bank account by way of three separate transfers on 11, 12 and 13 January 2016.

2. Later, on 20 January 2016, the husband again transferred the equivalent of AUD68,677 to Ms Song’s Chinese bank account from his own Chinese bank account. That was then transferred to Australia on 26 January 2016 and found its way into the husband’s Australian bank account as $68,662 on 27 January 2016.

3. I am also quite satisfied after having considered the affidavit, documentary and oral evidence, that the husband provided funds to Ms Song at around this very same time from sources in China that Ms Song retained and put towards the purchase of the real property she contracted to buy on 18 January 2016. Ms Song entered into a contract in her sole name to purchase a property at in Brisbane for $545,000. A $30,000 deposit was required within a few weeks and Ms Song obtained approval to borrow $436,000 from a bank that she would secure by mortgage. Thus she required just under $110,000 in funds of her own to put towards the purchase. She did not possess that amount of money herself.

4. Ms Song and the husband arranged for funds to be transferred by the husband in China into accounts in her mother’s name and in her father’s name. Over the next 10 days or so, Ms Song received transfers into a couple of bank accounts she had in her sole name in Australia from her mother and her father. She received amounts of $68,000, $41,985 and $25,985, totalling $135,970, which I am satisfied came from the husband. None of those funds went from Ms Song’s accounts back to an account of the husband like the other transfers I have just referred to. The trail of that money into the purchase of the house, at least to the sum of $110,000, can be seen from the documents adduced into evidence.

5. Ms Song did not admit those facts. She maintained in her evidence that a friend of hers by the name of Mr Z had loaned her that money to contribute towards purchasing the property. I reject that evidence. Ms Song and the husband went to some lengths to attempt to cover “the tracks” of the money transfers, even to make it look like a person named Mr Z had advanced money, but I do not accept the honesty of that evidence. I am satisfied that although Ms Song admitted that she had lied about the relationship with the husband she was still lying about sourcing funds from a friend rather than admitting that the money came from the husband. I consider it most likely that she was afraid of the consequences that might occur in respect of that property if she admitted the funds that she contributed to it came from the husband. I will return to this matter later in these reasons.   

6. Additionally, I am satisfied that the husband had already transferred cash to Ms Song in China on five separate occasions from 10 September 2015 to 12 December 2015. These transfers totalled approximately AUD20,000. It appears from the documentary evidence adduced that Ms Song drew much of these funds and used them whilst she was travelling in China at the end of the 2015.

1. I am satisfied that $135,970 in funds were transferred by the husband to Ms Song, most of which facilitated her purchase of her property.

The Third Respondent, Ms Long, her mother and grandmother and the Suburb C apartment

1. The wife gives evidence that the husband paid approximately $65,000 towards meeting Ms Long’s education costs in Australia between 2016 and 2018, after separation. The wife complains of this and says it was done without her knowledge and consent at the time. I accept that is correct though supporting young adult children with university study is what many parents do if they can. He can hardly be criticised for that.

2. The wife also gives evidence that the husband transferred large sums of money in China to a Chinese bank account in Ms Long’s name on 30 August 2016, 9 December 2016 and 28 February 2017. That is the equivalent of AUD172,000.

3. The wife gives evidence that she believes the husband used his adult daughter to transfer this money to Australia for him during that time. The wife gives evidence that Ms Long refused requests to provide updated, relevant bank statements and refused to provide any details of any transfers of funds to Australia over that same time. I accept that is generally true, however, in his affidavit filed 30 November 2018, the husband did depose to a transfer from Ms Long of $65,992 into one of his Australian accounts and he did adduce into evidence a copy of a bank statement from that account in his name that reflects the transfer of $65,992 received on 31 August 2016. I am satisfied that would have been a transfer from Ms Long of the funds he had caused to be deposited to her account in China the day before. What the husband does not admit or concede is the transfer of the funds from his account in China to Ms Long’s account in China the day before. I am satisfied that there was such a transfer and that there were transfers as deposed to by the wife.

4. I am satisfied that all of the funds – AUD172,000 – were probably transferred to Australia and utilized by the husband to support himself and his daughter, Ms Long, along with the other funds he had access to. Some of these funds went into the purchase of the Suburb C property as I will refer to shortly.

5. The wife adduced evidence that satisfies me that the husband also transferred funds from accounts in China to Ms Long’s mother (his first wife) and even to her grandmother. He transferred a total of CNY80,000 to his former wife on 16 November 2016 and on 25 November 2016, the husband withdrew two amounts of CNY350,000 from one of his Chinese accounts and deposited each of those sums to accounts of Ms Long’s mother and grandmother respectively. I accept the wife’s evidence that these three total the equivalent of AUD156,000. The wife believes this money was probably transferred to the husband’s use in Australia. She also says that again, requests of the husband and Ms Long to produce relevant account statements to prove that such funds were not transferred to Australia simply went unanswered.

6. Again, however, the husband deposed in his affidavit filed 30 November 2018 that Ms Long’s mother transferred $64,992 to his Australian account on 22 November 2016. He also adduced a copy of his Australian bank account statement for that time as an exhibit to that affidavit and it reflects the receipt of $64,992 into that account on 22 November 2016. I accept that is money that was transferred from China by his ex-wife and was the equivalent of the money he deposited to her account in China a few days later. Again, the husband does not say anything about having transferred that money to his ex-wife’s account, yet he appears to argue that he still owes his ex-wife this money. I am satisfied that he provided that money to his ex-wife and to her mother as is deposed to by the wife in this case.

7. I accept, on the balance of probabilities that the money – AUD156,000 – was transferred to Australia and utilised by the husband without disclosure of that to the wife or the Court.

8. Money that had been transferred to Australia through all of these various persons that was not used in the purchase of the Suburb J property or deposited into the “mortgage offset” account was, it appears, accumulating in the husband’s ANZ bank account in his sole name. By September 2016 that account had $412,000 in it. Some funds had probably also been used by him to purchase the P Pty Ltd business when it was first acquired. In the balance sheet of that business, used in its ultimate valuation, it had a value attributed to “goodwill” of $141,500. That is probably the approximate amount paid for it. Furthermore, the balance sheet recorded loans from the husband to P Pty Ltd of $467,000. That is probably the amount of money the husband advanced to P Pty Ltd in total for the initial purchase of the business and to keep it going until it finally closed. I am satisfied that was all money that had come from China.

9. I am satisfied that the earlier purchase of the apartment at Suburb C “off the plan” settled in or about late September 2016, after the husband and wife had separated. It was purchased for $413,000 with no money being borrowed from a bank to purchase it, leaving it unencumbered. At around the same time it was settled, a lump sum amount of $390,000 was withdrawn from the husband’s ANZ bank account. I am satisfied that withdrawal went towards payment for the apartment. More funds though, were transferred into that ANZ account from China over the next couple of months and it is the account from which the husband was drawing and spending money about which the wife gave evidence after she had served him with the Court documents commencing these proceedings that I refer to earlier in these reasons.

10. The husband, his first wife and Ms Long all give exactly the same evidence to support what they assert is a 27% beneficial interest in the Suburb C apartment that is not owned by the husband though the apartment is registered in his sole name.

11. What creates some difficulty for them is the fact that the husband and Ms Long have not presented a consistent position as to who they assert owns this 27% beneficial interest since they began to argue it. It is unclear whether they assert that Ms Long’s mother owns it or whether Ms Long herself owns it or whether they both own it equally.

12. That said, the case they argue is relatively simple. They point to two transfers of money from China to the husband in 2014. The first one was a transfer that was made in the husband’s first wife’s name to the husband on 17 July 2014 of AUD52,500 and the second one was made in Ms Long’s name to the husband on 29 December 2014 in the amount of AUD58,500. Ms Long’s mother says she sent both the amounts. They total AUD111,000. They simply assert that as the apartment cost $413,000 and they sent an amount equal to 27% of that to the husband in 2014 (that they say they sent to put towards buying the apartment) that the beneficial interest in that 27% share arises.

13. I reject their evidence completely. I do not accept that the two transfers of money referred to were of funds that were Ms Long’s mother’s money. I am quite satisfied that those two sums of money were sourced from the husband’s Chinese accounts, transferred into accounts in their names and then sent by them to the husband in Australia. I accept that the transactions were done in that way to circumvent foreign exchange regulations in China, just as the wife has explained in her evidence. Over $1,000,000 was sent out to Australia over 2014 and 2015 by this method of using many different individuals to each send no more than the equivalent of USD50,000 in a 12 month period. The husband’s former wife and their daughter were just two such individuals. I accept the wife’s evidence that the husband told her in 2014 that he was using his former wife as one of the people to send their money out to Australia and that she, the wife, became upset about the fact that he was involving his former wife in their financial affairs. It is significant in all the circumstances of this case that neither the husband nor his first wife adduce any documentary evidence that supports the assertion that the funds were the former wife’s and not the husband’s when the two amounts were transferred to Australia.

14. I am quite satisfied that all of the funds used to pay for the acquisition of the Suburb C apartment were sourced from the husband’s Chinese accounts. I reject the case that 27% of the Suburb C apartment is beneficially owned by the husband’s former wife and/or their daughter. I am satisfied that the entire fee simple estate, both legal and beneficial, in the apartment is the husband’s.

The Motor vehicle 2

1. The former couple owned a motor car that was registered in the husband’s name but retained in the possession of the wife after separation. In 2016/2017, the car, driven by the wife, was involved in a collision with another vehicle and “written off”. The husband claimed against the insurance policy and received $72,300 as a payout. He purchased a replacement car that he retained as after the collision, the wife had taken another vehicle owned by the P Pty Ltd business and left the husband with no vehicle. The new vehicle cost him $37,858. He said that he used $28,000 of the balance of the insurance payout to repay a loan he had borrowed from his sister in June 2014.

2. The husband adduced copies of bank statements showing transfers received into an account in his sole name in June 2014 of two amounts totalling $28,000 reflecting transfers from his sister. He also adduced copies of bank statements from an account in the name of his sister and her husband from the same time also reflecting transfers of amounts totalling $28,000 on the same days.

3. I certainly accept that $28,000 was transferred from the husband’s sister’s account to the husband’s account in June 2014. It was just a couple of days before the funds started flowing from China to the husband’s account and it is difficult to understand how it was the husband needed to borrow that much money from his sister at that time. No explanation was given for that. He clearly did not claim to have repaid it to his sister before August 2017, notwithstanding the fact that he had more than enough time and money to do so. He also kept the circumstances of the receipt of the payout from the insurance company to himself and only informed the Court and the wife of it when he was ordered to sometime later. There was no affidavit from his sister supporting his position.

4. In all the circumstances of this case, I am not minded to accept that he repaid a debt he owed his sister more than three years after the money came from her account to his. I expect it was originally money that the husband had sent to his sister. I do not accept it was a debt he owed her that he legitimately repaid. Accordingly, I am satisfied that the husband also had the advantage of receiving $34,000 out of the funds repaid by the insurance company, that the wife did not receive.

F2 Pty Ltd and P Pty Ltd

1. The wife argues that the husband gave up an interest in the real estate company owned with Ms Song to Ms Song and that it was worth $39,000. She also argues that the husband’s interest in P Pty Ltd when it closed was worth $28,633 and its stock worth $21,269.

2. A valuation of the companies and the husband’s interests in them was undertaken by Mr X of Y Accountants using 30 June 2017 as the valuation date.

3. Mr X found that the assets of F2 Pty Ltd were valued at $6,011, that it owed $603 in GST and $399 in superannuation as well as $42,011 to Ms Song. He determined that it clearly owes more than it owns and that Ms Song could only recover $5,109 of the money it owes her. That company is worth nothing to the shareholder. I will not attribute any value to the 55% shareholding that the husband surrendered to Ms Song.

4. As for P Pty Ltd, Mr X found that it had a bank guarantee that the husband had advised him was refundable, in the sum of $28,459 and the motor vehicle that the wife has retained. He concluded that the husband would have sold the stock that was on hand at 30 June 2017. It was said to be worth $25,800 at that date. There were some very small liabilities owing at that time.

5. The husband gave evidence that the business ceased trading on 7 August 2017 and that he did get the sum of $28,459 back but had to pay a lot of the debts of the business which had never been profitable. He had also deposited $58,500 that he had drawn from the “mortgage offset” account into the business account from May 2017 through to October 2017 to help it meet its liabilities. Nevertheless, having accepted all that, I conclude from the bank statements the husband adduced into evidence that there was about $14,000 left in the business bank account after the business expenses were all paid that the husband used for his own personal benefit. I will say more about this a little further on in these reasons.

The two “off the plan” apartment purchases

1. At the time of the trial, neither of the two contracts of purchase of apartments “off the plan” had settled. The evidence satisfied me that the developer vendors were demanding settlement and had extended settlement dates. There was no evidence that satisfied me that deposits had been forfeited. Those were $89,200 for the CBD apartment and $56,200 for the Suburb H apartment.

2. At the end of the trial, the husband told the Court that he would be prepared to retain the benefit of the Suburb H apartment purchase contract. Thus, he will need to be credited with the retention of the deposit of $56,200 as partial property settlement received by him. As for the CBD apartment, he told the Court that he would not be able to settle on that purchase which would result in forfeiture of the deposit. I will include orders that deal with the uncertainty surrounding that.

My findings in respect of the property of the parties or either of them in Australia

1. I make the following findings:

Funds held on trust for the husband and the wife by the wife’s solicitors in an interest bearing account

$548,316.42

(balance at trial)

The apartment at N Street Suburb C – owned 100% by the husband

$425,000

(valued by singled expert)

Two shipping containers and their contents – retained by the wife as partial property settlement  

$3,000

Deposit paid on apartment in Suburb H in “off the plan” purchase – to be retained by husband (through the G Trust)

$56,200

Deposit paid on apartment in CBD in “off the plan” purchase – but which the husband asserts will be forfeited

$89,200

Husband’s motor car – Motor vehicle 3 – retained by the husband as partial property settlement

$30,000

Wife’s motor car – Motor vehicle 1 – retained by the wife as partial property settlement

$45,000

Furniture and personal effects retained by wife from Suburb J home

$4,145

(valuation of single expert)

Furniture and personal effects retained by husband in the Suburb C apartment

$1,370

(valuation of single expert)

Total

$1,202,231.42

1. As I have said, for the wife it was argued that I should determine that an amount of $718,537 should be notionally “added back” to the property interests of the parties and regarded as partial property settlement already received by the husband.

2. Notionally “adding back” is something that is to be regarded as something that is done exceptionally rather than as a matter of course. However, the Full Court has authoritatively accepted over the years that in certain circumstances the Court can exercise a discretion to treat capital of the parties that has already been spent or dissipated by a party as property already received by that party when determining property adjustment orders that are just and equitable.

3. Firstly, before I go further in respect of this issue, I will observe that I am satisfied that in the circumstances of this case, orders adjusting the Australian property interests of the husband and the wife are required to be made in order to do justice and equity as between them – at least in respect of these property interests and to finalise financial matters as between them in Australia.

4. I am also satisfied that the circumstances do justify treating some money already dissipated by the husband as property of the parties already received by him when determining orders that are just and equitable. I am also satisfied that some spent by the wife on her own legal costs and outlays should be treated in the same way.

5. Accordingly, I will consider as property already received by the husband and the wife the following:

Amount spent by husband on legal fees identified early in the proceedings before he and the other Respondents determined to self-represent	$10,800
Amount spent by wife on legal fees	$10,000
Amount of money husband invested into the F2 Pty Ltd for Ms Song’s support – net of money received back by P Pty Ltd	$32,763
Amount husband advanced to Ms Song for her support and for her to buy real property	$155,970
Amount husband received from insurance payout that he retained to his own use	$34,000
Amount husband retained after closure of P Pty Ltd and payout of debts that he retained to his own use	$14,000
Payment already received by wife upon sale of Suburb J property	$50,000
Payment already received by husband upon sale of Suburb J property	$50,000
Total	$357,533

1. Accordingly, I consider the property interests of the husband and the wife that currently exist and that also should be notionally included as partial property adjustment already received to total $1,559,764 in value. Having regard to the possibility that the $89,200 deposit on the CBD apartment is forfeited, I consider it best to treat the total value as $1,470,564 and to deal with that $89,200 separately in the orders I determine to make.

2. I do not accept the argument advanced by the husband that the monies transferred from China to his accounts in Australia by persons such as Ms Song, his ex-wife and even friends of his must now be considered as reflecting liabilities owed to those people that have to be taken into account in these proceedings. I do not accept that there are liabilities owed by the husband now that justice and equity require be taken into account in adjusting the property interests.

The course by which adjustment orders are determined

1. After having identified the property which can be subject to property adjustment orders, the Court is to weigh and evaluate the contributions of the parties across all facets of the marriage as required by ss 79(4)(a) to (c) of the Family Law Act 1975 (Cth) (“the Act”). The Court then translates the outcome of that process to a division, quantifiable along percentage lines, before considering whether there needs to be a further adjustment to that, in order to do justice and equity between the parties, having regard to the evidence about matters that are set out in s 75(2) of the Act. The Court converts the percentage division finally arrived at to orders that adjust the property interests as to reflect that division and makes those orders if it considers them to be just and equitable.

2. In this particular case, there is little to no evidence about the property interests of the former couple in China. However, although an equal division is not a starting point, there is no evidence that causes me to consider that regarding their contributions as equal when considering their Australian property interests is not appropriate. All of the money that came into Australia from which all of their property interests here originated came from China, generated, I am satisfied, by their involvement in the business they were both engaged in running in China. Whilst I accept that the husband contributed more than the wife did in terms of operating the P Pty Ltd business here, the wife has equalled that contribution in terms of the greater contribution to parenting the children that she has made since the separation of the former couple. Without more, I am also satisfied that the wife’s contribution made in assisting in the parenting of her step-daughter, Ms Long, during her marriage to the husband reasonably offsets any extra contributions made by the fact that the husband appears to have had an interest in the business in China already before he met the wife.

1. I am satisfied that the property interests I have identified should be notionally divided equally between the former couple after considering their respective contributions.

2. As for the matters set out in s 75(2) of the Act, in so far as they are relevant, I consider the fact that the wife has the care of the former couple’s daughter, who will not reach adulthood for several more years, is of importance. I am also satisfied that the husband is likely to maintain a greater earning capacity than the wife through his involvement of the family business in China that, as far as I understand, still operates. I know very little about what each of the husband and wife intends to do in the future and can say little more than acknowledge that the Chinese Court will likely be administering justice between the former couple in respect of their Chinese property interests. If those proceedings have not concluded, the Chinese Court is likely to have regard to the orders this Court makes when making its determination.

3. I consider it just and equitable, having regard to the matters I have identified to adjust the notional equal division I have already arrived at by a further 10% swing in favour of the wife, so as to arrive at a division of the Australian property interests identified by me, as to 60% to the wife and as to 40% to the husband.

4. Such a division would see the wife retaining property valued at $881,858. She already retains the following:

Two shipping containers and contents	$3,000
Motor car	$45,000
Furniture and personal effects from Suburb J home	$4,145
Money spent on legal costs treated as partial property settlement already received	$10,000
Payment already received by wife upon sale of Suburb J property	$50,000
Total	$112,145

1. This would entitle her to further property valued at $769,713. Giving her all of the $548,316.42 in her solicitor’s trust account would entitle her to receive a further payment of $221,396.58. That can be achieved by the husband paying her a further sum of $221,396.58 within a short period of time, in default of which the Suburb C apartment is to be sold with that sum to be paid from the sale proceeds.

2. In addition, the possible forfeiture of the deposit of $89,200 is to be dealt with by simply ordering the husband to file and serve an affidavit which attaches documentary evidence that proves to the Court’s satisfaction that the $89,200 has been lost to the parties by forfeiture and, in the event that he is not able to do that within a reasonable period of time prescribed, a further sum of $53,520 shall be payable to the wife.

3. Of course, any interest earned on the money held in trust will have to be divided 60/40 between the wife and the husband as well. The husband could elect to simply authorise the wife’s solicitor to use his share of any such interest to offset the amount he will owe her pursuant to these orders.

Costs application of the wife

1. For the wife, application was also made for the husband to pay her costs on an indemnity basis. Her solicitor’s costs notice handed to the Court in accordance with the Rules estimated her total costs would be just under $230,000, virtually all of which had not been paid at the time of the trial and will likely be paid out of the money the wife retains that is held on trust by that solicitor.

2. The wife’s affidavit of evidence in chief contained pages of allegations of breaches of and non-compliance with the orders of the two Courts by the husband and the other two parties in the time between the first orders having been made and the time of the trial. It also contained many allegations of non-compliance with full and frank disclosure obligations and other aspects of the conduct and behaviour of the husband, Ms Song and Ms Long that made the conduct of the litigation difficult and more expensive for the wife. I am satisfied of all that.

3. Most significantly, the husband and Ms Song lied to the Court over a long period of time about the nature of their relationship. They lied to the end about the source of the funds that Ms Song contributed to the property purchased in her sole name. They worked together to try to cover the tracks that would reveal where the money came from and deliberately failed to disclose documents that would go towards revealing their deception.

4. Sadly, Ms Long, a very young adult, clearly just went along with whatever it was her father asked or told her to do and say. Her involvement in the matter was rather disappointing. Her continued assertion that she or her mother owned 27% of the Suburb C apartment was regrettable. I am satisfied that she maintained that position to meet her father’s wishes.

5. I am quite satisfied that the decisions taken by the husband in and around the breakup of his marriage to the wife and the conduct of this litigation caused the wife far more legal expense in the proceedings than she would have incurred had he determined to act honestly, sincerely and as required of a party to proceedings in this Court. It was rather ironic that after he began acting for himself without legal representation he kept attacking the integrity of the wife’s solicitor, blaming him for the fact that the wife and he had not been able to resolve their property and financial matters earlier. It was clear that the very same position argued by Ms Song and Ms Long in their affidavit evidence came from the husband.

6. In the circumstances, I am satisfied that a costs order is justified. Considering all of the matters that I must consider pursuant to s 117(2A) of the Act, it is the conduct of the husband, Ms Song and Ms Long that I have just referred to that most influences me in this respect. I do not consider that an indemnity costs order is warranted. I am most concerned to make an order that is easily enforced if it has to be, that does not cause the wife to have to have to communicate too much more with her solicitor or to have to spend much more in legal fees. Rule 19.18(1)(a) of the Family Law Rules 2004 (Cth) (“the Rules”) permits me to make an order that a party is entitled to costs of a specific amount. That is what I will do. I am satisfied that the amount of $50,000, a sum that reflects slightly less than 25% of the wife’s estimated total costs, would likely correlate reasonably with the amount of legal fees incurred that could easily have been avoided if the husband had not elected to take the dishonest and uncooperative course that he did.

7. At this stage, I will include an order that the husband pay the sum of $50,000 towards the wife’s costs of and incidental to the proceedings as well. If he does not pay that within the prescribed time, that amount plus interest pursuant to the Rules will be added to the amount the wife is to receive on the sale of the Suburb C apartment if that sale is required.

8. I will not make any parenting orders. The former couple’s eldest child is now 18 years old and not subject to parenting orders any more. Their daughter, who lives with her mother, is likely to have returned to China with the mother in late March this year. Any further parenting issues between the parents should now be litigated in Court in China if necessary.

9. I make the orders set out at the commencement of these written reasons.

I certify that the preceding one hundred and seventeen (117) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Forrest delivered on 28 October 2019.

Associate: 

Date:  28 October 2019