HETT & SEER - [2020] FamCA 65

FAMILY COURT OF AUSTRALIA

HETT & SEER

[2020] FamCA 65

FAMILY LAW – PROPERTY – application for adjustment of property – undefended – application for divorce stayed by adjournment pending finalisation of property application – costs – application for self-executing orders pursuant to s 112AD – property located in China – contributions

Family Law Act 1975 (Cth) 65DAA, 75(2), 79, 79(4), 112AB, 112AC, 112AD

Evidence Act 1995 (Cth) s 146, 147

Bevan v Bevan (2013) 49 FamLR 387
Dickons & Dickons [2012] FamCAFC 154
MRR v GR 263 ALR 368
Stanford v Stanford (2012) 247 CLR 108

APPLICANT:

Mr Hett

RESPONDENT:

Ms Seer

FILE NUMBER:

CAC

1020

2018

DATE DELIVERED:

10 February 2020

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Gill J

HEARING DATE:

4 June 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Othen

SOLICITOR FOR THE APPLICANT:

Watts McCray Lawyers

SOLICITOR FOR THE RESPONDENT:

Undefended

Orders

That the Wife, shall forthwith and no later than 42 days from the date of these Orders:
(a)Do all acts and things and sign all documents necessary to effect the sale of the property situate and known as C Street, B District, City D in the People's Republic of China ("the City D property") at the earliest possible date, for the highest price obtainable, or as otherwise recommended by an Agent nominated by the parties in writing.
(b)The Wife shall, upon settlement of the sale of the City D property, do all acts and things and sign all documents necessary, to cause the sale proceeds of the City D property to be disbursed in the following manner and priority:
(i)To pay the real-estate agent's commission or equivalent and other usual adjustments and expenses on sale; and
(ii)Divide and pay the balance between the Husband and the Wife by depositing the funds into two separate bank accounts styled in each party's respective sole names in accordance with the following formula:
Where x is the proceeds of the sale of the City D property left after compliance with Order (1)(b)(i)
By payment to the Husband of an amount that equals
0.475 ($259,500 + x) - $253,400 + $4,500
By payment to the Wife of an amount that equals
0.525 ($259,500 + x) - $6,100 - $4,500
That to confirm the Wife's compliance with Order 1, the Wife shall provide to the Husband immediately upon the sale of the City D property evidence of the sale of the property and the balance available following compliance with Order (1)(b)(i).
That to confirm the Wife's compliance with Order 1, the Wife shall provide to the Husband immediately upon deposit of the sale proceeds confirmation of the deposit.
In the event that it is necessary for the Husband to take a step to enable the sale of the property in accordance with the above orders, the Husband shall promptly take all such steps as and when they are required.
That the injunction made in the Federal Circuit Court of Australia on 31 July 2018, freezing the Westpac Banking Corporation bank account number #...74 and #...82 be discharged.
That within seven days from the date of these Orders, the Husband and Wife shall do all acts and things and sign all documents as may be necessary to immediately uplift the freeze that has been placed on the Westpac Banking Corporation bank account number #...74 and #...82, and thereafter the parties shall both do all acts and things and sign all documents necessary to provide the Husband forthwith with a distribution of all remaining funds within that account (the remaining funds) and thereafter the parties shall do all acts and things and execute all documents necessary to close the account.
That on the Wife’s compliance with Order 1 the Husband cause to be paid to the Wife an amount that equals 52.5 per cent of the remaining funds referred to in the immediately preceding order.
That within 42 days of the date of these Orders, the Husband and the Wife shall do all acts and things and sign all documents necessary to discharge the mortgage secured on the title of the real property situate and known as E Street, Suburb G in the Australian Capital Territory being the whole of the land contained in … Block … on Deposited Plan … with … units on Unit Plan Unit Plan … currently registered in the names of Mr Hett and Ms Seer as Joint Tenants ("the Suburb G property"), including but not limited to the Husband paying the whole of the amount, in full, which is outstanding to the Westpac Banking Corporation.
Contemporaneously with Order 8, the Husband and the Wife shall do all acts and things and sign all documents necessary to transfer to the Husband all of the Wife's right, title and interest in the Suburb G property.
Pending compliance with Orders 8 and 9 above, neither the Husband nor the Wife shall mortgage or otherwise offer the Suburb G Property for security other than for the purposes of compliance with those orders, compliance with the orders including steps taken by the Husband to refinance the property.
If the Wife fails to comply with Orders 5 to 7, the Applicant Husband may request the Registrar of this Court to do all acts and things necessary to give validity and operation to the following Instruments and/or documents without the requirement of filing an Affidavit:
(a) Transfer of Land in relation to the Suburb G Property;
(b)Discharge of Mortgage in relation to the mortgage secured on the title of the Suburb G Property.
(c)Any Form required to be completed by the Westpac Banking Corporation to enable the parties' compliance with Order 5.
Except as specifically provided for by these Orders to the contrary, following the Settlement Date and upon full compliance by the parties with Order 8 and Order 9, the Husband shall indemnify and keep indemnified the Wife in relation to any liability of whatsoever nature, howsoever and whensoever arising in relation to the discharge of the Suburb G Property Mortgage.
That the Husband and the Wife shall do all acts and things and sign all documents necessary to:
(a)Withdraw all funds, if any, held in any joint account held by the parties and thereafter divide the remaining balance (if any) equally between the Husband and the Wife.
(b)Simultaneously with compliance with Order 13.a. close any joint bank accounts.
That unless otherwise specified in any Order to the contrary, the Wife be declared the sole owner, at law and in equity, as against the Husband, of all other items of property including:
(a)All personal property, including items of personalty, jewellery, furniture, furnishings and any other effects now in her possession or control.
(b) The motor vehicle in her name;
(c) All bank or credit union accounts standing in her sole name;
(d)All other assets, financial resources, superannuation, property, chattels or personalty of whatsoever nature and wheresoever situate in Wife's name, and/or in her possession and/or control.
That unless otherwise specified in any Order to the contrary, the Husband be declared the sole owner, at law and in equity, as against the Applicant Wife, of all other items of property including:
(a)All personal property, including items of personalty, jewellery, furniture, furnishings and any other effects now in his possession or control.
(b) The motor vehicle in his name.
(c) All bank or credit union accounts standing in his sole name.
(d)All interests in life insurance policies and superannuation funds standing in his sole name.
(e)All other assets, financial resources, superannuation, property, chattels or personalty of whatsoever nature and wheresoever situate in the Husband's name, and/or in his possession and/or control.
Except as specifically provided for by these Orders to the contrary:
(a)Each of the Wife and the Husband releases the other from all debts owing from one to the other.
(b)The Wife shall be solely responsible for any debt or liability in her sole name as at the date of these Orders and shall indemnify the Husband and keep the Husband indemnified with respect to those liabilities.
(c)The Husband shall be solely responsible for any debt or liability in his sole name as at the date of these Orders and shall indemnify the Wife and keep the Wife indemnified with respect to those liabilities.
That service upon the Wife by way of email is deemed to be valid and effective service.
In the event that a party wishes to pursue the costs:
(a) Reserved in relation to the application to adjourn the divorce proceedings;
or
(b)Reserved in relation to the application to have the costs dealt with in advance of the delivery of this judgment;
Then the party seeking such costs is to file and serve written submissions in relation to such within 14 days of the delivery of this judgment, in which event a party opposing such costs order is to file written submissions as to such within 28 days of the delivery of this judgment.
In the event that no submission is received in accordance with the immediately preceding order the extant costs applications will be taken as dismissed.
The Application for Divorce filed 29 May 2018 is transferred to the Registrar’s list for the granting of the divorce.

IT IS NOTED THAT

It has been conceded and acknowledged that the Wife is entitled to the order for divorce.

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 Hett & Seer 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 CANBERRA

FILE NUMBER: CAC1020 of 2018

Mr Hett

Applicant

And

Ms Seer

Respondent

REASONS FOR JUDGMENT

Introduction

The parties to this matter are Mr Hett, the Applicant Husband, and Ms Seer, the Respondent Wife. The parties married in 1996 in City F, Australia and separated in China in 2012. The Husband is an Australian citizen, currently living in Australia. The Wife remains living in China, although she is a permanent resident of Australia.
The current proceedings concern the Husband’s application for property adjustment which is undefended, the Wife having discontinued her proceedings insofar as they relate to property by a Notice of Discontinuance filed on 1 May 2019. The proceedings also concern the Wife’s application for divorce, which is stayed by adjournment pending the finalisation of the Husband’s property application. This step was necessitated to prevent the Wife from commencing proceedings in China in relation to the City D property while the property proceedings remain on foot here.
The parties have lived in both China and Australia. The property of the parties is in both Australia and China. The issue of forum was determined on 8 February 2019, with Australia being determined as the forum.

Additional matters

The Husband seeks costs in relation to the contested application to adjourn the Wife’s divorce application to the resolution of his property application.
Additionally, the Husband now seeks orders in the nature of self-executing orders that would have the effect of imposing a term of imprisonment, in the event of the Wife’s non-compliance with the property orders that will dispose of these proceedings. This is a novel and draconian remedy.
The imprisonment of a person, even where the person is in breach of court orders, without proper consideration of the circumstances of the particular breach, and the circumstances of the person in breach, is contrary to fundamental principle.
The Husband first sought such orders in his final written submissions, orders having been made to allow the Husband to supplement the oral submissions he made on 4 June 2019 with written submissions for this undefended matter to be resolved without further appearance. The Husband had previously sought and obtained an extension of the time for the filing of those submissions (and further evidence) to October 2019.
In his written submissions the Husband sought leave to file further material and to direct the Wife to file further material.
The Husband has neither filed nor served an application pursuing these additional remedies.
It is unclear that the Wife has been placed on notice of these additional matters sought by the Husband. Acceding to the Husband’s application would have the effect of further delaying the divorce to which the Wife is entitled, but which she has been denied pending the resolution of the Husband’s application.
The accommodations and delays that have already been given and occasioned for the Husband to pursue his case, and the further delay in relation to finalising the Wife’s divorce, point against further delay of the proceedings.
Further, the remedy sought by the Father, in the form of the imposition of a sanction of imprisonment prior to the determination of contravention is not available.
Section 112AD, which is relied upon as the source of power to impose the sentence of imprisonment requires, as necessary precursors to the making of such an order not only that it is established that there is a contravention of the order (as defined at s 112AB), but that it is without reasonable excuse (as defined at s 112AC).
The power is not available for exercise until a contravention has been established. It is a similar position to that described by the High Court in MRR v GR[1] regarding the operation of s 65DAA(1):
The words with which para (c) commences (if it is) refer back to the two preceding questions and make plain that the making of an order can only be considered if the findings mentioned are made. A determination as a question of fact that it is reasonably practicable that equal time be spent with each parent is a statutory condition which must be fulfilled before the court has power to make a parenting order of that kind. It is a matter upon which power is conditioned much as it is where a jurisdictional fact must be proved to exist.
[1]MRR v GR 263 ALR 368 at [13]
In the same manner the power in s 112AD relies upon the fulfilment of the statutory condition that the contravention has been established. The power cannot be exercised prior to the contravention being proven. It is a matter upon which the power is conditioned.
This decisively tells against the proposed orders sought by the Husband.
The absence of any reasonable prospects for the making of such an order, along with the lack of notice to the Wife and consequent delays tell against acceding to the orders sought by the Husband in his written submissions in relation to this aspect.

Orders Sought

The specific orders sought by the Husband are set out in a schedule at the end of this judgment.
Disregarding the fresh orders sought by the Husband in relation to enforcement as contained in his written submissions, in general terms the Husband sought the sale of, and an equal division of the proceeds of a property held in China, the transfer to him of the title of a property in Canberra, the equal division of joint accounts and that each retain other property held by that party.

Material relied upon

The Father relied upon the following:
a)Affidavit filed 18 October 2019;
b)Affidavit filed 2 October 2019; and
c)Written Submissions filed 18 October 2019.

Principles

The proceedings for property relief are undefended by the Wife. The burden remains upon the Husband to establish the factual matters that he wishes to rely upon. While the burden of doing so is reduced by virtue of no opposing case being mounted by the Wife, the obligation to prove those matters remains with the Husband.
The exercise of jurisdiction in relation to the property of the parties requires that it must be just and equitable, both to adjust the property interests at all,[2] and to adjust them in a particular manner.[3]
[2]Stanford v Stanford (2012) 247 CLR 108 per French CJ, Hayne, Kiefel and Bell JJ [35]
[3]Bevan v Bevan (2013) 49 FamLR 387 per Bryant CJ and ThackrayJ [86]
The necessary first step in consideration of whether it is just and equitable to make an order is to identify “according to ordinary common law and equitable principles the existing legal and equitable interests of the parties in the property.”[4]
[4] Stanford v Stanford (2012) 247 CLR 108 [37]
If it is established to be just and equitable to make an order, it is necessary to consider the matters set out at s 79, which may generally set out as the various contributions made by the parties, and the matters set out at s 75(2). Following this it is necessary to again consider whether the adjustment is just and equitable.

What are the existing interests of the parties?

The Husband proposed the following property and values as constituting the pool of property of the parties.

Balance Sheet

ASSETS
Ownership		Description	Value (W)	Value (H)
1	Wife	C Street, B District, City D PRC	1,663,042.00
2	Joint	E Street, Suburb G ACT	475,000.00
3	Husband	CBA Bank Account	256.07
4	Husband	Motor vehicle 1	7,000.00
5	Husband	Furniture and household contents	E 5,000.00
6	Wife	Furniture and household contents	E 5,000.00
7	Wife	Motor vehicle 2	E 27,400.00
8	Wife	Other assets and financial resources in the possession and control of the wife	Not Known
Total		$ 2,182,698.07

LIABILITIES
Ownership		Description	Value (W)	Value (H)
1	Joint	Mortgage – Suburb G Property	245,418.61
2	Husband	Personal Loan from 2013	15,000.00
3	Husband	Legal Fees payable	25,000.00
4	Wife	Other liabilities of the Wife	Not Known
Total		$ 285,418.61.00

SUPERANNUATION
Member		Name of Fund	Type of Interest	Value (W)	Value (H)
1	Husband	Super Fund 1	Accumulation	11,396.00
2	Wife	Not known	Not known

Evidence for the property orders sought by the Husband – an assessment of whether or not it is just and equitable to make an order

The first issue is whether the pool as proposed by the Husband is established on the evidence.
The most significant item of property is an apartment at C Street, B District, City D (“the City D Property”).
The Husband says that this was a property acquired in joint names in 2006 for $160,000. He asserts that he has been advised that it is now held in the Wife’s sole name. He has not adduced admissible evidence to demonstrate that it is now held in her name, although his evidence is sufficient to establish that the property is not under his effective control, but is under her control.
Mr H, of J Valuers, who holds a degree with a major in asset valuation, supplied a valuation report. She used a method of comparison and adjustment against similar properties in a similar market to arrive at a value for the City D property, as at August 2019.[5] She estimated that it had a market value of RMB 7,541,400. This evidence adequately establishes the value of the property.
[5] Affidavit affirmed by Shuo Ge of Fujian United Assets & Real Estate Appraisals oc. Ltd on 2 October 2019
The Husband, by reference to a Westpac online calculator, asserted that RMB 7,541,400 equated to AUD $1,663,042, as at 15 October 2019. The Westpac facility used by the Husband appears to fall within either s 146 or s 147 of the Evidence Act 1995.
Obtaining the Valuation report was at the sole expense of the Husband and amounted to $4,500.
The next most significant item of property is E Street, Suburb G ACT. This was valued at $475,000 by Mr K of L Valuers (affirmed on 31 May 2019). A curriculum vitae was provided, demonstrating experience in valuation, along with a report setting out methodology and comparatives used to establish the value.

This property is subject to a mortgage of $245,418.61, established by documents comprising business records associated with the Husband’s affidavit and marked as “D”, being two bank statements from the two loan accounts dated 16 October 2019.
The net value of the property is established at approximately $230,000.
The CBA Bank Account was established by the Husband’s affidavit, by the production of a business record. In a document associated with the affidavit and marked as “B” is a letter from the Commonwealth Bank of Australia addressed to the Husband and dated 15 October 2019 confirming this value.
The value of the motor vehicle 1 was sought to be established by reference to a Red Book Valuation Certificate marked as “C” issued on 17 October 2019, associated with the Husband’s affidavit. This was not an admissible form of evidence.
However, the representation by the Husband that he holds such an asset diminishes his claim for a property adjustment in his favour. Accordingly the statement meets the description of “admission” (which is excepted from both the hearsay and opinion rules) defined under the Evidence Act 1995 as follows:
Admission means a previous representation that is-
Amade by a person who is or becomes a party to a proceeding (including a defendant in a criminal proceedings); and
Badverse to the person’s interest in the outcome of the proceeding.
The diminishing of the Husband’s claim for adjustment is adverse to his interest.
The Husband’s admission is sufficient to establish the value of the motor vehicle 1.
Similarly the Husband’s concession as to other items held by him constitute admissions against interest, sufficiently establishing them.
The Husband asserts a value for the motor vehicle 2 in the Wife’s possession in apparent reliance upon Annexure M of Exhibit H1, being the product of a web page authored by Redbook.com.au. This does not constitute admissible evidence of the value. Further, unlike the Husband’s concession as to his own possession of an asset, the assertion of an asset held by the Wife is not an admission against interest, as the holding of property by the Wife increases the Husband’s claim for a property adjustment in his favour.
However, in her financial statement of 19 October 2018 the Wife admitted a value of $3,100.
Similarly the Husband’s assertions of furniture and household contents otherwise held by the Wife are not supported by admissible evidence, other than the Wife’s financial statement whereby she admitted a value of $3,000 for her household contents.
The Husband has established his personal loan at $15,000 and legal fees at $25,000. These are matters directly within his knowledge to testify to.
Again, even without supporting documentation the Husband’s admission as to holding superannuation at $11,396 constitutes an admission against interest and establishes the value of the superannuation.
These together establish a pool of approximately $1,914,000 (using a figure for Suburb G taking into account the mortgage value), with debts held by the Husband of legal fees of $25,000, and otherwise $15,000.
Of those assets the parties jointly hold the property at Suburb G. The formal ownership of the property in City D is uncertain although it is currently under the control of the Wife, despite initially being purchased in joint names.
The Wife holds in her name or possession the car, furniture and household goods at $6,100. The Husband holds $12,250 in his name or possession along with his superannuation of approximately $11,400. Together these total $23,650.
The Husband’s debt for legal fees should not be reckoned in the pool (save as to an amount representing the expense of the valuation of the City D property. A reason to deduct the Husband’s personal loan of $15,000 from the pool has not been established.
Each of the parties has already received $50,000. No submission has been made to add back this amount to either party, and the payment’s close approximation to the ratio of division determined later in the judgment, and the minimal impact adding back could have in the context of the overall pool tell against departing from the usual starting point that tells against adding back.

Contributions – s 79(4)

Section 79 requires, in exercising the discretion to adjust the property interests of the parties, that the contributions of the parties are to be given consideration.
In Dickons the Full Court, said that “the requirements of the section are met by approaching the assessment of contributions holistically and by analysing the nature, form, characteristics and origin of the property currently comprising that to which s 79 applies, and, in turn, analysing the nature, form and extent of the contributions (of all types) contemplated by s 79”.[6]
[6]Dickons & Dickons [2012] FamCAFC 154 [21]
Again in Dickons it was noted that the assessment of contributions did not necessitate the identification of a causal link between the contribution and the property, but adopting Aleksovski described that “the s 79 discretion involves as a necessary requirement that “… trial Judges weigh and assess the contributions of all kinds and from all sources made by each of the parties throughout the period of their cohabitation and then translate such an assessment into a percentage of the overall property of the parties or provide for a transfer of property in specie in accordance with that assessment.” (In the Marriage of Aleksovski (1996) FLC 92-705 at 83,437)”. This requires the consideration of “(a)ny and all such contributions, whether or not they sound in, or are directly linked to, the property available for distribution, should be considered and assessed together with the nature, form and extent of all other contributions of all types contemplated otherwise by s 79(4).”[7]
[7]Dickons & Dickons [2012] FamCAFC 154 [18]

Contributions

The submissions of the Husband carefully set out the evidence as to the contributions made by the parties to the relationship. He contends that during the relationship he made the superior financial contributions, with non-financial contributions and those directed to the welfare of the family being equivalent. He also accepts that the Wife made an added contribution through the acquisition of an apartment in China through legal proceedings and the subsequent use of those proceeds. This, he asserts, has been offset by other contributions made by him, particularly following the end of the relationship.
At the start of the relationship in 1995 the Husband had approximately $5,000[8] in savings. He was then studying and not in paid employment. The Wife was in paid employment. The Husband was unable to say what the Wife’s financial position[9] was at the start of the relationship other than her employment at $150-$200 per month.
[8] Affidavit affirmed by the Husband on 3 June 2019 [12]
[9] Affidavit affirmed by the Husband on 3 June 2019 [14]
In 1997, the parties’ only child, X, was born.
From December 1997, the Husband was employed in a Sydney business. He subsequently started his own business, which the Wife worked in, without drawing a salary. The parties were able to derive income, pay expenses and accumulate a few thousand dollars in savings through the business[10].
[10] Affidavit affirmed by the Husband on 3 June 2019 [17]
In 1998, the parties jointly purchased a home in Suburb M, City F, Australia for $230,000 (including associated expenses).[11] This was done using the Husband’s credit card for the deposit. The parties had about AUD$2,000-$3,000 in savings used to purchase furniture.[12]
[11] Affidavit affirmed by the Husband on 3 June 2019 [18]
[12] Ibid.
The parties shared X’s care and home duties.
The Husband was responsible for general house and garden care and managing the budget. The Wife would make payments for bills as requested by the Husband.
In 2004, the Husband sold the business. In April 2004 the parties moved to China.
X attended boarding school during the week in China. The fees were paid by the Husband.
The Wife held a number of different jobs in China with variable income. The Husband held employment that required travel and seven days per week at work. His income in this work transitioned to approximately $3,400 per month, after lower pay for an initial period. While the Husband was travelling the Wife correspondingly had the greater care responsibility for X.
In 2006, the parties sold their Suburb M home, receiving net funds of $162,000.[13]
[13] Affidavit affirmed by Husband on 3 June 2019 [28]
The parties used those funds to purchase the City D Property, unencumbered, in joint names. This property is rented out, with the Wife receiving the income.
In 2006, the Wife told the Husband that as a result of court proceedings in China she had been declared the owner of an apartment in the N District. This stemmed from before the parties were in a relationship.
In 2007, the Husband took work in Country O, depositing his income into an account held by the Wife for the benefit of the family. Again, correspondingly, the Wife had the care of X when she returned from boarding school.
The Husband accepts that the Wife also worked, receiving an average of $400-500 a month plus commission.[14] At the same time the Husband’s work in Country O returned $2,000 per month, as well as his living expenses that were met by his employer.
[14] Affidavit affirmed by the Husband on 3 June 2019 [34]
In 2010, the Husband returned to City D and the parties and X lived together. The Husband found a new job. The parties took a $40,000 loan from their mortgage account over the City D property. This was used to buy a car for $28,000 and to pay for living expenses.
In the period from 2010 to 2013, the parties both shared their house duties equally and cared for X when she returned home from boarding school.
The Husband returned to Australia in 2012 to investigate where and how to move back to Australia from China with X.
After the parties’ final separation in mid-2013, the Husband returned to live in Australia in Canberra with X (then aged about 16). The Husband obtained a loan of about AUD$20,000 from a friend and AUD$15,000 from his family members. The Husband paid back his friend $20,000 in 2016. The Husband still owes his family AUD$15,000. X continued her schooling at P School. The Husband had the sole care of X full-time from this period and ongoing.[15] X, now aged 22, is studying at university.
[15] Affidavit affirmed by the Husband on 3 June 2019 [39]
The parties jointly engaged in a series of transactions following the end of their relationship.
The first of these was on 25 June 2013, on the eve of the Husband’s return to Australia. He executed a document in relation to the City D property.[16] The Husband asserts that this document was procured by coercion, on the basis that the Wife said that if he did not sign it he would not be given access to any money. It remains unclear what the effect of this document was, although the Husband adopts assertions attributed to him in correspondence to the Wife’s previous solicitors at Exhibit H1 of 4 June 2019, describing the document as relinquishing his rights to the City D property.
[16] Affidavit affirmed by the Husband on 3 June 2019 [43]
Subsequently, on 14 November 2013 the parties purchased, as joint tenants the Suburb G property, at a total cost of $440,000. The Husband says that the Wife transferred sums of $270,000 for the deposit, and then a further $200,000 onto the mortgage account, part of which was used for living expenses. He says that the Wife told him that she had borrowed these funds. In 2015 the Wife told the Husband that she had sold the N District property for RMB 2.22 million, which the Husband says equates to AUD$440,000. He says that the Wife controlled these monies and so he did not know what had happened to them. He accepts that the Wife told him that she paid out the borrowings for the Suburb G property following the disposal of the N District property.[17]
[17] Ibid [45]
In April 2017 the parties paid a deposit for an off the plan purchase in joint names. The contract was later rescinded by the vendor.
Again in 2017 the Wife gave the Husband $15,700 which he applied to general living expenses.
In May 2018 the Wife withdrew $121,000 from the joint mortgage account, increasing the outstanding indebtedness to $251,000. She subsequently, on 15 June 2018 deposited $71,000 back into the account, but retained $50,000 for her own use.[18]
[18] Affidavit affirmed by the Husband on 3 June 2019 [56] and [60]
Orders made by Judge Hughes on 31 July 2019 provided for the Husband to also draw $50,000 from the Suburb G property loan, which he subsequently did.

Discussion

It may be seen that each of the parties worked hard during their relationship. They shared the care of X, with each taking primary responsibility for her at different times, with the share of care for X often being the corollary of the work being undertaken by the other parent.
It may be seen that in times where the Husband was not available to care for X he was engaging in work for the support of the family. When the Husband was working in Country O, or seven days per week in China, he was unavailable for the care of X, and so correspondingly, as well as engaging in paid work the Wife had the greater share at those times of the care of X (although for periods of time X was attending boarding school).
At other times, when the Husband was more available, the care of X was shared to a greater extent.
Each undertook different forms of work through the relationship, the Husband’s remuneration being higher. Sometimes the work was for direct remuneration, or at times work in the family business yielded income for the family. Each earned different levels of income at different times.
While the Husband asserts that he made the greater financial contributions than the Wife during the relationship (which, but for the N District property he has), his assertion that the other contributions were equivalent cannot be accepted. The corollary of his work for higher remuneration was his decreased availability in the home and to care for X.
Their overall contributions during the relationship (leaving aside the N District property) should be seen as equal, although different.
The Husband points to a number of distinctions in the parties’ contributions since separation.[19] These need to be assessed in the light of the Wife’s contribution of the N District property.
[19] Husband’s written submissions [65.28]
Firstly, the Husband asserts that he has been solely responsible for mortgage payments since the purchase of the Suburb G property. Two observations may be made about this. Firstly, payments that came, ultimately, from the proceeds of the N District property reduced the mortgage and met living expenses. Secondly, the Husband has had the benefit of living in the property (albeit shared with X and, at times, with the Wife).
Secondly, the Husband points to the Wife’s retention of the motor vehicle that was bought in China. This is a counterbalancing matter.
Thirdly, the Husband asserts that the Wife has had the sole benefit of the proceeds of the sale of the N District property. As explained above, this is not the case.
Fourthly, the Husband points to the Wife having received the sole benefit of the rental income derived from the City D property. This is a counterbalancing matter. This is an asset that has been for her sole use since the separation of the parties.
It may also be seen that, in the realm of non-financial contributions the Husband has had the almost sole care of X from the move back to Australia until X turned 18.
It should also be remembered that each of the parties has had the benefit of a $50,000 draw down from the Suburb G property.
The retention of the vehicle, the Husband’s primary care of X and the Wife’s retention of the rental proceeds reduce the effect of the N District property. Some limited reduction also comes from the fact that the N District property was brought in from events predating the relationship. Although it did not crystallise within the property until after the relationship started, it is an early contribution into the pool that was retained in the context of the various contributions otherwise made by the parties. It however, has had its impact on the current pool in its contribution to the Suburb G property.
On balance, the contributions made by the Wife in their various forms exceed those of the Husband, justifying an assessment of a 5 per cent difference between the two, that is, 52.5 – 47.5 per cent in favour of the Wife.

Section 75(2) factors

The Husband deposes to the Wife, at almost 50 years of age, being on the cusp of eligibility for a Chinese pension. The Wife, by her non-participation has provided no evidence as to how this will or will not measure against the expense she will encounter in supporting herself.
The Husband is almost 58 years old and has minimal superannuation. It may be expected that he will, in the future, struggle in his capacity to support himself. Although employed, it cannot be anticipated that he will be able, during his working life, to effectively relieve his position of limited superannuation.
While the Husband’s future position may be seen to be parlous, the evidence is not sufficient to relatively compare it to the Wife’s position, even taking into account the fact that the Wife has not participated in, and provided evidence about the matter.
No provision for an adjustment based on the s 75(2) factors should be made.

Conclusion

It is just and equitable to adjust the property of the parties in this matter. The manner of their cooperation in the acquisition and preservation of property, and the raising of their child has come to an end. The sharing of their resources has also come to an end. These matters point to it being just and equitable to adjust their property.
The relative contributions made by the parties point to an adjustment such that the pool of property be divided 52.5 per cent to the Wife, 47.5 per cent to the Husband. That position is not changed by consideration of the matters raised at s 75(2).
Allowance should also be made for the particular expense the Husband was put to in pursuing a valuation of the property in China. The Wife’s non-cooperation made the valuation a difficult and expensive exercise. She should bear that responsibility, such that the Husband is reimbursed for the $4,500 expense.
There remain difficult questions as to the disposal of the matter, even in the context of the above conclusions as to adjustment.
The bulk of the wealth of the parties is held in China, under the apparent control of the Wife. Orders will be made for the sale of the property, in personam, directed to each of the parties. There remains the spectre of non-compliance.
Insofar as property located in Australia can go toward meeting the Husband’s portion it should do so. While the orders are predicated on the sale of the City D property to pay out the Suburb G property, the transfer of the Suburb G property should operate independently to the payout, so that the Husband might have full control of that asset even if there is not otherwise compliance in relation to the City D property.
Even with compliance there is also some uncertainty as to the net proceeds that will be obtained. An order will be directed to those proceeds to effect a division in the ration 52.5:47.5 between the Wife and the Husband, taking into account the established values of the property that each holds.
Accordingly, orders will be made such that the Husband receives, or retains:
a)The Suburb G property (at a net figure of $230,000);
b)The motor vehicle 1 and household items (at $12,000);
c)Superannuation (at $11,400);
d)A portion of the City D sale proceeds such that his overall portion is at 47.5 per cent; and
e)An additional sum of $4,500 in respect of the valuation expenses.

Orders will be made such that the Wife receives or retains:
a)The motor vehicle 2 and household items (at $6,100);
b)A portion of the City D sale proceeds such that her overall portion is at 52.5 per cent.

Orders to achieve the 52.5:47.5 split

The overall pool can then be expressed as comprised of the amount to be held by the Husband at $253,400; the amount held by the Wife at $6,100; and the net proceeds of the sale of the City D property to be expressed as x.
Each party is then entitled to a fraction of the whole pool; in the Husband’s case, 0.475 of the pool; in the Wife’s case 0.525 of the whole pool. The portion of the sale proceeds required to make up this amount is then that party’s portion of the whole pool less the other assets of the pool that will be retained by that party.
This may be expressed as the party’s fraction, multiplied by the whole pool, less the amount to be otherwise retained by that party. A further adjustment must then be made for the costs of the valuation of the City D property.
The Husband’s entitlement from the proceeds:
0.475 ($253,400 + $6,100 + x) - $253,400 + $4,500 (valuation expense)
The Wife’s entitlement:
0.525 ($253,400 + $6,100 + x) - $6,100 - $4,500 (valuation expense)

The costs application in relation to the adjournment application

The Husband seeks costs in relation to the contested adjournment of the Wife’s divorce application. The circumstances of the adjournment are set out in the judgment of 7 June 2019. Those costs, along with the costs of an application to deal with the costs in advance of the delivery of judgment are reserved to the delivery of this judgment.
Orders will be made to allow the parties to make submissions to bring those matters to finality, should they choose to pursue them.

Particular form of orders sought by the Husband

The Husband sought the dismissal of the proceedings brought by the Wife. Those proceedings have already been ended by the Wife discontinuing them.
It may be observed that the Husband sought a suite of orders regarding the sale of the City D property, imposing layered obligations upon the Wife in relation to the sale. For example, the Husband has sought orders as to the form of contract of sale to be stipulated by the Wife, as well as orders binding the Wife as to how she is to deal with the sale proceeds.
The orders proposed by the Husband add to the obligations imposed upon the Wife in respect of the sale, but do not increase the security of the Husband in terms of ensuring compliance with the orders in relation to the proceeds of sale.
The orders to be made bind the Wife in her conduct in China in relation to the sale. Her compliance (or otherwise) is not enhanced by imposing an obligation as to the form of contract as well as the actual dealing with the proceeds. The multi layered obligations should not be imposed as they do not promote compliance with the division proposed by the orders.
Further, the Husband sought orders relating to unfreezing and closing a Westpac account held by the parties, currently the subject of orders previously made in the Federal Circuit Court. The Husband seeks that the proceeds be paid to him. No evidence was led at the final hearing as to the balance available in this account. Clearly it is preferable that any Australian assets remain in the hands of the Husband by reason of enforceability. The absence of evidence as to the balance in this account raises the possibility of payment to the Husband skewing the division of property determined above.
The appropriate remedy is that the Husband retain the whole of the proceeds, remitting a portion to the Wife in accordance with the ration 52.5

:47.5, but only on the Wife’s compliance with the orders regarding the sale of the City D property and remittance of proceeds to the Husband. Until that occurs the Husband will be entitled to retain and use the whole of the proceeds of the account. On payment of the proceeds from the sale the Husband will, it might be anticipated, have sufficient funds to make the relevant payment.
The Husband has also sought orders in relation to the execution of documents by the Registrar. While it is desirable to minimise the burden on a party in the event of non-compliance by the other party with orders that infer the requirement for the execution of documents, it will be necessary for the Husband to identify both that relevant documents have not been signed, and also the particular documents that are required for signing.

The divorce

As noted in the previous proceedings, the Wife has applied for and is conceded to be entitled to a divorce. The divorce itself is not opposed. The adjournment of the divorce was only sought until the delivery of this judgment. Orders will accompany this judgment to effect the transfer of the divorce proceedings to the Registrar for the divorce to be promptly facilitated.

I certify that the preceding one hundred and twenty-two (122) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 10 February 2020.

Associate:

Date: 10 February 2020

Annexure 1: Orders Sought

It is ordered that the Orders sought by the Wife in her Response filed on 19 October 2018 are refused and dismissed.
That the Wife shall forthwith and no later than 42 days from the date of these Orders:
(a)Do all acts and things and sign all documents necessary to effect the sale of the property situate and known as C Street, B District, City D in the People's Republic of China ("the City D Property") at the earliest possible date, for the highest price obtainable or as recommended by an Agent nominated by the parties in writing and the Contract for Sale or equivalent shall specify as a term that the proceeds of sale:
(i)To pay the real-estate agent's commission or equivalent and other usual adjustments and expenses on sale; and
(ii)That the balance shall then be divided and paid equally between the Husband and the Wife by deposit into two separate bank accounts styled in each party's respective sole names on an equal basis.
(b)The Wife shall, upon settlement of the sale of the City D property in accordance with Order 2.a. to 2.a.ii. (inclusive), do all acts and things and sign all documents necessary, to cause the sale proceeds of the City D property to be disbursed in the following manner and priority:
(i)To pay the real-estate agent's commission or equivalent and other usual adjustments and expenses on sale; and
(ii)Divide and pay the balance equally between the Husband and the Wife by depositing the equally divided funds into two separate bank accounts styled in each party's respective sole names on an equal basis.
That to confirm the Wife's compliance with Order 2, the Wife shall tender to the Husband within 60 days from the date of these Orders, a record evidencing the sale of the City D property and by no later than 90 days from the date of these Orders, confirmation that the proceeds of sale of the City D Property have been equally divided and deposited into two separate bank accounts styled in each party's respective sole names on an equal basis.
That Order 2, being the injunction, made in the Federal Circuit Court of Australia on 31 July 2019, freezing the Westpac Banking Corporation bank account number #...74 and #...82 be discharged.
That within seven days from the date of these Orders, the Husband and Wife shall do all acts and things and sign all documents as may be necessary to immediately uplift the freeze that has been placed on the Westpac Banking Corporation bank account number #...74 and #...82, and thereafter the parties shall both do all acts and things and sign all documents necessary to provide the Husband forthwith with a distribution of all remaining funds within that account and thereafter the parties shall do all acts and things and execute all documents necessary to close the account simultaneously and in compliance with Order 6.
That within 42 days of the date of these Orders, the Husband and the Wife shall do all acts and things and sign all documents necessary to discharge the mortgage secured on the title of the real property situate and known as E Street, Suburb G in the Australian Capital Territory being the whole of the land contained in … on Deposited Plan … with …units on Unit Plan Unit Plan … currently registered in the names of Mr Hett and Ms Seer as Joint Tenants ("the Suburb G Property"), including but not limited to the Husband paying the whole of the amount, in full, which is outstanding to the Westpac Banking Corporation.
Contemporaneously with Order 6, the Husband and the Wife shall do all acts and things and sign all documents necessary to transfer to the Husband all of the Wife's right, title and interest in the Suburb G Property.
Neither the Husband nor the Wife shall mortgage or otherwise offer the Suburb G Property for security other than for the purposes of compliance with Order 6 above.
In the event that the Wife, Ms Seer, refuses or neglects to sign within 14 days of a written request to do so by the Husband, any Deed or Instrument or document(s) necessary to put into effect any or all of the terms of these Orders then the Registrar of the Canberra Registry of the Family Court of Australia is appointed pursuant to the provisions of Section 106A of the Family Law Act to do all acts and things necessary to give validity and operation to the deed or instrument or such document(s).
If the Wife fails to comply with Orders 5 to 7, the Applicant Husband may request the Registrar of this Court to do all acts and things necessary to give validity and operation to the following Instruments and/or documents without the requirement of filing an Affidavit:
(a)Transfer of Land in relation to the Suburb G Property;
(b)Discharge of Mortgage in relation to the mortgage secured on the title of the Suburb G Property.
(c)Any Form required to be completed by the Westpac Banking Corporation to enable the parties' compliance with Order 5.
Except as specifically provided for by these Orders to the contrary, following the Settlement Date and upon full compliance by the parties with Order 7 and Order 8, the Husband shall indemnify and keep indemnified the Wife in relation to any liability of whatsoever nature, howsoever and whensoever arising in relation to the discharge of the Suburb G Property Mortgage.
That the Husband and the Wife shall do all acts and things and sign all documents necessary to:
(a)Withdraw all funds, if any, held in any joint account held by the parties and thereafter divide the remaining balance (if any) equally between the Husband and the Wife.
(b)Simultaneously with compliance with Order 12.a. close any joint bank accounts.
That unless otherwise specified in any Order to the contrary, the Wife be declared the sole owner, at law and in equity, as against the Husband, of all other items of property including:
(a)All personal property, including items of personalty, jewellery, furniture, furnishings and any other effects now in her possession or control.
(b)The motor vehicle in her name;
(c)All bank or credit union accounts standing in her sole name;
(d)All other assets, financial resources, superannuation, property, chattels or personalty of whatsoever nature and wheresoever situate in Wife's name, and/or in her possession and/or control.
That unless otherwise specified in any Order to the contrary, the Husband be declared the sole owner, at law and in equity, as against the Applicant Wife, of all other items of property including:
(a)All personal property, including items of personalty, jewellery, furniture, furnishings and any other effects now in his possession or control.
(b)The motor vehicle in his name.
(c)All bank or credit union accounts standing in his sole name.
(d)All interests in life insurance policies and superannuation funds standing in his sole name.
(e)All other assets, financial resources, superannuation, property, chattels or personalty of whatsoever nature and wheresoever situate in the Husband's name, and/or in his possession and/or control.
Except as specifically provided for by these Orders to the contrary:
(a)Each of the Wife and the Husband releases the other from all debts owing from one to the other.
(b)The Wife shall be solely responsible for any debt or liability in her sole name as at the date of these Orders and shall indemnify the Husband and keep the Husband indemnified with respect to those liabilities.
(c)The Husband shall be solely responsible for any debt or liability in his sole name as at the date of these Orders and shall indemnify the Wife and keep the Wife indemnified with respect to those liabilities.
That service upon the Wife by way of email is deemed to be valid and effective service.
That, in accordance with Order 16, the production of copies of sent emails by the Husband ( or his legal representatives on his behalf) to the Wife at the following email addresses and shall be deemed sufficient proof to the Registrar of valid and effective service upon the Wife:
(a)       "…";
(b)       "…"; and
(c)       "…"

Enforcement Orders

In the event that the Wife fails to comply with the terms of Order 2 and in the event of default of the Wife having paid to the Husband the entirety of the payments identified in Order 2.b.ii. and pursuant to s. 112AD and l 12AE of the Family Law Act 1975 (Cth), the Wife, Ms Seer born … is sentenced to:
(a)Serve a term of imprisonment for a period of 12 months on the following conditions:
(i)That the sentence ought to be suspended after six months to afford the Wife the opportunity to remedy her contraventions.
(ii)That the suspension pursuant to Order 18.a.b. of these Orders is conditional upon the Wife's good behaviour and her repayment of the monies owed in accordance with the Orders within a period of six months.
(iii)If the Wife does not pay the monies then outstanding, she would be remanded back into custody to serve the balance of the head sentence.
To give effect to Order 18 of these Orders, a Warrant of Commitment forthwith issue in the usual form and upon the Wife's arrival in the jurisdiction of the Commonwealth of Australia.
The operation of Orders 18 and 19 of these Orders be stayed pending the Wife filing and serving a formal application for a stay of Orders pending appeal within fourteen (14) days of today, and upon such filing the Orders will be stayed pending the hearing and determination of the formal application for a stay of Orders pending appeal.
That the Husband be granted leave to file further material in support of his Application in a Case, filed on 25 June 2019 and adjourned to 4 November 2019, and that the Wife be provided a further 14 days to file any material in reply, and that the Husband's Application in a Case is set down for hearing on a date to be affirmed by the Court.