FAMILY LAW – PROPERTY – Adjustment of property pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) – Where parties agreed contributions were equal – Where husband sought 50/50 division of assets – Where wife sought a 12.5 per cent adjustment for future needs plus further adjustment for justice and equity because of non-disclosure by the husband and overall division 80/20 in her favour – Where wife argued substantial non-disclosure by the husband left the quantum of the parties’ net assets unknown – Where wife sought to receive all monies held in Australia and property jointly held by the husband and the second respondent in Country T – Where wife did not establish husband’s deficiencies in disclosure merited substantial adjustment in her favour – Where wife did not establish her allegations the husband engaged in collusion and fraud with children to dissipate marital assets – Where no factual basis was established to attribute value to companies and bank accounts the wife claimed were owned by the husband – Where no single expert was agreed to value property – Where both parties sought addbacks – Adjustment of 7 per cent in favour of the wife under s 79(4)(e) – Overall division 57/43 in favour of the wife – Division of assets achieved by release of trust monies in sum of $658,010 to the wife and $24,871 to the husband.
FAMILY LAW – JURISDICTION – Where the second respondent has not engaged with proceedings – Where it is unclear if the second respondent was properly served – Where service was required outside the Australian jurisdiction – No dispute that rules of Pt 2.7 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) were not complied with – Where there is doubt if the Court has jurisdiction in relation to the second respondent and her property in Country T – Where the wife sought an in personam injunction against the husband and second respondent to transfer to her property in Country T – Where other reasons for refusing the in personam order do not require the question of jurisdiction to be determined.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Huang & Wen (No 3) [2025] FedCFamC1F 71
Case
[2025] FedCFamC1F 71
Decision Date
CaseChat Overview and Summary
The case Huang & Wen (No 3) involved a dispute between Ms Huang (the wife) and Mr Wen (the husband) over the division of their marital assets. The wife sought a 12.5 per cent adjustment for her future needs, plus further adjustments for justice and equity due to the husband's non-disclosure and alleged fraud and collusion. The husband sought an equal division of assets. The court had to determine whether the wife's claims for non-disclosure and fraud warranted a substantial adjustment in her favour and whether there was a factual basis for attributing value to the companies and bank accounts claimed by the wife. The wife argued that the husband's substantial non-disclosure left the quantum of the parties’ net assets unknown, and she sought to receive all monies held in Australia and the jointly held property in Country T. However, the court found that the wife did not establish that the husband's deficiencies in disclosure merited a substantial adjustment in her favour, nor did she establish her allegations of collusion and fraud with the children to dissipate marital assets. Additionally, the court found no factual basis to attribute value to the companies and bank accounts the wife claimed were owned by the husband. The court also noted that there was no single expert agreed to value the property.
The court considered the contributions of both parties and the factors set forth in sections 79 and 75(2) of the Family Law Act 1975 (Cth). The parties agreed that the assessment of contributions should be equal. The court found that an equal assessment of contributions was appropriate. The central issues concerned section 79(4)(e) and the section 75(2) factors for adjustment for future needs. The court found that the wife did not establish her deficiencies in disclosure merited a substantial adjustment in her favour and did not establish her allegations of collusion and fraud with the children to dissipate marital assets. The court ordered an adjustment of 7 per cent in favour of the wife under section 79(4)(e) and an overall division of 57/43 in favour of the wife. The division of assets was achieved by releasing trust monies in the sum of $658,010 to the wife and $24,871 to the husband.
The court also considered the issue of jurisdiction in relation to the second respondent, Ms E, who had not engaged with the proceedings and whose service was unclear. The court found that there was doubt if the court had jurisdiction in relation to the second respondent and her property in Country T. However, the court found that other reasons for refusing the in personam order did not require the question of jurisdiction to be determined. The court dismissed all outstanding applications and noted that any application seeking an award of costs must be filed and served with an affidavit in support within 28 days of the date of the orders.
Orders
Orders of the court
SYC 1300 of 2018
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:
MS HUANG
Applicant
AND:
MR WEN
First Respondent
MS E
Second Respondent
ORDER MADE BY:
HARPER J
DATE OF ORDER:
12 FEBRUARY 2025
THE COURT ORDERS THAT:
1. Within 14 days of the date of these orders, the Applicant Wife (“wife”) and the Respondent Husband (“husband”) do all such things, acts and deeds and sign all documents necessary to cause to be paid to the wife the total sum of $658,010 and to the husband the total sum of $24,871, of the monies held in trust by William Chan & Co Lawyers and Notaries on behalf of the parties.
2. Subject to the above orders, the wife shall retain all interests in, and entitlement to all personal and real property now in her respective possession or control.
3. Subject to the above orders, the husband shall retain all interests in, and entitlement to all personal and real property now in his respective possession or control.
4. The wife is hereby declared solely liable for all liabilities in her sole name respectively and shall indemnify and keep indemnified the husband in respect of same.
5. The husband is hereby declared solely liable for all liabilities in his sole name respectively and shall indemnify and keep indemnified the wife in respect of same.
6. All outstanding applications are otherwise dismissed.
7. Any application seeking an award of costs is to be filed and served with an affidavit in support within 28 days of the date of these orders, and in the event no application is filed within the time specified, there shall be no order as to costs up to and including the date of these orders.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
For his part, the husband argued that he made all the financial contributions and the wife made the parenting contributions and contended he had provided the required disclosure and the only significant asset he held in Country T was a 50 per cent share in the Country T property. I address the questions of the value of his interest later. He sought to retain his interest in the Country T property and his interest in the companies. The husband contends the overall property division should be 50/50. He sought the trust monies be released to effect a 50/50 division with each party retaining their superannuation interests.BRIEF BACKGROUND The husband was born in 1961 in Country T. He is 63 years old. He moved to Australia in 1990 and is an Australian citizen. In 2003 he returned to Country T for work and continues to reside there. He is self-employed as a Director of a company he founded called G Ltd. He receives $750 per week in director’s fees. The wife was born in 1960 in Country T. She is 64 years old. She immigrated to Australia in 1988 and is an Australian citizen. She is unemployed and a full-time carer for her mother. In 1990 the wife was one of two directors and shareholders in a company called V Pty Ltd. The business manufactured products and the wife earned approximately $400 per week. In 1994 the husband was employed by V Pty Ltd as a driver. In early 1995 the wife received an inheritance of $100,000 from her grandfather. In mid-1995 the parties purchased a property at W Street, Suburb X (“Suburb X”) for $240,000. The purchase was funded using a portion of the wife’s inheritance money to pay the 10 per cent deposit and with a mortgage for the balance. In 1996 the husband stopped working for V Pty Ltd and found new employment at another company. In 1997 the husband became an Australian citizen and relinquished his Country T citizenship. In 2000 the parties sold Suburb X for between $320,000 to $534,000. There was disagreement about the exact sale price which I cannot resolve on the available evidence. In 2000 the parties purchased a property at Y Street, Suburb Z (“Suburb Z”) for between $440,000 to $480,000. The purchase was funded using proceeds from the sale of Suburb X for the 20 per cent deposit and with a mortgage for the balance with Westpac. It appears the parties established a joint account with Westpac at this time and the monthly repayments and expenses for the property were paid from this account. In 2002 V Pty Ltd ceased trading and the wife founded and became the sole director and shareholder of a company called AA Pty Ltd. She earned $500 per week from this business. The husband also worked at AA Pty Ltd in various roles including as a driver and quality control inspector. He earned $350 per week. In 2003 the husband accepted employment in Country T for a company called BB Company. The wife remained in Australia with the two children who were 7 years and 5 years of age. The husband received an annual salary of USD80,000, of which 50 per cent was paid into his Country T bank account and 50 per cent was paid into an Australian bank account held by the wife for her use. The husband stated he tried to minimise his living costs so he could send additional money back to the wife. There is no dispute that whilst in Country T between 2003 up to the date of divorce in 2018 the husband regularly sent money to the wife for family expenses and to service the Suburb Z mortgage.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
The husband sought to include a liability for $46,411 for his share of the mortgage for the Country T property. I referred to this already above at [109]. The wife argued the item should be excluded as it was not mentioned in earlier iterations of the balance sheet and only raised as being in contention when the final joint balance sheet was received on the second last day of trial. The husband said it was known that the Country T property was mortgaged and documents had been provided showing the balance owing. The wife did not accept the provided documents related to the Country T property and suggested they pertained to a separate property owned by Ms E. The documents are in Country T language and no certified English translation was provided. I do not accept the husband has proved the existence or quantum of this liability and I will exclude it.Conclusions and asset pool Based on these conclusions, the asset pool is as follows (figures rounded): Consequently, if there was no property adjustment, with the percentages rounded, the husband would hold 60 per cent and wife would hold 40 per cent of the net assets per cent. As noted, both parties agreed there should be a just and equitable property adjustment, and it was therefore not appropriate to leave the assets and liabilities undisturbed. I turn now to consider the application of Pt VIII of the Act and the factors set forth in s 79 and s 75(2).CONTRIBUTIONS I will deal first with s 79 of the Act. Section 79(4) sets out the considerations to be taken into account by the Court in determining what order (if any) should be made under s 79 in property settlement proceedings. Assumptions about equality of contributions should not be made, and there is no assumption that equal division is the starting point for any exercise of the Court’s discretion (Mallet at 610, 613, 625, 635–636, and 646–647). But it was an agreed position between the parties that the assessment of contributions pursuant to ss 79(4)(a), 79(4)(b) and 79(4)(c) should be equal because there was no basis in the evidence to distinguish them. The wife made a submission under s 79(4)(d) in her Case Outline about limits to her earning capacity which I will take into account under s 75(2). Section 79(4)(f) and s 79(4)(g) are not relevant. I am satisfied an equal assessment of contributions is appropriate because the ultimate assessment of contributions should be made without “giving over-zealous attention to the ascertainment of the parties’ contributions” (Norbis v Norbis (1986) 161 CLR 513 at 524). The central issues raised by the parties concerned s 79(4)(e) and the s 75(2) factors for adjustment for future needs, to which I now turn. SECTION 75(2) ADJUSTMENT The Act requires me to take into account the matters referred to in s 75(2) of the Act, so far as they are relevant, when considering what orders should be made in these proceedings. As disclosed in the arguments of the parties, the following matters are relevant.(a) the age and state of health of each of the parties