Federal Circuit and Family Court of Australia
(DIVISION 1)
Jia & Yong [2022] FedCFamC1F 591
File number(s): DGC 2707 of 2020 Judgment of: WILLIAMS J Date of judgment: 18 August 2022 Catchwords: FAMILY LAW – PROPERTY – Division of property interests – Where it is just and equitable to adjust the parties property interests – Marriage of around 14 years – Contributions – Where the extent of the husband’s greater initial contributions is disputed – Consideration of weight to be accorded to husband’s contribution of vacant land at the commencement of the relationship – Retrospective valuation of vacant land – Expert report of land not of probative value and unable to be relied upon – Consideration of the composition of the asset pool including the extent of a mortgage and which party is to retain it – Where the husband’s claim the drawdowns on the mortgage were applied to construction costs is disputed – Contributions during the relationship – Significant increase in value of vacant land due to rezoning characterised as a windfall – Whether the husband or wife retain particular properties including income earning commercial properties – Where the wife remains the primary carer of the children – Contributions assessed at 47.5 per cent to wife and 52.5 per cent to husband – Consideration of s 75(2) factors – Where the husband has failed to comply with his obligations to make full and frank disclosure – Consideration of future needs – Adjustment of 1.5 per cent made in favour of the wife – Child Support – Where both parties sought a departure from the administrative assessment of child support – Where the wife seeks payments greater than the administrative assessment – Where the husband seeks payment of the children’s private school fees to be credited against administrative assessment – Orders for child support made in accordance with the administrative assessment and for the husband to pay the children’s private school fees. Legislation: Child Support (Assessment) Act1989 (Cth) ss 111, 112, 116, 117, 118, 123A, 124
Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 75, 79
Cases cited: Bevan & Bevan [2013] FamCAFC 116
Brodie & Brodie [2009] FamCAFC 6
Chancellor & McCoy [2016] FamCAFC 256
Chang & Su [2002] FamCA 156
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588
Dickons & Dickons [2012] FamCAFC 154
Dwyer v McGuire (1993) FLC 92-420
Gould & Gould [2007] FamCA 609
Hartnett v Baker (1995) FLC 92-620
Hides & Hatton (1997) 21 Fam LR 855
In the Marriage of Hickey [2003] FamCA 395
Jabour & Jabour (2019) FLC 93-898
Kannis & Kannis [2002] FamCA 1150
Kennon v Kennon (1997) FLC 92-757
Lightfoot v Hampson (1996) FLC 92-663
Lovine & Connor (2012) FLC 93-515
Manolis & Manolis (No. 2) [2011] FamCAFC 105
Pierce& Pierce (1999) FLC 92-844
Prpic & Prpic (1995) FLC 92-574
Snipper & James [2022] FedCFamC1F 266
Stanford v Stanford (2012) 247 CLR 108
Steinbrenner and Steinbrenner [2008] FamCAFC 193
Varnham & Moses [2021] FLC…
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- AGLC
- Jia & Yong [2022] FedCFamC1F 591
- Case
- [2022] FedCFamC1F 591
- Decision Date
CaseChat Overview and Summary
This case involved a property settlement between a husband and wife following their separation. The wife, aged 50, had worked in administrative roles and was a director of some family companies. The husband, aged 63, operated a business and had skills in property development. The couple had two children and had been married since 2005. They had developed properties together, with the husband purchasing a block of land in 1997 that was later subdivided. The wife moved to Brisbane in 2014 to avoid family violence and returned to Melbourne in 2016. The wife commenced proceedings in August 2020, and the trial was rescheduled for May 2022. The primary legal issue before the court was the division of the asset pool between the parties. The court had to consider both financial and non-financial contributions, the future needs of the parties, and other relevant factors.
The court assessed the contributions of both parties, both financial and non-financial, to determine their respective shares of the asset pool. The court found the husband's contributions to be 52.5% and the wife's contributions to be 47.5%. The court also considered the future needs of the parties and determined that a minor adjustment of 1.5% in favour of the wife was appropriate. The court then divided the asset pool accordingly, awarding the wife 49% and the husband 51%. The court also addressed the allocation of specific properties between the parties, ultimately deciding on a division that resulted in the wife receiving $9,324,020 and the husband receiving $9,704,593, with a differential of $380,573 in favour of the husband.
The court ordered that the wife should retain certain residential and industrial properties, while the husband would retain vacant residential land and commercial properties. The court also determined that the extent of the mortgage liability to be included in the asset pool was $2 million, which would encumber one of the properties allocated to the wife. This decision resulted in a property settlement that took into account the contributions and needs of both parties, as well as the specific properties each party would retain.
The court assessed the contributions of both parties, both financial and non-financial, to determine their respective shares of the asset pool. The court found the husband's contributions to be 52.5% and the wife's contributions to be 47.5%. The court also considered the future needs of the parties and determined that a minor adjustment of 1.5% in favour of the wife was appropriate. The court then divided the asset pool accordingly, awarding the wife 49% and the husband 51%. The court also addressed the allocation of specific properties between the parties, ultimately deciding on a division that resulted in the wife receiving $9,324,020 and the husband receiving $9,704,593, with a differential of $380,573 in favour of the husband.
The court ordered that the wife should retain certain residential and industrial properties, while the husband would retain vacant residential land and commercial properties. The court also determined that the extent of the mortgage liability to be included in the asset pool was $2 million, which would encumber one of the properties allocated to the wife. This decision resulted in a property settlement that took into account the contributions and needs of both parties, as well as the specific properties each party would retain.
Orders
Orders of the court
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Background
Background to the litigation
The reasons for my determination follow.background The applicant wife is aged 50 years and the respondent husband is aged 63 years. The husband operates a business and has skills in property development. The wife is a homemaker and parent, who previously carried out administrative roles in the family businesses. The wife was born in Country O and moved to Australia in 1998. In 1999 she obtained a diploma from a TAFE in Melbourne and from 2013–2014 she undertook postgraduate studies at YY University. From 2003 until 2014 she worked for the husband’s business in various capacities including administration and customer service, and was a director of some of the family companies. The husband was born in Country V. At around 16 years of age, he moved to Europe and then later Country W where he obtained a bachelor’s degree. He worked in Country W prior to moving to Australia in 1984. He then commenced work as a self-employed tradesperson under the name S Company. Both parties were previously married, with the wife’s divorce occurring in 2003 and the husband’s divorce in 2003. The wife resolved property matters with her former husband in 2003. The husband and his first wife were embroiled in protracted litigation about their property matters which did not resolve until 2009. In 2003, the wife commenced working for the S Company in administration and customer service. The parties commenced a relationship sometime thereafter and in late 2003 they commenced cohabitation prior to marriage in 2005. There are two children of the marriage, X born in 2006 and Y born in 2010. Both children attend U School, where the husband has paid the private school fees since separation. The husband has three older children from his first marriage aged 34, 32 and 29. Two of the husband’s children lived with the parties during their marriage for a number of years. During the marriage, the husband operated a number of businesses and the parties bought and sold a number of residential properties. From 2014 onwards, the parties developed a vacant block of land in Q Street, Suburb P, which was subdivided into residential lots. The husband purchased the block of land in 1997, which was the subject of a hotly contested property dispute between himself and his first wife, which resolved in 2009. The profits from the subdivision were applied, via three corporate entities, to the acquisition and development of various properties, including commercial developments. In 2014, the wife and children moved to Brisbane where they remained prior to returning to Melbourne in 2016. The wife asserts she moved to avoid family violence which was perpetrated by the husband. Subsequent to resuming cohabitation, the parties separated under the same roof in January 2019 prior to the husband moving out of the family home in about April 2020. The wife commenced the current proceedings in 7 August 2020. The trial was initially scheduled to commence on 4 April 2022, but was unable to be reached and was rescheduled to commence on 23 May 2022.THE PROPOSALS OF THE PARTIESThe applicant wife's proposal
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Having regard to my comments as to contribution and weighing up and assessing the myriad of contributions of the parties, both financial and non-financial, direct and indirect, at the commencement of the relationship, during the relationship and post, and their contributions as homemaker and parents, I assess those contributions as 47.5 per cent to the wife and 52.5 per cent to the husband.Discussion and Conclusion as to future needs and section 75(2)(o) Paragraphs 118–136 hereof refer to the future needs of the parties and paragraphs 137–146 refer to s 75(2)(o) and my determination that there should be a minor adjustment for future needs of the parties, as the resources and income of each party and the child support I intend to order, will substantially cater for the future needs of each party. I determine the adjustment should be 1.5 per cent in favour of the wife.Adjustment of Interests As a result of my conclusions and findings made relating to contributions, future needs and factors to be considered pursuant to s 75(2)(o), I am satisfied that it is just and equitable to divide the asset pool, as determined by me as to 49 per cent to the wife and 51 per cent to the husband. This division will result in the wife receiving $9,324,020 and the husband receiving $9,704,593. That equates to a differential of $380,573 in favour of the husband.Which property should be allocated to which party? Another contentious issue during final submissions was which party should receive which properties. The wife’s proposal was for her to retain the following properties:(a)Z Street, Suburb AA (her home);(b)CC Street, Suburb K (a residential property);(c)L Street City M, Country O;(d)J Street, Suburb K (a residential property);(e)F Street, Suburb G (vacant land);(f)D Street, Suburb E (industrial property). The husband’s proposal was for him to retain the following properties:(a)2 BB Street, Suburb P (vacant residential land);(b)3 BB Street, Suburb P (vacant residential land);(c)4 BB Street, Suburb P (vacant residential land);(d)5 BB Street, Suburb P (vacant residential land);(e)NN Street, Suburb P (commercial properties);(f)MM Street, Suburb ZZ (commercial property where husband operates R Company). Both parties sought the properties at 1 BB Street, Suburb P and 3 N Street, Suburb P be retained by the other party. The husband proposed and the wife agreed he would also retain his interest in R Pty Ltd, cash in B Pty Ltd and some machinery. At the conclusion of the final submissions of counsel for the husband, the dispute had narrowed to whether the wife should receive the D Street, Suburb E property unencumbered or subject to the mortgage secured against it. The wife sought the husband either discharge or transfer the mortgage to another property, and the husband sought the existing mortgage should remain encumbering the property. The wife accepted the extent of the mortgage should be $2 million, whereas the husband contended it should be $2.25 million. I have found that the extent of the mortgage liability to be included in the asset pool is $2 million.
Ratio Decidendi
Legal Principle Established
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