FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Jun & Genyu [2023] FedCFamC2F 395
File number(s): MLC 9353 of 2021 Judgment of: JUDGE BOYMAL Date of judgment: 6 April 2023 Catchwords: FAMILY LAW – Property – small asset pool – assessment of contributions and future considerations – whether money provided by husband’s parents a loan or a gift – no order made for lump sum spousal maintenance – payment of non-periodic child support Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 75, 79
Cases cited: Bevan & Bevan [2013] FamCAFC 116
Biltoft and Biltoft (1995) FLC 92-614
Dawson & Dawson [2012] FamCAFC 22
Dickons & Dickons [2012] FamCAFC 154
G & G [1984] FamCA 60
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143
Horrigan & Horrigan [2020] FamCAFC 25
Jabour & Jabour [2019] FamCAFC 78
Stanford & Stanford (2012) 247 CLR 108
Division: Division 2 Family Law Number of paragraphs: 162 Date of hearing: 14, 15 and 16 March 2023 Place: Melbourne Counsel for the Applicant: Ms Borger Solicitor for the Applicant: Robinson Gill Counsel for the First Respondent: Mr Murphy Solicitor for the First Respondent: Zenith Lawyers and Consultants Counsel for the Second Respondent: Mr Foo Solicitor for the Second Respondent: Oakfair Lawyers ORDERS
MLC 9353 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR JUN
Applicant
AND: MS GENYU
First Respondent
MS HENG
Second Respondent
ORDER MADE BY:
JUDGE BOYMAL
DATE OF ORDER:
6 APRIL 2023
THE COURT ORDERS THAT:
Sale of Suburb C
1.Within 30 days, the wife do all acts and things and sign all documents required to sell wholly out of Court the real property situate and known as B Street, Suburb C (Suburb C) and for that purpose:
(a)the husband and wife have the joint conduct of the sale;
(b)the sale agent shall be as chosen by the wife from the list of three agents proposed by the husband in writing (the sale agent);
(c)the wife do all acts and things to authorise the sale agent to liaise with the husband and/or his legal representative and the second respondent and/or her legal representative for the purpose of keeping the husband and the second respondent informed fully of the progress of the sale;
(d)the sale price shall be as agreed between the parties, and failing agreement the sale price shall be the price a purchaser is prepared to pay by written offer being at least $1,045,000.00 (being 95% of the valuation of $1,100,000.00 by Ms D of E Company as at March 2023); and
(e)unless otherwise agreed between the parties in writing, the completion date for any contract of sale entered by the wife shall be not more than 90 days.
2.Upon the settlement of the sale of Suburb C, the proceeds be applied as follows:
(a)first, to pay all costs of sale including sale agent commission;
(b)secondly, to discharge the registered mortgage … in favour of the Westpac Banking…
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- Jun & Genyu [2023] FedCFamC2F 395
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- [2023] FedCFamC2F 395
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CaseChat Overview and Summary
The court found that the money provided by the husband's parents was a loan rather than a gift, based on the evidence provided and the circumstances of the case. Regarding the property distribution, the court ordered the sale of a property located in Suburb C, with the proceeds to be applied to various debts and to the parties themselves. Ms Genyu was granted sole use of the property pending the sale, while both parties were required to indemnify each other against debts associated with the properties they received. The court also ordered specific payments for non-periodic child support, ensuring that these payments would not affect any periodic child support obligations. Notably, the court dismissed Ms Genyu's application for lump sum spousal maintenance.
The court's decision resulted in a comprehensive set of orders governing the sale of the property, the division of assets, and the payment of child support. The orders specified the method of sale, the application of sale proceeds, and the responsibilities of each party pending the sale. Additionally, the court detailed the division of personal property and the indemnification of debts, ensuring clarity and fairness in the distribution of assets. The final orders discharged all previous orders and dismissed any outstanding applications.
Orders
Orders of the court
MLC 9353 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR JUN
Applicant
AND:
MS GENYU
First Respondent
MS HENG
Second Respondent
ORDER MADE BY:
JUDGE BOYMAL
DATE OF ORDER:
6 APRIL 2023
THE COURT ORDERS THAT:
Sale of Suburb C
1. Within 30 days, the wife do all acts and things and sign all documents required to sell wholly out of Court the real property situate and known as B Street, Suburb C (Suburb C) and for that purpose:
(a) the husband and wife have the joint conduct of the sale;
(b) the sale agent shall be as chosen by the wife from the list of three agents proposed by the husband in writing (the sale agent);
(c) the wife do all acts and things to authorise the sale agent to liaise with the husband and/or his legal representative and the second respondent and/or her legal representative for the purpose of keeping the husband and the second respondent informed fully of the progress of the sale;
(d) the sale price shall be as agreed between the parties, and failing agreement the sale price shall be the price a purchaser is prepared to pay by written offer being at least $1,045,000.00 (being 95% of the valuation of $1,100,000.00 by Ms D of E Company as at March 2023); and
(e) unless otherwise agreed between the parties in writing, the completion date for any contract of sale entered by the wife shall be not more than 90 days.
2. Upon the settlement of the sale of Suburb C, the proceeds be applied as follows:
(a) first, to pay all costs of sale including sale agent commission;
(b) secondly, to discharge the registered mortgage … in favour of the Westpac Banking Corporation (the Suburb C mortgage);
(c) thirdly, to pay the second respondent the sum of $271,254.00 via her solicitor’s trust account; and
(d) the balance to the wife, via her solicitor’s trust account.
Pending the sale of Suburb C
3. Pending the sale of Suburb C:
(a) the wife have sole use and occupation of Suburb C;
(b) the wife be solely responsible, to the exclusion of the husband, for paying all outgoings in respect of Suburb C including all mortgage instalments relating to the Suburb C mortgage as and when they fall due, all council rates, and all utilities and connected services accounts as and when they fall due;
(c) the wife do all acts and things to comply with the requests of the sale agent to market and sell Suburb C including providing keys to the sale agent and facilitating inspections at the direction of the sale agent; and
(d) save for complying with the provisions of these orders, each of the parties is restrained by injunction from dealing in any way with their interest in Suburb C.
Remaining property of the parties
4. Within 14 days of the date of these orders, the wife make available for the husband’s collection:
(a) the Motor Vehicle 1; and
(b) the Collection 1.
5. Forthwith, the wife retain for her sole use and benefit and free from claim by the husband:
(a) all furniture and chattels presently within Suburb C;
(b) her interest in F Pty Ltd;
(c) the jewellery collection;
(d) her superannuation interests; and
(e) any other personal property in her possession and/or control including any chose in action.
6. Forthwith, the husband retain for his sole use and benefit and free from claim by the wife:
(a) the Motor Vehicle 1;
(b) the Collection 1;
(c) his superannuation interests; and
(d) any other personal property in his possession and/or control including any chose in action.
Debt and indemnities
7. Forthwith, each party will remain solely liable for any debt accumulated via any facility in their sole name including any credit card liability.
8. Forthwith, save for as specifically set out in these orders, the husband indemnify the wife, and keep her indemnified, in respect of any debt associated with or encumbering any property he receives or retains pursuant to the terms of these orders.
9. Forthwith, save for as specifically set out in these orders, the wife indemnify the husband, and keep him indemnified, in respect of any debt associated with or encumbering any property she receives or retains pursuant to the terms of these orders.
10. Forthwith, the husband be solely responsible for paying any further funds remaining outstanding and due to the second respondent noting that the second respondent is owed $271,254.00 and the net proceeds of sale of Suburb C may not be sufficient to repay in full this amount.
Non-periodic child support
11. Forthwith, pursuant to sections 124 and 127 of the Child Support (Assessment) Act 1989 (Cth), the husband pay the wife, by way of non-periodic child support one half (50%) of all out of pocket medical expenses incurred in respect of the child X born in 2020.
12. For the purpose of implementing order 11 herein:
(a) “out of pocket” means all expenses not paid for by Medicare, private health insurance, or funding provided via the National Disability Insurance Scheme (NDIS);
(b) the wife shall pay the costs at first instance and provide to the husband, via his nominated email address all invoices for services claimed and receipts indicating proof of payment within 7 days of her receiving same;
(c) the husband shall reimburse the wife for one half of the costs, via electronic transfer to her nominated bank account, within 7 days of him receiving proof of expenditure and payment as set out in order 12(b) herein; and
(d) the wife shall provide to the husband an updated NDIS plan for the child within 7 days of her receiving any revised plan.
13. Pursuant to section 125 of the Child Support (Assessment) Act 1989 (Cth) the funds paid by the husband pursuant to order 12 herein is not to be credited against any periodic liability assessed against the husband by G Authority from time to time.
14. The wife’s application for lump sum spousal maintenance be and is hereby dismissed.
15. Within 28 days of these orders the second respondent file and serve written submissions in relation to any costs application.
16. Within 14 days thereafter, the husband and the wife file and serve any written submissions in response.
17. Within 7 days thereafter, the second respondent file and serve any written submissions in reply.
Miscellaneous
18. All previous orders be and are hereby discharged.
19. All extant applications be dismissed.
THE COURT NOTES THAT:
A. The husband intends to return the Motor Vehicle 2 to the wife upon his receipt of the Motor Vehicle 1 from the wife.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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