Loi and Danh

[2018] FCCA 3660

FEDERAL CIRCUIT COURT OF AUSTRALIA

LOI & DANH [2018] FCCA 3660

Catchwords:
FAMILY LAW – Property – where the wife left Australia in 2008 and flew to the Country A with the parties’ then 19 month-old son – where there has been no contact between the husband and the wife since then – where the husband now seeks a property settlement – contributions and s.75(2) factors – issues of credit.

Legislation:

Family Law Act 1975, ss.75(2), 75(2)(o), 79(2), 79(4)

Cases cited:

Stanford v Stanford (2012) FLC 93-495
Bevan & Bevan [2013] FamCAFC 116

Applicant: MR LOI

Respondent: MS DANH

File Number: DGC 1274 of 2017

Judgment of: Judge Small

Hearing dates: 29 & 30 November 2018

Date of Last Submission: 30 November 2018

Delivered at: Dandenong

Delivered on: 30 November 2018

REPRESENTATION

Counsel for the Applicant: Mr Carne

Solicitors for the Applicant: Wheeler Family Law

Counsel for the Respondent: In Person

Solicitors for the Respondent: None

ORDERS

1. Within 90 days of the date of these Orders, the Husband pay into an account nominated by the Wife the sum of $50,000.00 AUD (“the payment”).

2. Contemporaneously with the payment:

   (a)the Wife do all such acts and things and sign all such documents as may be required to transfer to the Husband at the expense of the Husband all of her right, title and interest in the real property situate at and known as Property F VIC being the whole of the land more particularly described in certificate of title volume …folio … (“the real property”);

   (b)the Husband indemnify the Wife against all payments and liability pursuant to the mortgage registered No. …to the Commonwealth Bank of Australia (“the mortgage”) and all apportionable rates, taxes and outgoings of or with respect to the real property of whatsoever nature and kind; and

   (c)the Husband discharge the mortgage against the real property and/or refinance it into his sole name.

3. In the event the Wife refuses or neglects to comply with any provision of this Order:

   (a)a Registrar of the Federal Circuit Court of Australia at Melbourne is hereby appointed to execute all deeds and documents in the name of the Wife and do all things and acts necessary to give validity and operation to these Orders; and

   (b)the Wife is ordered to pay all reasonable costs incurred by the other party for the purpose of enforcing this Order and providing his damages; and

   for the purpose of this Order, an affidavit setting out the Wife’s failure to comply with the Orders shall be sufficient evidence of neglect and default.

4. Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these any subsequent orders:

   (a)each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders;

   (b)each party forgo any claims they may have to any superannuation benefits belonging to or earned by the other party;

   (c)insurance policies remain the sole property of the owner named thereon;

   (d)each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and

   (e)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

5. The Husband shall have liberty to apply in relation to the operation of the Orders.

IT IS NOTED that publication of this judgment under the pseudonym Loi & Danh is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 1274 of 2017

MR LOI

Applicant

And

MS DANH

Respondent

REASONS FOR JUDGMENT

1. These reasons for judgment were delivered orally.  They have been corrected from the transcript.  Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. These are property proceedings between the applicant husband, Mr Loi, and the respondent wife, Ms Danh.

3. The parties were married in …1999 in Country B.  The husband had lived in Australia since 1995 and is an Australian citizen.  The wife came to Australia on a spouse visa in 2003, some four years after they were married. 

4. The parties have a son, [X] born …2006, and [X] lives and has always lived with his mother.  He is now 12 and lives in the Country A. 

5. The legal issues here are actually quite straightforward as they are the same as in every other family law property case coming before the Court.

6. First, I need to decide whether it is just and equitable in all the circumstances to make an alteration of the property interests of the parties. That decision is mandated by s79(2) of the Family Law Act 1975 (Cth) (“the Act”).

7. In the matter of  Stanford v Stanford (2012) FLC 93-518, the High Court said that where married parties buy property and live in it and share it, and then the marriage breaks down and they are unable to go on sharing that property, then it will be almost prima facie just and equitable to alter their property interests.

8. In the matter of Bevan & Bevan [2013] FamCAFC 116, decided shortly after that judgment, the Full Court of the Family Court said that the situation that the High Court described in Stanford essentially covered most cases – “the vast majority”, I think they said - that come before the Family Courts. 

9. In these circumstances, where these parties bought the property at Property F (“the Property F property”) and lived in it for five years before separation, and they no longer live in it together because of the separation, I am satisfied that it is just and equitable in all the circumstances, under section 79(2) of the Family Law Act, to alter the property interests of the parties.

10. The next thing I need to do is set out what the property pool to be divided between the parties consists of. 

11. Some of that is very easy.  There is the Property F property, which has been valued by a properly qualified valuer at $610,000.  That valuer is Mr C, and when he valued the property as at the current time, he also did a retrospective valuation at the time of separation in …2008.  At that time, he said it was worth about $290,000.

12. The evidence of the husband is that he thinks that at that time the mortgage stood at about $190,000.  Currently, the property is worth $610,000, with a mortgage over that property of about $140,000.00.  So there is equity in that property of about $470,000.00. 

13. There is also a motor vehicle 1 that belongs to the husband.  That vehicle was bought with the assistance of a trade-in using a motor vehicle 2 which was owned by the parties during the relationship.  They also had during the relationship a motor vehicle 3 which the husband says was bought before the marriage, and the wife says was bought after the marriage. That vehicle was sold after separation. In addition, the husband now owns a motor vehicle 4.

14. So the property consists of the house which has an equity of about $470,000; the motor vehicle 1 which is worth about $33,000, but has a liability against it of $21,000; and a motor vehicle 4 which the husband bought in 2017 for $156,000 and which was fully financed. The husband says that the motor vehicle 4 was totally financed because of his good credit rating, and there is no evidence to contradict that.  So the motor vehicle 4 is in the pool but it’s not effectively worth anything.

15. Therefore, the value of the property pool in Australia is $482,150[1].

    [1] $470,000 + $33,150 – $21,000 = $482,150

16. The husband says that there is also the wife’s interest in a property in the Country A, and the wife’s other assets.  The wife denies owning any other property or assets.

17. So when I consider the very first thing I need to decide, which is what the property pool to be divided actually consists of, there are issues of fact that are in dispute.

18. The wife says that at the time of separation in 2008, she fled with the then about 19-month-old [X] in fear for her life. 

19. She says that the husband had been the perpetrator of serious family violence against her throughout the relationship, and particularly in 2008 she describes two events, which, if accepted, amount to very serious family violence. 

20. The first occasion was when she was holding [X], and she says that the husband pushed her against a wall and choked her, and the violence that she describes was very serious. 

21. She also says that at the time of separation in early May of 2008, the husband was at home during the day and he pointed at her an implement which could be a meat chopper, it could be a vegetable chopper, but is certainly a fairly dangerous kind of implement if used as a weapon.  She says that the husband pointed that at her and threatened to kill her and the then 19-month-old [X], and told her to leave the house and Australia and never come back, or he would have her killed, or he would kill her himself.

22. She says she then left the house with the child, her purse in which there was no money, a bag of nappies in which she later found $5, and some milk that she had for [X].  She says she also had the passports which the husband gave her, and she fled the house in fear for her life. 

23. She could not tell me how or where she went immediately after she left the house, but she says that at some time – which may or may not have been on that day, but which from other evidence appears to have been 9 May 2008, she ended up at the Suburb L Shopping Centre, where she bought a $5 phone card, called her family in Country B and told them she needed money.  She says she did not tell them what she needed the money for, she just told them that she needed money, and that they immediately transferred funds to a money exchange facility in Suburb L, where she went and waited for the money to come through. She said that it came through within minutes and she withdrew it in cash.

24. It was her evidence that she then went to a travel agent and bought a one-way ticket to the Country A.  She says she went to the airport by taxi with [X] and only those items described above with her, and caught a plane to Country A.  I will return to her evidence about what happened then a little later.

25. Meanwhile, Mr Loi’s evidence is that he came home on a day around that time in early May 2008, to find the wife gone and a letter on the table, thanking him for supporting her in her visa application for Australia, and saying that she and [X] had gone. 

26. Mr Loi says that he was devastated to find his wife and child gone.  He had no idea where they were or where they had gone.  He says that he fell into a state of depression, and I think his own words were that he “went crazy” at that time, and that he withdrew over the next three months between $20,000 and $30,000 from the parties’ mortgage loan facility, and spent it on gambling, parties and drinking, and didn’t go to work. 

27. It was his evidence that it was only when the bank threatened to foreclose on the mortgage, and his employer stepped in, that he was able to pull himself together, go back to work, start paying the mortgage again, and get his life back on track.

28. He says that he tried to contact the wife’s mother, or her adoptive mother.  His evidence is that he contacted her in the Country A, and that the mother told him that his wife and son were not with her, and she didn’t know where they were. 

29. He then made no further attempts to find the wife because that was the only way he knew to try to find her. 

30. He then essentially got on with his life.  In 2010, some two years later, he re-partnered, and he now lives with that partner.  They have two children, sons aged one ([M]) and three ([N]), and they are expecting a third child in …2019.

31. At some point, he came to the realisation that he didn’t own the Property F property on his own, and that the wife in these proceedings had an interest in the property because both the property and the mortgage were registered in joint names.  Mr Loi says that he then sought the assistance of a lawyer, and the lawyer, in what I can only call an exemplary piece of forensic investigation, hired private investigators, one in Australia and one in the Country A, to see if they could find the wife.

32. The Australian investigator was not able to find anyone of the wife’s name.  The investigator in the Country A, which was a firm called Investigators, reported in August 2016 to the solicitor for the husband that they had found a person called Ms Danh, spelled the same way as the wife spells her name, in a little town called Town R in Country A. 

33. Investigators had found that this woman called Ms Danh lived in Town R in Country A.

34. The solicitor for the husband then wrote a letter to the wife at the address of Town R, and he also emailed it to an email address that was disclosed to him. In that letter, he told the wife that he was representing the husband, that the husband wished to conduct a property settlement of the property in Australia between the husband and the wife, and that he sought a response from her about the proposals that he was making.  That was on 22 August 2016. 

35. I return now to the wife’s evidence. She says that when she arrived in Country A in …2008, she called her best friend, a woman called Ms D who was her best friend as a child in Country B.  She says she does not know when Ms D went to the Country A, but she knew that she was there and she knew her phone number. 

36. She says she borrowed or was given money by a passer-by in the airport terminal in Country A to telephone Ms D, and that Ms D had driven four to five hours from a town in Country A to International Airport, Country A and picked her and [X] up.

37. She says that Ms D then drove them back to Town R to Ms D’s home, and the wife says that she and [X] then lived in that home in Town R, with Ms D and her family, for the next eight years[2]. 

    [2] It was the wife’s evidence that [X] still lives in that house and goes to school in Town R.

38. It is the wife’s evidence that she did not work in that eight years at all.  It is her evidence that she and [X] were supported by what she called “loans” that she has “borrowed” from [X], from Ms D’s family and from Ms D’s friends, being a total amount of about $484,000US for her support from 2008 until the current time. 

39. It is her evidence that at some time in 2016, her friend, Ms D, told her about a part-time job in a business in Town R, a little over 500 miles to the north of Town S. 

40. She says that she went to Town R, she really liked the area, and the job sounded like a great job. As I have said, it was a part-time job in a business. 

41. The wife says she liked the area so much that she went back to Town S, applied for and obtained the job, and then moved to Town R, but only for the time that she was actually working, about three or four days per week. 

42. She says that she rented (and still rents) a room in the property at Town R.  She says that she does not own and has never owned that property. 

43. The father produced evidence from a man called Mr E, who is a lawyer, and whose offices just happen to be in Town R.  Mr E filed an affidavit in these proceedings[3] and gave evidence by telephone from Country A at trial. 

    [3] The Affidavit of Mr E sworn 21 and filed 22 November 2018

44. It is his evidence that, on the instructions of the husband’s solicitors, he conducted searches in relation to a person called “Ms Danh”, and he was asked to find out if that person owned any property in Country A, in which Town R stands.  He says that he was also asked to find out whether she owned the property in Country A.

45. What Mr E found in a nutshell is this, that on 10 September 2013, someone with the name of “Ms Danh” purchased the property in Country A for $325,000.  That person called “Ms Danh” obtained finance from the vendors of $260,000 to finance part of the purchase.  The remainder of the purchase price would have been $65,000.  He says that further investigation of the title of that property shows that on 19 September 2016, that property was transferred from “Ms Danh” to someone called “Ms F” and that that transfer was a gift, as is noted on the records.

46. Mr E says that the public records do not show a release of the mortgage to the vendors that was obtained by the woman called “Ms Danh” at the time of the purchase in 2013, and that there are several possibilities for how that might have occurred.  One was that the release conveyance had not yet been recorded, and he said in evidence that while that was unusual, it was not unheard of, although the transfer occurred in October 2016, so it would now be two years later that it has been outstanding. 

47. He says the second possibility is that the transferee, “Ms F”, received the permission of the vendors from whom “Ms Danh” had purchased the property, to assume the mortgage and take it over. 

48. The third possibility, he said, was that the conveyance had been done without reference to the mortgagees, and that it had simply been registered in “Ms F’s” name and someone had continued to pay the mortgage to the original vendors.

49. So what the wife says about all of that is this.  The “Ms Danh” on those title deeds is not her.  She has never owned the property at Country A.  It was not her who transferred the property to the person whose name is “Ms F”.  She concedes that her adoptive mother’s name is Ms F, and that the person who owns the business, where she works, is named “Ms F”. That is the “Ms F”, she says, who owns the property in Country A. That “Ms F” is not her adoptive mother, says Ms Danh. It was her evidence at trial that her adoptive mother, and indeed all her family, live in Country B.

50. That is, simply, an extraordinary coincidence of events.

51. It was Ms Danh’s evidence, when asked, that she did not move to Country A to take up the position at business until October 2016. 

52. I note the coincidence of the timeframe of events. 

53. In 2016, Mr Loi engaged Wheeler Family Law to conduct his family law proceedings.  Mr Wheeler conducted some investigations and found a person called “Ms Danh” living in a Town R in Country A.  He wrote to that person in August of 2016. 

54. In September of 2016, the property at Country A was transferred from “Ms Danh” to “Ms F”. 

55. In October 2016, the wife in these proceedings says she moved to Country A, took up residence in that house, and began working at a business, which, she said, is owned by a woman called “Ms F”.

56. When the wife was in the witness box, I asked her a question to the effect of: “Did anybody say to you when you came to Country A, ‘Boy, isn’t that a coincidence?!  A person with your exact name used to work here until recently and lived where you live until recently’ ”.  She said nobody had ever asked her about that or commented on it.  She says that it is coincidence. 

57. There might have been a scintilla of doubt in my mind about whether that might not be a plausible explanation, but there is one piece of evidence that causes me to believe that it is more probable than not to an extraordinary degree that the “Ms Danh” who purchased the property in Country A in 2013 and transferred it to the person called “Ms F” in 2016 was the wife in these proceedings.

58. First of all, I consider the sale documents provided by Mr E’s evidence.  The Property Detail Report annexed to his Affidavit says that the property was transferred to “Ms F” from “Ms Danh” in September 2016, and that it was bought by “Ms Danh” from vendors called Mr & Ms G in September 2013.

59. The transfer deed to that property, which is called a Grant Deed in Country A, says that “Ms Danh” granted to “Ms F” “the following real property”, and that is stated as the property at in Country A.  What we call the consideration for the transfer is said to be a gift, and on that document is the signature of “Ms Danh”. 

60. There is another document called Deed of Trust with Assignment of Rents which is the original purchase document in 2013, stating that “Ms Danh” had bought the property from Mr & Ms G, who were then called “the beneficiary” because they had provided a mortgage over that property, and there is the signature of “Ms Danh” on that document as well.

1. I am not an expert in handwriting and do not pretend to be.  All I can say is that the signatures on those two documents are so remarkably similar that I am satisfied that they are the same signature. 

2. I then look at the Response documents that the wife has filed in these proceedings, and the signature on those documents is again so similar to the signature on the title deed documents from the Country A, that I am satisfied that it is the same signature on all three documents. 

3. The coincidence of that is simply unbelievable in the true meaning of that word. 

4. It would mean, if what Ms Danh says is true, that:

   ·   three years before she ever went to Country A, some person unknown to her, whose name was “Ms Danh”, purchased the property at Country A, signed it with a signature so similar to hers as to be the same for all intents and purposes in these proceedings and, coincidentally,

   ·   one month after she (the wife whose name is Ms Danh) was located in Country A and a letter was sent to her, that that property was transferred to someone with her mother’s name. 

5. I do not find those “coincidences” persuasive, and it is the signatures which persuade me most that the person who signed the title and transfer documents, and the person who signed the wife’s Response documents in these proceedings, are the same person. 

6. That leads me to be satisfied, on the balance of probabilities – in other words that it is more probably true than not – that the wife in these proceedings is the “Ms Danh” who purchased the property at Country A in September 2013, and who transferred it to a person with the exact same name as her adoptive mother in September of 2016.

7. In those circumstances, I cannot find other than that the wife in these proceedings has lied to this Court in saying that she does not own that property, that she has never owned that property, and that it was not her who bought the property and transferred it to the person with the same name as her mother. 

8. The implication of that finding is that the property is something that is, beneficially at least, owned by the wife in these proceedings.  I cannot quantify the value of that interest because there is no evidence about what the property is worth now.  We know what it was worth when it was bought, but we don’t know what it was worth when it was transferred, and we don’t know what it’s worth now. 

9. In any event, that real property is the property of the wife, and the husband has made no contributions to it.  So there’s no suggestion that the husband has a claim on that property.  And if the wife did indeed transfer it to her mother, as I think is probable on the evidence before me, thinking that the husband might have a claim on that property, then she did so in error.

10. The husband has never had a claim on that property, and there was no possibility that he would be awarded an interest in that property in these proceedings. 

11. Therefore, the joint property pool does not include that property, as it was purchased well after separation. However, when I consider the matters to be considered under s.75(2) of the Act, it will be a relevant consideration.

12. The second issue of fact that I need to decide before I can decide this matter comes under s.79(4) of the Act, that being the issue of contributions. That is, who made the contributions to the marital property, and under what circumstances?

13. The major issue in dispute about contributions concerns the deposit that was made on the Property F property in 2003.  The property was registered in the names of both parties.  The mortgage was registered in the names of both parties, and copies of the loan documents are annexed to the husband’s affidavit affirmed and filed on 14 November 2018.  The loan documents say essentially that the father had the deposit of $23,750 in savings (the purchase price was $237,500), and that he had further savings of $16,000, and that therefore the loan was to be recommended for approval.

14. The husband says that those monies were his savings, that the deposit on the house was paid from those savings, and that the $16,000 of extra savings was spent at the settlement of the sale as part of the purchase price, with a mortgage being obtained for the rest. 

15. However, the wife says that when she came to Australia in 2003, she brought all her personal belongings with her, including her makeup and her jewellery.  She says the jewellery that she brought was worth $20,000.  There is no evidence to support that, but I will accept it for the purposes of this exercise.  She says that she also brought $50,000 in Country A cash into the country and that the deposit for the Property F property purchase was taken from those funds.

16. She says that all of her clothes, her jewellery, her makeup and the cash were in a carry-on bag that she carried onto the plane from Country B to Country C, and then from Country C to Melbourne. 

17. It is her evidence that when she arrived in Australia, the Customs officials scanned her bag and saw that there was money in it, and she showed them her permanent residence status documents on the basis of her by then four‑year-old marriage. Ms Danh says that the Customs officials just waved her through because what she was bringing into the country was her personal belongings and they weren’t interested in that.

18. It beggars belief that large amounts of cash would be disregarded by what are now the Border Force, but were then Department of Immigration or Customs officers, at the airport.

19. I cannot believe that she would not have been asked about that money, and that there would not have been some consequence from it, because Ms Danh’s original immigration card from her initial entry into Australia in 2003 was subpoenaed for trial, and it says that she ticked the box saying she was not bringing into Australia more than $10,000 in Australian or foreign currency. 

20. Ms Danh says that at the time of filling in that card, her English was very poor, and that she was sitting next to a woman on the plane who spoke both Language and English. It was her evidence at trial that that woman helped her fill in one side of the immigration card that said where she had caught the plane, that she was coming to Australia as an immigrant, and other such things, but that on the other side of the card, the woman had not helped her, and that was where she had said that she was not bringing more than $10,000 in cash into the country.

21. I find the wife an unsatisfactory witness.  I have found, against her sworn evidence, that she was the woman who bought the property at Country A. 

22. She says that she brought $50,000 into the country, that she gave the husband $30,000 of it and the other $20,000 was kept in the house.  That may well be a plausible explanation if she had brought the money into the country, but I cannot find, on the balance of probabilities, that the Australian Customs officials would have allowed her to bring in a carry-on suitcase which must have been fairly full of cash and jewellery, without questioning her further and without opening the case.  I find that evidence simply incredible.

23. In those circumstances, I cannot find on the balance of probabilities that the deposit on the house was paid by the wife. 

24. Nevertheless, even if it was paid by the husband, it was paid with joint monies because the parties had been married since 1999 and they had been both working and putting their efforts into the marriage since then.  So what is more likely than not, is that the parties contributed equally to the deposit on the family home.  Therefore I find that there was a contribution to the deposit by the wife, but it was not $30,000, and I can’t quantify it.  All I can say is that there was a contribution to the deposit.

25. The third matter for determination of fact is the circumstances of the separation.  As I have said, the wife accuses the husband of major family violence, of death threats, of threatening to kill her and their 19‑month-old son.  She says that she fled with nothing from that danger, and that her only concern was to keep herself and her son safe.  The husband says that he came home after a day’s work to find the house empty of people and that the wife had gone with the child, and that she had taken all her belongings, including her jewellery and, he says, a significant piece of jewellery of his own.

26. He says, as I have already said, that he tried to find her, couldn’t find her, and that was that. 

27. The evidence the wife gives of the violence in her affidavit that deals with that subject has some note of truth about it, and while I cannot make a positive finding that there was the family violence that she alleges, I cannot say that it didn’t happen either. 

28. Mr Loi presents as an affable fellow, a steady sort of fellow, but family violence is one of those things where nobody but those who were there can genuinely tell you what happened.  And I am not prepared to say that it didn’t happen on the wife’s evidence.

29. Nevertheless, in relation to the wife’s evidence of what happened after that, I am very suspicious and sceptical. 

30. I have already stated that she lived in Ms D’s house, on her evidence, for eight years, and racked up a debt of nearly half a million Country A dollars in that time.  She stayed eight years with Ms D, she says, from 2008 to 2016, and then she moved to Town R to take up a job in a business.  She left her then 10-year-old son behind in Town R, she says, where Ms D continues to look after him while she is in Town R, and she goes back to Town R, again staying with Ms D in her house, when she is not working.  She goes back and forth by train and bus, she says – an eight-hour trip each way - paid for by her employer.  I find that evidence unsatisfactory, and I simply don’t believe it.

31. I find, in fact, that it is more probable than not that Ms Danh was in Country A from at least 2016 and possibly earlier than that, from 2013.  She certainly, on my finding, bought property there in 2013.  I find that she has been living there since at least 2016.  I cannot say where [X] lives – there is no supporting evidence whatsoever to say where [X] is or who looks after him.  But on the basis of her evidence about the property at Country A, I am sceptical about the truth of much of the wife’s evidence.

32. She says she is a permanent resident of the Country A and that it was Ms D who sponsored that status.  She says that she has no interest in the business.  She says that her email address is the email address of all the employees, and then she told a story which I found, I must say, utterly implausible: that all the mail that goes to that particular email address is sorted into boxes in that email address, to which is attached a different password for each person, and they can collect their mail that way.  How the program knows how to sort that email when the person’s name is not on the address, I find difficult to understand.

33. So in terms of the circumstances between 2008 and 2016, I find it highly improbable that the mother has lived on the goodwill of her friends for eight years straight without having any work or any income whatsoever.  I do not know the circumstances of her moving to Country A, but Mr Carne for the husband invites me to believe, and submits that the woman to whom the property was transferred in 2016 and who owns the business, is in fact the adoptive mother of the wife, and he invites me to say that the wife moved to the Country A so that she could work with her mother in that business.  I cannot make a positive finding in relation to that, but I say that the wife’s evidence is suspect in many, many ways, and I am very sceptical as to whether she has told the Court, as she made an oath that she would do, the truth, the whole truth and nothing but the truth.

34. Having established the property pool, the next thing I need to do, as I said, is look at what were the contributions to that property pool, and there were contributions from both parties, I would say, in equal measure until 2008. 

35. Marriage is a partnership.  People put what they have into the partnership.  That may be money from their earnings, it may be looking after children or looking after the house – there are many contributions and levels of contribution.  But there is nothing in the evidence before me to tell me that between 2003 and 2008, and possibly between 1999 and 2008, that the contributions to the property and to the marriage were not equal.

36. However, 2008 is 10 years ago.  It cannot be argued that the wife has made any financial contribution to the property since 2008.  She claims a contribution to the welfare of the family in the sense that she has looked after [X] for those 10 years, and as she says, without any support from [X]’s father. 

37. Nevertheless, that claim is somewhat ameliorated by the fact that the husband didn’t know where she and [X] were, and the reason he didn’t know was because she didn’t want him to know.  In fact, I would go so far as to say that she made sure he didn’t know, and it must have come as a great shock to her in 2016 when the husband’s solicitors located her in Country A, after eight years at that point.

38. So in terms of the initial contributions and those made during the marriage, I find that the contributions were equal. 

39. I find that the overwhelming post‑separation contributions to the property were on the side of the husband as it is he and he alone who has made payments to the mortgage since separation. I find that those payments have contributed to the value of the property today, although at least some of the increase in value must have been from sheer market forces, because there is no evidence of any extensions or any extra money being put in, other than the mortgage.  It is conceded by the husband that in the three months after the marriage, he took $20,000 to $30,000 out of the mortgage and spent it on gambling, drinking and partying, but that does not balance the sole contributions he has made to the property since then.

40. So I find that overall, when I consider all of those things, that the contributions of the parties have been 70 per cent to the husband and 30 per cent to the wife. 

41. The next step I must take is to investigate whether I should make an adjustment to that equation, if I can put it like that, because of the matters set out in section 75(2) of the Act.

42. Those matters are included in section 79(4) as part of the contributions, but in practice, they are commonly called the factors in relation to the “future needs” of the parties. One of the reasons for that is that their primary purpose is that they are the factors that the court must take into account when it is looking at whether a spouse needs spousal maintenance for his/her future support.

43. And there are many, many of those factors.  They go from (a) to (p), with some sub-sections in between. 

44. The first of them is the age and state of health of each of the parties. 

45. The husband is 58 years old, he works in a tradesperson’s occupation, and he is well at the moment, he is in good health, and is able to work in this quite demanding occupation. 

46. The wife is 16 years younger.  She is 42 years old.  On her evidence, she works part-time in a business in Country A, but she has worked there, she says, only for the past two years.  I have found that she probably worked there before that because Investigator found her there in August of 2016, and I think it more likely than not that she worked there for some years before that.

47. So both of them have the capacity for work.  Their income is disparate – the wife earns a lot less than the husband, unless, of course, she has an interest in the business, and I cannot make any findings about that because the evidence isn’t clear enough. 

48. That evidence is not clear like the evidence in relation to the property at Country A.  But each of them has an income, each of them has a property, or a beneficial interest in a property at least on the wife’s side, and they both have the physical and mental capacity for appropriate gainful employment.  So there’s no difference there in my view.

49. The next thing I have to take into account is whether either party has the care or control of the child of the marriage who has not yet attained the age of 18 years, and [X], of course, is just 12.  The wife has the care of [X], is likely to have the care of [X] until he is 18, and I do take that into account as a factor under section 75, subsection 2(c). 

50. The husband also has the commitment to take care of his current partner and of the two and soon to be three children of that relationship.  They are very young.  [X] will be 18 in six years.  [N] will be 18 in 15 years, [M] will be 18 in 17 years, and the baby expected won’t be 18 for another 18-and-a-half years.  So the commitments of the husband to look after those children is also something that the law requires me to take into account, as is his responsibility to support his partner.

51. In the circumstances of this case – which are most unusual, but in the circumstances of this case, there are really no other of the specific 75(2) factors which are relevant, apart from the child support issue.

52. In that case, the mother can hardly complain that the father hasn’t made any payments of child support when he hasn’t known where she was and she has made no request or application for it.  I note that she is absolutely at liberty to approach the child support authorities in the Country A and seek to make use of the treaty between the two countries, to have Mr Loi pay child support for [X].

53. And then section 75(2)(o) says that I must take into any fact or circumstance which in the opinion of the Court the justice of the case requires to be taken into account.

54. Ms Danh said to me several times both from the witness box and from the bar table, that she wants justice.  She has come back to Australia for this hearing to obtain justice.  She sees herself as the victim in all of this, and [X] too.  She has had to look after [X], and she seeks in her documentary material a payment of the $484,000 that she says she has incurred as a loan in looking after [X] for all those years.  I am very sceptical as to whether that “loan” exists.

55. I do take into account under section 75(2)(o) that the wife, on the findings I have made, has lied to this Court. She has approached these proceedings with some contempt, and I say that her behaviour in her oral evidence to this Court and in the evidence in her affidavits, and her persistence in insisting, in the face of documentary evidence to the contrary, that she was not the owner of a property in Country A, balances her need to look after [X].

56. Mr Loi, on the other hand, has two and soon to be three young children to look after, and I therefore find that the adjustment to be made on section 75(2) factors for those reasons is of 20 per cent to the husband. In those circumstances where the contributions are at 70 per cent and the 75(2) factors are at 20 per cent, I find that a just and equitable division of the property is 10 per cent to the wife and 90 per cent to the husband.

I certify that the preceding one hundred and sixteen (116) paragraphs are a true copy of the reasons for judgment of Judge Small

Date:  30 November 2018