Lorde and Chu (No. 2)

[2018] FamCA 688

FAMILY COURT OF AUSTRALIA

LORDE & CHU (NO. 2) [2018] FamCA 688

FAMILY LAW – PROPERTY – Property proceedings where all identified real property exists outside Australia – where insufficient evidence to value property – whether just and equitable to make any order.

Family Law Act 1975 (Cth) ss 75, 79

Bevan v Bevan (2013) 49 Fam LR 387
Stanford v Stanford (2012) 247 CLR 108

APPLICANT: Mr Lorde

RESPONDENT: Ms Chu

FILE NUMBER: CAC 478 of 2012

DATE DELIVERED: 7 September 2018

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 14 August 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-representing

SOLICITOR FOR THE RESPONDENT: Self-representing

Orders

1. The Wife’s Application in a Case filed 30 May 2017 is dismissed.

2. The Husband’s Application in a Case filed 29 August 2016 is dismissed.

3. The Husband’s Amended Initiating Application filed 17 August 2016 is dismissed.

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 Lorde & Chu (No. 2) 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: CAC478/2012

Mr Lorde

Applicant

And

Ms Chu

Respondent

REASONS FOR JUDGMENT

Background

1. The Applicant Husband in this matter is Mr Lorde, born in 1948; the Respondent Wife is Ms Chu, born in 1983.  There are two children of the relationship, R, born in 2008, and C, born in 2012.

2. The parties were in a relationship from 2007 until 2012.  At the start of their relationship they were both living in China.  At the end of the relationship, and at the time of the trial, they were living in Australia.  By the time of the property trial final orders had been made (on 20 March 2017) in relation to the children, providing for them to live with the Wife and to spend day time only with the Husband.

3. There were two primary items of significance in the property dispute.  They each related to property said by the Husband to be interests in property located in China. 

4. The first was a business that the Husband and Wife had been involved in with the Wife’s family.  The Husband asserted a one-third interest held by the parties and, correspondingly, a 17 per cent interest for the Husband.  There were disputes as to whether the parties held an interest in this asset (and their roles in the development of the asset), the value of such an interest and as to whether the asset was still in existence.

5. The second item was the family home in China.  The parties disputed their relative contributions to the purchase, along with the current value.

6. The parties also identified that they own a car each.  The Husband identified a motor vehicle in his possession valued at $5,000,[1] whilst the Wife identified a motor vehicle in her possession valued at $800.[2]

   [1] Financial Statement of Mr Lorde dated 26 April 2017.

   [2] Financial Statement of Ms Chu dated 25 May 2017.

7. By way of the same Financial Statements, in relation to superannuation, the Husband provided a value of ‘Nil’, whilst the Wife provided a value of $16,652.14 in an approved deposit fund.  The Husband stated that his total superannuation had been withdrawn and closed between 2009 and 2012 to assist in spending upon the family.[3]

   [3] At annexure (10) of the affidavit of Mr Lorde dated 26 April 2017. 

8. There was also dispute between the parties as to the degree to which each earned an income and contributed to the welfare of the family with that income.

9. The Wife is 35 years old, working and with the full time care of the two children.  The Husband is in receipt of an aged pension.

Material relied upon:

1. The parties were self-represented for the property proceedings.  They were directed by Orders made 30 March 2017 to each file a document setting out the orders sought in the financial proceedings and documents sought in discovery, an updated financial statement, and to provide to the other party all tax returns, superannuation statements and all bank accounts for the period commencing 1 March 2016 – 30 March 2017.

2. The Husband relied upon:

   a)Affidavit of Mr Lorde filed 26 April 2017; and

   b)Financial Statement filed 26 April 2017.

3. The Wife relied upon:

   a)Application in a Case filed 30 May 2017;

   b)Affidavit of Ms Chu filed 30 May 2017; and

   c)Financial Statement filed 25 May 2017.

4. The orders sought contained in the Husband’s affidavit were as follows:

   a)Compensation, for, inter alia, various grievances including loss of income, blackmail and physical abuse caused by the mother and her associates;

   b)Dues for shared family loans, expenditures, rent and compensation for loss of income over the previous 10 years, incurred as a result of the actions of the mother and her associates, totalling $500,000;

   c)A sum of $20,000, being a repayment of half of a shared family loan of $40,000, which was used to finance the mother’s travel;

   d)A sum of $9,500, being a repayment of half of the total family savings of $19,000 held under R’s name;

   e)Compensation for professional career damage caused by the mother, totalling $500,000;

   f)Costs associated with the mother’s visa charges, consultations and sponsorship, totalling $4,000; and either

   i)The transfer of the total value of the family home (in China); or

   ii)The transfer of 70 per cent of the total value of the family home, plus 17 per cent of the total value of the family business sale price, plus 17 per cent of the total business income and 17 per cent of the total business income interests since the foundation of the business in October 2007.

5. It may be observed that a number of the Husband’s claims were unrelated to the jurisdiction of this Court.

6. By her application in a case filed 30 May 2017, the Wife sought the Husband’s application be dismissed, with the result that she retain the home in China.  Although she filed an application seeking child support, during the proceedings the Wife indicated that she no longer pressed that order.

7. The affidavit evidence relied upon by the Husband had limited content and was in large part almost unintelligible.  The affidavit material for the Wife likewise had little substantive content.

8. The case falls to be determined upon inadequate evidence.

Disclosure issues

1. During proceedings the Husband alleged that the Wife had failed to disclose original copies of her superannuation forms from 2010 to present.  How superannuation forms going back to 2010 were important was not made clear by the Husband.  The Husband stated that the Wife had provided him with her superannuation statements for 2015 and 2016.

2. The Husband also stated that the Wife had failed to disclose details of her own, and the children’s, bank accounts in Australia and China, saying that only two Australian accounts, one from Westpac and the other from H Bank, had been disclosed, and no Chinese accounts were disclosed.  I am unable to identify the existence of such additional accounts.

3. The Husband stated that the Wife had failed to provide any bank statements in relation to the matrimonial home.

4. The Wife responded that there exists one bank account in China, held at the Industry and Commercial Bank of China and was used by her to make mortgage repayments.  She stated that information in relation to this account was provided in her affidavit filed 30 May 2017.  There is only one reference to the Industry and Commercial Bank of China in the Mother’s 30 May 2017 affidavit, being a reference to a mortgage owed to the bank of $36,363.63.  Annexure A relates to payments made to the Industry and Commercial Bank of China, purportedly as mortgage repayments.  However, Annexure A is in Chinese.The Husband stated that he did not have, and had not seen, the affidavit in question.

5. The Husband also alleged that the Wife had told him that she was renting out the matrimonial home in China, but had failed to provide any information in relation to rent, or the identity of the lessees.  He repeated the assertion that the Wife told him that the matrimonial home was being rented in his financial statement.  The Wife denied that the property was rented out.

6. The Husband complained that he had not been provided with bank statements or other documents relating to the business.  In seeking to establish that the Wife had documents relating to the business which she had not disclosed, the Husband relied upon a document identified as “Annexure (1) page 14”, annexed to his affidavit of 26 April 2017, being a document relating to the business.  He stated that this document showed that the Wife was the vice-president of the business, and so, according to him, had to have the documents in question.

7. In relation to the business, the Wife stated that it had gone bankrupt and that any related accounts had been closed.  The Wife asserted that she produced the business’s financial statements for the years 2009, 2010, 2011 and 2012 (annexure C to her affidavit of 30 May 2017), with 2012 being the year the business was closed.  However, these statements were in Chinese.

8. It was not established that the Wife held other records that she had not disclosed in relation to the business.

9. The Husband alleged that the Wife opened a savings account during the marriage in her own name, but did not know whether this account still existed.  The Husband alleged that the Wife placed around $19,000 in a savings account during the marriage.  The Husband stated that he was not a signatory to the account, was not sure whose name the account was in, and was not sure whether the account was still in existence or not.[4]The existence of this account was not proven.

   [4] At pg. 4 [5] – pg. 5 [20] of the transcript of 14 August 2017.

10. The Wife denied that the children held any bank accounts in Australia, but did state that money had been set aside in China (in the form of insurance payments of some sort) for R’s future education.  She said that she did not have any documentation to support this.

11. The Husband stated that he required the bank account details of the Wife’s new partner, contending that numerous transfers were made from the Wife to her new partner.  No evidence was produced to support this contention.  No evidence was led to show that the Wife holds such documents.

The Business

1. The Husband made what he described as “reasonable and realistic estimates of the current value” of the business in China.

2. In his financial statement the Husband asserted that he contributed, by founding, running and developing the business, a value of RMB$70,000 (presumably meant as other than by monetary payments) with other relatives of the Wife’s contributing to a value of RMB$120,000.  No basis for this calculation was provided.

3. He was asked to provide any documentary evidence supporting his claim that he founded the business.  He stated that the documents annexed to his affidavit demonstrated his founding of the business.  The document that went to this issue was annexure 3, being a letter from the Wife, certifying that the Husband “has been [working] and managing as a founder and a partner of this business since its formation in October 28, 2007 to present” signed 9 June 2009.  This was strongly supportive of his case that he at least co-founded the business.

4. The Wife rejected that either she or the Husband had any beneficial interest in the business,[5] asserting that she and the Husband were mere employees.

   [5] At [4] of the affidavit of Ms Chu filed 30 May 2017.

5. The annexures from the Husband also contain a “Heads of Agreement” document that provided for the Wife to return to China in 2012 to obtain one third of the profits from the business for the parties, and, on consultation with the Husband, to sell both the family home and the parties’ one-third interest in the business.

6. The heads of agreement document meant that, contrary to the Wife’s position that the parties were mere employees, it may be accepted that the parties held a one-third interest in the business. 

7. The Husband estimated the current sale price of the foreign business as approximately $250,000, of which his purported 17 per cent share amounts to $42,500.  In his financial statement he asserted that the value of the 17 per cent share was $55,665.  The inconsistency was not explained.  Evidence was not led to establish how such a value could be derived, nor the expertise or methodology by which it was derived.

8. The Husband alleged that the business’s annual income is approximately $25,000, and that he is seeking his (17 per cent) share of income produced over the last 10 years, being an entitlement of $42,500.  He said that the interest on income derived from the business would be ($450,000 x 5 per cent) + ($42,500 x 5 per cent) resulting in an entitlement of $24,625. 

9. The Husband said that his figures as to the annual profit of the business were an estimate on his part.  He asserted that when he was at the business that was the figure “we” were getting.  The Husband did not lead any other evidence to support his claim of such income coming from the business.

10. He alleged in his financial statement that prior to separation a buyer offered RMB$700,000 for the business.  He asserted that the Wife informed him of the existence of the buyer.  He alleged shortly after this a conversation the Wife advised that her family had taken over another floor to expand the business.  He described their activities as a scam.  He did not elaborate on how the business that he said he had helped to found was a scam.  The Wife denied such a conversation.

11. The Wife asserted that the business made no profit during its operational years.  She said that she had provided annual profit and loss statements for the business at annexure C of her affidavit.  These were in Chinese and accordingly did nothing to support her claims.

12. The Wife says that the business became bankrupt in 2012 and has no income. 

13. I am satisfied, by virtue of the annexed “Heads of Agreement” document and the document that described the Husband as a founder, that the parties held an interest in the business. 

14. The inconsistency of these documents with the Wife’s assertions leads to strong doubt about her reliability as a witness.

15. The nature of the Husband’s speculative assertions as to the value of the business leads me also to doubt the reliability of his evidence, other than where it is supported by the above referenced “Heads of Agreement” and letter.

16. While there was certainly once a business, I am unable to conclude that there either remains a business, or that it holds any particular value, or any value at all.

The Family Home

1. There was no dispute that there is a “family home” in China. 

2. The Husband made what he described as “reasonable and realistic estimates of the current value” of the home.

3. In his financial statement the Husband asserted a value of $231,000 for the home in China, although it was not clear whether this represented the 70 per cent that he says constituted his share.  The Wife, in her financial statement, asserted a value of $90,909.09.  No basis was advanced for either of these assertions.

4. The Husband said under cross-examination that the purchase price in 2007 was approximately RMB$400,000.  He said that, in relation to the deposit, the Wife’s mother paid RMB$90,000 and he paid RMB$120,000, totalling RMB$210,000.  The Husband says that his contribution was made in cash and that there was no material to confirm the payment.

5. In his financial statement the Husband also said that in addition to his contribution to the mortgage he contributed a further RMB$130,000 for repairs and the like to the home.  He said that the Wife’s mother, in addition to her contribution to the mortgage paid RMB$50,000 for decoration and beds.

6. At one point of the proceedings the parties agreed a mortgage value of RMB$350,000.  The Husband then said that the mortgage was between RMB$350,000 and RMB$400,000.

7. The position taken by the Husband as to the purchase price made little sense.  He said that the deposit was RMB$210,000, comprised of RMB$90,000 from the Wife’s mother and RMB$120,000 from him.  This left the purchase price (taking into account the mortgage) as somewhere between RMB$570,000 and RMB$610,000.  Despite this the Husband continued to assert that the purchase price was between RMB$350,000 and RMB$400,000.  That is, on his account the purchase price equalled the mortgage price.

8. The Wife asserted a purchase price of RMB$500,000.  She said that the deposit was RMB$150,000, being RMB$90,000 of the parties joint savings and her parents contributing the other RMB$60,000, for a total of RMB$150,000. 

9. The Wife sought to rely upon documents annexed at B and D to her affidavit which she said related to the purchase of the home.  The documents were in Chinese.  The Husband stated that he could not read Chinese, and no translated document was provided.  Absent translation, the documents provided no support for either party’s assertions.

10. The Husband also said that he paid the mortgage on the matrimonial home, of approximately $210 per month, from October 2007 to November 2009 (all during the relationship), but that all payments were made in cash.  He stated that he provided evidence of these payments at pg. 12 of his financial statement of 26 April 2017.  Page 12 merely showed an assertion of a payment of $91,200, in cash, towards the home in 2007, followed by another asserted contribution of $98,800 occurring at an unspecified time.  It may be seen that the regular amounts asserted as paid by him equal to a little over $5,000.  They do not match the asserted payment.  If the lump sum amount was to be taken to relate to the contribution to the purchase price then it more closely matches what the Wife says the joint contribution from their savings was.

11. Otherwise, and seemingly inconsistently, the Husband asserted that he paid the mortgage from June/July 2007 to November 2009, along with RMB$8,000 in November 2009.  The Husband also said that for a period, prior to the Wife commencing work in 2010, he was paying cash to her for the mortgage of between $200 and $210 per month.  Whatever might be the case, these appear to be payments made during the relationship, presumably from income derived during the relationship.

12. The Wife, in her affidavit, said that she now has outstanding mortgage debts of $36,363.63 to the J Bank and $29,090.92 to her parents, comprised of $10,909.09 for the deposit and $18,181.81 for decoration and furniture.  In her financial statement she asserted that the debt to the J Bank is $32,727.27.

13. The Wife said that she paid the mortgage between 2007 and 2012 and, after saving some money, paid a further RMB$40,000.  She said that she was currently paying RMB$2,000 per month.

14. It is unclear how, if this is the balance, it has been paid down.  There is contest between the parties as to who paid the mortgage during the relationship, but it is only the Wife who claims to have made the payments post-separation.  This was not the subject of challenge.

15. As to the current value of the home, and any existing use, the Husband stated that the Wife was currently renting out the property to third-parties.  The Wife rejected that anyone currently lives in the house, stating instead that it is empty and in a state of disrepair.  She asserted that it was unable to be tenanted because of its location.

16. In his financial statement the Husband alleged that prior to separation the Wife said that there was a buyer offering RMB$1,000,000.  The Wife denied such a conversation.

1. The Wife says that the home in China ought be retained ultimately for the children on the basis that they could live there or sell the property.  The proposition that they would be able to sell the property conflicted with the Wife’s oral evidence that the property is unsaleable due to its location.  It also conflicted with the heads of agreement document (referred to above) entered into by the parties that had previously provided for her to sell the property.

2. As noted above, under the heading of “The Business”, I have strong doubts about the Wife’s reliability as a witness, given the inconsistency between her position as to the business with documents she had previously executed.  The doubts are further strengthened by the inconsistency between the Wife’s assertions that the property cannot be rented out, or sold, with her intended long term use for the children’s benefit by their use or sale of the property.

3. I also have strong doubts about the reliability of the Husband’s assertions about the acquisition of the property.  The inconsistencies in his evidence about the payment for the property means that he too should not be relied upon.

4. This leaves the position that although there can be confidence that there is a property, there can be no idea as to its value.  However, the position of the Wife that she has made payments post-separation did not appear to be the subject of challenge by the Husband.  It may be concluded that to some extent the Wife has effected the payment of the mortgage post-separation.

Ancillary claims

Compensation for loss of income and reputational damage caused by the Wife

1. The Husband sought “compensation for professional career damages, stress, health effects and loss of income due to (the Wife)” at 10 years at $50,000 per year, totalling $500,000.  In support of this the Husband pointed to email correspondence between himself and an Ms K, an officer with a professional association.[6] He stated that this conversation indicated his good prospects for a job placement, which he subsequently lost due, so he says, to the actions of the Wife.  No actions of the Wife were identified.  Nor was it identified how he was not able to obtain work as a result.  That is, there was no evidence to sustain the claim made by the Husband.

   [6] Annexure 8 to the affidavit of Mr Lorde filed 26 April 2017.

2. He further sought compensation for blackmail and physical abuse.  No jurisdiction by which this Court may entertain the application has been identified.  The claims must be dismissed. 

3. The Husband also sought payment of funds equalling payments made to secure the Wife’s visa, presumably as a claim of debt.  A jurisdiction for such an application has not been identified.

Other matters

1. The parties made a number of assertions regarding their contributions.

2. The Wife stated that she initially worked in China as an apprentice for RMB$1,800 per month, then moved jobs and began earning RMB$2,800 per month.  It was not made clear whether, or to what degree this related to the time period of the relationship.

3. It did appear to undermine the Husband’s initial assertion that the Wife did not work until the parties moved to Australia.  On questioning he accepted that the Wife worked at the business from the time that it was opened.

4. The Wife stated that when she was employed as vice-president at the business she earned RMB$2,800, which was spent on mortgage repayments and family costs.  She stated that she also engaged in private employment at this time.

5. The Husband accepted that the Wife worked in Australia from 2010 until she took maternity leave for C in 2012.  However, he said that the Wife used her income for her own purposes and shared it with her relatives.  While initially he said that he cared for R while the Wife worked, he accepted that R would normally go into the child care that the Wife worked at while the Wife was working.

6. The Husband alleges in his financial statement that “more than a year before separation” the parties agreed that he would meet living expenses and the Wife’s income would be paid into an account for R, their son.  This appears to be the savings account for which he alleges non-disclosure.  He alleges that the Wife spent $19,000 which had accumulated into that account on the Wife’s holiday trips and leisure in Australia and China.  The evidence was not sufficient to enable me to make findings as to the existence of the fund, the use of the fund, or the significance of the use of the funds to the parties’ present applications.  That is, even on the Husband’s case there was no suggestion that the funds remained in existence as the property of the parties, and a sufficient basis to notionally add the funds back (if they existed) was not made out.

7. When questioned as to his employment history, the Husband stated that from 2010 to 2012 he was working 3-4 days per week for around 10-15 hours per week.  He stated that he did not have any payslips for this period.

8. The Husband was asked as to how much he earned between 2010 and 2012.  He stated that he had provided his bank statements for this period, and could not tell the Wife specifically any figures.

9. The above recitation of when each party worked, or how they spent earnings, does not provide a basis upon which I am able to assign to one or the other of the parties a particular significance as to contribution.

10. The Husband alleged that he received a loan of $40,000 from his relatives.  He did not set out when he received this loan.  In his financial statement the Husband asserted this as a debt of $40,000 to Mr L, which he described as a “Loan from a relative (no documentation, no formal loan period or duration-open ended).”  The Husband said that this loan was recorded in his bank statements.  No record substantiating the loan was produced.  The Wife said that she had no record of this.  When asked how he spent this money, the Husband said that he spent it on food and rent and for family living expenses.

11. I am unable to take this loan into account as being the responsibility of both parties, absent information as to when it was taken out, the identification with greater precision as to how it was spent, and as to the expectation of repayment.

Discussion

1. As noted in Stanford, s79(2) of the Family Law Act1975 (“the Act”) provides that “[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order”.

2. The first step in determining whether it is just and equitable to make any property order is to identify, according to ordinary common law and equitable principles, the existing legal and equitable interest of the parties in the property.[7]

   [7] Stanford v Stanford (2012) 247 CLR 108 at 120.

3. In this case there is only one proven item of property that is of significance, aside from the small superannuation interest held by the 35 year old Wife.  That is the family home in China.  The evidence does not establish either the precise identity or value of the property, but does identify its existence, in the sense that it is an item of real property apparently owned by the Wife in her name, but contributed to, in some degree, by the Husband, either through a contribution of his money, or through joint savings provided with the Wife. 

4. In relation to the foundational step in Stanford, the identification of the legal and equitable interests in the property is at best vague.  What is identified is the character of the interest, without the description of the identity of the interest.  The lack of a fulsome description of the identity of the asset does not detract from the certainty of the existence of the asset.

5. The evidence does not allow an assessment of the current equity in the home.  Despite the Wife’s position as to it being unable to be sold or rented, the inference drawn from both her agreement to sell it in the “heads of agreement” document, along with her intended use of it for the children, means that the inference should be drawn that it is capable of being dealt with in either way.  What might be recouped in either event is, however, completely unknown.

6. The question then asked is whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.[8] In Stanford, the Court went on to say:

   In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship.  It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife.  No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship.  That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship.  And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end.  Hence it will be just and equitable that the court make a property settlement order.  What order, if any, should then be made is determined by applying s 79(4).

   [8]Stanford v Stanford (2012) 247 CLR 108 at 120.

7. However, the existence of circumstances as described above, as appear in this case, do not end the enquiry as to whether it is just and equitable to make particular orders.  The majority in Stanford went on to say that

   (a)s has already been emphasised, nothing in these reasons should be understood as attempting to chart the metes and bounds of what is "just and equitable".  Nor is anything that is said in these reasons intended to deny the importance of considering any countervailing factors which may bear upon what, in all the circumstances of the particular case, is just and equitable. 

8. It must remain just and equitable to make the orders following consideration of the s 79(4) factors as, if the orders no longer meet the description of just and equitable, then s 79(2) prohibits the making of the order.[9]  That is, the Court must be satisfied that, after the application of the considerations set out at s 79(4), the Orders must still be just and equitable, in the statutory context of the considerations.

   [9]Bevan v Bevan (2013) 49 Fam LR 387 at [86].

9. In this case, in applying the considerations set out at s 79(4), neither party has established, to the requisite standard, the manner in which contributions were made by either party, nor the degree of those contributions.  While it may be accepted that contributions significant to the acquisition of the property were made by the Husband, the degree of their significance cannot be assessed.  Similarly, while the Wife appears to have paid down the loan post-separation, the significance of this to the acquisition or retention of the asset also cannot be assessed.

10. As to other contributions, the Wife has had the primary care of the children since separation. 

11. As to the matters raised on the hearing that may bear upon the s 75(2) considerations, by virtue of the orders dealing with parenting matters, the Wife is to have the primary care of the children into the future.  There is no provision for the Husband to have overnight care of the children.

12. It may be anticipated that the Wife will bear almost the whole financial responsibility for the children given the circumstances of the Husband.

13. The Husband is in receipt of an aged pension.  The Wife is employed.  Both disclose a minor surplus in income over expenses.

14. In general terms the position between the parties in respect of s 75(2) tends, in a qualitative sense, toward an adjustment in favour of the Wife.

15. As noted above, s 79(2) means that an order may still not be made unless it can be determined that it is just and equitable to make the order.[10]  Section 79(1) also requires the Court to determine that it is appropriate to make the order.

    [10]Bevan v Bevan (2013) 49 Fam LR 387 at [86].

16. As was noted in Stanford, there is no presumptive right of adjustment.[11]  There is no starting point that an adjustment must occur.  The corollary of this is that it is incumbent upon the person seeking the adjustment, in this case the Husband, to demonstrate that it is just and equitable and appropriate to make the, or even an, adjustment.

    [11] Stanford v Stanford (2012) 247 CLR 108 at 121.

17. The Husband seeks an adjustment, in his favour, of property currently held by the Wife, in the face of s 75(2) factors that favour the Wife.  He does so where there is uncertainty at each step of the considerations, as to value of the property, and as to the nature and extent of contributions made by each of the parties.

18. This means that it cannot be determined that any particular order is either just and equitable or appropriate.

19. In the particular circumstances of this case, the Husband’s application will be dismissed.

I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 7 September 2018.

Associate: 

Date:  7 September 2018.