Phe and Leng

FAMILY COURT OF AUSTRALIA

PHE & LENG

[2017] FamCA 1040

FAMILY LAW – PROPERTY – FINAL – Application for an adjustment of property interests between the husband and wife – Where the parties were married for six years and have two children, aged 8 and 10 – Where the husband is resident in China and the wife resides in Australia with the children – Where the wife’s assertion that the husband owns a property in China is not established – Where the husband owes loans to his parents and other parties for legal fees – Where the primary asset of the parties is the property in Australia held in the husband’s name – Where the contributions are assessed at 60 per cent in favour of the wife – Where the s 75(2) factors favour the wife due to the care of the children and the liabilities accrued by the husband in respect of his living expenses – Orders made for the wife to receive 80 per cent of the net property pool – Orders made for the property to be sold and the proceeds disbursed accordingly.

Ferraro and Ferraro (1993) FLC 92-335
McLay and McLay (1996) FLC 92-667
Hickey and Hickey (2003) FLC 93-143

Family Law Act 1975 (Cth) ss 75(2), 79(4), 79(9)

APPLICANT:

Ms Phe

RESPONDENT:

Mr Leng

FILE NUMBER:

PAC

5236

2008

DATE DELIVERED:

15 December 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Parramatta

JUDGMENT OF:

Le Poer Trench J

HEARING DATE:

15 – 19 May 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

In person

Orders

Both parties are to join in the sale of the property at I Street, Suburb F being the land contained in Folio Identifier …74 (“the property”). The sale is to be at the best price reasonably obtainable and the parties are to do the following to cause the sale and distribution of the sale proceeds:
(a)The parties are to cause the property to be listed for sale by private treaty with an agreed real estate agent and at an agreed sale price.
(b)The parties are to appoint a solicitor to act on the sale of the property and such solicitor is not to be engaged unless he/she agrees, in writing, to ensure that the net sale proceeds of the property are divided between the parties as the orders of this court require.
(c)Upon a sale of the property being completed the parties are to cause the solicitor acting on the sale to pay the proceeds as follows:
(i)In payment of real estate agents commission and contracted expenses;
(ii)In payment of legal costs for acting on the sale;
(iii)In payment of the amount owing to the National Australia Bank;
(iv)In payment to the wife of 45 percent of the proceeds then remaining;
(v)In payment of the balance thereafter to the husband.
(d)If the parties are unable to reach agreement about any aspect of the sale of the property and distribution of the sale proceeds either may apply to the court for the appointment of a trustee for sale.
(e)The wife is to remove from the property, no later than seven days prior to the date set for the settlement of the sale of the property, all of her furniture together with all items of furniture, toys, clothing, other items and electrical goods she requires in order to rehouse the children. Once she has removed those items the husband is to remove the balance of the furniture and contents and leave the property in a clean and presentable manner for the settlement date.
(f)The wife may, at her choice, enter (or maintain the caveat she has previously lodged if it is still active) a caveat against the title of the property to protect her interest in the sale proceeds of the property AND should she do so she is to attend the settlement of the sale of the property and present a properly signed and prepared withdrawal of caveat document which she may exchange for the payment of that portion of the sale proceeds she is entitled to pursuant to these orders.
(g)Should the wife lodge/maintain a caveat against the title of the property as permitted by these orders the husband is restrained from taking any action to have same removed other than an application in this court.
The husband is to indemnify the wife and keep her indemnified against any claim for payment of or contribution towards the debts owing by the husband identified in the balance sheet as follows:
(a)       The loan from his father for the Suburb F property;
(b)       The loans from his father for legal fees and living expenses;
(c)       The loan from Mr H;
(d)       The loan from Mr A;
(e)       The loan from Mr J;
(f)       The husband’s debt to K Bank;
(g)       The husband’s liability to his solicitors for legal fees.
Each of the husband and wife will otherwise retain as their property all assets in their possession or control together with their superannuation rights.
In the event of either party failing or refusing to sign any document required to effect the orders made herein, then the Registrar is appointed under s 106A of the Family Law Act 1975 (Cth) to sign such document in the name of the defaulting party.
Each party has leave to apply to the court for any further order which may be necessary to implement the order herein made including an application for the appointment of a trustee for sale of the property.
All outstanding applications are otherwise dismissed and the court notes the proceeding is now concluded in the court.

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 Phe & Leng 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 SYDNEY

FILE NUMBER: PAC 5236 of 2008

Ms Phe

Applicant

And

Mr Leng

Respondent

REASONS FOR JUDGMENT

Introduction

These proceedings between the applicant Ms Phe (“the wife”) and the respondent Mr Leng (“the husband”) concern the determination of their property dispute.
The parties herein are self-represented. Although the wife was able to give her evidence in the English language, the husband was not able to do so, although he appeared to understand many English words which was evident when he sought to answer questions before the interpreter translated same for him.
Although orders had been made in 2016 requiring the parties to file their evidence in chief at that time, the husband failed to provide any evidence until days before the trial, and then it was not in the form of an affidavit but rather an unsigned statement.
All three of the documents which the husband filed in Court on 16 May 2017 were interpreted to him in the Chinese language (Mandarin) and adopted by the husband from the witness box. The procedure which would be undertaken in the hearing was explained to the parties and each was provided with a copy of section 79 and section 75(2) of the Family Law Act 1975 (Cth) (“the Act”).
The parties were divorced in Taiwan in 16 July 2012. On 15 July 2013 the wife filed an Amended Initiating Application which sought property orders.
The husband says that at the time the divorce was made there was also a “Divorce Settlement”. However, he does not seek to prevent the wife from pursuing a property order in this case. A copy of the “Divorce Settlement” document was not tendered in the hearing.

Credit

The wife presented as an intelligent person who was diligent in the preparation of her evidence and gave her evidence in a straightforward manner. She did not require the assistance of the interpreter to give her evidence. The content of her evidence, both written and oral, did not challenge ordinary concepts of credibility. The wife presented as methodical and as having a good recollection of matters of fact. She was at times emotional when giving evidence, the content of which suggested she had been lied to or that the husband had misrepresented important facts which the wife accepted at the time.
The wife’s evidence specified a number of representations which I accept the husband had made to her and which were ultimately false.
The husband presented as an affable person who was reliant upon his family for support. I accept he did try to assist the Court with evidence about the financial aspects of their marriage. Unfortunately he had failed to comply with directions which were made the previous year for the filing of his evidence for the trial. Nonetheless I extended to him the ability to place evidence before the Court and he had been able to marshal a significant amount of evidence to attach to his affidavit. Clearly other evidence which he had anticipated would be available to him to attach to his written evidence could not be obtained in time for the hearing.
Whilst I thought the husband gave his evidence in a helpful and apparently straightforward and honest manner, I considered his memory for dates and figures was not as good as that of the wife.

The wife’s evidence

The following evidence contained in the wife’s affidavit sworn 26 April 2017 was noted by me as potentially relevant.
The wife was born in China in 1974. The husband was born in Taiwan in 1974. Both the husband and wife are Australian citizens.
The parties married in 2006. The parties separated in or around October 2008 but later recommenced their relationship and purchased the former matrimonial home in Suburb F in 2010. In July 2012, the husband asked the wife to sign a divorce settlement in Taiwan.
There are two children of the marriage, namely M, born in 2007, and N, born in 2009.
The wife studied in Australia at an Australian university attaining qualifications in management.
Following the wife becoming an Australian citizen in 2002 her parents applied for residency in 2003. In January of 2003 the wife’s parents purchased a unit in L Street, Sydney in the wife’s name (“the Sydney property”). It was purchased in the wife’s name because they were not at that time permanent residents.
The wife took up residence in the Sydney property following its purchase and paid rent and outgoings. The rent was the same as the mortgage payments.
The parties met in 2002.
In 2004 the wife obtained employment at S Bank.
The parties married in Taiwan in 2006.
Following the wedding the wife moved out of her parents’ unit in Sydney.
At the time of the wedding the husband’s family provided the parties with a gift of money which was equivalent to AU $100,000.
Following the marriage and at the request of the husband, the wife gave up her job in Australia and moved to Taiwan. She understood she would be working in the husband’s family business, however, this did not eventuate. The work she did perform was done from home. She did provide the husband with advice for the family business.
In January 2007 the wife and her mother travelled to Australia to await the birth of the parties’ first child, M. M was born in early 2007. The wife stayed with her mother in the Sydney property rent free until June 2007 when she returned to Taiwan. In oral evidence the wife said that during this time, the husband provided her with a credit card to spend up to $500 per month.
At some time prior to June 2007 the wife says she was informed by the husband that he had acquired a property at O Street, Suburb P, City D, Taiwan (“the Taiwan property”). The wife and the parties’ child M resided in that property with the husband from June 2007 until September 2008. The wife was pregnant with the parties’ second child, N, at that time.
In October 2008 the husband came to Australia. It seems the parties resided in the husband’s parents’ unit at Suburb E in Sydney.
In November 2008 the husband took the child M and left Australia without the consent of the wife. The wife sought to restrain the husband removing the child, however, by the time she sought an injunction in this Court the husband had already left with M.
The husband and M returned to Australia in February 2009 in time for the birth of the parties’ second child N. N was born in early 2009.
In about April 2009 the husband returned to Taiwan leaving the children in Australia with the wife. At that time the “watch list order” the wife had obtained earlier was in operation and the husband could not remove M from Australia.
It seems that after the birth of N in 2009 the wife and the two children resided in her parents’ Sydney property.
When the husband came to Australia he would either stay with his parents in Suburb E or with the wife and children at the Sydney property.
In January 2010 the husband purchased a unit at I Street, Suburb F (“the Suburb F property”). The husband told the wife it was their family home. The husband contributed approximately $120,000 AU and the wife contributed $3,000. The wife was the salesperson for the unit and she contributed her commission from the sale. The wife says that she paid for whitegoods, furniture and some kitchen cabinets for the Suburb F property.
In December 2010 the wife took the children to Taiwan to visit the husband and his family. The wife says that at that time the husband and wife agreed the wife and children would live in Australia and the husband would contribute $600 per month to assist her financially. The wife says he only paid that amount on a number of occasions.
The Suburb F purchase was finalised in March 2011. The wife, husband and children then lived together in the unit for about two months.
In May 2011 the husband took M to Taiwan to learn Chinese before he commenced school. The wife said he threatened to divorce her and gain custody of the children if she refused to allow M to go with him. N remained in Australia with the wife.
In November 2011 the wife travelled to Taiwan with N. In February 2012 she returned to Australia with both children.
M commenced his schooling in Suburb E in February 2012. The wife rented a room from the husband’s father in the Suburb E unit where she and the two children stayed during the school week. On weekends they returned to the Suburb F property.
The husband stayed in Australia in February 2012 for about two weeks and then returned to Taiwan. The wife gave him AU $10,000 at that time.
In August 2012 the wife’s parents sold the Sydney property which had been purchased in the wife’s name.
In June 2012 the husband requested that the wife and children travel to Taiwan to attend a family funeral. Just before travelling the wife was told N had a serious disorder for which he needed an operation. After the funeral the husband refused to allow the wife to return to Australia with M. The wife said the husband threatened her and forced her to sign a document which he said was a divorce settlement document. The wife returned to Australia with N who underwent the surgery he required.
In about October 2012 the wife commenced proceedings in this court. It seems the husband was in Australia but did not bring M with him. The wife sought an order for the return of the child to Australia. She represented herself and the court allowed the husband to return to Taiwan.
In August 2014 the wife obtained a court order for the return of M to her care. He was returned and the wife and children have resided in the Suburb F property since that time.
The wife pays the utility expenses, water rates, strata fees and council rates of the Suburb F property.
Since occupying the Suburb F property the wife has paid $1,000 per month towards the mortgage. The wife paid that sum to the husband, or to an account of his, however, it seems he fell into arrears on the mortgage. The wife became aware of the default on the mortgage and paid a sum to bring the mortgage up to date. In oral evidence she said this sum was approximately $850 per week for a number of weeks.
In October 2012 the wife approached the NAB about the mortgage payments however as she was not a party to the loan she could not be given information. She did however ascertain how to make payments to the mortgage account and has done so since that time. In her Financial Statement the wife said she pays the mortgage at the rate of $440 per week.
The wife works part time in retail. In the 2015-2016 financial year, she earned $30,000 before tax.
In 2012 the wife completed a diploma. She obtained a retainer contract in 2013 and she has been endeavouring to build a business. Since obtaining the contract the wife has earned about $25,000 in commission.
The wife’s parents assist her by minding the children and sometimes paying school fees.
The wife has enrolled to undertake a degree and is building a debt for university fees.
The wife swore a Financial Statement on 15 May 2017. She deposed that her income from employment is approximately $400 per week. She has additional income of $436 per week by way of Austudy and Family Benefit payments from Centrelink.
Having reached my conclusion about matters of credit in relation to each party I here record I do accept the evidence of the wife as set out herein. That determination applies to all of the wife’s evidence unless hereafter I specifically find that I prefer the husband’s version of a particular fact dispute.

The husband’s evidence

The husband provided a document entitled “Consolidated affidavit” on the second day of the trial. It was unsworn, however, it had been interpreted to him by the interpreter provided to assist the husband by the Court. That interpreter, under oath, said she had translated the document to the husband in the Chinese language and he appeared to understand and acknowledge the content of the document. The husband in the witness box informed the Court that the content was true and correct subject to specific portions which he corrected in oral evidence.
The document containing the husband’s evidence referred to many annexed documents, however, the annexures were not paginated in any particular order and there were some documents said to be annexed which were not annexed.
The signed document was then provided to the wife, together with the husband’s Financial Statement, which had also been translated to him and which he adopted as truthful in the witness box. He also signed that document in Court. Additionally, the husband provided a document entitled “Response to Initiating Application”. That document had similarly been translated to the husband and he had signed it in Court. He informed the Court under oath that he wished to amend the orders which he sought in one respect. He said that he would not oppose the wife being allowed to purchase his interest in the Suburb F property or alternatively he would purchase her interest in the unit if she preferred.
In his affidavit the husband said the following which I consider I can give weight to.
The husband was born in 1974 in City D, Taiwan.
The husband has dual Taiwanese and Australian citizenship.
The parties married in 2006. The husband says separation occurred on 3 November 2008.
A divorce was granted in Taiwan in 2012. The husband said there was a Divorce Settlement. He said he annexed a copy of that settlement to his affidavit, however, it was not annexed.
Not being able to see what this document said I informed the parties that if there was a property settlement which had taken place in Taiwan then it may be that there could not be further proceedings before this Court. I informed the husband that he would need legal assistance if he wished to assert the property matters between he and the wife had already been determined. After some discussion the husband elected not to press an asserted “Divorce Settlement” in Taiwan as a bar to proceedings in this Court and the hearing then progressed.
The husband agrees there are two children of the marriage, M and N. Both were born in Australia.
On 18 May 2016 final parenting orders were made in the Family Court of Australia. I note those orders provide in broad terms for the children to live with the mother and that she have sole parental responsibility for the children. There are orders which provide for the children to spend time with the father when he is in Australia and communicate with him. There is an order restraining the removal of either child from Australia and there is an order placing the children on the airport watch list.

The father resides in Taiwan and works as a manager.
The parties met in 2002 while the husband was working as a real estate salesman in Sydney. The parties conducted a relationship between Australia and Taiwan until 2006 when they were married.
The husband says that in March 2006 he received a gift equivalent to AU $106,289 from his father (I note the wife says it was equivalent to AU $100,000. The difference between the parties is not significant in this case). The husband says that AU $34,589 of that sum was applied to wedding expenses.
In May 2006 the husband paid what he described as “Ping Money” to the wife’s parents. The amount paid was AU $10,000. As explained by the husband this was a payment which was historically known as a “bride price” in some cultures.
In May of 2006 the parties commenced residing with the husband’s mother in Taiwan. They paid for their utility use.
The parties’ wedding was held in City D and the husband’s father paid for the wedding. The husband paid for the photographer and other expenses totalling approximately AU $8,932.
The husband says that the parties lived in Suburb P, Taiwan in 2007. He said the parties lived in one of his family’s properties and paid strata levies and utility expenses.
The husband denies that he is the owner of a property in Taiwan as alleged by the wife. The husband annexed a search of the property nominated by the wife as belonging to the husband, namely O Street, Suburb P, City D, Taiwan. Annexure “I” to the husband’s affidavit is a document which appears to be a search of title for the property above described. That document suggests the owner of the property is Mr Leng. That is identical to the name of the husband in this case.
The husband says there were arguments between the parties in 2008 and the wife asked for a divorce. The wife and the children travelled to Australia in 2008 for a holiday with the husband’s family, but the wife did not want to return. She commenced proceedings in the Family Court in Australia; however, the husband returned to Taiwan taking the child M with him.
The husband returned to Australia with M in early 2009 to be here for the birth of N. The father returned to Taiwan after the birth of N without M as the mother had retained his passport and informed him that she had placed his name on the airport watch list.
The husband visited the wife and children several times between 2009 and 2010.
In 2009 the husband said he commenced remitting AU $600 per month to the wife. The husband in his written evidence said he annexed as “M” to his affidavit a copy of the bank remittance documents. They were not attached.
The husband said that he also paid for the wife’s credit card expenses in 2009 whilst he lived in Taiwan. He annexed as “N” a copy of a credit card statement.
In May 2006 the husband provided the wife with a loan of US $10,000 to invest in currency exchange market. The husband said that the wife lost money on this investment and had to borrow AU $100,000 to cover her loss.
The husband annexed as annexure “P” a copy of a title search of the property of which the wife was the registered owner in Sydney which showed three discharges of mortgage and new mortgages being registered. The husband alleged the funds raised totalled AU $100,000. No evidence of that assertion was provided.
On 7 November 2007 the husband transferred to the wife’s bank account AU $12,800 which the wife had asked for. The husband annexed a copy of a document evidencing the transfer of funds (annexure “Q”). The husband says the wife paid him AU $4,000 cash in 2009 and AU $10,000 cash in 2012. The husband said he placed the funds in the Commonwealth Bank “as her parents’ assurance of support in 2012 for 2 years.” The husband did not ever explain what he meant by that statement. In any event, the wife in her oral evidence said that this money was intended to be paid to her parents by the husband but they were never paid.
The husband says that in 2009 the wife invited the husband to live in the Sydney property with her. The husband established a business. The business was apparently successful for some time, however, the husband had to return to Taiwan to assist his father.
The wife was working as a saleswoman in real estate in Australia and she invited the husband to purchase the Suburb F unit. The wife also acted as the husband’s mortgage broker.
In February 2010 the husband caused AU $38,393 to be transferred from Taiwan to his bank account in Australia which he owned jointly with his father (account ending in 8184). On 5 November 2010 a further remittance was made for $32,745 and on 10 November 2010 a further remittance of $32,709 was paid. In December 2010 a further remittance of $44,229 was made. A total of AU $148,076 was paid. The husband said all those funds were his father’s money and the purpose of the transfers was to fund the renewal of a visa for his parents. The husband in his written evidence said there was annexed a bank statement showing the deposits. That document was not annexed.
The husband’s father renewed his visa in January 2011 after which the husband took sole control of the joint account. The husband says his father directed him to transfer $3,200 to his brother and he retained the money that remained in the account (approximately $145,000). The husband said this was a loan from his father to enable the purchase of the Suburb F unit. The husband said the property was purchased in his name as it was more convenient than to purchase it in the name of his father, as had been suggested.
The husband said he intended to buy the Suburb F property as a family home for the parties and the children.
The husband says the wife acknowledged that the money to purchase the Suburb F property was advanced as a loan from his father. The husband tendered a message from the wife, which was written in Chinese and translated in Court under oath by the interpreter, wherein she appeared to accept that the money was from his family.
The husband deposed that he made numerous contributions to the maintenance and improvement of the Suburb F property, including the purchase of furniture for the home and some minor renovations.
The husband deposed that between February and June 2012 the Suburb F property was leased to tenants. The husband says that the wife collected the rent and he did not receive any of it. In oral evidence, the wife disputed this and claimed that she paid the husband the monthly rental after deducting costs for council rates, strata levies and other bills. The husband annexed to his affidavit (at annexure ZZ-1) a table indicating the payments made by the wife in respect of the Suburb F property between May 2011 and October 2012 inclusive. Between June 2011 and October 2012 the wife is said to have paid the husband between $1,000 and $1,700 per month, and $550 in May 2011.

Evidence of the husband’s father

Mr Leng Snr, the husband’s father, swore a statement in these proceedings and gave oral evidence with the assistance of an interpreter.
Mr Leng Snr gave evidence that he sleeps at the husband’s home in Taiwan most nights when he is not sleeping at his warehouse. He said he and his wife own a property in City D, but they stay there only on Sundays or public holidays, because they do not like the traffic.
Mr Leng Snr said that he stays with the husband most nights to take care of him because he is studying and “he doesn’t know how to make money”. He provides the husband with between NTD 30,000 and NTD 40,000 (approximately AU $1,300 to $1,700) each month for his living expenses. Mr Leng Snr said that as far as he knows, the husband does not have a job.
Mr Leng Snr said he purchased the Taiwan property for one of his other sons (the husband’s brother), but he does not live in the property. Although it was purchased in his son’s name, Mr Leng Snr said he owns the property because he paid for it.
Mr Leng Snr said that he gave the husband approximately AU $148,000 for the purchase of the Suburb F property. He said he told the husband, “I’m your father. If you need, of course I will help. But you have to sign the paper. So once you have the money, you have to return the money back to me.” Mr Leng Snr said the husband must repay him the money once he sells the Suburb F property. Mr Leng Snr said that, if the Suburb F property is not sold, then the husband will have to find another way to repay the loan.
The money that was loaned to the father was paid by way of three or four separate payments between February and November 2010. When asked whether he retained the remittance advices for those payments, Mr Leng Snr said that he asked the husband to make the payments on his behalf. He did not have any documentary evidence apart from a handwritten schedule of payments.

Property matters

property: general principles

Section 79 of the Act enables the Court to make orders with respect to the property of the parties to the marriage. In considering what order, if any, should be made the Court is required to take into account the matters under s 79(4).
It is now well established that the determination of a s 79 application requires a four step process (Ferraro and Ferraro (1993) FLC 92-335; McLay and McLay (1996) FLC 92-667; Hickey and Hickey (2003) FLC 93-143). The Court must:
a)firstly, identify and value the net property, liabilities and financial resources of the parties at the date of the hearing;
b)assess the contributions of the parties pursuant to s 79(4);
c)consider the relevant s 75(2) factors; and
d)lastly, consider whether such an order, in all the circumstances, is just and equitable. The final consideration is a reflection of the requirement under s 79(2).

Assessment of the s 79(4) contributions

In considering the alteration of property interests I am required to consider the contributions made by the parties in accordance with the matters outlined under s 79(4). Section 79(4) provides:
(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d) the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e) the matters referred to in subsection 75(2) so far as they are relevant; and
(f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.

Section 75(2)

In making a decision in relation to property, s 79(4)(e) requires a consideration of relevant s 75(2) matters. I here incorporate the provisions of section 75(2).
The first step I must undertake is to identify the property of the parties or either of them available for division between them.

Balance Sheet

Prior to oral submissions being made by the parties, I constructed a balance sheet with the parties in which some items were disputed.
The assets, liabilities and superannuation entitlements of the parties were identified as follows:

Assets	Value (AUD)
I Street, Suburb F	$725,000
O Street, Suburb P, City D, Taiwan	No valuation
Household contents of the husband	$5,000
Household contents of the wife	$5,000
German vehicle of the wife	$2,000
Wife’s paid legal fees Husband’s motorbike	$45,000 Nominal
Husband’s bank accounts	$500
Husband’s paid legal fees	$55,000
TOTAL	$792,500

Superannuation	Value (AUD)
Wife’s BT Super (accumulated prior to the marriage)	$34,000
Wife’s Super (accumulated from 2013)	$5,000
Husband’s superannuation in Taiwan (accumulated between 1998-2016)	$10,000
TOTAL	$49,000

Liabilities	Value (AUD)
Mortgage over the Suburb F property	$296,000
The husband’s debt to Mr Leng Snr	$145,000
Husband’s debt to Mr Leng Snr for legal and other costs	$38,460
Husband’s debt to Mr Leng Snr for legal fees	$20,800
Husband’s debt to Mr H for legal fees	$12,544
Husband’s debt to Mr A for legal fees	$4,783
Husband’s debt to Mr J for living expenses	$800
Husband’s debt to his solicitors for legal fees	$3,000
Husband’s debt to K Bank for personal expenses including legal costs	$10,273
Wife’s commission clawback	$1,178
TOTAL	$532,838

The husband told the Court that he has expended roughly $55,000 on legal costs. The wife has expended roughly $45,000. I have included those payments in the balance sheet as I have included the husband’s liabilities for legal fees and living expenses in the balance sheet. However, the husband’s liability for loans for legal fees and for living expenses amount to $87,660 of which only $55,000 can be for legal fees based upon his evidence. I propose to take into account under s 75(2) that $32,660 of the husband’s loans were obtained to fund his living expenses.
The wife also told the Court that her parents contributed $20,000 to assist her with the payment of legal fees. The wife said this was not a loan but she feels obliged to repay her parents when she is able to.

The issues

The issues for determination in these proceedings can be summarised as follows:

Does the husband own a property in Taiwan?
Does the husband owe $145,000 to his father?
Was the wife the proprietor of the property which she acquired in her name and which she said belonged to her parents?
What is the asset pool between the parties?
What are the parties’ respective contributions?

The property in Taiwan

The husband gave oral evidence that the property in Taiwan is registered in the name of his brother, Mr Q Leng. The husband said that his father paid the mortgage on the Taiwan property. However, the title search of the property dated 11 July 2013 (annexure “I” of the husband’s affidavit) records the husband as the owner of the Taiwan property.
In cross-examination, the husband said that he lives in the Taiwan property on his own and sometimes his parents will visit and will stay over. They have their own home and live 20 minutes away by car. The husband says that he pays water bills, electricity and strata fees in relation to the Taiwan property. He says that he can live there until his father asks him to leave. The husband has no plans to return to Australia within the next five to ten years. There was no indication by Mr Leng Snr that he would ask the husband to leave the property.
The evidence of Mr Leng Snr is that the Taiwan property was purchased for one of his sons, but that this son lives in another property in Taiwan. Mr Leng Snr said that as he purchased the Taiwan property for one of his sons, his other son (the husband) received financial assistance to purchase the home in Suburb F.
The wife says that the husband had represented to her that the property in Taiwan in which she and the husband lived whilst they were there was his property.
Without the benefit of expert evidence it is not possible to conclude whether the version of fact provided by the husband and his father is a common aspect of life amongst families of Chinese background who live in Taiwan.
I do accept the evidence of the husband’s father about the beneficial ownership of the property in Taiwan which stands in the husband’s name. I find therefore that the husband holds the legal title to the property yet not the beneficial interest in the property. He is able to use the property as his residence and he is only required to meet the utility expenses on the property. He can live there as long as his father permits and there is nothing to suggest that his father will ask him to leave the property in the foreseeable future.

The loan to the husband of $145,000

The husband asserts that his father loaned him a total of approximately $145,000 to fund the purchase of the Suburb F property. In cross-examination, Mr Leng Snr said the total amount loaned to the husband for the purchase of the Suburb F property was approximately $148,000.
The money was transferred into a NAB account (ending in …84) which was operated jointly by the husband and his father. The husband deposed that four separate sums of money were transferred into the account over a period of 10 months in 2010, a total of $148,076. The husband deposed that these funds were required in an Australian bank account for the purpose of his father’s visa application. Once the funds were no longer needed, the husband said his father directed him to pay $3,200 to his brother and retain the remaining funds (approximately $145,000) for the purchase of the Suburb F property. The husband said he assumed sole control over the joint account from that time.
In cross-examination Mr Leng Snr asserted that the money was his and the husband was required to repay those funds.
The settlement sheet for the Suburb F property (Exhibit M2) indicates that a sum of $104,093.45 was required by the conveyancer. A cheque for that exact sum was drawn from the National Australia Bank account operated by the husband (account ending in 8148) on 24 March 2011. The settlement sheet shows that a deposit of $21,250 had been paid. There were some adjustments of rates and taxes specified on the settlement sheet. The total paid as evidenced on that document is $125,343. In addition to that sum required for the deposit and the settlement funds, payment of stamp duty would be required together with payment of legal costs on purchase.
The wife continued to assert that the money belonged to the husband, and was not a loan from the husband’s father, despite acknowledging in an email to the husband’s sister that the husband’s family contributed approximately AU $100,000 into the Suburb F property (Exhibit H6, which is an email in Chinese that the interpreter translated in Court). The wife said that the husband told her when they divorced that the money was his father’s, but she believes this was to stop her from accessing the asset.
The balance of probabilities test, which is applied by the Court to determine issues of fact, leads me to the conclusion that the husband does owe his father the sum of $145,000, which funds I accept were largely applied to acquire the Suburb F property.

Was the wife the proprietor of the property which she acquired in her name and which she said belonged to her parents?

The wife’s evidence is that the property she acquired in L Street, Sydney in 2003 was acquired with her parents’ funds. She was then able to live in that unit and during her occupation she paid rent.
The fact that the amount of rent she paid was the amount required as a monthly payment on the mortgage registered against the property was, the husband suggested, supportive of his assertion that the property was the wife’s.

The wife received the benefit of a first home owner’s grant for the purchase of the property, although there is no evidence that she retained the money. In 2006 the rental income was paid into the wife’s account. She said that she retained the funds to spend when her parents visited her in Australia. The property was sold in August 2012 and the proceeds of sale were paid to the wife’s parents.
The husband deposed that he had made financial contributions to the Sydney property. In oral evidence the wife denied that the husband made any contribution to the Sydney property. She said that the only time the husband made any contribution was when she was caring for the children and she asked him to attend a strata meeting on her behalf.
I accept that the beneficial ownership in the Sydney property was owned by the wife’s parents and the wife always accepted that was the case. When the property was sold during the parties’ cohabitation I accept the net sale proceeds were placed under the control of the wife’s parents.

What is the asset pool between the parties?

I have determined that the husband does not own the property in Taiwan.
I have determined that the husband does owe his father $145,000.
The parties gave evidence at trial that the liability against the Suburb F property was, at 8 March 2017, approximately $296,000. The parties therefore have equity of approximately $430,000 in the Suburb F property.
During the trial the parties accepted the values attributed to the Suburb F property, the household contents of each the husband and wife, the wife’s German motor vehicle and the husband’s bank accounts. No value was given for the husband’s motorbike.
The wife also asserted that the husband has an interest in and earns an income from a rental property business (operated in a company name) that is registered in his name. In cross‑examination, the husband said that the rental property business company does not trade. The registered capital of the property is NTD 1,000,000. The husband says that he borrowed that sum from his sister. There is no evidence that any amount remains owing. There is no evidence as to the value, if any, of the husband’s interest in the trading company. There is no evidence as to the Australian dollar value of NTD 1,000,000 so that even if the capital was paid up the value of same is not known. In short, the evidence about the company is so deficient as to be of no assistance at all. No submission was made about what action the court should take given the obligation to make a full disclosure in relation to the company lay with the husband.
Both the parties have paid legal fees which they disclosed to the court and included in the draft balance sheet presented at the hearing. The husband has a liability in the balance sheet in relation to the legal fees he has paid and therefore it is appropriate that the amount he has paid be included as an asset in the balance sheet. The wife also had funding for her legal fees however there is no positive obligation upon her to repay her parents (the funders). The wife says however, that she does intend to repay her parents when she can. I propose in those circumstances to not include the amount advanced by the wife’s parents for legal fees as a balance sheet item but rather I will take the proposal to repay into account in favour of the wife under s.75(2) which I will consider later. I record here that I do accept that the wife does intend to repay her parents at some time in the future.
In relation to liabilities, the father asserted that he owes money to his father, Mr H, and Mr Q Leng for legal costs totalling $37,827. He asserted that he owed a further $49,533 to his father, Mr J and the K Bank for personal and living expenses, some of which included legal fees. There is no evidence that these are joint liabilities of the parties, or that they were accumulated during the marriage. I have considered below, under my consideration of the s 75(2) factors, that some $32,000 of the debts accumulated by the husband were utilised solely for his living and other expenses (not his legal fees).
The wife’s superannuation with BT Super was accumulated prior to the marriage, and her entitlement with R Super has accumulated following separation.
Having regard to the above matters, I therefore find the assets and liabilities of the parties to be as follows:

Assets	Value (AUD)
I Street, Suburb F	$725,000
Household contents of the husband	$5,000
Household contents of the wife	$5,000
German motor vehicle of the wife	$2,000
The husband’s motorbike	Nominal
Husband’s bank accounts	$500
Wife’s paid legal fees	$45,000
Husband’s paid legal fees	$55,000
Total Assets	$837,500

Superannuation	Value (AUD)
Wife’s BT Super (accumulated prior to the marriage)	$34,000
Wife’s R Super (accumulated from 2013)	$5,000
Husband’s superannuation in Taiwan (accumulated between 1998-2016)	$10,000
Total Superannuation	$49,000

Liabilities	Value (AUD)
Mortgage over the Suburb F property	$296,000
The husband’s debt to Mr Leng Snr	$145,000
Husband’s debt to his solicitors for legal fees	$3,000
Husband’s debt to Mr Leng Snr for legal and other costs	$38,460
Husband’s debt to Mr Leng Snr for legal fees	$20,800
Husband’s debt to Mr Mr H for legal fees	$12,544
Husband’s debt to Mr A for legal fees	$4,783
Husband’s debt to Mr J for living expenses	$800
Husband’s debt to K Bank for personal expenses including legal costs	$10,273
Wife’s commission clawback	$1,178
Total Liabilities	$532,838

Total Net Assets (excluding superannuation)

$304,662

Stanford: is it appropriate to make any property order?

In this matter the parties clearly made a decision to separate and lead different lives. Each party seeks the Court make orders under s 79 dividing their property and ending their financial relationships outside of the responsibility for the maintaining of the children.

What are the parties’ respective contributions?

Initial contributions

The wife said that she had AU $100,000 in savings at the time of the marriage. This money was lost in the GFC when she incurred trading losses in respect of her currency trading. Although lost, this still ranks as a contribution as there is no evidence she engaged in waste.
The husband’s parents provided the parties with AU $106,289 when they married. Approximately AU $34,000 of this sum was paid towards wedding expenses. The husband deposed that he also paid the wife’s parents “Ping Money” in the sum of AU $10,000. The husband’s father paid for the parties’ wedding. Some money was invested by the wife in shares and lost in the GFC. The wife said that the money was otherwise used to meet their daily living expenses.
The wife also asserted the husband told her part of the money was used to purchase a property in Taiwan. I accept the husband told the wife that, however, that, I have found, was untrue.

Contributions to the date of separation

The extent of the wife’s income earned during the marriage is not easy to determine. She gave up the job she had at the time of the marriage to move to Taiwan. There, I accept, she was to work in the husband’s family business, however, that did not eventuate to the great disappointment of the wife.
Prior to the marriage the wife had studied and obtained a degree from the an Australian university. In 2004, before the marriage, the wife obtained employment with R Bank. When the wife lived in Taiwan she was not permitted to work there by Government regulation.
At the time the Suburb F property was purchased the wife was working in two professional occupations.
I find the wife made the following contributions during the cohabitation. She contributed AU $3,000 to the purchase of the Suburb F property. The wife says that she used this money to pay for the cost of the kitchen cabinets and range hood to be installed at the Suburb F property after it was purchased. The wife also contributed the sales commission due to her on the sale to the husband of the Suburb F property and the brokerage fee for having acquired the loan for the husband.
The wife has paid the utility expenses for the property from the time of the purchase. Those expenses include water rates, council rates, strata fees, gas, electricity, council rates, and telephone bills. The wife has also paid AU $1,000 per month to the husband from March 2011 until about November 2012. She has since made payments directly to the mortgagee bank (NAB) each month to meet the mortgage expenses.
The father deposed that he paid for all the furniture for the Suburb F property and some minor renovations.
During the relationship, the wife had primary care of the parties’ two children, both when they lived in Australia and in Taiwan, except for the periods when M resided with the father in Taiwan.
In 2007 the husband paid the wife US $10,000.
In 2009 the wife paid the husband AU $4,000 and in 2012 she paid him AU $10,000.
Between June 2011 and October 2012, the wife paid the husband between $1,000 and $1,700 rent per month for the Suburb F property. In May 2011 she paid him $550.
Whilst the husband resided in Taiwan and the wife in Australia in December 2012, the wife asserted that the husband only paid her $600 per month on three occasions, despite having agreed that he would contribute that amount every month. The wife accepted that she had access to the husband’s credit card for everyday expenses.

Section 79(4) contributions post separation

When the parties separated for the first time in about October 2008 the wife was pregnant with N. She remained in Australia after a holiday, staying with the father’s parents. When she refused to return to Taiwan after the holiday the father returned to Taiwan, taking M with him. He returned with M when N was born in 2009. Both children then remained with the wife other than during the period M lived in Taiwan between 2011 and 2014.
Since separation, the wife has maintained the Suburb F property by paying the mortgage, bills and rates. She has had primary care of the children (except for the periods between 2011 and 2014 when M lived overseas with the husband and she had sole care of N in Australia).
The wife gave oral evidence that her parents have assisted her financially and with the care of the children. She said that when the mortgage over the Suburb F property was in arrears, her parents assisted with paying the children’s school fees and their extra-curricular activities. She said her mother will give her money if she needs it, and her father stays at their home and cares for the children when she is at work or while she is studying. The children’s school fees are approximately $2,600 per term for both children.
The husband gave oral evidence that he paid for some of the outgoings of the Suburb F property following separation. The wife agreed that there had been a period of time where she understood that the bills were being directed overseas. She believed this was roughly between November 2012 and sometime in 2013. The husband’s schedule of payments tendered in these proceedings (Exhibit H2, also annexure ZZ-1 of his affidavit) indicated that the husband made three payments towards the water bills for the Suburb F property between January 2013 and July 2013. He accepted that the wife must have paid all other water bills.
The husband accepted that the wife pays strata fees, as well as gas, electricity, and telephone bills for the Suburb F property. In relation to the internet bills, the wife says that the bills were deducted from the husband’s account prior to November 2012 but since then she has paid them in full. In relation to council rates, the wife accepted that the husband made three payments since separation. The wife has met the remainder of the council fees, which are approximately $480 per quarter.
The husband agreed that the wife has paid him approximately $1,000 each month since moving into the property in March 2011 by way of mortgage repayments. In 2014, the wife says that the mortgage fell into arrears and in order to bring the mortgage up to date she had to pay $850 per week from late March 2014 to July 2014. The wife says the bank no longer accepts interest‑only payments and therefore since August 2016 she has been making payments of $1,754 per month. The wife says that she approached the husband’s solicitors to make arrangements to refinance the mortgage with another lender at a lower interest rate but the husband refused.
The husband is not paying any child support. In the financial year ending 2015, the husband earned approximately the equivalent of AU $23,000. The husband said that he has earned approximately AU $23,000 each year since separation.
Following the final separation in mid-2012 the wife returned to Australia with N and M remained in Taiwan with the husband. He was there until August 2014 when he was returned to the wife’s care in Australia.
The husband has not paid child support since the separation. There is no Child Support Assessment tendered in this matter.

Conclusion based on contribution

All in all I assess the contributions of the parties to the acquisition, conservation and improvement of the property of the parties to the marriage or either of them including such property which is no longer the property of the parties to the marriage or either of them to be equal to the date of their separation. Post-separation (in mid-2012) I find the contributions have favoured the wife.
The matters which particularly impact on the weight being given to each party’s contributions are as follows:
·The initial contributions of each party as outlined above;
·Each party’s contributions during the marriage as income providers and parents to the children;
·The contribution post separation by the husband’s parents of an interest free loan to assist the husband with the acquisition of the Suburb F property;
·The wife’s contribution to the Suburb F property, including payment of mortgage instalments to the NAB and all outgoings on the property since its acquisition in March 2011;
·The wife’s overwhelming contribution as care and provider for the children post separation, even allowing for the time M was in Taiwan with the husband;
·The contribution of the father to the care of M in Taiwan from May 2011 to November 2011 and from July 2012 to August 2014.
In relation to the Suburb F property, the wife in submissions conceded that the husband had made a much larger financial contribution to the purchase of the Suburb F property, however, that concession was based on her case that the contribution of $145,000 made to the purchase price was a contribution of capital which was the husband’s property or was a gift to him from his family. The husband has run the case asserting that the funds comprising the $145,000 were his father’s and were a loan to him which needs to be repaid. I have accepted that is the case and have found the $145,000 was a loan and not a gift, nor was it the husband’s asset at the time the Suburb F property was purchased. In that circumstance the contribution of the husband to the purchase of the Suburb F property was relatively small. Certainly the provision of the loan of $145,000 was a significant contribution from the husband’s family, especially because it was an interest free loan and it did enable the husband to purchase the Suburb F property. I have taken that matter into account in the assessment of the parties’ contributions.
Taking into account all contributions to the date of the trial I find the contributions favour the wife 60 per cent as compared to the husband’s contribution of 40 per cent.

Contributions to Superannuation

Each of the parties has a superannuation entitlement. The wife’s BT Superannuation was accumulated, it would seem, largely before the marriage. It has no doubt grown with the performance of the fund. The wife’s R Superannuation has accumulated post separation.
The wife’s total superannuation entitlement at trial was $39,000.
The husband superannuation is based in Taiwan. It was accumulated between 1998 and 2016. The husband’s superannuation entitlement at trial was $10,000.
Given the above stated facts I assess the contribution of the wife to the superannuation pool to be 80 per cent.
Neither party seeks a splitting order.

Section 75(2) considerations

The marriage in this matter lasted six years and produced two children.
The husband and wife both aged 42 and are in good health.
The parties both earn a modest income. The wife is studying for her doctorate and working on a part-time basis, earning approximately $400 per week. She has an additional income of $436 per week by way of Centrelink payments.
The husband earns approximately $23,000 per year and lives in Taiwan. He is studying at the moment and the evidence is that he has borrowed from his parents to fund his living expenses to some degree. He also lives in a property owned by his family.
The wife has sole care for the children who are aged 8 and 10, and who attend primary school close to the wife’s home in Suburb F. There has been no child support assessment and the husband is not paying child support or maintenance of the wife.
The wife is meeting her and the children’s everyday expenses with the financial assistance of her parents.
There is no evidence to suggest the husband will be contributing to the financial support of the children into the foreseeable future.
The parenting orders made in this case make clear that the time the children will be cared for by the husband (thereby contributing to their future care) will be very limited and will only be while the husband is in Australia considering there are restraints upon the removal of the children from Australia.
The division of property based upon assessment of contribution will see the wife receive $182,797 worth of net property and the husband $121,865 worth of net property.
There is a relatively small net pool of assets. The net pool is $304,662.
The contributions to the superannuation pool I have determined to be 80 per cent to the wife. Given the modest size of the superannuation pool and the fact that no splitting order is sought, I will not make any further adjustment in that pool and simply leave each party with their current superannuation entitlements.
The husband has a resource in his parents who provide him with accommodation in their property in Taiwan. That property is available to him until such time as his parents require him to vacate. There is no suggestion that will be in the near future. The husband’s parents also financially support him to the extent that his income is insufficient to do so. The husband’s father gave evidence that he supports the husband by providing between NTD 30,000 and NTD 40,000 each month for his living expenses. Mr Leng Snr said that as far as he knows, the husband does not have a job.
The wife has the support of her parents who provide child care to assist her so she can work and study.
I have not been able to list as a loan in the balance sheet the liability of the wife to pay her parents $20,000, which they have provided to her to meet legal costs incurred in this proceeding, because it has not been expressed to be a loan requiring repayment. The wife said she feels obliged to repay her parents when she is able to. I have no doubt she will do so if she is ever able.
The husband still has remaining a liability for legal fees of $3,000.
The husband’s liability for loans for legal fees and for living expenses amount to $87,660 of which only $55,000 can be for legal fees based upon his evidence. I propose to take into account here that $32,660 of the husband’s loans he obtained to fund his living expenses. There is no evidence as to how that money was expended. I have given the husband the benefit of the doubt and assumed there was no excessive living expense which the wife should be required by these proceeding to indirectly contribute to.

The wife has had occupation of the property since March 2011 when the property was purchased.

Conclusion on section 75(2)

The s 75(2) considerations in this case, in my determination, favour the wife. I determine that an adjustment is required in her favour of 20 per cent. That is a relatively high percentage, however, the factors which have weighed heavily in this determination is the ongoing financial support of the children and the fact that the care of the children will fall so heavily upon the wife, given that the husband resides outside of Australia and will thereby be unable to shoulder his responsibility to care for the children in the same proportion as he might otherwise have been able to do had he lived close by the children.
The weight which has been applied is also very much affected by the small pool of assets available for distribution. It seems probable that this distribution of capital is likely to be the only fund the wife will be able to rely upon to help house and support the children into the future. The children are still quite young and therefore the length of time the wife will probably have to support the children unassisted by the husband will be many years.

Sections 79(9), Overall division of assets

The above determination will see the wife receive 80 per cent of the parties’ net assets and the husband receive 20 per cent.

Just and equitable

The division of the parties’ net assets will see the wife receive $243,730 and the husband $60,932.
Although the difference between what each party will receive is considerable, the net pool of assets is also small. In the circumstances of this case I determine that result to be just and equitable.

Orders which should be made

The wife argued that she should have exclusive ownership and possession of the Suburb F property. She acknowledged that the husband made an initial contribution to the equity in the home, but argued that he does not pay child support and he has not maintained the property or serviced the mortgage whilst he has been living in Taiwan. (I note the contribution to which the wife refers as being made by the husband has been found by me to be a loan).
The wife argued that the husband owns a property in Taiwan. She drew the Court’s attention to the husband’s affidavit filed on 24 November 2009 in which he deposed to having purchased a property in Taiwan. During the trial, the husband told the Court that the Taiwan property is not his. I have accepted that to be the case.
In the case that the Court found the husband to have an interest in the Suburb F property, the wife argued that she would not be in a position to purchase the husband’s interest from him as she has little capacity to borrow money given her large Austudy debt and her part-time employment.
Unfortunately, the parties could not reach agreement about allowing the wife and children to remain in occupation of the Suburb F property for a time so that the wife might complete her study and be in a position to possibly acquire the husband’s interest in that property.
The order the Court will therefore have to make is for the sale of the Suburb F property and division of the sale proceeds in proportions between the parties which I will calculate below.
Until the Suburb F property is sold the wife and children will have occupation and the wife will be required to meet the outgoings on the property.
Each party will retain the property, other than the Suburb F property which is in their possession. Each will be responsible for meeting the debt attributed to them in the balance sheet.
The wife will receive the following from the balance sheet items:
Assets
Wife’s household contents  $5,000
Wife’s German motor vehicle   $2,000
Wife’s paid legal costs  $45,000
Total Assets  $52,000
Liabilities($)
Wife’s commission clawback  $1,178
Net assets retained by wife  $50,822
The wife is entitled to $243,730 of net assets therefore the deficit she carries to be paid out of the sale proceeds of the Suburb F property is $192,908.
The husband will receive the following from the balance sheet items other than the Suburb F property and its mortgage.
Assets
Husband’s household contents.  $5,000
Husband’s bank account.  $ 500
Husband’s paid legal fees  $55,000
Total Assets   $60,500
Liabilities
Debt to his father Mr Leng Snr for Suburb F loan $145,000
Husband’s debt to his solicitors for legal fees                 $3,000
Husband’s liability to his father for legal fees plus          $38,460
other costs
Husband’s debt to his father for further legal fees $20,800
Husband’s debt to Mr H for legal fees                   $12,544
Husband’s debt to Mr A for legal fees  $4,783
Husband’s debt to Mr J for living expenses  $800
Husband’s debt to K Bank for personal expenses $10,273
Total liabilities  $235,660
Net Deficit  $175,160
The husband is entitled to $60,932. He will therefore need to receive from the sale proceeds of the Suburb F property the sum of $236,092.
The Suburb F property has a value of $725,000 and the mortgage stands at $296,000. The equity therefore is $429,000.
As stated above the wife is to receive $192,908 of the equity in the Suburb F property. That is 44.96 per cent, which I round up to 45 per cent, of the calculated equity in that property. The husband is entitled to 55 per cent of the calculated equity.
As the property will be sold the net sale proceeds will then need to be divided in the proportions as calculated above.
By making an order which sees the sale proceeds divided in percentage proportions each of the parties will gain in their return should the property sell for more than the value set for the trial balance sheet and less should the property not achieve that value at sale.
The property stands in the husband’s sole name. The wife is present in Australia. Both should approve the sale and should there be any disagreement which holds up the sale, other than as may be agreed, then either party may apply for the appointment of a trustee for sale.
Otherwise orders will be made to divide the other assets each has. Each will retain their superannuation and each will need to indemnify the other in relation to any debts standing in that party’s name.
The husband sought an order that he retain all the furniture and content of the Suburb F property except the piano and that furniture which he identified as the wife’s furniture. During the trial that topic was not the subject of submission nor cross-examination. It is easy to see that the order sought by the husband could lead to conflict about what was the husband’s and what was the wife’s amongst furniture which has very little value.
The children will remain with the wife and therefore all their furniture which they use in bedrooms and in the nature of electrical appliances should accompany them.
I propose that the wife retain that furniture which she needs to re-house the children together with that furniture which she calls her own. Once the wife has removed her furniture the husband is to be responsible for removing the balance so that the property may be provided as vacant possession on settlement.
For all those reasons I make the orders set out herein.

I certify that the preceding two hundred and four (204) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 15 December 2017.

Associate:

Date: 15 December 2017

[2017] FamCA 1040

15 December 2017

Key Legal Topics

Areas of Law

Family Law

Property Law

Civil Procedure

Legal Concepts

Remedies

Injunction

Costs

Jurisdiction

Procedural Fairness