Sim and Soh

FAMILY COURT OF AUSTRALIA

SIM & SOH

[2012] FamCA 396

FAMILY LAW – PROPERTY SETTLEMENT – Contributions – Value of property – Where the oral evidence of one party is inherently unbelievable—where there is a second divorce between the same parties with property orders having been made following the first divorce—assessment of contribution in caring for and financially supporting a child of the parties prior to commencement of cohabitation.

Family Law Act 1975 (Cth)
Evidence Act 1995 (Cth)

Ferraro and Ferraro (1993) FLC 92-335
Gill & Gill (1984) 9 Fam LR 969
Hickey and Hickey (2003) FLC 93-143
Miller & Caddy 10 FLR 858
W v W (1997) 21 Fam LR 343

APPLICANT:

Mr Sim

RESPONDENT:

Ms Soh

FILE NUMBER:

SYC

2512

2008

DATE DELIVERED:

30 May 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Le Poer Trench J

HEARING DATE:

27,28 & 31 October 2011
1& 2 November 2011
5,6 & 7 March 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Cutler

SOLICTORS FOR THE APPLICANT:

Luminous Legal

COUNSEL FOR THE RESPONDENT:

Mr Sweet

SOLICITORS FOR THE RESPONDENT:

Austin Haworth & Lexon Lawyers

Orders

On or before 11 July 2012 the wife is to give notice, in writing, to the husband’s solicitors specifying whether she elects to pay the husband the sum of $265,212 on or before 30 August 2012 or alternatively if she proposes the property at C Street, Suburb B (“the property”) be sold and the husband be paid from the proceeds thereof as specified in these orders.
The wife’s obligation to pay the husband the sum of $265,212 is to be charged against the wife’s interest in the property to rank in priority next to the registered mortgage.
In the event that the wife elects to pay the husband the sum of $265,212, then she is to make that payment on or before 30 August 2012. In exchange for such payment the husband is to provide the wife with a properly executed form of discharge of any caveat lodged by him against the title of the property.
In the event that the wife elects to pay the husband the sum of $265,212 on or before 30 August 2012 and then fails to do so the parties are to cause the property to be sold and the proceeds to be divided as provided below.
In the event of the wife electing for a sale of the property pursuant to order 1 hereof or alternately the property being required to be sold pursuant to order 4 hereof, then the parties are to forthwith cause the property to be listed for sale and sold through the services of an agreed real estate agent and at an agreed sale price.
Upon the completion of a sale of the property the parties are to cause the proceeds to be paid as follows:
(a)       Payment of agents commission and fees;
(b)       Payment of any legal costs or conveyance costs associated with the sale;
(c)Payment to the wife by way of refund of any fees paid by her to the real estate agent in advance of the sale of the property;
(d)Payment of the amount owing to the mortgagee holding the registered mortgage secured against the property; and
(e)       Payment to the husband of a sum calculated as follows:
(i)45.7% of the sum achieved by deducting from the sale proceeds, the payments detailed in sub-paragraphs (a) to (c) hereof together with the deduction of the sum of $919,999 being the balance owing on the mortgage at the time of the hearing; and
(ii)The balance to the wife.
In the event of the parties being unable to agree on any of the following matters relative to the sale of the property then they are to jointly appoint the President for the time being of The Australian Property Institute NSW or his/her nominee to determine any such dispute by nominating an agent or auctioneer, recommending a figure for sale price or auction reserve or a preferred method of sale.
Pending the completion of the sale of the property, the wife is restrained from further encumbering the property or dealing with it in any way other than as prescribed by these orders without the written consent of the husband or further order of the Court.
The wife is restrained from taking any action to require the husband to remove a caveat which he might register against the title to the property in order to give notice of the charge created by these orders.
Each party has liberty to apply on short notice only in order to seek enforcement of these orders or alternatively orders to further implement these orders.
I direct that the Registrar of the Court provide (publish) to an appropriate officer in the Attorney-General’s Department a copy of these reasons together with any other documents requested thereafter including a copy of any part of the transcript of the proceedings, and I authorise any officer of the Attorney-General’s Department to provide any such document and a copy of these reasons to any other government officer who it is considered such documents should be referred to.
Otherwise each party is declared to be the absolute owner of assets, superannuation and resources currently standing in their name.
All outstanding applications are otherwise dismissed and the proceeding is concluded in the Court.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sim & Soh is approved pursuant to section 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2512 OF 2008

Mr Sim

Applicant

And

Ms Soh

Respondent

REASONS FOR JUDGMENT

Introduction

The parties to this case and their only child were born in China. Some of the property about which they dispute is located in China. They were married for the first time in 1987. They divorced for the first time in 1994. Both the marriage and divorce took place in China. They remarried in 2001 in China. They separated under the one roof in about mid 2004 and in April 2008 the husband moved out of the former matrimonial home. A decree nisi of dissolution of marriage was pronounced under Australian law on 24 March 2006.
This case has a number of unusual facets. The wife married again between the parties’ first divorce and their second marriage. This marriage on its face was a sham created for the purpose of facilitating the wife’s desire to be an Australian citizen.
There are many fact disputes between the parties. Most have significant importance in the assessment of the parties’ contributions and the determination of whether an adjustment under s 75(2) of the Family Law Act 1975(Cth) (“the Act”) should be made.
In order to determine the case I will have to make findings in relation to each of the parties’ credit on each issue unless I am able to determine that one of the parties is simply not acceptable as a witness of truth on any matter of substance.
Before the Court is an Initiating Application filed by the Husband, Mr Sim on 22 May 2008, seeking division of the property he claims to be matrimonial property in the possession of Ms Soh, the wife.
The matter came before the Court for five days on 27 October 2011 but at the end of that period the matter remained part heard. The matter was listed for a further three days to commence on 5 March 2012.
Although the parties were divorced in 2006, the husband’s Initiating Application was not filed until 2 years after that date. Leave to file out of time under s 44(3) of the Act was granted by Judicial Registrar Loughnan, (as he then was) on 16 October 2008.

Orders Sought

The husband is seeking that the former matrimonial home at C Street, Suburb B (“the B property”), be sold, and the proceeds of the sale remaining, after the mortgage on the property is discharged, be distributed equally between the parties. The husband also seeks that the wife pay him the sum of AUD$245,000 over and above this division. That sum is the additional amount drawn down on the mortgage by the wife post separation. I note that the wife has drawn down additional funds since the time the husband formulated the orders he is seeking.
The wife is seeking orders that she pay to the husband the amount of AUD$10,000, and that the Suburb B property be sold in the event that the wife defaults in this payment. She further seeks that the Court declare the wife the sole owner at law and equity of all property in her ownership, possession or control, which includes that matrimonial home, and that the husband be declared the sole owner of the property at U Village, Shanghai.

Background Facts

Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
At various points in the evidence there has been reference made to the Chinese currency RMB. I note the parties have agreed that any conversions of money from RMB to AUD$ is based on the conversion rate of AUD$1 = RMB6. This is an approximation only and does not appear to tally with all of the contributions claimed by the husband.
The husband was born in 1963 and the wife in 1963. Both parties were born in China. They were married in Shanghai, China in 1987, and commenced cohabitation on 28 October 1988.
The parties’ only child, H, was born in China in 1989.
The wife relocated to Australia in 1992 without the husband or the parties’ child, who remained living in Shanghai with the husband and his family (there is an issue as to who provided care for the child, in China, which I will address later). The wife entered Australia on a 3 month tourist visa, however, she stayed in Australia until early 1996. The wife worked as a sub-contractor in Australia during this time.
In about 1993 the wife commenced to work as a sub-contractor for Mr J.
The wife obtained a divorce from the husband in Shanghai on 29 March 1994. There was a property settlement reached in China on that date for the division of personal effects. At that time, H remained living with the husband, however, the Court documents state that H was to live with the mother.
In 1995, the husband bought an apartment (“the Shanghai apartment”) in which his parents live. It is a matter of dispute whether the funds for that property were provided by the husband’s parents or by the wife. The wife states that she contributed the funds for the property (AUD$5,200). The husband states that his parents paid for the property. I am of the opinion that the husband’s version of events is the correct one (see later for the reasons).
In January 1996 the wife remarried Mr Z in Australia. In her oral evidence, the wife admitted to this Court that this was a “sham” marriage.
The wife returned to China in February 1996. She says that she lived in the Shanghai apartment with the husband, the child H and the husband’s parents while she applied for a visa to return to Australia. The husband says that she did not live with him in his parents’ apartment. I will discuss this issue later in this reason, however, I will state briefly here that I prefer the version of events of the husband (see later for the reasons).
In January 1996 the wife married Mr Z. By her own admission the wife acknowledges this was a “sham” marriage entered into from her perspective, to achieve citizenship for herself and the parties’ child. Between February 1996 and August the wife remained living in China.
In July 1996 the husband gained employment with SH Co Ltd. He was paid a salary and a bonus.
In August 1997, the wife and H returned to Australia. At this time, the husband remained in Shanghai.
The husband alleges that in 1998 the parties recommenced their relationship by correspondence and telephone.
In July 1998, the wife bought a property at Suburb K (“the K property”) for AUD$375,000. AUD$45,000 of the purchase price was provided by the wife, AUD$50,000 was provided by the wife’s brother and sister in China by way of loan (to be repaid when H completed his education), and the balance was funded by way of a mortgage of AUD$270,000 entered into by the wife with Citibank.
In August 1998, the husband asserts that the parties recommenced a relationship. The wife states that the recommencement occurred at in late 2001(although a concession has been made that it was 1999).
The wife’s second husband, Mr Z, lived in the K property in 1998. The wife stated in her oral evidence that he paid AUD$200 per week to the wife “including his food and accommodation”.
The wife filed an application for divorce from Mr Z in July 1999 and the wife and Mr Z were divorced in October 1999. There appeared to have been a property division in relation to the K property between Mr Z and the wife, and the house remained in the sole possession of the wife.
In October/November 1999, it is the husband’s evidence that he, in the presence of his brother, gave the wife’s sister L Soh RMB250,000 (AUD$41,666.67) which was intended to be applied to the Citibank mortgage through an agent of the wife by the name of “Mr [X]”. The husband did not know the identity of “Mr [X]”.
In November 1999, the husband said he provided to the wife’s sister in China, RMBAUD$250,000 to be delivered to the wife in Australia through the services of a friend of the wife Mr X. This is denied by the wife and her sister.
The wife and the child H visited China in December 1999, at which point the husband stated that he wished to move to Australia. The Wife and H returned to Australia in January 2000.
In July or August 2000, it is the husband’s evidence that he and his brother O Sim went to the “Little Theatre” and met with the wife’s agent Mr X. At this meeting, the husband gave Mr X in person RMB80,000 (AUD$13,333.33) after with discussions with the wife. He understood the money would be brought to Australia for the wife’s use.
In early 2000 the wife asked her employer Mr J to sponsor the husband so that he might move to Australia and reside here.
In 2001, the wife renovated the K property. The cost of the renovations was estimated by the wife to be AUD$20,000, and she said in oral evidence that it was funded by her father.
The parties re-married in February 2001 in Shanghai.
Between 1 July 1997 and 31 May 2001 the husband earned a basic wage of AUD$1,300 per month together with an annual bonus of RMB 200,000.
It is the husband’s evidence that in March 2001, he and the wife organised for the husband to give a further RMB200,000 (AUD$33,333.33) to a representative of the wife, as the wife told the husband that she was “short on cash”.
On 31 May 2001 the husband left the employ of SH Co Ltd.
In February 2002, the evidence of the husband and his brother is that another payment of RMB70,000 (AUD$11,666.67) was paid to the wife’s representative. A receipt was given for this money, but does not appear to be in evidence. The husband said that he gave the receipts for the third and fourth payments to the wife on his arrival in Australia.
Based on the conversion rate agreed between the parties, the amount said to have been sent to the wife is exactly AUD$100,000 in total in the four payments. The husband says, however, that the amount sent was in fact AUD$120,000.
The husband commenced living with the wife in Australia in March 2002, after travelling from China on 16 March of that year. The husband gave to the wife the remainder of his savings, being between AUD$5,000 (wife’s allegation) and AUD$7,000 (husband’s allegation). The husband commenced employment at G Company on 20 March 2002, a matter of days after his arrival in the country (wife says it took longer). The husband says that all of his income was given to the wife, except for money for cigarettes and travel. The wife alleged he paid her only AUD$150 per week. The husband alleged he was earning AUD$650 per week. (see later evidence about the quantum of husband’s income)
In June 2002, the K property was sold for AUD$563,000. The mortgage was discharged with AUD$165,375.40. The proceeds from the sale amounted to approximately AUD$397,624.60. The parties moved to rented accommodation following the sale of the property.
In August 2002, the B property was purchased for AUD$900,000. The proceeds from the sale of the K property were applied to the purchase and a mortgage was entered into by the wife with a mortgage broker for AUD$600,000. The property was registered in the wife’s name only. The parties moved into the B property in December 2002.
Between 22 June 2002 and 20 December 2002 the husband was paid AUD$15,636 by his employer Mr Y. Between 21 December 2002 and 15 September 2003 the husband earned AUD$24,900. Between 26 September 2003 and 16 September 2004 the husband earned AUD$33,994. Between 17 September 2004 and 21 April 2005 the husband earned AUD$10,088.
The parties separated under one roof in May/June 2004, with the husband moving to a separate bedroom in the house. At this point, the husband began to pay the wife AUD$150 per week.
The husband ceased working for Mr Y (G Company) on 21 April 2005.
The wife filed an application for divorce in October 2005 and the divorce was finalised on 24 March 2006.
In 2007 the wife undertook TAFE courses in English language and clothing and fashion.
The wife refinanced the mortgage on the B property in February 2007, increasing the mortgage by AUD$240,000. She states in her evidence that the extra money borrowed was to pay for H’s university education of AUD$23,000 per annum, and to invest AUD$195,000 in T Pty Limited and C Pty Ltd. Both those companies were owned by Mr J.
The parties remained living under the same roof until 8 April 2008. The wife locked the husband out of the house at this point. The husband lodged a caveat on the B property on 10 April 2008.
The husband commenced proceedings in this Court on 22 May 2008. On 16 October 2008, Loughnan JR (as he was then) granted leave to the husband to institute proceedings out of time under s 44(3) of the Act.
The wife became a Director of C Co (Aust) Pty Ltd and of T Pty Ltd on 29 March 2009. In September 2009, the wife started a third business in China, F Co Ltd.
In 2010, H completed a University degree.
Mr J, the wife’s business partner, moved into the B property with the wife and H in February 2010. The wife states in her evidence that they are in a relationship.
The husband commenced proceedings in the Supreme Court of New South Wales on 12 May 2011, seeking to extend the caveat on the B property. Consent orders were signed before Justice Rein on 4 July 2011, in which the husband agreed to do all things to agitate the interests referred to in the April 2008 caveat by 19 August 2011. The proceedings were dismissed on 3 October 2011 and the husband was ordered to pay the wife’s costs.
The wife refinanced the mortgage again on 8 August 2011, and the mortgage is currently held by National Australia Bank. The mortgage was previously for AUD$819,693, but the wife has since drawn down an additional AUD$100,000 in order to pay her legal costs.

The Issues

The parties identified the issues at the commencement of the hearing on 27 October 2011 as follows:
·The contributions of the husband, both financial and non financial, before, during, and after the marriage;
·The contributions of the wife, both financial and non financial, before, during, and after the marriage; and
·The value of the property of the parties, in circumstances where the three businesses in which the wife has a majority interest are not valued.
The credit of the parties, and consequently the determination as to which version of disputed events to accept, are central to the determination of the above issues. Much of the evidence in this matter is unsupported by documentation.

Credit

In this case most of the witnesses gave their evidence with the assistance of interpreters from the English language to the Mandarin language and from Mandarin to English. Perhaps unusually both the parties’ lawyers were fluent Mandarin speakers and were able to assist the Court by pointing out where the interpretation was wrong. This enabled the Court to be confident that the record was as accurate as it could be. However, the Court needs to be aware that sometimes there is no equivalent word in English for a Mandarin word and thus the translation can give an erroneous effect to that which was intended by the witness.

For those reasons I urged the questioner of witnesses to use simple words and phraseology wherever possible.
I also need to have noted here that as I was considering the determination of the matter I became aware that the affidavits relied upon by each party, which required interpretation to the deponent, had been translated by the parties’ respective solicitors. I therefore caused this matter to be raised with each of the parties’ solicitors. I received from each solicitor an acknowledgement that the other was a competent interpreter and no issue was taken by either to the fact that the deponents had not had the benefit of an accredited translator.
In the circumstance of this case I am comfortable with that agreement as I had the opportunity to see each of the parties’ skill in the area of translation of the Mandarin language to the English language during the trial when there was disagreement with a piece of translation by one of the translators engaged by the Court for the parties.
In assessing the veracity and/or credibility of the witnesses I have been careful to make allowances for misinterpretation by myself of their intended answers and therefore I have been particularly cautious in forming my conclusion that one or more of the witnesses have been untruthful in their evidence.
The parties are at issue in relation to a number of significant facts. Their evidence is diametrically opposed. One example is the husbands allegation that whilst he still lived in China he sent large amounts of money to the wife pursuant to her requests and following her instruction as to how the money was to be sent to her. The wife denies that she ever received those funds. She denies she asked the husband to send any money to her. She also denies making any arrangements with any others to collect money from the husband and bring it to Australia for her. In such a circumstance the Court is really compelled to accept largely the evidence of one party or the other by drawing on any objective facts to inform the determination. This does not exclude the possibility that the Court could accept part of the evidence of one witness about such a controversy without necessarily accepting all of the evidence on that particular issue.

The Husband

The husband was cross-examined for a lengthy period of time. The cross-examination ranged over all issues of relevance and more. The husband appeared to listen to the questions asked. He was largely responsive in his answers. By contrast with the wife, I was not required to warn him about the consequence of not directly answering questions. He appeared quite relaxed in the witness box. He was not emotional even though the questions asked may have reasonably provoked an emotional response in many witnesses seen by the Court. There was nothing about the content of the husband’s evidence which led me to believe he was lying.
There is one aspect of his evidence which should reasonably alert the Court to the propensity of the husband to be dishonest. That relates to the tax returns which he has lodged for particular tax years while he lived in Australia. In respect of some of those years it was necessary for me to issue a certificate pursuant to section 128 of the Evidence Act 1995(Cth)(“the Evidence Act”) because the amount of income he said he had earned was greater than that disclosed in his tax return. Because of this event I paid particular attention to the way in which the evidence was given by the husband. I had the opportunity to observe him in the witness box over a considerable period of his cross-examination. On the third day of the trial I was in Brisbane and conducted the trial by telephone with the parties and their witnesses in my Court room in Sydney. Although I could only hear the husband’s evidence rather than seeing him give it, I am satisfied that has not interfered in my ability, overall, to assess his credit.
The evidence in relation to the husband’s income can be summarised as follows. Tax returns for the financial year commencing 30 June 2002 appear to be the ones affected. The husband stated he earned AUD$650 per week during the marriage, however, his tax returns do not reflect that figure. For the tax year ending 30 June 2003, the husband conceded he earned effectively three times the figure of AUD$11,205 which appears on his tax return. The wife submits that this negatively affects the husband’s credibility.
Having heard his oral evidence, considered his affidavit evidence and compared that to the totality of the evidence in the case I conclude the husband was a witness of truth.

The Wife

It is a sad circumstance when a Court concludes that the evidence of a witness is wholly unreliable. In 10 years on the bench this is the first case I have heard where I have found such a circumstance. In this case I find the wife’s evidence is wholly unreliable.
Somewhat surprisingly, in a case where credit is such an important ingredient, the wife’s counsel informed the Court that a marriage the wife had entered into in 1996 was a sham. As it transpired, it appears that announcement was a clever ploy to try and preserve some credit for the wife where counsel clearly knew the husband’s counsel was aware of the sham and it would clearly be the subject of cross-examination. The revelation painted the wife, early in the hearing, as a potentially dishonest person.
The evidence of the sham marriage was given. It appears the wife entered into the marriage to gain residency for herself and the parties’ child H.
In cross-examination the wife was questioned about the content of a Form 47 Application to the Department of Immigration in Australia (Exhibit H4). That is an application for migration to Australia. In that document there were a number of entries which gave rise to a concern. Question 20 required a home address. Question 21 required a correspondence address. The wife inserted the address of her sister in answer to both questions. That entry accurately records what the husband says the wife’s circumstances were in February 1996, the date she signed the document. However, the wife’s evidence is that she was living, during the 18 months the mother was living in China, at the husband’s residence with the husband’s family and H during the week and only spent the weekends with her sister.
Question 25 asks “what is the value of your money, goods and assets which you and your spouse intend to bring to Australia?” The wife inserted “Local currency 180,000; AUD$A 30,000.” When asked why she had inserted those figures she explained that she had provided that information because she thought she would not be accepted if the Australian Government thought she was poor. There was no suggestion she had that sum available to her at the time. In fact in part of the documentation provided to the Department of Immigration the wife claimed to be “penniless and was being supported by her husband”.
Paragraph 74 required details of the wife’s residence with her spouse or otherwise during the last 10 years. In answer to that question the wife asserted she lived with her second spouse (Mr Z) from October 1995 until the date of the application at an address in south western Sydney. In her oral evidence she admitted that was untrue.
In short I am convinced the wife provided information which she considered would best enhance her application without regard for the truth of the statements she made.
In addition to that, the wife stated in her Divorce Application in relation to Mr Z that she and Mr Z separated in February 1998. The wife agreed in oral evidence that she and Mr Z lived in the same house in late 1998. She thus has an acknowledged history of being deliberately untruthful in documents sworn by her in proceedings under the Family Law Act.
During the cross-examination of the wife the husband’s counsel came to a point where he was asking questions about the wife’s reported income at a particular time. In answer to a question the wife asked for a “certificate”. She had been present in Court during the cross-examination of the husband and had been privy to the discussion which took place at the time I granted the husband a certificate under section 128 of the Evidence Act in relation to specific evidence which I required him to give over his objection on the ground of self incrimination. Given that she refused to give evidence about the true extent of her income without a certificate and given that it was an important matter for me to know I granted the wife a certificate pursuant to s 128 of the Evidence Act in relation to her evidence of her real income for the financial years from 1998 to 2006 inclusive.
Between 1999 and 2002 the disclosed income as set out in the wife’s tax returns showed a taxable income of AUD$100,000. The K property was purchased by the wife in 1998. It was sold in 2002. During that period the wife repaid AUD$110,000 in principal. The wife accepted that her living costs for that time were about AUD$200 per week. The wife agreed she paid AUD$1500 per month interest on the loan during the life of the loan.
It was pointed out to the wife that there was a shortfall of available capital, on her own evidence, of AUD$121,801. She did not accept that, however, I accept that figure was an assessment generous to the wife. I say that because the cross-examiner was calculating the wife’s available income from the tax returns by using the taxable income figure and not the figure net of tax assessed on that taxable income. It was put to the wife that she must have received AUD$120,000 from the husband. It was put that it was the only rational and reasonable conclusion. The wife asserted to the contrary stating that she received income greater than that specified in her tax returns. She claimed to be paid in cash for certain “rushed” jobs she was asked to do. She could provide no detail of the payments. She also alleged that her parents paid the whole of her living expenses during that period. I note there is no evidence from either of the wife’s parents nor any explanation as to why they could not provide evidence.
The wife claims to have contributed AUD$45,000 to the purchase of the K property. She agreed she arrived in Australia from her period of time living in China in August 1997. There is no evidence she had any savings at that time. In fact her statement to the Australian Government in her immigration application was that she was penniless. Ten months later she claimed to have contributed AUD$45,000 of her own funds to the purchase. When questioned about this she claimed she had the money from her savings since 1992. The parties were divorced in 1994. The divorce document also provides for a property settlement. There is no suggestion in that document that the wife had any savings at the time let alone substantial savings. I consider it is most improbable that the wife accumulated AUD$45,000 or any substantial savings as at the date of purchase of the property at Suburb K.
The wife said that the renovations effected to the K property cost her AUD$20,000. There was no explanation as to how she paid for those renovations from her income and resources given her commitments to pay the mortgage and support herself and H at the time.
I am left to conclude that the wife was being untruthful in her evidence about the source of the funds she used to purchase the K property and also to pay down the capital on the mortgage by about AUD$110,000 between 1998 and 2002.
The husband says that when he was working in Australia he gave all his earnings to the wife with the exception of cigarette money and the cost of his transport to and from work. The wife denies he gave her any such sums. The wife was cross-examined as to her ability to be able to meet the expenses of the B property (which was purchased in 2002) from her own income. She was taken to the mortgage payments of AUD$1,677.34 per fortnight which she was required to pay from December 2002. It was pointed out that her taxable income (i.e. before tax was deducted) pursuant to her tax return was AUD$30,050 or AUD$1156 per fortnight. She agreed she had provided no explanation for how she would have met the household expenses without the husband’s income.
Counsel for the wife concedes that the wife has been dishonest on a number of matters in the past. She lied to gain citizenship into the country and in relation to the date of separation from Mr Z. The wife submits, however, that her preparedness to lie on matters such as that does not destroy her credibility permanently. She also submits that the husband is a blatant liar; that the maintenance and plumbing work he claimed to have contributed to the properties consisted of cleaning gutters and changing a tap washer. It is her submission that the Court can happily accept the evidence of the wife over that of the husband in relation to contributions.
In relation to the wife’s allegation that the husband did not contribute his income as he alleges I do not accept the wife’s evidence.
In 2007 the wife refinanced the mortgage on the B property. She increased the borrowing by AUD$240,000. Her explanation in her affidavit was for the purpose of funding H’s university education. It was pointed out to her that to borrow that sum in advance did not make good economic sense. She then said it was used for other purposes as well. Again it was pointed out she had not provided that information in her affidavit. No evidence was given thereafter as to the use to which the wife put those funds nor was any evidence provided as to the actual money spent by her on H’s university. I consider her evidence as to the use to which she applied the AUD$240,000 or thereabouts as unreliable.

Ms D

This witness gave her evidence by telephone from China. A number of different propositions were put to her by the wife’s counsel. The witness answered those propositions apparently with confidence and directly. There was nothing about the content of her evidence or the way in which she gave it which made me suspect she was being untruthful.

O Sim

This witness is the brother of the husband in these proceedings. He gave his evidence by telephone from China. His evidence was corroborative of the husband’s evidence in relation to the sending of money from China to Australia for the use by the wife. There is a clear issue between the parties as to whether any money was ever sent by the husband to Australia to the wife as he alleges.
A number of propositions contrary to the evidence of this witness were put to him all of which were rejected.
This witness unhesitantly answered questions asked of him. There was no suggestion of the witness rehearsing his evidence. There was nothing about the content of this witness’ evidence or the manner in which he gave his evidence which suggested he was not being honest.

Mr Y

This witness is a director of a company which employed the husband in Australia. He gave evidence as to the earnings of the husband whilst the husband worked between 20 March 2002 and 21 April 2005. The evidence was controversial because the earnings set out in the affidavit of the husband differed from the income disclosed in his tax returns as his taxable income.
The witness was cross-examined about the source of the information he included in his affidavit. He answered those questions in a straightforward manner without any detectable difficulty or unease. It was not suggested that he had fabricated his evidence. No motive for fabrication was suggested to him. He displayed a good recollection of the hourly rate paid to the husband whilst the husband worked for the company. I accept him as a witness of truth.

L Soh

This witness is the sister of the wife. She swore an affidavit on 7 October 2011. L Soh does not speak English at any competent level. She used a qualified interpreter to give her oral evidence. Her affidavit bears an attestation by the wife’s solicitor Belle Lou that she understands the English and the Mandarin language and that she translated the document to the witness.
The content of this witness’ evidence is set out later in these reasons. Given what I have said about the evidence of the wife and not being able to accept the veracity of same relative to the receipt of funds from her family and the husband, I am unable to accept the evidence of this witness in relation to the advance of funds by her to the wife towards the purchase of the K property. I am prepared to accept she may have lent the wife AUD$50,000 in 2010 to pay towards her legal fees. I will consider that mater later in these reasons.
Ms L Soh gave her oral evidence by telephone from China. The content of that evidence is set out later in these reasons. She claimed to have sent RMB200,000 to the wife in 1997. Her answers to the questions asked of her in cross-examination did not leave me confident she was being truthful in her evidence. An example of my concern emerges from the early part of her cross-examination.
Mr CUTLER: Okay. Now, you say in around 1997 or 1998 you lent your sister $A35,000. Do you remember saying that in your affidavit?
INTERPRETER: Yes.
MR CUTLER: And in around 1997 the exchange rate between the Chinese Yuan and the Australian dollar was approximately six to one. Do you agree with that?
INTERPRETER: I can’t remember.
MR CUTLER: All right. Well, the amount that you lent your sister in 1997 was something in excess of 200,000 Chinese Yuan, wasn’t it?
INTERPRETER: Yes, it should be.
The questioner went on to establish from the witness that at the time of the alleged loan it represented her life savings and some 13 to 14 years later none has been repaid. She also knew that H had concluded his University education.
The witness asserted that her income in about 1997 was RMB70,000 per year. She denied it was only RMB30 to 40,000. She denied the assertion that she had never lent the money to the wife in 1997. She denied that she did not lend the wife RMB50,000 in 2010.

H Sim

This witness is the son of the parties. He is 22 years of age and is currently employed at a large accounting firm. In a highly unusual step, the wife in this matter included the son of the parties as a witness. I was very concerned as to the possible residual impact upon H of giving evidence both in affidavit form and orally against his father. As it transpired that concern may have been misplaced.
H Sim came to the witness box with apparent eagerness. He appeared confident and determined in giving his evidence. His evidence was entirely supportive of his mother and condemning of his father.
Having listened carefully to his giving his evidence and having asked him some questions of my own I reached the conclusion that he was not capable of giving a balanced account of the matters he was asked to address.
I concluded, sadly for H, that he was completely partisan with his mother and had an antagonistic attitude towards his father. I was left with the overwhelming feeling that H felt threatened by the possibility of his father being successful in any measure in the proceeding. It seems he has completely severed his relationship with his father and that no doubt was a matter in his consciousness as he gave his evidence.
Towards the end of his oral evidence he seemed to be less eager to give his evidence and less confident in his delivery.
I conclude therefore that the evidence of H Sim is likely to be so tainted by his adverse personal relationship with this father as to be unreliable and therefore of little assistance to the Court.

Mr J

This witness is the wife’s business partner, and more recently, her de facto partner also. He gave evidence by affidavit and orally. Much of the affidavit he swore did not become evidence in the case because of the way it was drawn.
In his oral evidence he appeared to give his evidence honestly. He answered the questions asked of him and did not appear to be fabricating his evidence.

Evidence

Affidavit Evidence

The Husband

The husband relies upon the following affidavits:
a)Affidavit of the husband sworn on 16 June 2011 and filed 22 July 2011;
b)Affidavit of the husband sworn on 13 October 2011 and filed 14 October 2011;
c)Affidavit of O Sim sworn on 5 July 2011 and filed 22 July 2011;
d)Affidavit of Ms D sworn on 14 July 2011 and filed 22 July 2011; and
e)Affidavit of Mr Y sworn on 10 October 2011 and filed 12 October 2011.

The husband’s affidavit sworn 16 June 2011 sets out the husband’s evidence in relation to his contributions, in particular the payment of RMB$600,000 to the wife, and the section 75(2) factors relevant to his case.
The husband’s affidavit briefly sets out the parties’ relationship following their first divorce. It states that the parties communicated by letter and telephone calls. Annexure “A” to the affidavit of the husband, sworn on 13 October 2011 and filed on 14 October 2011, is presented as evidence that this correspondence was occurring in 1998. The husband also states that from 1999, the parties had resumed a relationship to the point where the wife would visit the husband and lived with him “like husband and wife” in China when she visited.
Also set out is the details of the unit registered in the husband’s name at G Village Shanghai. He stated that the unit was purchased in May 1995 and the money for the purchase of the property was provided by his parents, being RMB16,134.53 (or approximately AUD$2300). The husband says no money was provided by the wife for the purchase of the unit, nor for its maintenance. The husband lived in the apartment with his parents and cared for them, as they are elderly. The apartment is registered (on the register issued under the supervision of the Ministry of Public Security) as the property of the husband’s father.
The husband also set out his earnings from 1 July 1996, when he commenced full-time employment at SH Co Ltd as a sales person. He sets out that his base wage was initially RMB1300 per month, but then increased in January 1997 to RMB200,000 per annum, including a potential bonus of RMB50,000 per quarter. The husband states that he earned RMB800,000 in bonuses over the course of his four years of employment with SH Co Ltd, which terminated in May 2001. The husband attached as annexure “F” to the affidavit a certificate certifying his earnings during his employment.
The husband states at paragraph 13 of the affidavit that it was these bonus payments which enabled him to send to the wife RMB600,000 (which he estimates to have been about AUD$120,000 at the time) after the resumption of their relationship.
He also states that he contributed to the K property by way of paying for new curtains at a cost of RMB7,000-8,000 (estimated to be approximately AUD$1,500 at the time), bought in Shanghai and transported to Australia by a friend of the wife. At paragraph 64 of the husband’s affidavit, the husband says that he had the curtains made to the wife’s measurements in Shanghai. He attaches a copy of those measurements and the receipts for the curtains as annexure “I”.
A further contribution claimed by the husband was the remainder of the husband’s savings, which was given to the wife as cash in March 2002. He states that the amount given to the wife was “about $7,000”.
As regards his employment, the husband states that he commenced worked in a manufacturing industry within three days of arriving in Australia. Between March 2002 and August 2004, the husband earned “about $650 per week”, being payment for over 9 hours work per day, 6 days per week at AUD$12.00 per hour. Of that income, the husband states at paragraph 20 “… all income earned by me during the period was given to the wife. I only had enough money to pay for my travelling costs and cigarettes.” The husband estimates that he had given the wife approximately AUD$80,000-90,000 over the period.
The husband states that in 2004 the wife attended an education course at TAFE and another held by Centrelink, and as a result, she spent less time working.
Following separation in August 2004 and the son’s 18^th birthday in January 2006, the husband says that he paid the wife AUD$150 per week by way of informal child support payments. These payments were paid in cash to the wife.
So far as non-financial contributions are concerned, the husband sets out:
·    He cooked dinner every night when the parties resided in the K property, as the husband arrived home from work at 5.45pm and the wife arrived home at 7.00pm.When the parties moved to the B property, the husband arrived home from work at 8.00pm each night, and so cooked dinner on Sunday nights when he was not working.
·    Until February 2008, during the time that the husband lived in the K and then B properties, the husband did all the lawn mowing and “hard labouring work” on the properties. He says at paragraph 25 that he also undertook the repair and maintenance of all “damaged equipments (sic) and furniture in home; plumbing problems in home; and the leaking roof in the [B] property.”
·    From 1992, when the wife moved to Australia, until 1997, when the wife and H both moved to Australia, the husband was the sole carer for H. The husband was responsible for H’s day-to-day care and was financially responsible for H also. In this care, the husband’s parents provided support to the father.
·    After 2008, when the husband moved out of the B property, the husband only saw H on two occasions. On both occasions, he gave H “some pocket money”.
In relation to other factors to be taken in to consideration, particularly in relation to section 75(2) of the Act, the husband sets out the following:
·    The husband states that his employment between August 2004 and April 2008 was not stable and he was unemployed for a continuous period of 3 months. His employment prospects are diminishing due to his age and his lack of English speaking skills. He has been employed at a factory at Suburb V since September 2010. He earns about AUD$400 per week.
·    The husband suffered a work injury to his right hand on 3 September 2008. He received compensation from Workcover of AUD$450-AUD$550 per week until August 2010.
·    The husband married again in June 2008, and his wife arrived in Australia in May 2009. The husband’s new wife does not work and is dependant on the husband.
·    The husband resides in a room within a townhouse, for which he pays AUD$170 per week. He has no further property in Australia. He has not lived in the B property since 8 April 2008 when the wife refused him entry.
In relation to the payment of RMB600,000 made by the husband to the wife over a matter of time, the husband set out the following:
·    The first payment was made following a conversation in which the husband states the wife said words to the effect of “We are talking about re-unite as a family for about one year (sic), could you please give some money to me to support my bank repayments?”. The parties then arranged for the husband to give the wife’s sister L Soh, who would give the money to a friend “Mr [X]” who could move the funds from China to Australia. The agreed amount of money handed over was RMB250,000, which was handed to the wife’s sister in October or November 1999. The husband took his brother O Sim with him to drop off the money.
·    The second payment was made in the summer of 2000, in about August of that year. The payment took place after the husband had another conversation with the wife in which she requested money. The agreed amount to be handed over was RMB80,000. Upon contacting the wife’s sister, the husband was put in contact with “Mr [X]” directly and organised to meet Mr X at the “Little Theatre” which was “near the corner of the streets known as Julu Road and Changshu Road”. The husband took his brother with him to the arranged meeting. The husband and brother went with Mr X to Mr X’s office nearby, where Mr X counted the money in front of the husband and his brother.
·    The third payment was made in about March 2001, following a conversation with the wife in which the husband claims the wife said words to the effect “Can you please give me more money to support the family? I am starting the renovation of the Sydney home”. The husband agreed to send RMB200,000 and told the wife that he had just lost his job as a “bonus salesperson”. The parties arranged that the husband would give another friend of the wife the money in the same manner as occurred before. The husband met the person, whose name he has forgotten, at the husband’s home with the husband’s brother in attendance. The husband checked the identification of the person before handing over the money. He received a receipt for the money.
·    The fourth payment occurred in about February 2002, one month before the husband travelled to Australia after a conversation between the parties in which the husband claims the wife said “you cannot carry that much money out from China”. The husband agreed to send RMB70,000 and carry the balance of the money he had in his possession when he travelled to Australia. The husband was contacted by the same person who collected the third payment, and that person came to the husband’s home to collect the money. The husband’s brother was present at the time. The man collected the money and the husband received a receipt for the money.
In relation to the payments, the husband said that he had his brother with him for each payment as he felt it would be safer. The husband also had his brother count the money to verify the amount before meeting with the contact. The receipts for the third and fourth payment were given to the wife on the husband’s arrival in Australia.
The husband states finally that he did a property search for the B property on 9 April 2008, and that he found that the wife had refinanced the mortgage and drawn down an additional AUD$240,000. He states that he does not know why she needed that extra money, and that she had not disclosed how the money was spent.
The husband also relies on the affidavit of his brother O Sim, sworn 5 July 2011 and filed 22 July 2011. That affidavit sets out O Sim’s account of the events between the parties, particularly in relation to the transfer of cash.
The affidavit sets out that the husband lived with the husband’s parents at G Village, Shanghai. He further states that the property was purchased by the husband’s parents.
He states he was told by the husband in the second half of 1998 words to the effect “I am recommencing my relationship [Ms Soh]. We started our communication via telephone and letters”. At about the end of 1999, the affidavit sets out, the wife returned to China to visit the husband and they lived in the husband’s parents’ home. The wife returned to China at the end of each year “or the beginning of the following year”, and would join in family outings and meals with the husband’s family. The parties remarried in “early 2001”, and the husband’s family attended the wedding banquet.
The husband’s brother sets out his involvement in four payments made by the husband to agents of the wife. He says the husband would call him before a payment and ask him to accompany the husband to the transfer of cash to the wife’s friends. The husband’s brother recounts that he would meet the husband before such a meeting and states:
[The husband] took out the money and counted them in front of me. Once he finished his counting, he would give the money to me and I would recount the money to ensure the correctness of the amount.
The affidavit sets out that four payments took place:
·    The first payment happened in about November 1999, at the house of the wife’s sister. The husband gave Ms L Soh RMB250,000, and the husband’s brother heard Ms Soh say words to the effect “the money would be given to [the wife] by her Australian friend (she mentioned a name but I could not remember)”
·    The second payment occurred “during summer time, in about July or August 2000” to meet a person whose surname was X near a place named Little Theatre. The husband handed RMB80,000 to Mr X, who counted the money before both brothers.
·    The third payment took place “A bit more than half a year (about 8-9 months later)”. The husband’s brother states that the husband said words to the effect “come to my home this afternoon as I have a friend of [the wife] who is coming to my home to pick up money for her.” Mr O Sim went to the husband’s home and counted the money for the husband, which was RMB200,000. Two men came to the husband’s home and the husband asked one of them to produce identification. The money was then counted by the men, and a receipt was given by the man who showed his identification.
·    The fourth payment occurred “just before [the husband] went to Australia in 2002”. The husband’s brother was asked again to go to the husband’s home. The same men from the third payment arrived at the husband’s home. The husband handed over RMB70,000, which was counted before the men left. A receipt was made out for the money given.
The husband also relies on the affidavit of Ms D, who is the marketing manager (formerly internal secretary) of SH Co Ltd. The affidavit, sworn on 14 July 2011 and filed 22 July 2011, sets out the husband’s earnings from that employment. Ms D, at the time of the husband’s employment, “managed and maintained the documents of the sales department of [SH]” and was in a position to know the husband’s earnings.
The affidavit sets out that the Husband’s base wage of RMB1300 per month remained the same throughout his employment, but that he earned bonus payments of RMB50,000 per quarter, based on his meeting sales targets. Ms D states in paragraph 9 that there was no quarter in which the husband did not receive less than RMB50,000 bonus pay.
Annexed to the affidavit is a copy of the certificate verifying the husband’s earnings, provided to the husband in 2008.
The final affidavit which the husband relies upon is that of Mr Y, who was the director of G Company during the husband’s employment there from March 2002 to April 2005.
The affidavit sets out that the husband earned approximately AUD$90,666 during the time that he was employed at G Company in the following periods:
·    20 March – 21 June 2002: AUD$6,048
·    22 June – 20 December 2002: AUD$15,636
·    21 December – 25 September 2003: AUD$24,900
·    26 September 2003 – 16 September 2004: AUD$33,994
·    17 September 2004 – 21 April 2005: AUD$10,088

The wife

The wife relies on the following affidavits:
a)Affidavit of the wife sworn 14 July 2008 and filed 16 July 2008;
b)Affidavit of the wife sworn 6 October 2011 and filed 7 October 2011;
c)Affidavit of L Soh sworn 7 October 2011 and filed 12 October 2011;
d)Affidavit of Mr J sworn 10 May 2011 and filed 24 June 2011; and
e)Affidavit of H Sim filed 6 October 2011.
The wife’s affidavit sworn 14 July 2008 and filed 16 July 2008 sets out the following information.
The parties were married in 1987 for the first time in Shanghai, China. At that time, the parties lived in the wife’s brother’s apartment at no cost. Their son, H, was born in 1989. The wife relocated to Australia in 1992, and the husband remained living in the wife’s brother’s apartment. The parties divorced in 1994 in China, and they received a property settlement.
The wife states that the husband ceased to live in her brother’s apartment at that time and that he “received an apartment situated in Shanghai, which I purchased for him at a cost of $5200”, that apartment being Building No …, Lot … in Shanghai.
The wife sent to the husband amounts of money of AUD$500 on approximately five occasions “to assist with my son’s living expenses”. The wife also states “At all times I have been responsible for financially supporting [H]. When [H] was in China I sent funds over to my family to cover all of [H’s] costs”. The wife says that H relocated to Australia in 1997 and lived with the wife, since which time the wife has paid all of the son’s living expenses.
Following the first divorce, the wife says that the parties stayed in touch by letter, and remarried in 2001.
In relation to financial contributions, the wife states the following:
The wife says that she bought a house in Suburb K in 1998, in her name and her father’s name. The purchase price was AUD$375,000. The wife took out a mortgage of AUD$270,000 and the balance was covered by the wife’s brother and sister (to the amount of approximately AUD$50,000) and the wife (to the amount of approximately AUD$50,000). The money provided by the wife’s siblings was in the form of a loan which was to be repaid “when [H] has finished his education”. The wife says that the husband “did not contribute to that purchase”.
The wife states that the husband arrived in Australia in March 2002 and lived with the wife and their son at the K property. The wife had been the registered owner of that property for approximately 4 years. She states that she continued to make mortgage repayments by herself, as well as all other financial obligations related to the property. The wife states that she worked 12-16 hours per day to meet these expenses.
The wife states that the husband “made no financial contribution whatsoever towards the purchase of that property”. She says that he spoke no English and therefore did not work and did not assist financially. She also says that “on the odd occasion that the Applicant did find some work” he kept the money for himself.
The K property was sold in June 2002 for AUD$563,000. The mortgage on the property was approximately AUD$210,000, and equity of the property was AUD$350,000. The wife states that this was a result of the direct financial and non-financial contributions of the wife.
Using the proceeds of the sale, the wife purchased C Street, Suburb B. The purchase price of the property was AUD$900,000, and the wife took out a mortgage of AUD$600,000 to cover the purchase price. The wife states that all monies for the purchase of that property were made by the wife. The wife also states that she was responsible for finding the property and dealing with the agent and solicitor in relation to the purchase.
The parties lived together in the house from December 2002 until May 2004 as husband and wife. The wife says that the husband did not contribute financially to the mortgage on that property or to the outgoings related to the property. The wife states that she requested financial assistance from the husband, but he refused. She says that the husband spent money on “a packet of cigarettes a day, drink at least several middies of beer or glasses of wine each day, and return to Shanghai each year to visit with family”.
The parties separated in May 2004, and the wife claims that the husband refused to leave the B property. The husband moved to another bedroom in the house and commenced to pay to the wife AUD$150 per week, which amount he ceased to pay in January 2006. The wife states that during this time, the husband accumulated many personal items, including household goods and electrical items.
In relation to non-financial contributions, the wife states the following in her evidence.
When the parties lived at the K property, the wife would carry out all the house chores and care for H. This included cooking, cleaning, shopping, and taking H to extracurricular activities. The wife states that the husband would not contribute, but would just listen to Chinese music and read Chinese newspapers. She says that the husband showed no interest in H.
When the parties lived in the B property, the wife states that she continued to undertake 100 per cent of the home duties, which she said resulted in many quarrels as she was often tired from undertaking all the home duties. The wife says that she asked the husband to share the responsibilities, and to obtain a drivers licence in order to drive H to his extra curricular activities, but that he would ignore such requests.
The wife set out further material that related to the husband’s application for leave to apply for property orders out of time.
In the wife’s affidavit sworn 6 October 2011 and filed 7 October 2011 she sets out further information about the money loaned to the wife by her brother and sister in 1998, which went to the purchase of the K property. She states that she approached her siblings individually in order to borrow money from them. The wife informed each of her siblings that her she was going to buy a property and that her parents were going to live with her. She says that her sister L Soh offered to loan her AUD$35,000 and said “I do not charge interest for that money, pay me back when [H] starts working.” She says that her brother N Soh agreed to loan her AUD$15,000.

The husband submitted that parties’ contributions should be found to be equal as at the date of the hearing. The wife submitted that the assessment of contribution should give rise to a finding of 75 per cent to the wife and 25 per cent to the husband.
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 of either of them including such property which is no longer the property of the parties to the marriage or either of them to be 55 per cent to the wife and 45 per cent to the husband to the date of their separation. The contributions post-separation favour the wife and I assess the contributions as at the date of the hearing to be 60 per cent to the wife and 40 per cent to the husband.

Section 75(2) Considerations

Both parties made submissions in relation to section 75(2) considerations.
The husband is 49 years old. He works as a tradesman. He currently earns AUD$400 per week (AUD$20,800 per annum). He submits the prospects of him continuing in this work is diminishing as he becomes older. That is no doubt true of all persons.
The parties’ cohabitation lasted from 1999 to 2004. Although they did not live together until the husband came to Australia in 2002, they were committed to the resumption of their relationship and made contributions during the period commencing in 1999. They have been separated for 8 years.
He has ongoing health issues relating to his thumb, resulting from a workplace accident in 2008. He received workers compensation payments at the rate of approximately AUD$450 per week for two years, as well as receiving a compensation payment of approximately AUD$6,875 (per Exhibit W5). The husband was declared fit for work on or about 10 August 2010 (exhibit W7), and is employed at the present time.
The husband is the legal but not beneficial owner of the property in Shanghai, and will not gain any beneficial ownership until his parents pass away. He owns no property in Australia. There is no question in this hearing of disposing of this asset, as it is the home of the husband’s parents, who provided the funds to purchase the apartment.
The husband has remarried. His wife does not work and is financially dependent on the husband. She currently is staying in China, and it is uncertain when she will return to Australia.
He lives in a rented property and pays AUD$170 per week in rent. The property is a room in a share-house, rather than an individual property.
The child of the marriage, H, is over the age of 18. He is employed in full time employment with a large accounting firm. The husband says that there is no question as to his support.
The wife has had the enjoyment of the B property to the exclusion of the husband since 2008.
She is also the registered owner of the B property, which is valued at AUD$1,500,000, subject to a mortgage of AUD$920,000. The interest repayments on this property are AUD$5800 per month.
The wife lives with Mr J and states that she earns AUD$800 per week gross and that Mr J earns the same. Given the sum payable in interest on the home loan, it is not possible that the wife’s stated income is as she claims, as she could not cover the mortgage repayments on that income. The wife stated on the National Australia Bank loan applications that her income is AUD$100,000 per annum.
I am unable to form a definitive conclusion as to the income the wife may have earned in the past or may earn in the future. I could have no confidence that any evidence given by the wife would be accurate. I am satisfied her income is probably significantly greater than that which she has represented it to be.
The wife is 48 years of age. She works as a company director, and earns an income of substance. I am prepared to accept it is well in excess of AUD$50,000 per annum. She has operated as a self-employed contractor for many years. Now her business interests have expanded to importing and selling goods in Australia.
During the marriage the parties lived what appears to be a frugal lifestyle. The only real discretionary expenditure which they appear to have spent money on is travel to China. It is very difficult to understand the extent of that travel as it has only incidentally been referred to in the evidence. It is likely in the future that each party will wish to make trips to China.
Neither party has directly contributed to the earning capacity of the other, however, they have each clearly been a support to allow the other to work in their chosen field. Each party supports themselves. The husband has a wife to support. The wife has the support of Mr J her de-facto partner. The wife does, however, support the son of the parties by providing accommodation for him to live in. He is now working full time and must reasonably be seen to be able to contribute to his own support.
The wife suffers from back pain and other illnesses about which there was no medical evidence. I am prepared to give the wife the benefit of the doubt and conclude that she does suffer from back pain. I am prepared to accept that the pain causes her discomfort when she works with her equipment as she has done for many years. I am not prepared to accept that the pain will reduce her income earning capacity in the future to any significant extent. To be able to reach such a conclusion I would need the benefit of expert advice.
Another aspect of the wife’s income earning capacity which needs to be considered is the extent to which she will in the future be required to self-manufacture goods. Since the wife became a part owner and director of the companies referred to earlier in these reasons it appears that her income earning capacity has now the opportunity to transform into a management role rather than a manufacturing role. That is not to say that she would not do any manufacturing work herself into the future, however, it seems the opportunity to do far less of that work is now available to her.
In relation to the wife’s injury, there is limited evidence before me on the subject. I have delivered a judgment on the admissibility of a single expert’s evidence in relation to the wife’s injury. That evidence was inadmissible due to several errors which occurred in the obtaining of the evidence, the most serious of which was the direct unauthorised contact between the wife’s solicitor and the single expert, and the fact that the wife showed to the single expert the report of her adversarial expert. The evidence of the expert was contaminated by these circumstances to the point that the evidence was not able to be relied upon.
The husband has current savings as disclosed in the evidence of AUD$5,000. I did not include that amount in the balance sheet. I need to consider that matter here.
The wife drew down AUD$245,000 against the mortgage post-separation. AUD$195,000 was lent to Mr J and later appears to be the price paid buy her for her interest in the companies T Pty Ltd, C Co (Aust) Pty Ltd and F Co Ltd. The balance was said to be applied to the educational expenses of H. The wife said it was AUD$23,000 per year and he was at university for 3 years.
I need to consider the conclusion reached on assessment of contributions made by the parties. I concluded that the contributions should be assessed as 60 per cent to the wife and 40 per cent to the husband. The net pool is AUD$1,035,582. That realises a division of the net assets (as determined in the balance sheet) of AUD$621,349 to the wife and AUD$414,233 to the husband. That is a difference of AUD$207,116 in favour of the wife.
Exhibit W20 is the wife’s cost disclosure notice. That shows a total legal bill of AUD$94,185 of which AUD$81,052 has been paid. The payments were funded from the initial borrowing of AUD$240,000 against the house (exact amount paid to legal costs not disclosed) and a further borrowing of AUD$100,000 against the house. The husband provided by exhibit H12 his cost disclosure notice. That shows total liability for legal expanses to the conclusion of the trial AUD$111,945. The husband has paid AUD$55,874 from his earnings and family borrowings. I note in the balance sheet no amount is claimed as “personal borrowings” on behalf of the husband.
I note that there have been proceedings between the parties in the Supreme Court of New South Wales. It is unclear from the above referred to exhibits that the fees disclosed related to fees incurred in relation to the proceedings in this Court only.
The wife has had the benefit of the occupation of the B property for four years following the departure of the husband from the property. During a significant period of time Mr J has occupied the property. When the husband vacated the property H was over 18 years of age. H has resided in the property with the wife since the husband’s departure and during that time he has been dependant on the wife until he obtained employment relatively recently.
When considering the balance sheet items I excluded as an asset of the wife and as a liability of the husband the cost order made against the husband and in favour of the wife arising from proceedings in the Supreme Court of New South Wales. Those proceedings apparently related to the caveat which had been lodged by the husband against the title of the B property and which the wife sought be removed. Whatever the merits of that litigation a cost order was made and I need to consider here that the husband will have to pay that cost order and the wife will receive the benefit of it.

Conclusion on Section 75(2)

The husband submitted there should be an adjustment of 5 per cent in the husband’s favour. The wife submitted there should be an adjustment of 15 per cent in her favour.
I consider there should be an adjustment in favour of the husband of 5 per cent. I consider that is warranted because of the following matters in particular which I consider tip the scales in favour of such an adjustment.
·    Because of the wife’s dishonesty, which I have referred to in these reasons, I have no confidence that she has disclosed the entirety of her assets and resources to the Court. I do not consider she has disclosed the full extent of her income.
·    I consider the wife has a greater earning capacity than the husband and a greater number of years to earn an income before she is unable to work any more due to the fact that she has a capacity to work in a management role whereas the husband does not appear to have that capacity in Australia.
·    The wife has the financial resource of her partner Mr J.
·    There is a significant difference in the amount each will receive following my assessment of the parties’ contributions.
·    The wife’s use of the B property post-2008 when the husband vacated it.

Overall Division of Assets

The above determination will see the wife receive 55 per cent of the parties’ assets and the husband receive 45 per cent.

Just and Equitable

The division of assets would see the wife receive $569,570 worth of net assets and the husband receive $466,012 worth of assets.
In the circumstances of this case I determine that result to be just and equitable.

Orders Which Should be Made

The determination, set out above, will see each of the parties asset and liability position as follows:
The wife will receive:

Assets	(AUD$)
· B Property	$1,500,000
· Household contents	$5,000
· Superannuation	$4,781
· First extension of the B property mortgage (adjusted)	$195,000
· Further borrowing against B property.	$100,000
Total Assets(including superannuation)	$1,804,781

Liabilities
· Mortgage on B property	$919,999
· Personal Loan	$50,000
· Payment to the Husband	$265,212
Total Liabilities	$1,235,211
Net Assets (Including Superannuation)	$569,570

The husband will receive:

Assets	(AUD$)
· G Village, Shanghai, China	$195,800
· Motor vehicle	$2,500
· Household contents	AUD$1,500
· Superannuation	$1,000
· Payment from the wife	$265,212
Total Assets (including superannuation)	$466,012
Liabilities	$Nil
Total Liabilities	$Nil
Net Assets (including Superannuation)	$466,012

Before concluding these reasons I caused an email to be sent to the parties requesting further submission in relation to the possible orders of the Court. Each party made submissions. The request is set out earlier in these reasons under the heading “Balance Sheet”.
The orders will provide the wife with an opportunity to pay the husband the sum of $265,212. I will allow her a period of 6 weeks in which to notify the husband whether she elects to pay him that sum or elects to sell the B property and pay him his entitlement under these orders from that sale. If the wife elects to pay the husband the said sum rather than sell the B property then she will have three months in which to make the payment. If she elects to sell the property then the parties are to cause the property to be listed for sale and thereafter sold as expeditiously as is practical in the circumstances.
If the wife elects to sell the B property then the payment to the husband will be made as a percentage of the net sale proceeds. The equity in the property is $580,001. The payment to the husband is $265,212. That represents 45.7 per cent of the net proceeds. There are clearly to be sale costs however, I have not been provided with any detail of same.
Given that the sale may result in a price which either exceeds or is less than the figure of $1,500,000 which the parties have adopted for the purpose of this hearing it is appropriate that each of the parties should equally receive the benefit of any increase and bear the pain of any loss of value.
In calculating the amount to be received by the husband the calculation is to be made on the assumption that the amount owing on the mortgage is $919,999 and that all of the rates and taxes which have been levied against the property have been paid by the wife. The wife will thereby receive the benefit of any reduction she has achieved in the mortgage since the mortgage had an outstanding balance of $919,999 and she will also be required to pay the increase in liability if there has been an increase. Likewise the wife, her partner and H have occupied the property to the exclusion of the husband since 2008 and should be responsible for all rates and taxes owing on the property at the date of settlement of the sale.
There is currently an order restraining the wife from further encumbering the property or dealing with it in any other way which might affect the husband. That type of injunction should continue until the orders of the Court are satisfied.
The husband had registered a caveat against the title of the property to protect his interest under the Act. There was a proceeding in the Supreme Court where the husband sought to maintain his caveat. That action failed.
Pursuant to the orders which will be made the husband will have a chargeable interest in the B property. The husband may wish to give notice of his interest in the property and he should be able to register a caveat against the title to the property without facing further proceedings in the Supreme Court about the removal of same. I propose to make orders to cover these circumstances.

Other Matters

There is one final matter in these proceedings that I cannot let pass in delivering this judgment. That is the matter of the admission, by each party, throughout the course of this hearing, of acts which could be in breach of Australian Law.
The evidence in relation to these acts was largely given under certificates pursuant the section 128 of the Evidence Act, so that any evidence may not itself be used in any future prosecution of the parties. I did, however, signal to the parties and their legal representatives at the close of the first part of the hearing in October 2011, that I would be referring the parties to the relevant authorities at the end of this hearing. The relevant authorities such as the Australian Tax Office and the Department of Immigration and Citizenship should at least be informed of the types of illegal activities which have been paraded before this Court in this case. It may assist those bodies in being able to identify potential offences in other cases.
Each of the parties made, in the course of their oral examination, admissions in relation to giving false information to the Australian Tax Office. Each of the parties made admissions that the false information which they gave was not an isolated incident, rather it had occurred across several tax years.
In addition to this, the wife made admissions that she engaged in actions in the course of her application for residency in 1996 to 1997 which misled, and was intended to mislead, the Department of Immigration and Citizenship and which in turn may constitute a breach of migration law. She admitted that she had been dishonest not only about such matters as her residential address in China and the amount of money she had in her possession, but also she had entered into a sham marriage with an Australian citizen for the purposes of obtaining Australian residency for both herself and her son. In addition, part of the wife’s evidence as to contribution is that she began working in Australia within days of arriving. This is relevant as the wife was asked by the Department of Immigration and Citizenship as to why she overstayed her three month Tourist Visa in 1992, which explanation may also constitute a breach of migration law.
Also in evidence are the wife’s applications to the National Australia Bank in relation to refinancing her home loan. The wife admitted in evidence that she was of the opinion that it was acceptable to say whatever was necessary to obtain her home loan. There is the possibility that the wife has committed acts which may constitute fraud in relation to those applications.
I propose to send a copy of this judgment to the Attorney-General’s Department and authorise any relevant officer of that Department to publish to any other government department or officer thereof, any part of this judgment, any part of a transcript of the hearing conducted herein or any part of any document filed in the proceeding, which the officer of the Attorney-General’s Department considers appropriate.

I certify that the preceding four hundred and forty-eight(448) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench.

Associate:

Date: 30 May 2012

[2012] FamCA 396

30 May 2012

Key Legal Topics

Areas of Law

Family Law

Property Law

Civil Procedure

Legal Concepts

Injunction

Remedies

Costs

Jurisdiction

Charge

Res Judicata