Teng & Cho
[2025] FedCFamC2F 811
•13 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Teng & Cho [2025] FedCFamC2F 811
File number(s): SYC 3205 of 2022 Judgment of: JUDGE STREET Date of judgment: 13 June 2025 Catchwords: FAMILY LAW – Interim s 90SM property distribution in the amount of $200,000 to both the de facto husband and defacto wife - an interim s 90SE spousal maintenance order for the de facto wife in the sum of $714.00 per week – property proceedings adjourned part heard. Legislation: Family Law Act 1975 (Cth) Cases cited: Naoumova & Severijns [2024] FedCFamC1F 580 Division: Division 2 Family Law Number of paragraphs: 23 Date of hearing: 19 May 2025, 20 May 2025, 21 May 2025 and 22 May 2025 Place: Sydney Counsel for the Applicant: Mr S Schonell Solicitor for the Applicant: Monardo Legal Counsel for the Respondent: Ms E Rusiti Solicitor for the Respondent: Parker Law ORDERS
SYC 3205 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR TENG
Applicant
AND: MS CHO
Respondent
ORDER MADE BY:
JUDGE STREET
DATE OF ORDER:
22 MAY 2025
THE COURT ORDERS THAT:
1.These part-heard property proceedings are adjourned at the end of today and are to continue on the 24 and 25 July 2025 at 10:00 am via video and/or audio-link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court Australia Act 2021 (Cth).
2.The respondent is directed to ensure that the interpreter necessary for one of the respondent’s witnesses is available all day on 25 July 2025.
3.Pursuant to s 90SM of the Family Law Act 1975 (Cth), the Court makes an interim property distribution from the joint account, being an interest-bearing account, ending in #...49, in the amount of $200,000 to both the applicant and respondent.
4.Pursuant to s 90SE of the Family Law Act 1975 (Cth), the Court makes an interim spousal maintenance order for the respondent in the sum of $714.00 per week, to be paid monthly, in advance by the applicant, into the CBA account of the respondent ending in #...37, to commence today.
5.No part of the interim property distribution to the respondent is to be applied in the purported repayment of the disputed alleged creditors identified in items 2(a)(i), (ii), (iii) and (v) of the respondent’s case outline, given that the alleged indebtedness is a material issue in dispute in this case.
6.The Court reserves its written reasons in respect of the interim orders made under s 90SM and s 90SE of the Family Law Act 1975 (Cth).
7.Leave is granted to the parties to provide consent orders to be made in chambers, if appropriate.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET
These are de facto property proceedings that were commenced on 13 May 2022 by the applicant de facto husband (“the de facto husband”) against the respondent de facto wife (“the de facto wife”). The parties commenced their cohabitation in June 2003, separated under one roof on 3 August 2018, and the husband moved out in October 2019. There are two children of the de facto relationship; X, born in 2005, and Y, born in 2012, the younger daughter currently being 12 years of age (collectively “the daughters”). The daughters currently live with the de facto wife at B Street, Suburb C, which the de facto wife acquired on 26 March 2022 using the proceeds of sale of the former matrimonial home at Suburb D, sold in March 2022.
On 13 September 2024, the proceedings were fixed for a four day final property hearing commencing on 19 May. On 14 November 2024, by consent, there were orders for interim payments from an interim account, including the release of $50,000 of funds to the de facto wife for her living expenses pending the final hearing, such sum to be characterised by the trial Judge at the final hearing. There was also ordered to be released an amount of $125,000 from a joint account of parties to the de facto husband by way of an interim property settlement.
On the fourth day of the hearing, the proceedings had to be adjourned, being part heard, and a fresh hearing date was fixed for 24 July 2025 and 25 July 2025. An application was made for an interim property distribution under s 90SM of the Family Law Act 1975 (Cth) (“the Act”) from a joint account with an amount of approximately $1,900,000 in the sum of $200,000 to both the de facto husband and the de facto wife. An order was also sought for interim spousal maintenance for the de facto wife, in the amount of $714 per week.
The principles to be applied in relation to interim spousal maintenance are identified by the learned Brennan J in Naoumova & Severijns [2024] FedCFamC1F 580 at [12], [14] – [15].
The de facto husband is currently a professional at E Company and receives an average weekly income of $6,041. The de facto husband pays child support in the order of $200 per week and is paying rent in the amount of $670 per week and income tax of $2189 per week. The de facto wife is unemployed, and her only notional income was identified as interest on the joint account, which is not in fact an income being received at the present time by the de facto wife but is being accumulated in the joint account. The de facto wife’s untested evidence identified unsuccessful attempts to obtain employment.
While there are disputes in relation to the balance sheet that has been tendered into evidence and marked exhibit K, the net assets excluding superannuation are said by the de facto husband to be $4,767,878. The net assets according to the de facto wife are said to be $4,730,123. The net assets including superannuation are said by the de facto husband to be $5,290,878 and by the de facto wife to be $5,253,123. There is no issue that it is just and equitable to alter the property interests of the parties. The de facto husband’s case outline seeks a 50% split of the net assets each, including superannuation. The de facto wife’s case outline seeks an overall division of 72.5% to the de facto wife and 27.5%to the de facto husband.
There was no issue advanced that the de facto husband is not reasonably able to pay the maintenance in the interim amount sought by the de facto wife and that the requirements of s 90SF(1)(a) of the Act are not met.
The second requirement pursuant to s 90SF(1)(b) of the Act is that the de facto wife is unable to support herself adequately. In that regard, the de facto wife does have the major care and control of the younger child, who has not attained the age of 18 years. The fact is that the de facto wife has no current income and is not in receipt of the notional interest identified in her financial statement from the joint account. Whilst the Court is mindful that there remains an issue in respect of the attempts by the de facto wife to obtain employment, the current reality is that the de facto wife is unemployed and has no income. Whilst the Suburb C property is in the de facto wife’s name, there is an obvious difficulty in obtaining finance on reasonable terms from an ordinary lender when there is no capacity to pay interest from any employment income. The Suburb C property is the current home of the de facto wife and the daughters, which, up until the making of the application for interim property distribution and interim maintenance, had been identified as an asset that the de facto wife wanted to retain. There is no realistic probability of that property being able to be sold prior to the next hearing date so as to meet the de facto wife’s inability to support herself.
Whilst it remains to be further agitated at the final hearing, the Court is satisfied that the absence of employment income by the de facto wife meets the requirement that there is other adequate reason. Under s 90SF(2) of the Act, the Court must take into account the matters in s 90SF(3) of the Act. The de facto husband is now 47. The wife is 44. The de facto husband has had surgery, which he says has impacted on his emotional and physical well-being. However, the de facto husband remains currently employed. The de facto wife appears to be in a satisfactory state of health.
In relation to income and property, the Court has taken into account the income of the de facto husband identified above and the property, albeit subject to the competing positions of the parties identified in the balance sheet and exhibit K. It was submitted by the de facto husband that the de facto wife had financial resources available to her, including her home, and an alleged ability to borrow from her family and from another person called Mr G. The alleged indebtedness of the de facto wife to her family and to Mr G are matters in issue in the proceedings. However, it is apparent that the de facto wife’s parents are pensioners, and the Court is not satisfied at this interim stage that the de facto wife’s family or Mr G are an ongoing financial resource available to the de facto wife.
The Court does accept that the de facto wife has a capacity for appropriate, gainful employment but has not to date obtained such. The Court has taken into account that the wife has the majority care and control of a child aged 12. The Court has taken into account that in the de facto wife’s financial statement, her total weekly expenditure is $1,304, that the de facto husband is paying approximately $200 for child maintenance for the younger daughter and that it is only the daughters who live with the de facto wife in the Suburb C property. The de facto husband has been supporting the adult daughter by a payment to the adult child identified in the applicant’s financial statement marked exhibit A.
The Court is mindful that the standard of living of the de facto wife in the Suburb C property appears in all the circumstances reasonable at this stage and that the de facto husband will no doubt want to acquire a permanent home rather than continuing to pay rent. The Court accepts that the payment of a maintenance sought by the de facto wife will not increase the earning capacity of the de facto husband but is likely to assist the de facto wife in obtaining gainful employment. The maintenance order sought has no relevant effect on the de facto husband’s earning capacity.
The Court is not in a position to make final findings in relation to the contributions by the parties, although it was accepted in evidence by the de facto husband that the de facto wife had made the greater parenting contribution. The de facto husband contended that the parties had made equal homemaker contribution. The principal assets in the net property pool leaving aside the superannuation at this interim stage, are the proceeds of the Suburb D property in the joint account and reflected in the Suburb C property. The de facto husband alleges that the Suburb D property was 90% complete upon his departure from that property, the de facto wife refutes that proposition and contends substantial further funds were obtained by her to complete that property.
The de facto wife’s homemaker role contributed to the accumulation of the de facto husband’s superannuation over the period of the matrimonial relationship. The Court places particular weight on the consideration of the need for the de facto wife to continue to be able to protect her role as the primary parent of the younger 12 year old daughter. It does not appear that the de facto wife is cohabitating with another person other than the daughters. The husband is not cohabitating with another person.
The Court has also taken into account that the Court does propose to make an interim property distribution under s 90SM of the Act as well as taking into account the add-backs that have been identified in exhibit K. The Court notes that the add-backs support a finding at this stage of a continuing need for financial support by the de facto wife to meet her necessary outgoings. If those alleged add-backs are included in final property orders remains an issue
The Court has also taken into account the cost notices filed on behalf of the parties that identify the de facto husband has paid $245,000 to date, with further estimated costs of $52,000, and that the de facto wife has incurred $215,000 to date with estimated further costs of approximately $41,000. The de facto husband has $20,000 in trust and has paid $245,000 to date. The de facto wife has only paid approximately $48,000 of the total cost to date of $215,667 and has $31,000 held in trust. The balance sheet identifies capital gains tax owing on F Street with the de facto husband alleging the amount is $73,000 and the de facto wife alleging the amount is $134,017.
The Court is conscious of the fact that the order to be made under s 90SM of the Act is in the amount of $200,000 each, and insofar as the de facto wife is concerned, may be depleted in whole in meeting outstanding costs and will not necessarily remain available to meet the de facto wife’s ordinary weekly expenditure to maintain herself and her daughters pending the final determination of these property proceedings. The Court has taken into account that the de facto husband pays $200 child support, as identified above.
In relation to s 90SF(3)(r) of the Act, the current fact remains that the de facto wife is unemployed and has no income, which are matters that the justice of the case requires be taken into account. The de facto wife has discharged her onus that she is unable to support herself adequately in the circumstances, and the Court finds that maintenance in the amount identified per week will meet the needs of the de facto wife and her child on an interim basis. The Court finds that the de facto wife is unable to support herself adequately in the circumstances and discharged the onus for the de facto wife’s need for an interim maintenance order in the amount sought by the wife.
In relation to interim property distribution, the principles helpfully identified in Naoumova & Severijns [2024] FedCFamC1F 580 at [12] and at [32] assist the circumstance of the present case as to whether there are sufficient assets available to satisfy the interim order sought without prejudicing the other party. The Court is satisfied that there are such sufficient assets available for the interim distribution. On the de facto husband’s own case, the net assets, including superannuation of $5,290,878, identify sufficient funds available for an interim distribution. Further, the Court is comfortably satisfied that the de facto wife would receive at final hearing no less than the amount of the distribution of $200,000, as would the de facto husband.
The parties have made substantial contributions to the net assets, albeit the Court does not at this stage determine who, if anyone, has made the greater financial and non-financial contributions. The Court is satisfied that the parties will both receive at final hearing no less than the amount of the interim distribution sought. In relation to the question as to whether it is just and equitable that an interim property order be made, the Court has taken into account the earlier consent interim property orders that have already been made. The fact there are previous interim property orders does not exclude the Court making a further order, and the proposed amount will not exceed the amount that each party will receive or retain on a final basis. Given the interim nature of this application and the matter being part-heard, it is not appropriate for the Court to make final findings in relation to the contributions. Suffice to say that the Court finds that it is just and equitable to make the interim property distribution order proposed taking into account the size of the net property pool on either view of the parties and the ability to clawback the funds distributed by way of an interim property order. The Court has taken into account that the de facto wife is currently living in the Suburb C property and each of the facts to which the Court has earlier referred, in the context of considering the maintenance order.
Given all the circumstances, the Court is satisfied that the proposed order for interim property distribution pursuant to s 90 SM of the Act, is just and equitable. So far as the de facto wife is concerned, those funds are likely to be applied in satisfaction of the outstanding costs and disbursements and in partially meeting the same for the de facto husband as well as the potential liability of the wife for GST.
It is for these reasons the Court made the interim property distribution order and interim maintenance order pronounced on 22 May 2025.
The Court on that occasion reserved its written reasons with the orders pronounced.
I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street. Associate:
Dated: 13 June 2025
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