Tian and Xiao - [2018] FamCA 816

FAMILY COURT OF AUSTRALIA

TIAN & XIAO

[2018] FamCA 816

FAMILY LAW – PROPERTY – parties hold number of assets overseas – limited ability to positively identify property – capacity to deal with overseas superannuation interests – deficiencies in disclosure – significance of husband’s failure to disclose – where husband threatened to put assets beyond reach of wife – significance of cash withdrawals – number of unsupported loans purportedly entered into in relation to Australian property - notional add-backs – where contributions assessed as similar – where wife holds significantly inferior income position – enforceability of orders.

Family Law Rules 2004 (Cth) ss 75(2), 79.

Black v Kellner (1992) FLC 92-287
Grier & Malphas (2016) 55 Fam LR 107
In the Marriage of S W and W HWeir (1992) 16 Fam LR 154
Mallet v Mallet (1984) 156 CLR 605
Masoud v Masoud [2016] FamCAFC 24

Stanford v Stanford (2012) 293 ALR 70

APPLICANT:

Ms Tian

RESPONDENT:

Mr Xiao

FILE NUMBER:

CAC

1250

2015

DATE DELIVERED:

10 October 2018

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Gill J

HEARING DATE:

26 October and 6 December 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Self-representing

SOLICITOR FOR THE RESPONDENT:

Self-representing

Orders

The balance of the proceeds of sale of B Street, Suburb C, ACT … currently held on trust by D Lawyers are, by virtue of these Orders, the property of Ms Tian (the Wife).
The parties forthwith take all steps to cause the monies held on trust, being the proceeds of sale of B Street, Suburb C, ACT … to be paid to the Wife and these Orders are sufficient authority for the Wife to draw upon the proceeds held on trust.
Mr Xiao (the Husband) shall forthwith transfer to the Wife the sum of $8,500 to be paid into an account as directed by her in writing.
By virtue of these Orders the following motor vehicles (vehicles) are the property of the Wife:
(a) Motor vehicle 1 (registration number …); and
(b) Motor vehicle 2 (registration number …).
The Husband forthwith, and in any event within 14 days, do all things necessary to effect the change in registration of the vehicles to reflect the change in ownership to the Wife and provide the Wife with all keys and paperwork associated with the vehicles.
Within a period of six months of the date of these Orders the Husband pay to the Wife the sum of $90,500 AUD together with all interests accrued in accordance with these Orders into an account directed by her in writing.
Interest on the amount in the immediately previous Order commences to accrue from the date of the making of the Orders at the rate from time to time prescribed by the Family Law Rules 2004.
Each party otherwise retains all property, bank accounts and superannuation in that party’s name.
Each party retains and indemnifies the other in respect of all liabilities in that party’s name.

Note: The form of the order is subject to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Tian and Xiao

Details

AGLC: Tian and Xiao [2018] FamCA 816
Case: [2018] FamCA 816
Decision Date: 10 October 2018

CaseChat Overview and Summary

In the matter of Tian and Xiao, Gill J of the Federal Circuit and Family Court of Australia made orders concerning the division of property between the Wife and the Husband. The dispute centred on the equitable distribution of assets and liabilities following the breakdown of the marriage.

The court was required to determine the ownership of various assets, including the proceeds of sale of a property, motor vehicles, and a significant sum of money. The court also had to address the allocation of liabilities and the accrual of interest on certain financial orders.

Gill J ordered that the balance of the proceeds of sale of B Street, Suburb C, ACT, held on trust by D Lawyers, be the property of the Wife. The Husband was also ordered to transfer $8,500 to the Wife and to transfer two specified motor vehicles into her name, providing all necessary documentation and keys within 14 days. Furthermore, the Husband was directed to pay the Wife the sum of $90,500 AUD, plus accrued interest from the date of the orders, within six months. Each party was to retain all other property, bank accounts, and superannuation in their respective names and indemnify the other in respect of all liabilities in their own name.

Orders

Orders of the court

The balance of the proceeds of sale of B Street, Suburb C, ACT … currently held on trust by D Lawyers are, by virtue of these Orders, the property of Ms Tian (the Wife).

The parties forthwith take all steps to cause the monies held on trust, being the proceeds of sale of B Street, Suburb C, ACT … to be paid to the Wife and these Orders are sufficient authority for the Wife to draw upon the proceeds held on trust.

Mr Xiao (the Husband) shall forthwith transfer to the Wife the sum of $8,500 to be paid into an account as directed by her in writing.

By virtue of these Orders the following motor vehicles (vehicles) are the property of the Wife:

(a) Motor vehicle 1 (registration number …); and

(b) Motor vehicle 2 (registration number …).

The Husband forthwith, and in any event within 14 days, do all things necessary to effect the change in registration of the vehicles to reflect the change in ownership to the Wife and provide the Wife with all keys and paperwork associated with the vehicles.

Within a period of six months of the date of these Orders the Husband pay to the Wife the sum of $90,500 AUD together with all interests accrued in accordance with these Orders into an account directed by her in writing.

Interest on the amount in the immediately previous Order commences to accrue from the date of the making of the Orders at the rate from time to time prescribed by the Family Law Rules 2004.

Each party otherwise retains all property, bank accounts and superannuation in that party’s name.

Each party retains and indemnifies the other in respect of all liabilities in that party’s name.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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