Tian & Mu (No 2)
[2022] FedCFamC2F 1385
Federal Circuit and Family Court of Australia
(DIVISION 2)
Tian & Mu (No 2) [2022] FedCFamC2F 1385
File number(s): MLC 2765 of 2018 Judgment of: JUDGE MANSINI Date of judgment: 14 October 2022 Catchwords: FAMILY LAW – property settlement – marital relationship – primary dispute about post-separation asset – not being satisfied it is just and equitable to make an order – application dismissed. Legislation: Family Law Act 1975 (Cth) ss 75(2), 79(2) and 79(4. Cases cited: Bevan & Bevan [2013] FamCAFC 116
Chancellor v McCoy [2016] FamCAFC 256
Chapman & Chapman [2014] FamCAFC 91
Fielding & Nichol [2014] FCWA 77
Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
Stanford & Stanford [2012] HCA 52
Division: Division 2 Family Law Number of paragraphs: 78 Date of last submission/s: 3 October 2022 Date of hearing: 6 October 2022 Place: Melbourne Solicitor for the Applicant: Harry R Song & Associates Solicitor for the Respondent: Appeared In-Person ORDERS
MLC 2765 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR TIAN
Applicant
AND: MS MU
Respondent
order made by:
JUDGE MANSINI
DATE OF ORDER:
14 OCTOBER 2022
THE COURT ORDERS THAT:
1.The Application dated 14 March 2018 be dismissed.
2.Costs be reserved.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Tian & Mu (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge Mansini
IN SUMMARY
This is an application for property adjustment under s.79 of the Family Law Act 1975 (Cth) (the Act).
The parties were married for some 8 years at the time of separation. At the time of final hearing, it had been around 7 years since separation and 4.5 years since the parties’ divorced and initiated this proceeding.
The dispute was focussed on a single asset being a residential property in Australia which was purchased post-separation, in the Respondent’s name. The Applicant sought an equal split of this property and otherwise for all other assets and liabilities to remain unaltered. The Respondent sought that there be no alteration of her interest in this property and the Applicant pay to her the amount of $60,000 plus her costs.
In all of the particular circumstances of this case, I have determined that it is not just and equitable to make any order for the division of property. The reasons for this decision follow.
context
Procedural Context
These proceedings were initiated by the Applicant on 14 March 2018.
Since then, the matter has come before the Court on at least 18 occasions prior to the final hearing on 6 October 2022. Accordingly, there is substantial procedural context. The following is a summary of that which is most relevant to the issues presently before the Court.
On 5 November 2018, final property orders were made in the absence of the Respondent (who, at that time, had not participated in the proceedings) which provided for the sale of the Australian residential property and, once certain costs were paid, that the balance be divided 50:50 as between the Applicant and the Respondent. On 11 April 2019, the orders of 5 November 2018 were set aside by consent. Since then, the Respondent has filed various materials in defence of the application (detailed further below).
By order of 3 December 2021, a Judge of this Court ordered a mention 7 days before the final hearing (as it was then listed) which included a notation that the mention was to ascertain whether the Applicant had returned to Australia to appear in person at the final hearing (the Applicant residing then (and now) in the People’s Republic of China). A further notation provided that the Applicant need not return to Australia to appear in person at the final hearing if he had engaged legal representation, in which case, he may give evidence remotely from the People’s Republic of China.
On 7 February 2022, the final hearing date was vacated and the matter was relisted for final hearing on 8 September 2022. By further order of 25 July 2022, the matter was listed before the Court as presently constituted on 6 and 7 October 2022. Those orders also included trial directions for the Applicant to attend to filing and service of any amended initiating application, an updated single consolidated trial affidavit and an updated financial statement by no later than 21 days prior to the trial date.
On 18 September 2022 (being 3 days after the ordered date), the Applicant sought to file an amended application, an unsworn affidavit and a financial statement of same date – those documents appeared to be unsworn and prepared by the Applicant who resided in the People’s Republic of China. These were not accepted for filing by the Court’s Registry.
On 22, 26 and 29 September 2022, in response to a request for information in preparation for the final hearing from my chambers, the Applicant requested to attend the hearing remotely by electronic link from the People’s Republic of China and also requested an adjournment of the hearing until February 2023.
In the course of this exchange, the Applicant was appraised that the Court had not received his materials in compliance with the trial directions and, additionally, that if the Applicant sought to rely on materials sworn in the People’s Republic of China then the Court would need to be satisfied that it may be received having regard to Article 277 of Chinese Civil Procedure Law (which would appear to prohibit the collection of evidence by a foreign court unless through channels acceded by or with express permission of the People’s Republic of China). The Applicant was also invited to file evidence in support of his adjournment and remote attendance requests, for consideration of the Court.
In relation to the adjournment and remote attendance requests: The Applicant appeared to contend that the circumstances of the global COVID-19 pandemic prevented him from travelling until February 2023. His stated reasons included “for social responsibility and personal health” but he did not provide reasonable evidence in support of any medical condition. Further, the Applicant did not provide reasonable evidence of any prohibition on travel (if that was indeed what was claimed) or to sustain a claim that flights were cancelled (he provided no evidence of a flight to Australia having been booked let alone cancelled). The Respondent strongly opposed the adjournment and remote attendance requests essentially because it had on numerous occasions been made clear by the Court that the Applicant was required to attend the hearing in person and she would be prejudiced by any further delay. In all of the circumstances and not being satisfied that the Applicant had provided evidence to reasonably justify an adjournment request, that request was refused. The Applicant was notified that he could attend by electronic link if he had engaged legal representation.
In relation to the invitation to address the Court about the identified concern with his evidence: Ultimately, the Applicant did not prior to the hearing (or at any stage in the proceedings) take the opportunity to directly respond specifically as to whether the Applicant’s evidence was proposed to be sworn or affirmed in the People’s Republic of China and therefore whether it was (un)able to be received by the Court by operation of Article 277 of Chinese Civil Procedure Law.
On 3 October 2022, a notice of address for service was filed on behalf of the Applicant. A document titled “case outline” was also filed and appeared to have been signed by the Applicant on that same day.
On 5 October 2022, the Applicant’s representative emailed my Associate to notify of their appearance at the final hearing listed for 6 and 7 October 2022 at 10.00am. That email did not request an electronic link to facilitate the Applicant’s attendance at the hearing.
At the final hearing on 6 October 2022, the Applicant was represented by a lawyer and the Respondent appeared in-person. At the commencement of the hearing, the Applicant’s representative confirmed that she had not been able to contact the Applicant during the course of that morning and the Court should proceed with the hearing in his absence. It was also confirmed that the Applicant had not filed any evidence that could be received by the Court and that the representative was instructed the case could proceed on the basis of the Respondent’s evidence alone. The Respondent told the Court that she preferred to proceed with rather than adjourn the final hearing and further delay the outcome. To the extent this was a non-appearance (or strictly, a partial non-appearance) by the Applicant being party to the proceedings, and in all of the circumstances, I was content to proceed as proposed by the Applicant’s representative and pursuant to r.15.19(e) of the Federal Circuit and Family Court of Australia(Family Law) Rules 2021 (Cth) in the knowledge that the Applicant was sufficiently on notice of the proceedings, had been afforded ample opportunity to file sworn evidence in the required form and that the interests of justice required finality be brought to these proceedings commenced 4.5 years ago and since affected by numerous delays.
Having accepted that the hearing should proceed on the basis of the Respondent’s evidence alone, and not having elected to address the Court about the issue, no determination was or was required to be made in relation to the operation of Article 277 of Chinese Civil Procedure Law. It was understood that the Applicant sought to rely on the following earlier filed materials:
(a)Application for final orders filed on 14 March 2018 and amended application of 18 September 2022;
(b)Financial statement of 18 September 2022; and
(c)Case outline of 3 October 2022.
The Respondent filed the following materials on which she sought to rely:
(a)Response to final orders of 11 November 2019;
(b)Affidavit of 11 November 2019;
(c)Affidavit of 12 February 2019;
(d)Amended application in a proceeding (amended response to the application) of 16 March 2022; and
(e)Affidavit of 16 March 2022.
Factual context
As the Applicant ultimately was content to rely on the Respondent’s undisputed evidence, the following summary of the relevant factual context was not disputed in evidence. Nonetheless, where the Applicant was understood to strongly dispute a matter (by way of oral submissions made by his representative or written material filed which was not relied on as evidence but may be received by way of submission), this is indicated in the below.
The Applicant and the Respondent are respectively around 53 years of age. They married in China in 1997. There is one child of the marriage.
In 2005, the parties obtained their Australian permanent resident visa and separated. At that time, the child of the marriage was 8 years old.
From 2005, the Applicant resided in China. He commenced returning to Australia for occasional short stays to visit the child of the marriage (of around 4-5 days on each occasion) from 2007.
In 2008, the property at B Street, Suburb C, in the State of Victoria, was purchased in the Respondent’s sole name for a purchase price of $650,000 (the Australian property). The Respondent’s evidence was that the Respondent’s parents and brother arranged to send $650,000 to Australia for the Respondent to put towards the purchase of the Australian property. Her evidence included a summary of transactions, with supporting bank records attached, showing a number of credit transactions in varying amounts over the period December 2008 until July 2015 received from Chinese transferees. The Respondent’s evidence was that the Applicant had sometimes brought cash to Australia from her family and was paid a commission for this but had contributed none of his funds toward the purchase of the Australian property, the asset pool or the upkeep of the Australian property. For his part, the Applicant submitted that he had contributed to a mortgage on the Australian property over a number of years. The Applicant also contended that he was the sole income earner for the duration of the marriage and therefore had made financial contributions to the marriage.
The Respondent accepted in evidence that the Applicant had stayed in the Australian property for an unspecified period in 2015. During his occupation of the property, she said that she had returned to China to be with family and the child of the marriage had rented accommodation whilst at university.
On 14 March 2018, these proceedings were commenced by way of initiating application and an accompanying affidavit and financial statement.
In May 2018, the parties divorced in China.
The Respondent gave evidence that she was the sole carer of the child for 10 years from separation until 2015 when the child turned 18 years of age. At the time of the hearing, the Respondent was in employment (but had not been able to travel for work due to these proceedings), the child of the marriage was around 25 years of age and the Respondent submitted that he was living with her again. Further, that since their separation the Applicant had not contributed towards support for the Respondent or the child of the marriage. The Applicant was understood to contend that, as the sole income earner, he had contributed to such support.
The Respondent also gave evidence that the Applicant had taken $60,000 that her family had given to her personally and of her understanding that he owns an apartment in China and other assets that he had not disclosed in his financial statement filed with the Court. She did not provide any supporting records or further explanation in relation to these matters.
The Applicant’s updated financial statement identified cash in bank accounts of $157,491.27; term deposit of $5,251.48; and superannuation accounts with balances of $12,707.66 and $1,310. These amounts were not challenged by the Respondent. The Applicant did not identify any property based or other assets which the Respondent challenged as summarised above.
The Respondent’s most recent financial statement identified the value of the Australian property as $1.5 million Australian dollars. It also identified cash in bank accounts in her name of $60,011; $15,465 and $60,000 and a car worth $6,000 and household contents of $5,000. There was no mortgage or other liabilities disclosed. These amounts were not challenged by the Applicant.
THE APPLICANT’S PROPOSAL
The Applicant’s proposed final orders in his case outline filed on 3 October 2022 sought an “overall division” of 50% to the Applicant and 50% to the Respondent. At the final hearing, the Applicant’s representative clarified that the division was sought in relation to the Australian property and that he did not oppose the Respondent’s proposed orders 3, 4 and 5.
THE RESPONDENT’S PROPOSAL
The Respondent’s proposed final orders in her responses filed on 11 November 2019 and 16 March 2022 were as follows:
1.The Respondent be solely entitled, to the exclusion of the Applicant to the property situated at and known as [B Street, Suburb C] Victoria, the Title currently held solely in the name of the Respondent;
2.Each party be solely entitled, to the exclusion of the other, property (including choses-in-action) in the possession of such party, as at the date of this application;
3.That monies standing to the credit of the parties in any personal bank account, as at the date of this application, shall become the sole property of the party in whose name that account is held;
4. That all insurance policies remain the sole property of the named owner;
5.That each party shall be solely responsible for the payment of any [credit] card debt accrued in their respective name, as at the date of this application;
6.That any joint tenancy of the parties in any real or personal estate is hereby expressly severed;
7.That the application of the Applicant, filed in the Federal Circuit Court on 14 March 2018, be otherwise dismissed.
[and]
8. He give me $260000
$180000 (loss of earnings in the US in recent 3 years
$20000 (legal fee, due to his false litigation)
$60000 (he took my family give me personally)
(sic.)
THE LEGISLATION
Section 79 of the Act gives the court power to alter the interests of the parties to a marriage in the property of the parties to that marriage. Subsection 79(2) of the Act provides that:
The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
Subsection 79(4) of the Act sets out the matters the court must take into account when considering what orders, if any, should be made for the alteration of the interests of the parties in property.
In turn, this includes matters to be taken into account under s.75(2) of the Act.
THE APPROACH TO APPLICATIONS UNDER S.79
The Full Court in Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 identified a preferred four-step process in property matters under the Family Law Act 1975 (Cth):
(1)to identify the pool of assets and liabilities generally, and usually at the time of hearing;
(2)to assess the relative contributions of both the financial, non-financial, direct and indirect nature as specified by s.79(4) of the Act;
(3)to consider the factors as are relevant contained in s.75(2) of the Act; and
(4)finally, to determine whether the order the Court proposes to make is just and equitable to both parties.[1]
[1] Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC ¶93-143, [39] (Nicholson CJ, Ellis and O’Ryan JJ).
This approach was approved in Bevan & Bevan [2013] FamCAFC 116, where the Full Court of the Family Court of Australia considered the High Court’s decision in Stanford & Stanford [2012] HCA 52.
Stanford requires the following matters to be determined in applications brought under s.79 of the Act:
(a)whether the parties have separated;
(b)the assets and liabilities of each party;
(c)the contributions of each party;
(d)the future needs of each party;
(e)bearing in mind all of the foregoing matters, whether it is just and equitable to make any orders altering the interests of the parties in their property; and
(f)what orders, if any, are just and equitable in all the circumstances of the case.
Stanford does not require these matters to be addressed in any particular order. In most cases, it would seem rational to consider them in the order set out above. It does not seem to me to be possible to determine whether it is just and equitable to make an order altering the parties' interests in their property without the other matters mentioned above having been previously determined. That seems to be clear from the opening words of section 79(4) of the Act, which are that:
In considering what order (if any) should be made under this section in property settlement proceedings, the Court shall take into account [the various matters set out in section 79(4)] …
The approach outlined above is consistent with the decision of the Full Court of the Family Court in Bevan v Bevan (2013) 279 FLR 1; (2013) 49 Fam LR 387; [2013] FamCAFC 116. I note that in that case, the Full Court said at [89]:
In our view, it will be less likely that the separate issues arising under s 79(2) and (4) will be conflated if judges refrain from evaluating contributions and other relevant factors in percentage or monetary terms until they have first determined that it would be just and equitable to make an order.
ISSUES IN DISPUTE
As will be apparent from the aforementioned context, the key issue in dispute was the appropriate split (if any) of the asset earlier defined as the Australian property.
The Applicant’s case is that the Australian property should be split equally, on the basis that he was the sole income earner in the marriage and contributed to a mortgage on the Australian property.
The Respondent’s case is that the Australian property should be retained wholly by her, on the basis that it was a post-separation asset purchased with the significant financial contributions (gifts to her) from her family (and no other contribution) and that she made the significant parenting contribution (as sole parent for 10 years from 2005 to 2015). She also sought that the Applicant pay to her the amount of $60,000 and her costs incurred as a result of this proceeding (which she calculated at $180,000 for loss of earnings in her employment and $20,000 in legal fees).
whether the parties have separated
It was not contentious that the parties separated in 2005 and are now divorced.
THE ASSETS AND LIABILITIES
The following assets and liabilities at the time of trial have been derived from the Financial Statements lodged by the Respondent on 11 August 2022 and the Applicant on 18 September 2022 which were not disputed other than in one respect (address further below).
The Applicant's individual assets at the time of trial were as follows:
Applicant’s Assets Value Bank Account Number …30** ****** $157,491.27 Westpac term deposit …21******** $5,251.48 Applicant’s total assets $162,742.75 Applicant’s superannuation $14,017.66 Super Fund D $12,707.66 Super Fund E $1,310 Applicant’s total assets plus superannuation $176,760.41
The evidence before the Court is that the Applicant owns an apartment in China and “other assets”. Whilst the Applicant has broadly denied the existence of any such assets (and not disclosed any such assets in his Financial Statement or otherwise), he has not availed of the opportunities provided to him to bring evidence in support of his position. On what is before the Court, it may be accepted that there is an asset (apartment) in China in the Applicant’s name and some other assets, however the value of such assets and any associated liabilities is not known and therefore not able to be calculated as part of the asset pool.
The Respondent’s individual assets at the time of trial did not include any superannuation and were as follows:
Respondent’s Assets Value The Australian property (B Street, Suburb C) E$1,500,000 Motor Vehicle 1 E$6,000 Household contents E$5,000 Bank Account Number …94****** $60,011 Bank Account Number …37*** $15,465 Investments $60,000 Respondent’s superannuation Nil Respondent’s total assets excluding the Australian property $146,476 Respondents total assets E$1,646,476
Neither party contended there were any individual or joint liability(ies) at the time of trial.
Applicant’s total assets plus superannuation less liabilities $176,760.41 Respondent’s total assets plus superannuation less liabilities E$1,646,476
On the materials before the Court: the Applicant's assets plus superannuation less liabilities are $176,760.41 and the Respondent's assets plus superannuation less liabilities are valued at $1,646,476.00. The combined total of their assets is therefore $1,823,236.41. Consequently, the wife presently holds about 90.3% of the parties' combined assets. Of the non-disputed assets in this pool – that is, excluding the value of the Australian property - the Applicant holds approximately $30,000 more in cash and superannuation assets.
ASSESS THE RELATIVE CONTRIBUTIONS
The next step is to assess the relative contributions of both the financial, non-financial, direct and indirect nature as specified by s.79(4) of the Act.
Financial
There was no dispute that the Australian property was purchased in 2008 - after the parties had separated, for $650,000 and in the Respondent’s name only.
The Applicant submitted that he contributed to the payment of the mortgage on the property and otherwise to the relationship as the sole income earner. However he did not elaborate with any description of the nature and value of such contributions and provided no evidence of financial contributions made or the period over which such contributions were claimed to have been made or otherwise in response to the Respondent’s evidence.
Taken on its face, the Respondent’s evidence in the form of financial summary and bank records established that the Respondent’s family made financial contributions in significant instalments over the period December 2008 until July 2015. An analysis of the financial records produced in evidence by the Respondent revealed credit deposits of at least the following: an initial $65,000 (which would equate to 10% of the $650,000 purchase price); $77,800 in March 2009; $100,000 in February 2015; $500,000 in May 2015; and $220,000 in July 2015. In each case, these payments were made by a Chinese transferee that is neither the named Applicant nor Respondent to these proceedings and there is no evidence to suggest otherwise.
In their financial statements, neither party disclosed a mortgage or other debt owing on the Australian property. Indeed there is no contention of any individual or joint liability.
There is no evidence of any assets accumulated during the course of the marriage, or prior to the purchase of the Australian property, being directed or spent toward the purchase of the Australian property or of any other contribution to the asset pool from marital funds or assets.
On the evidence before the Court, I find that the Australian property is without liability or encumbrance and that the Respondent has received payments from her family over the period 2008 to 2015 sufficient to pay for the property in full. It may also be accepted that the Applicant made no financial contribution toward the upkeep of the Australian property.
The Respondent asked the Court to take into account that the Applicant made a negative financial contribution of $60,000 which was a gift to her, from her family, that he took. She has neither explained nor substantiated such claim or suspicion however her evidence was not opposed and may be taken into account.
Non-financial
The Respondent solely raised the child of the marriage for a period of 10 years from separation until the child turned 18 years of age. The Applicant lived overseas during this time.
There is no evidence of any contribution by the Applicant other than occasional short visits to Australia to see the child after being entirely absent for a period of 2 years. Although there were visits, the frequency of the visits is not before the Court.
Neither party contended for any other non-financial contribution nor was there evidence of such before the Court.
Superannuation
As summarised above, the Applicant had superannuation assets to the value of $14,017.66 and the Respondent had no superannuation assets in her name. The date(s) of accrual of those earnings were not disclosed or before the Court however for present purposes it may be accepted that they were accrued as an asset of the marriage.
Consideration of contributions
I have taken a global approach in assessing the parties’ respective contributions to what may be described as their long marriage, and I take them into account in an overall sense. I note the authorities set out that a broad approach, rather than a precise arithmetical approach, is preferred.
Significant contributions of one party post-separation may be a relevant factor particularly where caring for children is involved. The Full Court decision in Jacobson and Jacobson (1989) 12 Fam LR 828 illustrates the principles for assessing contributions to the welfare of the family after separation. The Full Court in that case affirmed that where one party saves money or accumulates assets solely from post-separation efforts, these will be credited to him to her in circumstances where the other party has made no contribution, direct or indirect, towards the accumulation of those post-separation assets.
Considering all the evidence and the submissions (and with regard to the findings I have made above), the Respondent made the significant and sole contribution to the purchase and retention of the Australian property. The title is in the Respondent’s name alone. The contributions of capital to fund its purchase and repayment were moneys received by the Applicant as a gift from her family, were applied for the benefit of herself and the child and therefore constituted a financial contribution by the Respondent. Those capital contributions gifted to the Respondent of sufficient value to fund the entire purchase of the Australian property by July 2015.
There is simply no evidence before the Court to found a conclusion of any financial contribution made by the Applicant or that marital assets were applied to the purchase, maintenance or retention of the Australian property. Rather, the Applicant made a negative contribution of some $60,000 which was a gift to the Respondent from her family and is unaccounted for.
I have also considered the s.75(2) factors as relevant to the assessment at s.79(4). On the materials before the Court, I am satisfied that the Respondent made significant contributions in the primary care of the child, who was at a relatively young age at the time of separation and over a substantial period of 10 years following the parties’ separation. Indeed the evidence is that the Respondent cared for the child without support of the Applicant for 10 years following their separation. There is limited evidence of the Applicant having made any contribution in this regard being of occasional short visits to Australia since 2007.
RESOLUTION
Whether I am obliged to take into account the matters in s.79(4) (which Chapman & Chapman [2014] FamCAFC 91says I am not), or whether I am merely at liberty to do so (which Chapman says I am), in the exercise of the discretion conferred on me pursuant to s.79(2) of the Act, I have determined that it would not be just and equitable to make any order altering property interests in the present matter: Fielding & Nichol [2014] FCWA 77 at [51]; Chancellor v McCoy [2016] FamCAFC 256.
The orders sought by the Applicant would essentially alter only the ownership of the Australian property, with all other assets to remain unaltered and as presently individually held by the Applicant or the Respondent.
On the evidence before the Court and the findings I have made, the parties’ finances were apparently kept separate. At best the parties’ respective cash assets (of near equal disclosed value) and the Applicant’s superannuation assets were assets of the marriage accrued prior to and since the separation. The Australian property is a post-separation asset that was only purchased, maintained and retained through the contribution of the Respondent and in her name only. Taking the Respondent’s evidence at its highest (being unchallenged in evidence, with the Applicant not having presented to the Court to give evidence or for cross-examination), the Applicant has at least an asset (an apartment) in China, the value of which is not before the Court. The Applicant is employed and has the capacity to earn or accumulate more assets. The Respondent is and has at least in recent years been employed. She had raised the child of the marriage alone for some 10 years and since separation has taken steps to secure her future wealth by the purchase of the Australian property with the assistance of her family.
In many cases, the requisite satisfaction at s.79(2) is readily discharged by the fact of separation or the decision of one party to end the marriage. However, each case turns on its own facts. In my view, it would be unfair in these and all of the particular circumstances for the Applicant to have a share of the Australian property and I am not satisfied it is just and equitable to interfere with the parties’ property rights. I have considered, but do not regard the matters of the debt the Applicant owed to the Respondent of $60,000, other cash assets (of near equal value) and modest amount of superannuation to alter this consideration as to the state of satisfaction.
Not being satisfied that it is just and equitable that an order adjusting the parties’ entitlements be made, there is no power to make an order altering the interests in property.
In the event that I were wrong in that conclusion, and it were considered or found to be just and equitable to make an order adjusting the parties’ entitlements, I would be required to carefully assess and weigh all the contributions and prospective needs of the parties, to make an order that I consider appropriate to do what is just and equitable in the circumstances of this particular case. This is an holistic task, not a strictly mathematical one.
In that event, I would not accept that the Applicant’s contributions, particularly any (unproved) contribution to repayment of a mortgage that no longer exists or is now discharged, was such that he would be entitled to 50% of the total value of the Australian property. The purchase and retention of the Australian property is appropriately characterised as a significant contribution of the Respondent and, on the evidence, no contribution was made by the Applicant in this respect. Additionally, the parenting contributions were solely borne by the Respondent for a significant period of some 10 years without assistance of the Applicant other than occasional visitation of the child since 2007. The evidence before the Court of future needs was limited and would not persuasively establish a finding in favour of either party given the child is now grown and both parties are still of working age and presently employed and/or with earning capacity.
Although the Respondent did not contend for a share of the Applicant’s superannuation, it would be open to the Court to take a “two pool” approach, in which case the superannuation assets would be separately assessed. However, in circumstances where the Applicant did not appear at the final hearing and did not engage with the Court or its orders as required, I consider any order made as to superannuation split would present difficulties for the Respondent in terms of enforcement and likely futile.
Upon weighing all the factors, even if I were satisfied that it was just and equitable to make an order, then I would consider that a just and equitable division of property would be achieved by an order that the Respondent retain the property in Australia and for all other assets and liabilities to remain in the ownership of the current owner.
For the above reasons, the application is dismissed with costs to be reserved, meaning if any is sought that matter will be programmed and determined subject to further evidence and submissions. I will order accordingly.
I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Mansini. Associate:
Dated: 14 October 2022
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