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…

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 & Mu (No 2)

Details

AGLC: Tian & Mu (No 2) [2022] FedCFamC2F 1385
Case: [2022] FedCFamC2F 1385
Decision Date

CaseChat Overview and Summary

The case of Tian & Mu (No 2) involved a property settlement dispute between Mr Tian and Ms Mu, who were married for eight years before separating in 2005. The central issue in the case was the division of a residential property in Australia that was purchased by Ms Mu post-separation. Mr Tian sought an equal split of the property, while Ms Mu sought to retain her interest in the property and for Mr Tian to pay her $60,000 plus costs. The Federal Circuit and Family Court of Australia (Division 2) found that it was not just and equitable to make any order for the division of property.

The Court considered the assets and liabilities of both parties and found that the Respondent held the majority of the combined assets. The Court assessed the contributions of both parties and found that the Respondent made significant financial and non-financial contributions to the marriage, while the Applicant made no financial contribution towards the purchase or maintenance of the Australian property. The Court also considered the future needs of both parties but found the evidence to be insufficient to make a definitive finding in favour of either party.

In determining whether it was just and equitable to make an order altering the parties' interests in property, the Court found that it would be unfair to the Respondent to require her to share the Australian property with the Applicant. The Court held that it was not just and equitable to make any order for the division of property and dismissed the Applicant's application. Costs were reserved for a later determination.

Orders