Vang & Chung (No 13) - [2025] FedCFamC1F 233

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Vang & Chung (No 13) [2025] FedCFamC1F 233

File number: SYC 1433 of 2020

Judgment of: CHRISTIE J

Date of judgment: 11 April 2025

Catchwords:
FAMILY LAW - Property - Short marriage – Application by the wife for an adjustment of property interests - Where the marriage lasted two months - Where no compelling reasons exist to make a property adjustment as per s79(4) of the Family Law Act 1975 (Cth) - Application refused.

FAMILY LAW- PROPERTY – Disputed asset pool – Where applicant wife claims that the husband is the beneficial owner of millions of dollars’ worth of tangible and intangible property in Australia and overseas - Where wife asserts that the husband has not made a full and frank disclosure - Where the court is not satisfied of beneficial ownership - Where even if the Husband did own some or all of the assets, no adjustment would be warranted.

FAMILY LAW - PRACTICE AND PROCEDURE - Where applicant wife seeks a spouse maintenance claim despite leave being refused under s44(3) and appeal against refusal being dismissed. Application is dismissed.

FAMILY LAW - CONSTITUTIONAL LAW - Practice and Procedure- Where applicant wife asserts that her case requires intervention by the Attorney General - Where applicant therefore seeks adjournment of hearing - Where no evidence or specific claims are made to advance this proposition - Where adjournment application is opposed by all other parties -Adjournment application is refused.

Legislation:
Australian Constitution

Family Law Act 1975 (Cth)

Judiciary Act 1903 (Cth)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021

Cases cited:
Amrit Lai Narain v Parnell (1986) 9 FCR 479

Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337

Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd (1999) 167 ALR 303

Benson and Drury (2020) FLC 93-998

Bevan & Bevan (2013) FLC 93-545

Dietrich v The Queen (1992) 177 CLR 292

Keating & Keating (2019) FLC 93-894

Kennon & Kennon (1997) FLC 92-757

Luck v Secretary, Dept of Human Services [2017] FCA 540

Re Culleton (2017) 340 ALR 550

Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73

Stanford v Stanford (2017) 247 CLR 108

Trevi and Trevi (2018) FLC 93-858

Vang & Chung (No 3) (2024) FedCFamC1A 199

Vang and Chung (No 3) [2024] FedCFamC1F 101

Xuarez and Vitela [2017] FamCAFC 139

Division: Division 1 First Instance

Number of paragraphs: 192

Date of hearing: 17 – 21 March 2025

Place: Sydney

Applicant: Litigant in Person

Counsel for the First Respondent: Ms Tabbernor

Solicitor for the First Respondent: Broun Abrahams Burreket

Counsel for the Second Respondent: Mr Sulan SC with Mr Rogan

Solicitor for the Second Respondent: Mangioni Biggs + Co
ORDERS

SYC 1433 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS VANG

Applicant

AND:
MR CHUNG

First Respondent

MR D

Second Respondent

ORDER MADE BY:

CHRISTIE J

DATE OF ORDER:

11 APRIL 2025

THE COURT ORDERS THAT:
1.The Amended Initiating Application filed 7 March 2025 is dismissed.
2.The whole of the monies held in the trust account of Mangioni Biggs + Co (being 50% of the sale proceeds of E Street, Suburb F) be released to the second respondent, Mr D.
3.In the event that a party seeks their costs such party shall, within 14 days, file and serve:
(a)An affidavit setting out any further evidence relied upon for issue of costs; and
(b)Written submissions of no more than 5 pages identifying the material relied upon including as to any relevant filed schedule of costs.

4.In the event that a party opposes the making of such a costs order, such party shall file and serve within a further 14 days:
(a)An affidavit setting out any further evidence relied upon for issue of costs; and
(b)Written submissions of no more than 5 pages.

5.In the event that a party seeks to reply, then such party shall file and serve written submissions in reply of no more than 3 pages within a further 7 days.
6.In the event that costs are sought in accordance with Order 3, they will be determined without further oral hearing, unless a formal application for oral hearing is made.

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 Vang & Chung has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:

This is an application for adjustment of interests in property following the breakdown of the parties’ marriage. The applicant is Ms Vang (“the wife”). The respondent is Mr Chung (“the husband”). The second respondent is Mr D (the husband’s father) (“the second respondent”), who appears via a general power of attorney vested in, Ms T (“the husband’s mother”).
The relief which the wife seeks on a final basis is set out in her Amended Initiating Application filed 7 March 2025. The wife appeared without a lawyer at the final hearing and the orders which she seeks, in the form in which they have been drafted, would not be able to be made – were she to be successful in establishing the factual premises on which they are based. However, in broad terms I understand she seeks to be paid an amount of money by the husband such that the net assets of the parties are divided 80-90% to the husband and 10-20% to the wife. She also seeks an order for spouse maintenance of $5,000 per month for a period of three years. However, as will be discussed she does not have leave to bring proceedings for spouse maintenance.
As against the second respondent I understand the wife seeks a finding that a mortgage which was registered against the title to a property at E Street, Suburb F, NSW (“the E Street property”) is a sham with any funds transferred under this agreement to be considered as available for adjustment as between the husband and wife.
The wife’s application for final orders also deals with various interlocutory requests, costs and injunctions.
The husband seeks that the wife’s application be dismissed.
The second respondent seeks 50% of the sale proceeds of the E Street property, being the amount of $6,933,146.09 held in the trust account of Mangioni Biggs + Co, be released to the second respondent.
PRELIMINARY ISSUE
The wife sought an adjournment of the final hearing. On 13 March 2025 the wife filed a Notice of a Constitutional Matter and implicitly relied upon section 78B(1) of the Judiciary Act 1903 (Cth). The Notice was acknowledged as served on 13 March 2025 at 4:44pm.
There was no appearance by or on behalf of the Commonwealth, as the correspondence from the Australian Government solicitor indicated they had had inadequate time to consider whether the proceeding involved a matter arising under the Constitution or involved its interpretation.
Section 78B of the Judiciary Act provides:
(1) Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys‑General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys‑General, of the question of intervention in the proceedings or removal of the cause to the High Court.
(2)      For the purposes of subsection (1), a court in which a cause referred to in that subsection is pending:
(a)      may adjourn the proceedings in the cause for such time as it thinks necessary and may make such order as to costs in relation to such an adjournment as it thinks fit;
(b)       may direct a party to give notice in accordance with that subsection; and
(c) may continue to hear evidence and argument concerning matters severable from any matter arising under the Constitution or involving its interpretation.
(3)      For the purposes of subsection (1), a notice in respect of a cause:
(a)      shall be taken to have been given to an Attorney‑General if steps have been taken that, in the opinion of the court, could reasonably be expected to cause the matters to be notified to be brought to the attention of that Attorney‑General; and
(b)      is not required to be given to the Attorney‑General of the Commonwealth if he or she or the Commonwealth is a party to the cause and is not required to be given to the Attorney‑General of a State if he or she or the State is a party to the cause.
(4) The Attorney‑General may authorize the payment by the Commonwealth to a party of an amount in respect of costs arising out of the adjournment of a cause by reason of this section.
(5)      Nothing in subsection (1) prevents a court from proceeding without delay to hear and determine proceedings, so far as they relate to the grant of urgent relief of an interlocutory nature, where the court thinks it necessary in the interests of justice to do so.
I determined that the applicant had not persuaded me that the proceeding involved a matter arising under the Constitution or involved its interpretation. The applicant was not entitled to an adjournment merely because she asserted the existence of a matter arising under the Constitution or involving its interpretation: see Burchett J in Amrit Lai Narain v Parnell (1986) 9 FCR 479 at 489; Re Culleton (2017) 340 ALR 550 per Gaegler J; Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73 per Toohey J at 74 and Luck v Secretary, Dept of Human Services [2017] FCA 540 at [32]. I had to be satisfied that the proceedings did involve such a matter.
As I understood the applicant’s position she contended that the case involved:
…a fundamental constitutional question concerning the right to a fair trial and procedural fairness as protected under Chapter III of the Australian Constitution. Specifically, it concerns whether the conduct of the Australian Family Court and its judiciary in this matter has been compromised by external political or financial influence, thereby undermining the principles of judicial independence, impartiality, and the proper exercise of judicial power. This raises serious concerns regarding whether the proceedings have adhered to constitutional requirements for due process and procedural fairness.
In addition, the applicant submitted that the Court had (or would) impose restrictions on disclosure, that the case raised issues about the intersection between the Court’s approach to family law property settlement involving assets outside Australia and treaty obligations and finally whether the Court had (or would) improperly interfere with the applicant’s right to seek legal redress in other jurisdictions. I do not think those issues arise on the facts of this case.
The Australian Constitution creates no express right to a fair (criminal) trial: Dietrich v The Queen (1992) 177 CLR 292. The Applicant made no reference to the Australian Constitution except in so far as her submissions mentioned Chapter III. Chapter III gives the High Court original jurisdiction in respect of matters arising under any treaty. The wife’s submissions obliquely mention international treaty obligations but do not explain how or why they are relevant to this case.
This Court in Xuarez and Vitela [2017] FamCAFC 139 cited with approval the decision of French J in Australian Competition and Consumer Commissionv C G Berbatis Holdings Pty Ltd (1999) 167 ALR 303 (“Berbatis”):
…Concerning the obligation to adjourn, French J said:
14. Section 78B does not impose on the court a duty not to proceed pending the issue of a notice no matter how trivial, unarguable or concluded the constitutional point may be. If the asserted constitutional point is frivolous or vexatious or raised as an abuse of process, it will not attach to the matter in which it is raised the character of a matter arising under the Constitution or involving its interpretation: Nikolic v MGIC Ltd [1999] FCA 849; cf Australian Securities and Investments Commission v White (Fed C of A, Drummond J, 16 July 1998, unreported).
There is no matter involving the application or interpretation of the Constitution raised by the facts in this case and accordingly the adjournment was refused.
BACKGROUND
The parties do not agree about the length of their cohabitation. They married in 2017.
The husband says the parties commenced living together in May 2015 and separated on 28 September 2017. The wife says the parties commenced living together in February 2015 and separated on 31 August 2018. The parties’ divorce became final in late 2019.
On the husband’s case the relationship from the time the parties first lived together until separation lasted for two years and 9 months. On the wife’s three years and 6 months.
Both parties’ evidence acknowledges that whatever the length of the cohabitation there were also significant periods during that time where the parties were in different countries.
There are no children of the marriage.
There is significant controversy as between the husband and wife about the identification, ownership and value of the assets of the parties or either of them.
The second respondent is the husband’s father. He has had business interests in Australia and Country YY (“Country YY”). Since late 2018 he has been incarcerated in Country YY.
CONSIDERATION
It is necessary to address the wife’s application for spouse maintenance briefly. On 12 June 2023, for the first time, the applicant sought orders for spouse maintenance. She required leave to institute proceedings seeking spouse maintenance. On 28 February 2024 Harper J (Vang and Chung (No 3) [2024] FedCFamC1F 101) dismissed the application for leave on two bases. The Full Court (Vang & Chung (No 3) (2024) FedCFamC1A 199) subsequently considered the primary’s judge’s adjudication of the matter and concluded:
[45] None of the seven grounds of appeal assert any error by the primary judge in his dismissal of the applicant’s application for spousal maintenance (including leave to apply therefor out of time).
It follows that the applicant did not have leave to prosecute her application for spouse maintenance and advanced no submissions to support the conclusion that leave, having been previously refused, should now be granted. Accordingly, the application will be dismissed.
Turning then to the relief which the wife seeks for property adjustment. In Bevan & Bevan (2013) FLC 93-545 at [65] the Full Court of the Family Court of Australia said, of the decision in Stanford v Stanford (2017) 247 CLR 108 that:
the High Court’s decision serves to refocus attention on the obligation not to make an order adjusting property interests unless it is just and equitable to do so.
In approaching the question of whether it is just and equitable to make a property settlement order, the High Court, in Stanford offered the following guidance:
42. In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order …
(emphasis in original)
I propose to approach consideration of the competing applications in this matter with reference to the statutory considerations set out in section 79 of the Family Law Act 1975 (Cth) (“the Act”) and the distillation of the guidance offered by the High Court in the decision of the Full Court in Bevan & Bevan (2013) FLC 93-545 at [73]:
1.        Determination of a just and equitable outcome of an application for property settlement begins with the identification of existing property interests (as determined by common law and equity);
2.        The discretion conferred by the statute must be exercised in accordance with legal principles and must not proceed on an assumption that the parties’ interests in the property are or should be different from those determined by common law and equity;
3.        A determination that a party has a right to a division of property fixed by reference only to the matters in s 79(4), and without separate consideration of s 79(2), would erroneously conflate what are distinct statutory requirements.
(as per original)
Identification of existing property interests
The parties agree (or at least are not significantly in issue) about the following:
Wife’s assets, liabilities and superannuation
J Street, Suburb K  $680,000
(Mortgage secured against Suburb K)  ($469,383)
Motor Vehicle 1  $5,000
Banks accounts  nominal
Subtotal:  $215,617
Superannuation
Superannuation Fund 2  $20,718
Superannuation Fund 4  $41,304
Subtotal:  $62,022
Total net assets and superannuation:  $277,639
Husband’s assets, liabilities, superannuation
Bank account/s, personal effects, household contents          Nominal
Superannuation
Superannuation Fund 3  $53,581
The central issue in the case, from the wife’s perspective was whether or not the husband has a legal entitlement to assets in addition to those identified above or, has had a legal entitlement to other assets and has disposed of them in the period between separation and trial.
A separate issue arises concerning the treatment of liabilities acquired by both the husband and the wife after separation (including funds advanced to them by their respective families). In the main each party says those funds have been applied to legal and living expenses. They can be summarised as follows:
Wife’s post-separation liabilities
Personal loan from Ms VV  ($340,137)
Husband’s post-separation liabilities
E Street property mortgage  ($2,320,746)
Total unpaid income tax  ($86,779)
Loan from mother (Ms T)  ($323,889)
Loan from Mr V  ($400,000)
Withholding Tax  ($337,166)
Total post-separation liabilities of the husband  ($3,468,580)
The wife asserted that the husband is the beneficial owner of the following assets:
(a)Proceeds of sale of the E Street property (and residual proceeds from H Street, Suburb F);
(b)Shares in a company in Country RR which in turn owned shares in Y Pty Ltd (“Y Pty Ltd”);
(c)Nominee Shareholding in Company AK;
(d)Nominee Shareholding in Company AL;
(e)Nominee Shareholding in Company KK;
(f)Real property in Country YY;
(g)Banks accounts with AM Bank, AN Bank, AO Bank, AP Bank, BE Bank;
(h)Corporate interests in Country AB;
(i)Bank accounts in Country BC;
(j)Investments in Country BD.

I will turn now to consider what the evidence establishes about each of the wife’s contentions.
E Street Suburb F
The central issue is whether the title reflected the beneficial ownership of this property.
It is useful to commence the analysis with an understanding of the parties’ ownership and use of real property prior to the acquisition of the E Street property.
It is necessary to identify two people whose names recur throughout the evidence, but who are not on affidavit. They are Ms SS and Mr V (also known under another name. The wife’s affidavit says they are a married couple. The husband says he was introduced to Mr V by his father as a friend (of the husband’s father). The husband says his understanding was that Mr V was a business associate of this father.
Mr V operates his business interests from AQ Street, Sydney. Emails from Ms SS in evidence also indicate the same business address. Mr V was a director of AF Pty Ltd from 2009 to early 2023. The husband was employed by AF Pty Ltd as a senior professional from 2012 to 2013. Mr V has loaned the husband $400,000 during the currency of these proceedings. AR Lawyers has acted for Mr V in formalising those loans. AR Lawyers acted for Mr V in interlocutory proceedings seeking to set aside subpoena.
The husband has also identified Ms SS as a friend of his parents. Ms SS engaged AR Lawyers in interlocutory proceedings seeking to set aside a subpoena (struck out 5 October 2022).
While the wife contended that the husband had in fact engaged AR Lawyers to act on behalf of various subpoenaed parties there was no evidence to support this conclusion.
H Street, Suburb F
In early 2012 contracts were exchanged on a property at H Street, Suburb F (“the H Street property”) for a purchase price of $20,000,000. The property was purchased in the name of the husband, who was then 23 years old. In addition, stamp duty was paid on the transfer. The husband says he now understands the purchase price and acquisition costs were paid by Y Pty Ltd. The transaction settled in early 2012. The husband says he did not contribute to the purchase price.
A Y Company business cheque account was overdrawn by a cheque for $1,000,000,000 in early 2012 (exhibit 50). This corresponds to the letter dated early 2012 to Y Pty Ltd from the second respondent (exhibit 51). In early 2012 $19,000,000 was deposited to the same bank account and bank cheques totalling $19,000,927.72 were written in early 2012, again corresponding to the content of exhibit 51 and the settlement statement (exhibit 54).
I find that the funds applied to the purchase of the H Street property were not the husband’s funds but those of Y Pty Ltd. The wife has submitted that Y Pty Ltd was effectively owned by or the alter ego of the husband. As will be discussed below the evidence does not support that conclusion.
The husband says all outgoings in respect of the H Street property were paid by his father. The husband lived in the property from late 2013 to December 2016 (apart from the short period when he lived in the wife’s rental premises).
At some point a decision was taken to sell the H Street property. There is a file note dated early 2015 from documents produced by AD Lawyers which reads:
Spoke to [Ms SS]
-we to proceed
-pty in son’s name
-we to email her (……) re anything we need re this sale
(as per original)
In context “[Ms SS]” appears to be Ms SS, the business associate of the husband’s father, providing instructions to AD Lawyers. This file note makes no sense if the H Street property was both legally and beneficially the property of the husband. It makes sense if, as the husband asserts, the property is owned by the second respondent and who has asked his associate to make inquiries on his behalf.
The H Street property was sold by exchange of contracts in early 2017 for a price of $22,500,000. The transaction was completed in mid-2017. The husband wrote to the solicitor with payment directions in mid-2017 and indicated that Ms SS could collect the cheque, to be made out in favour of the second respondent. The proceeds of sale were deposited to a bank account in the name of the husband’s father, by deposit $21,229,090.92 and deposit $729,856.68 to the father’s NAB account in mid- 2017. The cheque dated mid-2017 was made out to the second respondent. The wife submitted that the proceeds of sale belonged to the husband. Should the husband have been entitled to those monies as the registered proprietor of property then in the ordinary course I would expect the proceeds to have been paid to a bank account in his name. They were not. This is consistent with the position of the husband and second respondent.
E Street, Suburb F
In mid-2017 the E Street property was purchased in the husband’s name. The purchase price was $10,500,000. The transaction settled in late 2017. The husband said the whole of the funds utilised to fund this transaction were provided by his father and subject to a loan agreement. The loan was secured by way of mortgage. That property was sold under the mortgagee’s power of sale in late 2023. The sale price was $14,215,000.
The husband’s mother indicates in her evidence how the purchase was funded:
(a)Deposit of $525,000 paid by Y Pty Ltd cheque in mid-2017;
(b)Settlement funds from NAB bank account in the name of the husband’s father of $9,978,238.61 paid on or about late 2017 to the solicitors acting on behalf of the husband’s father.
The sale completed after the date of the parties’ separation. The property has been tenanted since June 2019. Most of the correspondence with the real estate agent has been undertaken by Mr V although sometimes the husband was copied on emails.
On 14 November 2023 an order was made which provided that 50 per cent of the net proceeds of sale of the E Street property were to be held in the trust account of Mangioni Biggs + Co (“MBC”) for the second respondent, pending consent or further order. The order preserving those funds was continued on 22 January 2024.
When the sale completed the net proceeds were $13,866,292.17. Accordingly, $6,933,146.09 was preserved by operation of the order dated 14 November 2023.
The husband says, as at the date of trial, the amount outstanding to his father is $2,320,746.87. The sum of $6,933,146.09 is in the trust account of MBC.
The wife submits that the Court would be persuaded that the title to the property reflects the legal and beneficial ownership of the property. She says that the first and second respondent entered into the loan agreement to defeat her claim because at all times the title reflected the true position at law and in fact.
The intentions of the husband and his father are material. The evidence at the time of acquisition of both properties supports the conclusion that while the properties were purchased in the name of the husband, his father intended for them to remain as his own property beneficially. This evidence is contained in the affidavits of the husband and Ms AS and the file notes of solicitors engaged to buy and sell the properties. It is consistent with the manner in which the funds were treated subsequently by the husband and his father. From that treatment, inferences may be drawn which support the conclusion that the Suburb F properties were those of the second respondent.
One of the matters the wife relies upon (in addition to the title particulars) is the receipt by the husband of rental monies to pay his lawyers in these proceedings. However, after the mortgage was in place the application of rent to either legal fees or loan payments is consistent with the new arrangement and does not support the conclusion that the mortgage was a sham, as discussed below.
Documents produced by the real estate agent demonstrate that the agent had details for the bank account of the second respondent (exhibit 8) and sought the agreement of the husband to transfer the funds to him. At least one of the letters refers to applying rent to “a mortgage payment to your dad”.
The documents are heavily redacted. There is significant correspondence between the husband’s then lawyers and the estate agent, the content of which is not apparent. The applicant faintly argued that the privilege has been lost or waived but I could not be satisfied on the material before me that that was the case.
Validity of the loan secured by mortgage.
The wife challenged the loan said by the husband to have been entered into on 2 June 2017, as a sham.
The case law assists in identifying the circumstances in which a transaction may be considered a “sham”. In Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337, Gibbs J described transactions or instruments “brought into being, in appearance rather than reality, as a device to assist one party to evade his or her obligations under the Act.”
Exhibit 67 is said to be a mortgage between the second respondent (as lender) and the husband as borrower, recorded in annexure A to the mortgage. It is not plain on the face of the document who prepared the annexure. It was not the solicitors acting on the purchase. The document is dated 2 June 2017. It records a loan of $11,180,000 repayable after 3 years. If periodic payments are made the interest rate provided is 3.5%. If the principal sum is not repaid on the repayment date a higher rate (8%) is payable.
The last page of the loan document is executed by the husband and the second respondent in Sydney in the presence of Ms SS and Mr V. Neither Ms SS nor Mr V gave evidence in the proceedings.
The wife sought (unsuccessfully) to have the Court issue a subpoena to Mr V to give evidence. The husband has been on notice for some time that the wife challenged the authenticity of the 2 June 2017 document.
The husband’s affidavit is silent about his father having been in Sydney to sign a loan agreement on 2 June 2017 (or the circumstances in which this agreement was executed). The husband’s mother’s affidavit is silent about her husband having been in Sydney at the time of the exchange of contracts for the E Street property.
The husband’s own affidavit is inconsistent with the conclusion that a loan agreement was signed on 2 June 2017. The husband claims the agreement was dated 2 June 2017 because that was the date the funds were required for exchange. That does not explain how the signature of his father was purportedly witnessed. The evidence supports the conclusion that the loan agreement while dated 2 June 2017 was executed about the time of settlement.
It is inescapable that the loan agreement was not in place at the time of the advance.
The second respondent submits that the loan in respect of the E Street property is not a sham, in fact, it is the “opposite of a sham” because formalising the informal arrangement was consistent with the intentions of the father and son (as opposed to a ruse designed to hide their real intentions). The second respondent argued that the treatment of the money used to purchase the H Street property is an indicator of the nature of that transaction and the subsequent purchase of the E Street property. When the H Street property was purchased the husband did not contribute any funds (although he was permitted to use the property). The husband did not pay H Street outgoings. When the H Street property was sold the funds were not paid to the husband. If, as the wife contends the H Street property belonged to the husband there is no cogent explanation for the failure to receive the proceeds on its sale.
I understood the wife to be submitting that the husband had provided the funds for the acquisition of the H Street property since, she asserts, he had a beneficial entitlement to the funds of Y Pty Ltd. The wife has not established the husband’s beneficial entitlement to the funds of Y Pty Ltd (a matter which will be discussed at more length below) and accordingly I accept that the funds for the acquisition of the H Street property came from Y Pty Ltd (and not the husband).
As discussed above when the H Street property sold the funds were paid to accounts in the name of the second respondent, those funds were then applied to purchase of the E Street property. The source of funds for the purchase was not the husband. The wife says that the funds were those of the husband for one or both of the following reasons:
(a)The husband was the registered proprietor of the H Street property at the time of sale and accordingly was entitled to the proceeds of sale on settlement – since those proceeds were used to acquire the E Street property the husband was the source of funds. The decision to pay them to the second respondent meant that the second respondent held them on resulting trust for the husband: and/or
(b)If the husband had a beneficial entitlement to the funds of Y Pty Ltd, as, at the time of purchase, the company was the husband’s “alter ego” and those funds purchased the H Street property, on its sale the husband’s entitlement to the funds continued and they were applied to the acquisition of the E Street property.
The wife therefore submits that the loan between the husband and his father is a sham, its purpose being to defeat an anticipated court order, because it creates indebtedness in circumstances where the husband is not in fact indebted to his father.
In support of this conclusion she submitted, amongst other reasons, the following matters supporting her position:
(a)The timing of the loan;
(b)The lack of apparent independent legal advice to the husband concerning the loan;
(c)The lack of security or collateral for the loan;
(d)The husband’s failure to make payments in respect of the loan (and apparent inability to adhere to the repayment timeframe); and
(e)The unrealistic nature of the loan terms having regard to the husband’s asserted financial position.
The funds had been advanced, absent formality, in respect of the acquisition of the H Street property and, as between father and son, this was acceptable since the funds were returned to the father upon the sale of the H Street property. Had the H Street property either been a gift from father to son or otherwise the husband’s property, the evidence did not establish any basis for the proceeds being provided to the husband’s father on settlement, as occurred.
It is clear that, after the parties’ separation, the husband received legal advice that caused him to formalise for the E Street property purchase that which had been informal, for the H Street property purchase.
Documents produced on subpoena by AD Lawyers show a telephone conference occurred on 28 September 2017 which is described for billing purposes as follows: “detailed phone conference with regards to purchaser’s changed personal situation loan and trust issues”.
The entry for 29 September 2017 reads:
taking instructions in relation to loan facility; drafting mortgage and forwarding to client; liaising with client in relation to family law issues and recommending law firms; finalising arrangements for settlement including obtaining funds from client and ordering necessary bank cheques.
The firm did not prepare the loan for the husband and it does not appear that he had any independent legal advice about the loan.
The wife pointed to the billing entries as indicative of the loan being a sham. The timing of the loan does relate to the parties’ separation but this alone does not demonstrate the sham nature of the transaction. The fact of the parties’ separation caused the husband to reflect on the formalisation of the arrangement which had hitherto remained undocumented. The vehicle by which the husband and his father formalised their mutual understanding was the loan. However, the terms of the loan did not mirror the previous arrangement which permitted the husband to reside in the property but did not require him to make payments of either capital or interest. The resulting legal arrangement has created a significant debt in the husband’s name.
I accept that the husband made minimal loan repayments but the agreement itself provided for that possibility. I accept the husband had no obvious means of repayment of the loan during its terms save from a sale of the underlying asset. It is not accurate that there was no security or collateral for the loan – as the property itself was security under the mortgage.
The husband did make some repayments. The husband deposited money labelled “interest repayment E Street” in the bank account belonging to Mr V. In addition, rental payments from the E Street property were directed to Mr V’s bank account.
These matters do not demonstrate that the loan itself was a sham. They are equally consistent with an attempt by the husband and second respondent to acknowledge the beneficial ownership of the funds used to acquire the E Street property.
The wife did not explicitly frame her case as a claim pursuant to s106B of the Act, to set aside the mortgage. However, her contentions about the transaction are such that if I formed the view that s106B was engaged then all parties were sufficiently on notice of the wife’s position. Notwithstanding the date of the loan agreement being incorrect I am not satisfied that I would exercise the discretion granted by s106B because of the conclusion I have reached about the impact of the transaction on the wife’s claim. In effect, if I had set aside the mortgage I would still find that the second respondent was entitled to the proceeds of sale of the E Street property.
The effect of the above findings is that I accept that the monies paid to the second respondent by way of court order 14 November 2023 were payable to the second respondent. Further, I accept that the proceeds which remain in the trust account of the second respondent are beneficially those of the second respondent and do not form part of the assets of the husband and wife available for adjustment pursuant to s79 of the Act.
The weight of evidence is against the conclusion that the husband (or an entity which he owned or which was his “alter ego”) provided the purchase monies for either Suburb F property. The weight of evidence does not support the conclusion that the husband’s father gifted the property to the husband. It follows that I accept that the husband, in returning the sale proceeds, was acting in accordance with the understanding between the first and second respondent concerning ownership.
I accept that the husband and second respondent entered into the mortgage in response to the parties’ separation in an effort to give some formal legal structure to that which had hitherto been informal and in so doing, in particular having regard to the date of the loan agreement, caused the wife to question the legitimacy of the loan.
If the husband were seeking to have the outstanding loan to his father considered a liability for the purpose of the proceedings, thereby reducing the net assets of the parties I would agree that same would be improper having regard to the previous informal agreement which did not include repayments of capital or interest, but in circumstances where the husband does not seek to include the remaining debt I am satisfied that the fact of the husband and the second respondent having sought to formalise the arrangement does not impact on my assessment of whether the proceeds of sale of the E Street property should form part of the asset pool available for adjustment between the husband and wife.
Even if I am wrong in the conclusions expressed in the paragraphs above, for reasons which I will discuss at more length, had the property pool been enlarged by the inclusion of some or all of the proceeds of both Suburb F properties (or exclusion of the debt referable to interest) this would not have, on the facts of this case, entitled the wife to an adjustment of the interests of the husband and wife in property.
Y Pty Ltd
The second respondent was a director of Y Pty Ltd from the time of its registration on early 2011 until the time the company was deregistered namely late 2024.

Ms SS was Secretary from March 2011 until September 2014.
The husband held the position of Director and Secretary between August 2014 and April 2019.
The husband received a salary from Y Pty Ltd between 2014 and February 2021. He says he continued to receive the salary even after his resignation as a director in April 2019 and he is not sure why this occurred, though he suspects this may have been due to his father’s lack of ability to communicate whilst imprisoned.
The shares in Y Pty Ltd were owned by PP Group, a company registered in Country RR. The application for incorporation was approved in late 2010. The husband was 22 years old.
Both the husband and wife have made inquiries and the evidence suggests that information about the beneficiaries and shareholders of Y Group could be released to a member, officeholder or by court order.
The husband’s role as a director of Y Pty Ltd did not give him an interest in the company. The wife has not established that the husband has an interest in Y Group Pty Ltd. It follows that I do not accept that the husband owns shares in Y Pty Ltd or that he had a financial interest in Y Pty Ltd.
Even if the wife had been able to demonstrate that the husband had an interest in Y Pty Ltd this would not have had an impact on my assessment of whether it was just and equitable to adjust the parties’ interests in assets because of my findings elsewhere in these reasons about contribution related matters and matters which arise under s79(4)(d) of the Act.
Other corporate interests
The wife squarely raised, over the course of the proceedings, that the husband owned or had owned shares in companies outside Australia. The wife asserted that the husband had an interest in about 75-80 corporate entities although it appears as though this is in circumstances where entities in which he had an interest themselves owned shares in other corporate entities.
On 4 May 2020, the husband, who was legally represented, adopted a Financial Statement on his oath or affirmation. In the section entitled “property owned by you” he listed “various investments in shares issued by companies registered in Country YY , and Country X”. He indicated they were held “as nominee” and were less than 50 per cent of the shares in those unnamed entities. Accordingly, at this point in the litigation both the husband and wife agreed that the husband had unspecified interests of unknown value.
Notes to the Financial Statement said “interest as nominee holder of shares in Corporations regsitered [sic] in Country YY and Country X Amount received is $0. The Husband does not participate in the administration of these companies and does not receive any benefits from these companies.” The husband’s position was that while he understood there may be assets in his name he did not receive income from them and did not understand himself to be the legal owner.
The fact that the husband had sworn a Financial Statement detailing interests in companies in Country YY and Country X led the wife, understandably, to seek disclosure. The husband explicitly denied ownership of shares in Country X (exhibit 48) at any time notwithstanding the content of his Financial Statement. There is no proper explanation for the inconsistency.
At trial, the husband accepted he has had interests in various corporate entities outside Australia. He said these matters were unknown to him prior to the proceedings and that he has endeavoured to obtain information about the entities identified by the wife.
Both parties obtained a search from an entity in Country YY which they used as the source of their inquiries. On objection I rejected these searches from both applicant and respondent as on their face the documents said their accuracy and reliability could not be guaranteed. In 2024 the husband was able to obtain an “Investment and Position Enquiry Report” from the Administration for Industry and Commerce of Country YY. The husband said it required proof of his identity and name as per his Country YY Identity Card.
As a consequence of the searches (admissible and otherwise) there was some area of consensus about what shares may have been registered in the name of the husband in Country YY.
The husband relied on an affidavit by a Country YY lawyer, Ms AU, engaged by his Australian family lawyers to provide expert opinion about various aspects of Country YY company law. She was cross-examined by the applicant.
One of the significant issues is the husband’s position that the shares which he holds or has held have been held as a “nominee shareholder”. Ms AU said that nominee arrangements “are typically private in nature and are not required to be filed with the company registry”. If the shares are held as a nominee then the registered owner does not have a beneficial entitlement.
The evidence about shareholding in Country YY also used the expressions “registered capital” and “subscribed capital”. The registered capital is the amount which equity holders might be required to contribute, while the subscribed capital is the amount that they have in fact contributed.
(Nominee) Shareholding in Company AK
The husband accepts that government records show him as a shareholder of Company AK. The husband says that he is aware from discussions with his mother that the husband’s father put the shares in his name. The husband and the husband’s mother were not cross-examined about this.
The evidence of Ms AU was that the husband is shown as a shareholder of Company AK. Ms AU’s analysis of the publicly available information did not confirm shareholding, either as a nominee or on behalf of a third party. The subscribed capital of the husband is said to be Country YY currency 20 million.
The husband says that documents disclosed in the proceedings purportedly signed by him do not bear his signature. The husband was not cross-examined about this evidence. There is no evidence of the value of the shareholding.
(Nominee) Shareholding in Company AL
The husband acknowledged in these proceedings he was a “nominee shareholder” in this company. Ms AU’s report did not confirm the husband’s understanding that he was a “nominee shareholder.” Ms AU’s report says that documents which she viewed suggested the husband became a shareholder in late 2010. The husband’s equity at that time was said to be Country YY currency 100,000. The report suggests it may have increased by 60,000 Country YY currency. Irregularities identified by Ms AU left her unable to conclude categorically that the husband owned his interest beneficially.
The husband says that documents which purportedly bear his signature are not documents he signed or of which he had any knowledge. The husband was not cross-examined about this evidence. There is no evidence of the value of this shareholding.
(Nominee) Shareholding in Company KK
The husband acknowledged in these proceedings that he was a “nominee shareholder” in this company. He asserted those shares were held on behalf of his father. Ms AU’s report did not confirm the husband’s understanding that he was a “nominee shareholder.” Ms AU’s report actually indicates that the husband received his shareholding from his father in early 2017 (about six months prior to separation). The subscription amount (obligation to contribute) was said to have been Country YY currency 22.5 million. Ms AU commented on the letter of advice 22 April 2021 – indicating that it was not an “archived document of the company with the company registration authority”. Ms AU was unable to verify from the archived documents whether the capital had been fully paid before 20 March 2017 as required.
Where capital is not contributed, as required, Ms AU’s report said a shareholder may have to forfeit his or her equity.
The husband’s father holds the remaining interest in this company. The husband said that it is to be wound up and he will not receive a benefit. The husband was not cross-examined about this evidence. There is no evidence of the value of this shareholding.
Real property in Country YY
The husband has owned real property in Country YY. The husband says he no longer owns real property in Country YY. There was no admissible evidence before the Court by which I could conclude that the husband currently owns real property in Country YY, nor was it established that the husband had disposed of real property in Country YY after separation or in the twelve months prior to separation.
W Bank account
Before the parties’ relationship started the husband had a bank account ending …78 with W Bank. In August 2012 the husband’s mother transferred Country YY currency 2 million into this account. The wife did not dispute this. The wife says that transfers from the husband’s account to his mother’s account after separation were transfers of money to which the husband was beneficially entitled, alleging a lack of proof that these monies belonged to his mother. The husband and his mother submit otherwise. They say that the money which was transferred from the husband’s account to the account of the husband’s mother after separation were the mother’s funds which had been transferred to the husband’s account to enable his mother’s investment in circumstances where they submit the husband’s mother had reached the cap of what could be invested from her own account. The wife did not cross-examine Ms AS about this evidence. I accept that the husband’s mother did transfer her own funds into the husband’s account. The wife has not persuaded me that the evidence supports the conclusion that return of those funds to the account of the husband’s mother was improper or designed to defeat a claim by her.
Banks accounts with AM Bank, AN Bank, AO Bank, AP Bank, BE Bank
The evidence establishes that the husband has operated banking facilities in the past (other than those listed in his Financial Statement).
The wife referred to a document in cross-examination which was an AM Bank banking document with the husband’s name on it. It did not establish any present bank account or investment with AM Bank.
The wife said the husband met with a private banker at AM Bank on a trip to Country AB. She said she waited outside for the husband while the meeting took place. The husband denied the wife’s version of events. On the present state of the evidence I cannot find that husband has an AM Bank banking facility of any value.
I was not taken to any evidence establishing the existence of a current bank account in the husband’s name with:
(a)AN Bank;
(b)AO Bank
(c)AP Bank or
(d)BE Bank.
Corporate interests in Country AB
There was no admissible evidence before the Court by which I could conclude that the husband owns corporate interests in Country AB.
Bank accounts in Country BC
There was no admissible evidence before the Court by which I could conclude that the husband owns bank accounts in Country BC.
Investments in the Country BD
There was no admissible evidence before the Court by which I could conclude that the husband owns investments in the Country BD.
Does the husband have undisclosed assets? Or assts the value of which is unknown?
It is difficult to attach weight to the documents the husband seeks to rely on to disavow ownership of shares in companies in Country YY as they are hearsay documents prepared for the purpose of the proceedings. In the main they assert that the husband has not contributed capital, has no beneficial interests in the entities and no entitlement to documents (see exhibit 41).
However, even though it is difficult to attach weight to the documents which the husband has collected I must view them in light of the evidence as a whole. Even if I were to find that each of the entities or accounts identified by the wife as being entities or accounts in which the husband has a beneficial interest were indeed owned by him, that finding would not alter the following facts:
(a)There is no evidence of a direct financial contribution by the husband to those entities;
(b)There is no evidence of any direct or indirect financial contribution by the wife to those entities;
(c)There is no evidence that the interests have value (or value to the husband).
In respect of the last point the wife would submit that the Court does not have evidence of value because the husband has failed to disclose his interest and documents sufficient to establish value. I am not satisfied that the wife has established that the husband has failed to disclose documents which are or have been in his possession or under his control.
The manner in which the assets which were unquestionably registered in his name (for example, both Suburb F properties) were dealt with supports the conclusion that the husband may have had property in his name but it was being controlled or administered by others with a connection to the husband’s father.
Property disposed of by the husband after separation
In early 2020 shares in Company OO were transferred from the name of the husband to a third party at a recorded value of 1 Country YY currency. Records indicate the husband acquired his shareholding at the time of the company’s incorporation (mid-2013). The husband says he did not sign the transfer and that this shareholding was held on behalf of his father without his knowledge. The husband was not cross-examined about this specific evidence. His cross-examination confirmed his evidence in chief that he did not know who had used his identification to acquire or dispose of shares. There was no evidence of the value of the shares transferred.
The husband was recorded as the owner of shares in Company AT, acquired early 2017. In late 2019 those shares were transferred to Mr LL. The husband says he signed the transfer (though denies signing in person) at the request of his mother without reviewing it. The wife asserts Mr LL is a relative of the husband. The husband was cross-examined about this transaction and denied that the shares were transferred to a relative. He agreed that his father’s sister was married to a man with the surname Ms SS.
The husband acknowledged that in mid-2019 a company called Company NN was deregistered and at the time of deregistration the husband was recorded as a shareholder. The husband says he had no knowledge of the existence of this company, its deregistration or his purported shareholding. The husband was not cross-examined about this evidence.
The husband acknowledged that in late 2020 a company called Company AV was deregistered. The husband says he had no knowledge of the existence of this company, its deregistration or his purported shareholding. The husband was not cross-examined about this evidence.
The husband acknowledged that in early 2020 a company called Company AW was deregistered and that official records state that he was a Manager/ Director. There is no evidence of a financial interest in the company. Similarly, the husband denies having any role in or knowledge of the company. The husband was not cross-examined about this evidence.
Although not explicitly articulated, I take the wife to be contending that the Court should have regard to assets which the husband owned at separation but no longer owns as notional property or an addback. In that regard I have regard to the principles summarised by the Full Court in Trevi and Trevi (2018) FLC 93-858 at [27] – [30] (footnotes excluded):
The Full Court held in Omacini and Omacini that addbacks fall into “three clear categories”: where the parties have expended money on legal fees; where there has been a premature distribution of matrimonial assets; and “waste” or wanton, negligent, or reckless dissipation of assets.
However, the Full Court also made it clear that an addback does not necessarily occur whenever “a party has expended money realised from the disposition of assets that existed as at the date of separation”, the Full Court describing such a proposition as “unduly simplistic”. An earlier Full Court made the same point, saying that adding back is “the exception rather than the rule”.
The fundamental precept that addbacks are exceptional, reflected in the decisions just referred to, also mirrors what has been said in earlier decisions of the Full Court that, for example, “the Family Court must take the property of a party to the marriage as it finds it” at trial. An important parallel proposition is that the parties do not “go into a state of suspended economic animation” after separation. Thus, reasonably incurred expenditure does not usually come within accepted categories of addback.
Two fundamental premises emerge from Omacini and the authorities preceding it. First, “adding back” is a discretionary exercise. When the discretion is exercised in favour of adding back, it reflects a decision that, exceptionally, in the particular circumstances of a case, justice and equity requires it. The second premise is its corollary: in cases that are not “exceptional” justice and equity can be achieved, not by adding back, but by the exercise of a different discretion – usually by taking up the same as a relevant s 75(2) factor. Indeed, it has been said that the latter is “a course which is, perhaps, technically more correct” than adding back to the list of existing interests in property.
In the circumstances of this case I am comfortably satisfied that the shareholdings identified by the wife ought not form part of the pool available for adjustment as between the parties. If it were the case that the evidence had established that an asset to which the parties had made contributions directly or indirectly during the course of their marriage had been removed from the pool, then the conclusion may be different. I cannot be confident that the husband or wife made any contribution to assets no longer in the husband’s name. In addition, on the available evidence, it is not open to find that the shareholdings had any value to the husband or at all.
Disclosure
The wife asserts the husband has failed to provide information and documents relevant to the adjustment of the parties’ interests in property. To a lesser extent the husband asserts likewise.
The requirement that a party make full and frank financial disclosure is set out in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. Rule 6.01 provides:
(1) Subject to subrule (4), each party to a proceeding has a duty to the court and to each other party to give full and frank disclosure of all information relevant to the proceeding, in a timely manner.
(2) The duty of disclosure applies from the start of the proceeding and continues until the proceeding is finalised.
(3) The duty of disclosure also applies to a litigation guardian appointed under Part 3.5.
(4) This rule does not apply to a respondent to an application alleging contravention or contempt.
The duty to disclose relevant documents is specifically provided for in Rule 6:03 as follows:
The duty of disclosure applies to each document that:
(a) is or has been in the possession, or under the control, of the party disclosing the document; and
(b) is relevant to an issue in the proceeding.
There are specific documents identified in Rule 6.06.
Finally, Rule 6.17 sets out consequences of non-disclosure:
If a party does not disclose a document as required by these Rules:
(a) the party:
(i) must not offer the document, or present evidence of its contents, at a hearing or trial without the other party’s consent or the court’s permission; and
(ii) may be guilty of contempt for not disclosing the document; and
(iii) may be ordered to pay costs; and
(b) the court may stay or dismiss all or part of the party’s case.
In addition to the Rules of Court, the case law has identified guiding principles which may have application to cases where the court finds that a party has failed to disclose relevant information or documents (or both).
The wife submits that the true extent of the assets of the husband cannot be ascertained because he has failed to make full and frank financial disclosure as required.

I have reached the conclusion that the husband’s father, Mr V and Ms SS have undertaken business together in Australia from at least 2011. I am able to conclude that the husband’s father, Mr V and Ms SS are probably people with significant financial means. I am not aware of the extent of their assets or income, nor do I need to be in the context of these proceedings.
The wife says that the husband “is in business with them”. The husband was a director of Y Pty Ltd until early 2019. In that capacity I accept that the husband would have had access to documents of the company. However, no proceedings were filed until 3 March 2020.
On 20 May 2020 the Court made orders requiring the husband to provide answers to a request for answers to specific questions. He complied. The wife complains that his answers in large part denied knowledge of matters. The wife has not established that the husband’s denials were false. It follows that I am unable to find that his failure to provide the information or documents the wife sought is indicative of the fact that same exist.
Again, I repeat, even if the wife had established ownership of some or even all of the assets which she asserted were beneficially owned by the husband it would, as discussed below, have no impact on my assessment of the need for orders adjusting the parties’ interests in assets.
I find that the parties’ assets and superannuation are as follows:
J Street, Suburb K (W)  680,000
(Mortgage secured against Suburb K) (W)  (469,383)
Motor Vehicle 1 (W)  $5,000
Banks accounts (W)  Nominal
Bank account/s, personal effects, household contents (H)       Nominal
Superannuation Fund 2 (W)  $20,718
Superannuation Fund 3 (H)  $53,581
Superannuation Fund 4 (W)  $41,304
Total:  $331,220
I will not include the parties’ liabilities acquired after separation on the basis that there is no evidence that the funds have been applied by one or other of them to the benefit of the other spouse.
I have considered the wife’s submission to the effect that I should regard the assets which the husband has disavowed or relinquished as effectively unquantified property in his hands. I have considered the related submission of the wife that the husband had in the past (and now says he no longer has) bank accounts in different countries. I am satisfied given the length of the relationship and my findings about relevant s79(4) matters that even if the husband has undisclosed assets of value (even significant value) this would not entitle the wife to an adjustment of interests in property, having regard to the matters I consider below.
Having made findings about the pool of assets it is now necessary to turn to the question of what if any adjustive orders should be made.
Adjustment of the parties’ interests in property at the conclusion of a marriage is not to be assumed. An adjustment is remedial. It is to occur where, upon consideration of the statutory matters, justice and equity require that an order adjusting interests should be made.
Contribution
Length of the relationship
The wife’s case is that the parties began dating in December 2014 and started to live together at her home in Suburb K in early 2015. The Suburb K property was rented. The wife had flatmates.
The husband says he spent his first night with the wife in April and that they commenced cohabitation in May 2015.
I accept that the parties were in a relationship from February/March 2015. I could not be confident on the evidence before the Court when it was that the parties commenced living together on a full-time or near full-time basis. But this occurred from at least May 2015 (on the husband’s concession) or February 2015 on the wife’s evidence. I cannot determine this dispute, but the three months difference does not impact on my determination.
In April 2016 the parties started to live at the H Street property. The wife says she continued to pay rent at Suburb K until August 2016 (although she appears to have received refund of her rental bond in June 2016). She did not pay outgoings at the H Street property where she lived between April and December 2016.
From some point in late 2016, the wife obtained new rental premises at Suburb M, Sydney. The husband spent a few days there with the wife, though she contends it was slightly more, before moving to Country YY. The wife met the rent of the Suburb M property. The husband met his expenses in Country YY. Thereafter the parties spent less than two months in the same country as one another, and some of that in hotels.
Separation
The parties had an argument on 24 September 2017 in Country YY.
On 28 September 2017 it is uncontroversial that the husband sent the wife a direct digital message which ended as follows (exhibit 10):
Whether I manage to find a job in [City P] or end up in [Region AX], since we got married without their approval, and things have escalated to this point, my parents will never agree for us to be together. With this kind of strained relationship with my parents, I believe you wouldn’t accept it either. I don’t want us to become enemies either, so as you suggested let’s part on good terms. Let’s get a divorce.
The wife responded:
Okay. I’m sorry to your parents. I won’t make things difficult for you, so don’t worry. I’m not the kind of person you think I am. Take care of yourself in the future.
You can prepare the divorce application and send it to my house. If there’s anything I can do, just let me know.
The wife said, during cross-examination that she was just “testing” the husband. I reject her evidence. She did not take me to any evidence capable of supporting the conclusion that the parties continued their relationship after 28 September 2017. It is an agreed position that they did not reside together in either Country YY or Australia after September 2017.
I find that the marriage counselling undertaken by the parties does not impact on my determination as to the date of separation since it was required by law given the parties’ marriage was less than two years.
I find the parties separated on 28 September 2017.
Financial contributions
The relationship was short (between 30-32 months), the marriage itself on foot for 2 months. The consequence is that the period of time during which I must consider the parties’ respective contributions is also short. It is uncontroversial that during this time the parties did not effectively live together in the same regular household after the beginning of December 2016.
At the commencement of the relationship the husband was employed by AO Bank, Sydney branch as a senior professional earning AUD $52,000 gross. He was also in receipt of income from Y Pty Ltd (AUD $3,400 per month). The wife was employed part-time by a retailer as a sales assistant, then at another retailer as a sales assistant and finally at AY Business Service as a finance professional. The husband’s income was greater than that of the wife during their relationship.
The husband and wife were both working when the relationship started. The wife says that she paid the parties’ expenses at the Suburb K rental property. The husband agrees he did not pay rent but says he met other expenses including: eating out, food delivery and groceries for the parties and holiday expenses (Melbourne, Region AZ, New Zealand) including flights, hotels, car rental, sport tickets and food expenses). The wife did not significantly dispute this account but indicated she had met some of the sport related expenses and food expenses.
The parties did not operate joint bank accounts and met their own expenses – except as indicated. I accept they each made some financial contributions to the benefit of the other. There would not appear to be any imbalance in their contributions over the short period such as to require redress via property adjustment.
It is important to note the drafting of section 79. Subsection (1) refers to the making of “such order as [the Court] considers appropriate”. Subsection (2) prevents the Court from making any order “unless it is satisfied that, in all the circumstances, it is just and equitable.” Finally, subsection (4) says that in “considering what order (if any) should be made under this section” the Court is obliged to consider the following matters (which are listed in the sub-section).
The acknowledgement that the wife made a financial contribution to the benefit of the husband (e.g. payment of rent) does not automatically ground the conclusion that an order would be just and equitable. That is because it must be seen alongside the husband’s contributions to the wife and the wife’s obligation to meet such expenses as rent existing prior to the relationship.
While the parties did not maintain a joint bank account, the wife’s mother sent the wife money by way of the husband’s NAB bank account. The parties agree that all of the money which the wife’s mother sent was passed onto the wife by the husband. The wife says she was required to apply the monies sent by her mother to her living expenses (and those of the husband) because the husband did not meet these expenses. Apart from this assertion, the wife did not provide evidence of same. I accept the wife may have used the funds from her mother to supplement her income and meet her own expenses while she completed her study. The wife did not establish the quantum of transfers from her mother asserted by her and the evidence established that they were as the husband’s evidence indicated.
The wife refers to having paid for “luxury” gifts for the husband and friends or associates of the husband. That evidence was not the subject of cross-examination and I accept it. It does not follow that I find her financial contributions were significant such as to warrant adjustment of property interests on account of having purchased these gifts.
The wife’s mother was providing financial support to the wife prior to the relationship, during the relationship and after separation (according to the wife’s affidavit and bank account records). The money which came to the wife from her mother via the husband’s bank account was deposited in the wife’s Commonwealth Bank Account ending …96. Those records show the wife transferring the majority of those funds to a different Commonwealth Bank account the records for which are not in evidence. While I accept that to the extent the wife may have applied some of those funds to rent or food then the husband may have received an indirect benefit from them but I am far from satisfied that the contribution was in any way sufficient to warrant an adjustment of the parties’ interests in property.
Other contributions
The wife argued that she had made direct non-financial contributions to the improvement of the property of the husband by liaising with real estate agents in respect of the sale of the H Street property. The evidence establishes that the wife introduced the husband to the real estate agent and was involved in provision of the key to the agent on some occasions. She answered queries about light switches and air-conditioning. She acted as a go between when the agent wanted to know if there was a current development application. In April 2017 the messages suggest that the wife had lost patience with the inquiries and she told the real estate agent she had said “two years ago I don’t wanna get involved also I don’t wanna be a messenger.” The wife contends that the text messages tendered do not reveal the full picture of her contributions, claiming that she made various phone calls for the purpose of assisting the agent. Overall, I accept that the wife provided some limited assistance to the husband by liaising with the real estate agent. Those efforts do not require any adjustment to the parties’ interests in property.
Non-financial contributions
The Act requires I take into account the contributions by each of the parties to the welfare of the family including in the capacity of homemaker. The section has little application to the facts of this case for the following reasons. From early or mid-2015 until December 2016 both parties were working. The wife had a rental property and the husband the H Street property. From December 2016 the parties spent almost no time together (and even then in hotels) such that it would have been very difficult for either of them to make homemaking type contributions for the welfare of the other party. For the short period of time when the parties were in the same household there is no suggestion that one or the other of them made non-financial contributions to the other which were sufficiently significant to warrant attention in this context.
In any relationship, even as here a short relationship, it is natural that both parties will make a variety of financial and non-financial contributions. It is important to observe that the making of contributions does not create an entitlement to the adjustment of assets. It is when justice and equity require adjustment, having regard to those contributions, that an adjustive order will be made.
Matters under s 79(4)(e)
The wife submitted that she had given up her full-time employment to move to Country YY at the request of the husband. The evidence supports a somewhat different conclusion. The husband moved to Country YY in late 2016 (before the parties married). The wife remained in Australia. The wife obtained a rental property in Sydney notwithstanding the availability of the H Street property.
The husband returned to Australia in early 2017 for a brief period. He lived with the wife at her rental property. The parties registered an intent to marry. The husband returned to Australia twice in mid-2017. During one trip (10 days) the parties married. As well as staying at the wife’s apartment the parties stayed in a hotel. The husband returned to Country YY. The wife visited Country YY in late 2017. The parties stayed in a hotel. They argued and separated. The wife returned to Australia.
Given my finding about the date of separation I reject the wife’s submission that she moved to Country YY at the husband’s insistence. I accept that he did not want to conduct a long distance relationship and that he wanted the wife to move to Country YY. I accept that the wife wished to remain in Australia and reluctantly relinquished her employment about the time of marriage but after the parties separated any decision by the wife to move to Country YY was unrelated to the husband.
I have considered the fact that the husband has had access to significant funds post-separation by way of advances from his mother. The husband characterises these advances as loans. I do not propose to have regard to those advances as loans when considering the parties’ net assets. This is the case because – they have been applied to post-separation legal expenses and living expenses unrelated to the wife. In the same vein I do not propose to have regard to monies which the wife has borrowed.
That leaves the question – is the husband’s access to funds (which objectively he has no capacity to repay) a matter which is relevant to my assessment of the matters picked up by section 79(4)(e) of the Act.
I find that the husband’s parents have both advanced significant funds to him and permitted him to reside in extremely valuable real estate. I find that the husband’s current employment suggests no ability to repay monies advanced. It seems likely that the husband will be able to rely on the financial support of his parents. I accept this places the husband in a better financial position than the wife but this alone does not require an adjustment. It is important to understand the financial circumstances of the wife as established by the evidence.
Suburb K property
In early 2021 the wife purchased J Street, Suburb K for $650,000. As at 30 June 2024 the mortgage against that property was $478, 015.
An order was made for valuation of the Suburb K property on 17 April 2023. That has not occurred.
The wife lives in this property.
Income and earning capacity
The wife has been employed after separation as a senior professional in Australia between late 2020 and mid-2024, earning, at the end of that period $2,500 per fortnight. The wife is not presently employed. The wife has a degree from an Australian university. In 2021 the wife commenced another degree at an Australian university. Her affidavit also refers to current study. I find that the wife has the physical and mental capacity for appropriate gainful employment.
The wife’s study expenses and living expenses (including mortgage) have been largely funded by monies from the wife’s mother.
In mid-2017 the wife’s mother purchased property in City BA, Country YY in the wife’s name. That property has been subsequently sold. Between April 2018 and December 2019 the wife owned shares in a company which operated factories in Country YY. Those shares were transferred to the wife by her mother and the wife subsequently transferred them back to her mother.
The husband says of the above transactions that he was provided with incomplete source documents. The wife did not contradict that assertion.
The husband also has a degree from a Country YY University and two Masters Degrees from Australian universities. He says he has had difficulty obtaining work in Country YY and if employed in his field would earn about $45,000. He was not challenged about this evidence in cross-examination. I am satisfied that both the husband and wife have approximately equivalent qualifications and experience such as to support the conclusion that they can obtain similar income in their respective fields.
Health
Section 75(2) of the Act contains a list of matters to be taken into account when considering the exercise of the Court’s discretion. At sub-paragraph (a) the Act refers to the “state of health” of each of the parties.
The wife has encountered health problems after separation. She did not file any expert evidence to indicate an impact on income or earning capacity, or physical capacity for appropriate gainful employment nor did she rely on any evidence which established ongoing significant medical expenses. The requirement to take into account the health of the parties is not to be approached in a vacuum. It is a question of whether it requires financial adjustment because of ongoing expense or impact on employment. The evidence does not establish the need to adjust on that basis in this case.
Section 75(2)(o)
The wife submitted that family violence was relevant to the Court’s assessment of whether or not to make orders for property adjustment. I accept that in appropriate circumstances the Court may take family violence into account.
It is necessary to review the evidence of the parties in light of the principles established by the Full Court decisions in Kennon & Kennon (1997) FLC 92-757 (“Kennon”); Benson and Drury (2020) FLC 93-998 and Keating & Keating (2019) FLC 93-894.
There must be an evidentiary nexus between the conduct complained of and the capacity (and/ or effort expended) to make relevant contributions.
The wife said the husband punched a door when he was angry. The wife says in general terms she felt controlled, manipulated and isolated. That is the extent of the evidence. I cannot find that the evidence, taken at its highest, is relevant to my assessment of matters in s 79(4) of the Act.
DISPOSITION
Having considered the matters required by section 79(4) of the Act I am not persuaded that it would be just and equitable to make an order adjusting the interests of the husband and wife in property.
The effect of my conclusions is that each of the husband and wife will retain the assets, liabilities and superannuation in his or her respective name. The second respondent’s funds held in the trust account will be released to the second respondent.
If any party seeks to pursue an application for costs then my orders will provide directions in that regard.

I certify that the preceding one hundred and ninety-two (192) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie.

Associate:
Dated: 11 April 2025

File number:	SYC 1433 of 2020
Judgment of:	CHRISTIE J
Date of judgment:	11 April 2025
Catchwords:	FAMILY LAW - Property - Short marriage – Application by the wife for an adjustment of property interests - Where the marriage lasted two months - Where no compelling reasons exist to make a property adjustment as per s79(4) of the Family Law Act 1975 (Cth) - Application refused. FAMILY LAW- PROPERTY – Disputed asset pool – Where applicant wife claims that the husband is the beneficial owner of millions of dollars’ worth of tangible and intangible property in Australia and overseas - Where wife asserts that the husband has not made a full and frank disclosure - Where the court is not satisfied of beneficial ownership - Where even if the Husband did own some or all of the assets, no adjustment would be warranted. FAMILY LAW - PRACTICE AND PROCEDURE - Where applicant wife seeks a spouse maintenance claim despite leave being refused under s44(3) and appeal against refusal being dismissed. Application is dismissed. FAMILY LAW - CONSTITUTIONAL LAW - Practice and Procedure- Where applicant wife asserts that her case requires intervention by the Attorney General - Where applicant therefore seeks adjournment of hearing - Where no evidence or specific claims are made to advance this proposition - Where adjournment application is opposed by all other parties -Adjournment application is refused.
Legislation:	Australian Constitution Family Law Act 1975 (Cth) Judiciary Act 1903 (Cth) Federal Circuit and Family Court of Australia (Family Law) Rules 2021
Cases cited:	Amrit Lai Narain v Parnell (1986) 9 FCR 479 Ascot Investments Pty Ltd v Harper (1981) 148 CLR 337 Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd (1999) 167 ALR 303 Benson and Drury (2020) FLC 93-998 Bevan & Bevan (2013) FLC 93-545 Dietrich v The Queen (1992) 177 CLR 292 Keating & Keating (2019) FLC 93-894 Kennon & Kennon (1997) FLC 92-757 Luck v Secretary, Dept of Human Services [2017] FCA 540 Re Culleton (2017) 340 ALR 550 Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73 Stanford v Stanford (2017) 247 CLR 108 Trevi and Trevi (2018) FLC 93-858 Vang & Chung (No 3) (2024) FedCFamC1A 199 Vang and Chung (No 3) [2024] FedCFamC1F 101 Xuarez and Vitela [2017] FamCAFC 139
Division:	Division 1 First Instance
Number of paragraphs:	192
Date of hearing:	17 – 21 March 2025
Place:	Sydney
Applicant:	Litigant in Person
Counsel for the First Respondent:	Ms Tabbernor
Solicitor for the First Respondent:	Broun Abrahams Burreket
Counsel for the Second Respondent:	Mr Sulan SC with Mr Rogan
Solicitor for the Second Respondent:	Mangioni Biggs + Co

SYC 1433 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS VANG Applicant
AND:	MR CHUNG First Respondent MR D Second Respondent

ORDER MADE BY:	CHRISTIE J
DATE OF ORDER:	11 APRIL 2025