Vu & Ton (No 7)

[2025] FedCFamC1F 115

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Vu & Ton (No 7) [2025] FedCFamC1F 115

File number(s):

MLC 7739 of 2019

Judgment of:

JOHNS J

Date of judgment:

26 February 2025

Catchwords:

FAMILY LAW – PROPERTY – application for property settlement – de facto relationship – where the parties have properties in Country AA and Australia – where the applicant made greater contributions – where the parties have one child – where the respondent is the primary carer of the child – where the parties are in dispute as to the value of the property pool – where the applicant alleges he has substantial debts – where the respondent contends the alleged debts should not be included in the pool – where the respondent seeks add-backs of monies the applicant withdrew from accounts post-separation – where the applicant has not made full and frank disclosure – 75/25 division of property in applicant’s favour

FAMILY LAW – CHILD SUPPORT – where the respondent mother is the eligible carer – where the applicant father is the liable parent and has only paid nominal period child support since separation – where the parties had an expectation that the child attend private school – departure order – order made for lump sum periodic child support to be paid by the father – order for non-periodic child support to be paid by father as a lump sum

Legislation:

Child Support (Assessment) Act1989 (Cth)ss 116, 117(2), (4) & (5), 123, 123A, 124 125(1)

Evidence Act 1995 (Cth) s 140(2)

Family Law Act 1975 (Cth) ss 4AA, 79, 90RD, 90SB, 90SE, 90SF(3), 90SG, 90SM

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Division 6.1.2

Cases cited:

Bevan & Bevan [2013] FamCAFC 116; (2013) FLC 93-545;

Chang & Su [2002] FamCA 156;

Chapman & Chapman [2014] FamCAFC 91; (2014) FLC 93-592;

Chorn & Hopkins [2004] FamCA 633;

Gyselman & Gyselman (1992) FLC 92-279

Hunter & Borman and Anor [2020] FamCAFC 250;

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8;

Prince & Prince [1984] FamCA 7; (1984) FLC 91-501;

Stanford v Stanford (2012) 247 CLR 108;

Stone & Stone [2015] FamCAFC 18;

Vu & Ton (No 4) [2022] FedCFamC1F 668;

Watson & Ling [2013] FamCA 57; (2013) FLC 93-527;

Weir & Weir [1992] FamCA 69, (1993) FLC 92-338; (1992) 16 Fam LR 154;

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447

Division:

Division 1 First Instance

Number of paragraphs:

266

Date of last submission/s:

14 November 2024

Date of hearing:

16 – 19 October 2023; 5 September 2024, & 14 November 2024

Place:

Melbourne

Counsel for the Applicant:

Mr Dickson KC and Ms Geddes

Solicitor for the Applicant:

Kennedy Partners

Counsel for the Respondent:

Dr Smith

Solicitor for the Respondent:

Lander & Rogers

ORDERS

MLC 7739 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR VU

Applicant

AND:

MS TON

Respondent

ORDER MADE BY:	JOHNS J
DATE OF ORDER:	26 FEBRUARY 2025

THE COURT ORDERS THAT:

ORDERS PURSUANT TO SECTION 90SM OF THE FAMILY LAW ACT

1.That within 14 days of the date of these Orders the parties do all such acts and things necessary to authorise Lander & Rogers to cause the totality of the funds held in their trust account on behalf of the parties (inclusive of interest), being the remaining sale proceeds of B Street, Suburb C, in the sum of approximately $148,407, to be paid to the Respondent.

2.That within 60 days of the date of these Orders (“the Date”) the Applicant do all such acts and things and sign all such documents as may be required to:-

(a)Transfer to the Respondent at her expense his right, title and interest in the real property situate at and known as apartment G Street, Suburb H in the State of Victoria, more particularly described as Volume … Folio … ("The G Street property") free of all encumbrances;

(b)        Pay or cause to be paid to the Respondent the sum of $225,479.00.

3.That the parties do all acts and sign all documents necessary to place the real property situate at and known as 4 J Street, Suburb K in the State of Victoria, more particularly described as Volume … Folio … ("4 J Street property"), on the market for sale, on the following terms and conditions:

(a)The selling agent (“Agent”) to have the conduct of the sale, to be as agreed between the parties in writing and failing agreement, the Respondent to provide the names of three suitably qualified real estate agents to the Applicant, and within 7 days of receipt of such nominations the Applicant to select one agent from the list provided by the Respondent; and

(b)The conveyancing solicitor (“Solicitor”) to have conduct of the sale to be as agreed between the parties in writing and failing agreement, the Respondent to provide the names of three suitably qualified conveyancing solicitors to the Applicant, and within 7 days of receipt of such nomination the Applicant to select one solicitor from the list provided by the Respondent;

(c)The parties to have the joint conduct of the sale, and be authorised to speak to the Agent;

(d)The 4 J Street property to be listed for auction or private sale as recommended by the Agent in writing.

(e)The sale and reserve price to be as agreed between the parties in writing and failing agreement as recommended by the Agent in writing.

(f)Unless otherwise agreed between the parties in writing, the terms of the sale to provide for a settlement period of not more than 60 days.

(g)The parties each to cooperate in every way with the Agent including but not limited to:

(i)Making the key available to the Agent;

(ii)Permitting inspection/s of the 4 J Street property by the Agent and prospective purchasers at all reasonable times as requested by the Agent.

(h)The parties to be authorised to provide a copy of these Orders to the appointed Agent and Solicitor for the purpose of the sale.

4.That at settlement of the sale of the 4 J Street property, the proceeds of the sale be applied in the following manner and priority:

(a)Firstly, to pay all costs, commissions and expenses of the sale;

(b)Secondly, to pay the following sums:

(i)Such sum as is owing to the XX Council in relation to rates payable for the 2 J Street property and 4 J Street property;

(ii)Such sum as is owing to the State Revenue Office in relation to overdue land tax payable for the 2 J Street property and 4 J Street property;

(iii)Such sum as is outstanding to the Respondent pursuant to orders 2(b), 16 and 17 hereof together with interest thereon calculated from the Date in accordance with the rate proscribed under the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.

(iv)The balance then remaining to be paid to the Applicant.

5.That pending the transfer of the real property to the Respondent pursuant to paragraph 2(a) of these Orders:

(a)The Respondent have the sole use and occupation of the G Street property, to the exclusion of the Applicant;

(b)The parties hold their respective interests in the G Street property on trust for each other.

6.That pending the transfer of the G Street property to the Respondent and the sale of the 4 J Street property pursuant to these Orders, each of the parties be restrained by injunction from encumbering the following properties, without the prior written consent of the other party:

(a)The G Street property;

(b)The 2 J Street property; and

(c)The 4 J Street property;

7.That the Applicant retain, free from any claim by the Respondent, all of his right, title and interest in the following:

(a)D Pty Ltd ATF D Trust;

(b)O Pty Ltd ATF O Family Trust;

(c)YY Ltd;

(d)ZZ Ltd;

(e)The following real properties held by the Applicant in Country AA:

(i)T Street, Country AA;

(ii)AB Property, Country AA;

(iii)1 and 2 AC Street, City F, Country AA; and

(iv)AD Street.

(f)The sale proceeds of the real property situate at and known as M Street, City N (“City N property”), being 8,000,000 in local currency;

(g)Motor Vehicle 2 in his possession and control;

(h)Motor Vehicle 3 in his possession and control;

(i)The part-property settlement received by him, pursuant to the interim orders made on 1 December 2022;

(j)The funds to his credit in his bank accounts; and

(k)The funds withdrawn by him from the Commonwealth Bank accounts on 1 July 2019.

8.That the Respondent retain, free from any claim by the Applicant, all of her right, title and interest in the following:

(a)Motor Vehicle 1 in her possession and control;

(b)The part-property settlement received by her, pursuant to the interim orders made on 1 December 2022; and

(c)The funds to her credit in her bank accounts in her sole name.

9.That the Applicant indemnify the Respondent and keep her indemnified in relation to the following:

(a)Any funds advanced to him and/or allegedly owed to his mother, Ms Q;

(b)Any debts owed by him in relation to the following:

(i)AE Ltd;

(ii)AF Ltd;

(iii)AG Ltd;

(c)Any funds advanced to him and/or allegedly owed to Ms UU; and

(d)Any other debts or liabilities of the Applicant held in Australia, Country AA, City N or otherwise held internationally.

10.That the Applicant indemnify the Respondent and keep her indemnified from all debts, liabilities and obligations of the Applicant relating to or arising out of:

(a)D Pty Ltd ATF D Trust;

(b)O Pty Ltd ATF O Family Trust;

(c)YY Ltd;

(d)ZZ Ltd

(collectively, “the companies”);

(e)Any other business dealings of the Applicant;

(f)Any security, charge, promise, personal guarantee, or undertaking given by the Applicant to any bank, building society or other financial institution or commercial entity in relation to any of the companies;

(g)Any property dealings, loans, undertakings, business or affairs of the companies, including all taxation liabilities and duties (including income taxation, capital gains taxation, stamp duties and all penalties and interests not yet paid) assessed or thereafter assessed against the Applicant in respect of income (if any) derived by the Respondent from, or allocated to the Respondent by the companies or the trust, and from all actions, proceedings, costs, claims and expenses thereof.

11.That the Respondent indemnify the Applicant and keep him indemnified in relation to the following:

(a)The funds loaned to the Respondent by the following persons:

(i)Ms AH;

(ii)Mr AJ;

(iii)Mr AK;

(iv)Mr AL;

(v)Ms AM; and

(vi)Mr AN.

12.That the parties hold their respective interests in the following property on trust for each other, until such time as the terms of the Gift Agreement entered into by the parties in Country AA comes into effect, being upon Z attaining the age of 18 years in 2027:

(a)The real property (being three shop fronts) located at E Street, Country AA (“E Street properties”).

13.That unless otherwise specified in these Orders and save for the purposes of enforcing the payment of any monies due under these or any subsequent orders:

(a)Each party shall be solely entitled to the exclusion of the other to all real and personal property (including choses-in-action) in the legal or beneficial ownership or possession of that party as at the date of these orders.

(b)All insurance policies remain the property of the owner names thereon.

(c)Each party shall be solely liable for and indemnify the other with respect to any liability encumbering any item of property to which that party is entitled to pursuant to these orders;

(d)Each party forgoes any claim that they may have had to any superannuation benefits belonging to the other;

(e)Any joint tenancy of the parties in any real or personal property is hereby expressly severed.

14.The parties be at liberty to provide a copy of these orders to their conveyancer and/or their bankers in order to implement the orders herein.

15.That pursuant to section 106A of the Family Law Act 1975 (Cth) (“the Act”) if either party fails, refuses or neglects to do any act or thing or sign any document necessary to give effect to these orders, a Senior Judicial Registrar or a Judicial Registrar of the Federal Circuit and Family Court of Australia be appointed to execute such deed or instrument as may be necessary and do such act or thing as may be necessary to give validity and operation to that deed or instruction.

CHILD SUPPORT

16.That pursuant to section 123(1)(b) and section 123A of the Child Support (Assessment) Act 1989 (Cth) (“CSAA”), and within 30 days of the date of these Orders (“the Second Date”), the Applicant Father pay to the Respondent Mother, by way of lump sum child support for the child, Z born in 2009 (“the child”) the sum of $83,590, made up as follows:

(a)For the child support year 1 July 2023 to 30 June 2024, the sum of $17,420 being 52 weeks at $335 per week;

(b)For the child support year 1 July 2024 to 30 June 2025, the sum of $18,200 being 52 weeks at $350 per week;

(c)For the child support year 1 July 2025 to 30 June 2026, the sum of $18,720 being 52 weeks at $360 per week;

(d)For the child support year 1 July 2026 to 31 December 2027, the sum of $29,250 being 78 weeks at $375 per week;

17.That the Applicant Father pay or cause to be paid by the Second Date by way of non‑periodic child support for the child, a lump sum totalling $123,500 calculated as and from this day and ending on 31 December 2027, such lump sum to meet one half of the following expenses:

(a)Private school expenses as and when they become payable, including tuition fees, composite fees and any other amount invoiced by the school;

(b)Compulsory texts, books, stationery requirements as prescribed or required by the school;

(c)Uniforms including:

(i)School summer and winter uniforms and school shoes;

(ii)Sporting uniforms and sporting shoes;

(d)All technology requirements as required by the school;

(e)Compulsory extracurricular activities, school trips excursions and camps;

(f)Musical instrument equipment, repair and maintenance;

(g)The following non-school related expenses:

(i)Extra-curricular activities including enrolment fees, uniforms, footwear and prescribed equipment;

(ii)Mobile phone including purchase, rental and usage charges;

(iii)Payments for medical, dental orthodontic, psychology and allied health expenses.

18.That pursuant to section 125(1) of the CSAA the payment by the Applicant Father pursuant to Order 16 hereof be credited against 100 per cent of the Applicant Father’s liability under any relevant administrative assessment of child support as and from 1 July 2023 until 31 December 2027.

19.That all extant applications be otherwise dismissed.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

INTRODUCTION

1. In 2019 the applicant father, Mr Vu, commenced proceedings in this Court seeking parenting orders with respect to the parties’ only child, Z, who was born in 2009 and is aged 15 years.  The respondent mother, Ms Ton, filed a response to that application in which she sought final parenting orders as well as orders for a just and equitable division of the parties’ property. 

2. The parenting matters were resolved by consent upon final orders made 27 April 2023, which provide for the respondent mother to have sole parental responsibility, for the child to live with her and for the child to spend time with the applicant father in accordance with the child’s wishes.

3. The applicant opposed the making of any orders with respect to property on the basis that the parties had never been in a de facto relationship within the meaning of the Family Law Act1975 (Cth) (“the Act”), it being his position that the parties were in a de facto relationship in Country AA from 2009 until August 2011, when he asserts final separation occurred. Accordingly, he maintained that this Court had no jurisdiction to entertain the respondent’s application for orders with respect to property and spousal maintenance.

4. Following a trial of some 12 days’ duration as to whether the court has jurisdiction to hear proceedings for financial relief arising out of an alleged de facto relationship between the parties, orders were made by Justice Kari on 5 September 2022 confirming that pursuant to s 90RD of the Act, a de facto relationship existed between the parties during the following periods:-

   ·2009 to May 2012 in Country AA; and

   ·9 July 2015 to 23 June 2019 in Victoria, Australia.

5. As a result of that decision, the respondent sought to press her claim for final orders with respect to property, spousal maintenance, and child support.

6. It is common ground between the parties that during the relationship the applicant, or entities controlled by him, acquired interests in properties in Victoria which are valued at in excess of $6,250,000.  In addition, it is common ground that the parties had an interest in a property in Suburb C, Victoria, (“the Suburb C property”) which has been sold pursuant to Court order.  The proceeds of sale from that property have been applied to the payment of debt and expenses of the respondent and the child, including payment of private school fees.  The balance remaining at the time of hearing, being the sum of approximately $148,000, is held upon trust for the parties by the respondent’s solicitors.

7. In addition to those interests, the respondent contends that there are properties held by the applicant in Country AA.  Further, she contends that he has interests in entities through which he conducts his business exporting goods from Australia to Country AA.  It is the respondent’s position that the parties’ assets are valued at more than $19 million.

8. The applicant rejects that position and maintains that he has significant liabilities, including a debt to his mother, Ms Q, in the sum of $11,282,233 and liabilities arising from personal guarantees of approximately $15,498,000.  As a result, it is the applicant’s contention that the parties’ liabilities exceed the value of their assets and that they have liabilities of approximately $16,852,439. 

9. Notwithstanding that position, the applicant’s case is that a just and equitable adjustment of the parties’ interests results in a payment by him to the respondent of $1 million from the sale of the former matrimonial home currently occupied by the respondent and the parties’ child. 

10. The respondent seeks a 60/40 adjustment of property in her favour. She seeks to retain the proceeds of sale of the Suburb C property (being approximately $148,407) and the former matrimonial home at G Street, Suburb H, occupied by her and the parties’ child.  She also seeks orders that the property at 2 J Street, Suburb K (“the 2 J Street property”) be transferred to her free from encumbrance and further, that the property at 4 J Street, Suburb K (“the 4 J Street property”) be sold and after payment of identified liabilities, she retain the sale proceeds.

1. Further, the respondent proposes that the applicant retain companies and trusts controlled by him and real properties held by him in Country AA.

2. In addition to the property adjustment, at the time of trial the respondent sought that there be a departure order under the Child Support (Assessment) Act1989 (Cth) and further that the applicant pay to the respondent by way of lump sum child support the sum of $119,600. In addition, she sought a payment for lump sum non-periodic child support in the sum of $446,095.

3. Subsequent to the trial and following the mention of the matter at my direction on 5 September 2024, the respondent informed the Court that the child had changed school and in Term 3 2024 (July 2024) had commenced attending a state secondary school.  It was only at that mention hearing that the Court (and apparently the applicant) were informed of the child’s change of school.  As a result of the matters disclosed at that hearing, it was agreed between the parties that orders be made to enable additional evidence to be adduced with respect to the changed circumstances regarding the child’s education, and further, that there be opportunity for the parties to amend their claims in relation to child support having regard to those changes.  The respondent amended her claim to reduce the quantum of lump sum non-periodic child support sought by her to $274,481, which is calculated on the basis of the child’s anticipated private school expenses, including fees, books, uniforms, technology requirements, extra-curricular activity expenses and musical instruments as well as mobile phone, medical and orthodontic expenses.  I will address those matters in detail later in the judgment.

4. Although the respondent sought orders for lump sum spousal maintenance, that part of her application was not pressed.

5. These are my reasons for judgment with respect to the parties’ competing applications.

   THE PARTIES

6. The applicant, Mr Vu, was born in County BB, Region AO, Country AA in 1975 and is aged 50 years. At the time of trial his evidence was that he is unemployed.  He currently lives in Melbourne. The applicant was granted permanent residency in Australia in 2014.

7. The respondent, Ms Ton, was also born in Region AO, Country AA in 1985 and is aged 39 years. The respondent deposes to undertaking home duties and resides in Melbourne. She is the primary carer for the parties’ child.

8. The parties have one child, Z, born in 2009 and aged 15 years. Z was born in City N, and now lives with the respondent in Melbourne. She is currently in Year 10 and at the commencement of trial, attended AP School.

   BACKGROUND

9. The parties met in 2007 whilst undertaking an English tuition course in Country AA and commenced a relationship shortly thereafter. At the time, neither party held significant assets.

10. In 2008, the applicant purchased the property at 1 and 2 AC Street, City F in Country AA (“the AC Street property”). In the same year, the applicant established “TT Ltd” (“TT Ltd 2008”), which specialised in the wholesale and retail of Country AA goods.

11. In early 2009, whilst pregnant with the parties’ child, the respondent commenced living with the applicant’s mother, Ms Q, in County BB, Country AA. During this period, the applicant resided in his apartment in City F, Country AA and travelled to County BB on the weekends to spend time with the respondent.

12. In mid-2009, the respondent moved into an apartment in City DD. Following the birth of the parties’ child, the parties cohabitated in the applicant’s apartment located in City F.

13. In 2011, the parties purchased various properties in Country AA. The AC Street property was sold for approximately 800,000 Country AA currency, and the proceeds were applied towards purchase of the real property at AQ Street, City F, Country AA (“the City F property”). The applicant deposes that his mother contributed the balance of the funds required to acquire the City F property. That property was registered in the name of the parties’ child.

14. In the same year, the parties also jointly acquired three shops at E Street, City F, Country AA (“the E Street property”).

15. The parties depose that on 15 July 2011, they executed a “Gift Agreement” gifting the E Street property to the child upon her attaining the age of 18 (Exhibit R6).

16. Accordingly, it is common ground between the parties that the City F property and the E Street property ought not be included in the calculation of their asset pool for distribution, as they are properties held by them on trust for their daughter, Z.

17. In May 2012, the parties separated, and shortly thereafter in the same month the applicant commenced two sets of proceedings in the court in Country AA; firstly, seeking the “Gift Agreement” be deemed invalid and secondly, seeking parenting orders for the child. The court in Country AA ultimately upheld the “Gift Agreement”, and in July 2012 made final parenting orders granting the applicant “sole custody” of the child.

18. In the same year, during the first period of separation the applicant purchased M Street, City N (“the City N property”). He deposes that he borrowed money from his mother’s company to assist him in the purchase of that property. The City N property was subsequently sold in 2022 for 8 million local currency. The applicant asserts that the net proceeds of sale, being approximately AUD $1,333,296, were paid to his mother. The respondent does not accept that position.  I will address that issue later in the judgment.

19. In mid-2013, the parties and child obtained visas permitting them to travel to Australia. Following this, the parties travelled between Country AA and Australia on various occasions.

20. The applicant contends that between 2013 and 2015, he borrowed, in total, approximately 20 million Country AA currency from “AR Ltd”, being a foreign trade company. He deposes that pursuant to a currency exchange agreement with AR Ltd dated 10 May 2013, between May 2013 and May 2015 AR Ltd transferred approximately 20 million Country AA currency into the applicant’s Australian bank account; he asserts that those advances were secured against the E Street property. The applicant contends that those funds were transferred into his Australian accounts to support his application for permanent residency in Australia.

21. In early 2014, the applicant purchased the property at JJ Street, Suburb H (“the JJ Street property”) for approximately $1.3 million.

22. In late 2014, the applicant was granted permanent residency in Australia.

23. In July 2015, the respondent relocated to Australia to live with the applicant and the child.  The parties resumed their de facto relationship in July 2015.[1]

    [1] Vu & Ton (No 4) [2022] FedCFamC1F 668, paragraph 121(b).

24. During 2015, the parties continued to expand the property interests held by them or their entities, including:-

    ·In early 2015, the applicant commenced operation of the company “D Pty Ltd”.  The applicant is the sole director and shareholder of D Pty Ltd, which is trustee of the D Trust, of which he is the sole appointor and beneficiary;

    ·In early 2015, the applicant also established “TT Ltd” (“TT Ltd 2015”) in Country AA, which is the entity through which he conducts his business in the wholesale and retail sale of products;

    ·In mid-2015, the real property at AS Street, Town AT (“the Town AT property”) was purchased for $1.18 million.  That property was registered in the name of D Pty Ltd.  The Town AT property was sold in late 2017; and

    ·In late 2015, D Pty Ltd purchased the real property B Street, Suburb C (“the Suburb C property”) for $700,000.

25. In 2016, the applicant sold the JJ Street property and the proceeds of sale were applied towards the purchase of the former matrimonial home at G Street, Suburb H (“the G Street property”). The property was registered in the applicant’s name. The applicant contends that moneys loaned to him by his mother were in part applied towards the purchase of the G Street property. The parties and the child lived together in the G Street property until their final separation in June 2019.  The respondent and the child continue to reside at the G Street property.

26. In late 2018, “O Pty Ltd” was incorporated.  The applicant is the sole director and shareholder of that entity, which is the trustee of the “O Family Trust”. The applicant and the child are the beneficiaries of that trust.

27. In late 2018, O Pty Ltd as trustee for the O Family Trust purchased the property at 2 J Street, Suburb K (“the 2 J Street property”), for $1.7 million.  Some six months later, in mid-2019, the applicant purchased the neighbouring property at 4 J Street, Suburb K (“the 4 J Street property”) in his own name for the sum of $2.29 million.  The applicant deposes that the entire purchase price was paid with funds loaned to him by his mother. The respondent disputes that allegation and maintains that the applicant funded the purchase.  I will address that dispute later in the judgment.

28. The parties separated on a final basis on 23 June 2019. Less than a month later, in July 2019, the applicant commenced these proceedings.

29. At the time of separation in June 2019, there was an incident of family violence between the parties that resulted in the respondent obtaining an Interim Family Violence Intervention Order against the applicant in June 2019 which named the respondent and the child as protected persons. A Final Family Violence Intervention Order was made for the protection of the respondent and the child in late 2021.

30. The matter came into my docket on 18 February 2020 and was first listed before me on 12 June 2020 for a case management hearing. That day, I made trial directions listing the matter in December 2020 for determination of the threshold issue as to whether the parties were in a de facto relationship.

31. Following the parties’ final separation, the applicant withdrew in excess of $5 million from accounts held in his name and that of D Pty Ltd. 

32. In November 2020, upon application by the respondent and opposed by the applicant, I made orders restraining the applicant, both personally and in his capacity as director, shareholder and secretary of D Pty Ltd, from dealing with, transferring or disposing the net proceeds of sale of the Suburb C property. I made a further order that the applicant pay $85,000 into the respondent’s solicitors’ trust account, to meet the legal costs of the proceedings.  In addition, the trial date was vacated, it being common ground between the parties that the matter should not be conducted via electronic hearing (as was necessary at that time due to the impact of the global pandemic) in circumstances where all witnesses required the assistance of interpreters.

33. In June 2021, the applicant filed a further interim application seeking that:-

    1.The time for the Applicant’s compliance with paragraph 4 of the Order made in these proceedings dated 18 November 2020 be extended in accordance with paragraph 2 below.

    2.Paragraphs 1 and 2 of the Orders made on 18 November 2020 be discharged and upon the settlement of the sale of the property at [B Street, Suburb C] (“the [Suburb C] property”), the proceeds be disbursed as follows:

    (a)the sum of $85,000 to the Respondent’s solicitors, which monies are to be used to meet the Respondent’s legal costs of these proceedings;

    (b)the balance to a bank account nominated by the Applicant for the purpose of reducing the debt to [P Bank].

    …

34. That application was heard on 10 September 2021.  During that hearing the applicant disclosed that, notwithstanding the representations made on his behalf at the earlier interim hearing, the Suburb C property had not yet been sold. That day, I made orders directing that the Suburb C property be sold.

35. The Suburb C property was sold in late 2021, the net proceeds of that sale being $1,211,960.48.  Pursuant to orders made by consent on 2 December 2021, the net proceeds were applied as follows:-

    ·The sum of $85,000 to the respondent to satisfy the amount owing pursuant to orders made 18 November 2020;

    ·The sum of $115,000 to the respondent by way of litigation funding;

    ·The sum of $200,000 to the applicant, with $41,922 to be paid to his former lawyers;

    ·To meet payment of capital gains tax liability as assessed by the Australian Taxation Office upon the sale;

    ·To meet outstanding body corporate fees on the G Street property; and

    ·The balance to be held in the respondent’s lawyers’ trust account.

36. On 5 September 2022, Justice Kari made findings that a de facto relationship existed between the parties at two points in time, on the following dates:-

    ·Between 2009 and May 2012 in Country AA; and

    ·Between 9 July 2015 and 23 June 2019 in Australia.

37. Following the determination of the threshold issue, the matter was returned to my docket for case management and hearing.

38. In April 2023, I made final parenting orders by consent and listed the competing property applications for final hearing commencing on 16 October 2023.

    MATERIAL RELIED UPON

39. The applicant relies on the following material:-

    ·Outline of Case document filed 10 October 2023;

    ·Amended Application for Final Orders filed 1 June 2023;

    ·Trial affidavit of the applicant filed 1 June 2023;

    ·Affidavit of Ms Q filed 2 June 2023;

    ·Affidavit in Reply of the applicant filed 12 July 2023;

    ·Financial Statement of the applicant filed 18 August 2023; and

    ·Exhibits A1 – A8 inclusive, being documents tendered during the hearing.

40. The respondent relies on the following material:-

    ·Outline of Case document filed 10 October 2023;

    ·Amended Response to Application for Final Orders filed 3 July 2023;

    ·Trial affidavit of the respondent filed 3 July 2023;

    ·Financial Statement filed 3 July 2023;

    ·Affidavit of Mr AU filed 29 June 2023;

    ·Exhibits R1 – R12, being documents tendered during the hearing;

    ·Outline of submissions of the respondent dated 3 October 2024;

    ·Affidavit of the respondent affirmed 3 October 2024;

    ·Affidavits of Ms AV affirmed 3 October 2024 and 14 November 2024; and

    ·Affidavit of Attempted Service of Process Server sworn 2 October 2024.

    ORDERS SOUGHT

41. The applicant seeks orders in the following terms, as specified in his Amended Application for Final Orders filed 1 June 2023.  In summary that application seeks:-

    (a)That the funds held on trust by the respondent’s lawyers be disbursed to pay debts including outstanding council rates and land tax in respect of the 2 J Street property and the 4 J Street property;

    (b)That the G Street property be sold and the proceeds applied to payment of outstanding rates, the sum of $1 million to the respondent and the balance of the sale proceeds to the applicant;

    (c)That applicant retain to the exclusion of the respondent the properties at 2 J Street and 4 J Street;

    (d)The applicant retain any monies held by the respondent’s lawyers upon trust for the parties;

    (e)That the applicant be responsible for and indemnify the respondent in relation to liabilities payable to the applicant’s mother (Ms Q), Ms UU, and other specified entities; and

    (f)That otherwise the parties retain their interests in property held by them and retain responsibility for their liabilities.

42. The respondent seeks orders in the terms of the Minute of Proposed Orders tendered on her behalf (Exhibit R9), and as amended by the Outline of Submissions filed 4 October 2024 on her behalf. In summary, she seeks orders that:-

    (a)Pursuant to s 123(1)(i)(b) and s 123A of the Child Support Assessment Act1989 (Cth) the applicant pay to the respondent by way of lump sum child support the sum of $119,600;

    (b)The applicant pay or cause to be paid by way of non-periodic child support a lump sum totalling $247,481, that sum calculated up to 31 December 2027 having regard to the child’s anticipated private school expenses, extra-curricular activity expenses, mobile phone expenses and medical, dental, orthodontic, psychology and allied health expenses;

    (c)The funds held on trust for the parties by the respondent’s lawyers be paid to the respondent;

    (d)The applicant transfer to the respondent his interest in the G Street property and in his capacity as director and shareholder of “O Pty Ltd”, the 2 J Street property;

    (e)The parties do all acts and things to effect a sale of the 4 J Street property and the proceeds of sale be applied to payment of outstanding rates and land tax in respect of the 2 J Street and the 4 J Street property, the payment of lump sum child support as provided pursuant to the orders and the balance then remaining to the respondent;

    (f)The applicant retain his interest in his entities, the properties held by him in Country AA, the proceeds of sale of the City N property, his motor vehicles, the part-property settlement received by him and funds standing to his credit in bank accounts held by him;

    (g)The respondent retain her interest in her motor vehicle, the part-property settlement received by her and funds standing to her credit in her bank accounts;

    (h)The applicant indemnify the respondent in respect of liabilities to the applicant’s mother (Ms Q), Ms UU, and debts payable in relation to identified entities;

    (i)The applicant indemnify the respondent in respect of liabilities related to his entities;

    (j)The parties continue to hold their interests in the E Street properties on trust for each other until such time as the terms of the Gift Agreement entered into by them comes into effect upon the child attaining the age of 18 years.

    THE HEARING

43. The hearing commenced on 16 October 2023 and continued until 19 October 2023. The matter was relisted for further hearing on 5 September and 14 November 2024. 

44. The applicant was represented by Senior Counsel at the hearings in October 2023 and September 2024.  On 31 October 2024 the applicant’s solicitor filed a Notice of Ceasing to Act.  That notice informed the applicant that the next Court event was listed on 14 November 2024 at 10.00a.m.  Notwithstanding that notice, the applicant did not attend or appear at Court on the final day of hearing on 14 November 2024. 

45. The respondent was represented by Counsel for the duration of the hearing. 

46. Both the applicant and the respondent were cross-examined, and each gave evidence with the assistance of an interpreter. 

47. The applicant’s mother, Ms Q affirmed an affidavit on 24 May 2023 upon which the applicant sought to rely.  The respondent gave notice to the applicant that that witness was required for cross-examination.  On the first day of hearing during the opening of the applicant’s case, Senior Counsel for the applicant informed the Court that Ms Q was not available to give evidence due to ill health and that she remained in Country AA.  Notwithstanding that position, the applicant proceeded with the case.  The failure of the applicant to make Ms Q available for cross-examination was a contentious issue between the parties, particularly given the first notice the respondent had that she would not be attending to give evidence was shortly prior to the opening of the applicant’s case on the first day of hearing.  I will address the impact of the absence of that witness later in the judgment.

    THE ISSUES

48. At the conclusion of the final hearing, the issues that remained for determination by the Court were:

    ·Whether the properties at AB Property, City N ought be included in the parties’ asset pool;

    ·Whether the funds withdrawn by the applicant from the Commonwealth Bank between November 2019 and July 2019 should be added back to the parties’ asset pool available for division;

    ·Whether the loans the applicant alleges are payable to his mother are liabilities that ought be included in the calculation of the parties’ asset pool;

    ·Whether the alleged personal guarantees given by the applicant to “TT Ltd”, “ZZ Ltd” and to Ms UU ought be included as liabilities in the calculation of the parties’ asset pool;

    ·Whether the applicant holds property interests in Country AA;

    ·Whether there has been non-disclosure by the applicant as to the nature and extent of his property interests both in Australia and Country AA;

    ·What adjustment, if any, should be made in respect of s 90SE factors;

    ·Whether there ought be a departure order made in respect of child support;

    ·Whether there ought be orders for payment of non-periodic child support; and

    ·Whether the applicant’s liability for periodic or non-periodic child support ought be paid to the respondent as a lump sum.

    LEGAL PRINCIPLES

1. As noted earlier, following a 12 day hearing, Justice Kari determined that a de facto relationship existed between the applicant and the respondent for two distinct periods, totalling a period of approximately seven years.

2. Property applications with respect to de facto relationships are determined in accordance with the provisions of Part VIIIAB of the Act.

3. Section 90SM (1) of the Act relevantly provides that:

   In property settlement proceedings after the breakdown of a de facto relationship, the court may make such order as it considers appropriate…altering the interests of parties to the de facto relationship in the property.

4. Section 90SM (3) provides that:

   The court must 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.

5. Section 90SM (4) prescribes matters that must be taken into account in considering what if any order is made under the section.

6. The High Court considered the approach to be adopted in the determination of proceedings between a married couple pursuant to s 79 of the Act in the decision of Stanford v Stanford (2012) 247 CLR 108 (“Stanford”). At page 121 of that decision, the High Court stated that the power to make a property settlement order must be exercised “in accordance with legal principles, including the principles which the Act itself lays down”.

7. In the matter of Hunter & Borman and Anor [2020] FamCAFC 250, the Full Court confirmed that the principles enunciated in Stanford apply equally to the de facto provisions contained within the Act, stating at [31] as follows:-

   It is not open to doubt that the High Court’s statement of principle in Stanford v Stanford [2012] HCA 52; (2012) 247 CLR 108 (“Stanford”) as to the proper interpretation and application of s 79(2) and s 79(4) of the Act apply equally to the interpretation and application of s 90SM(3) and s 90SM(4) of the Act respectively.

8. In Bevan & Bevan [2013] FamCAFC 116; (2013) FLC 93-545 (“Bevan”) at [73] the Full Court referred to the three “fundamental propositions” laid down by the High Court in Stanford which should guide trial judges in approaching the task under s 79 or s 90SM. They were summarised as follows:-

   (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.

   (Emphasis in original)

9. Accordingly, in determining applications pursuant to s 90SM of the Act, the Court is required to:-

   ·Identify the parties’ respective legal and equitable interests in property;

   ·Determine whether, in accordance with s 90SM(3), it is just and equitable to make a property settlement order having regard to the parties’ existing interests;

   ·Determine all relevant contributions of each of the parties;

   ·Identify and weigh against each other the matters set out in s 90SM(4)(a) to (c) inclusive of the Act; and

   ·Consider the matters contained in s 90SM(4)(d) to (g) inclusive of the Act and make a determination as to what, if any, alteration should be made to the entitlements of the parties earlier assessed on account of their contributions, particularly having regard to the provisions of s 90SF(3) of the Act.

10. The Act does not prescribe the order in which the matters in s 90SM (4) of the Act are to be considered. The circumstances of individual de facto relationships as to their nature and form differ; how parties have organised and lived within the relationship are factors which may be relevant in the exercise of the discretion pursuant to s 90SM (3) of the Act.

11. The Court’s approach may be less compartmentalised than was previously the case and a more “holistic” approach adopted, as was described by Murphy J in Watson & Ling [2013] FamCA 57; (2013) FLC 93-527 at [13].

    THE EVIDENCE

12. In determining the matter, the relevant standard of proof is the balance of probabilities. Section 140(2) of the Evidence Act 1995 (Cth) provides that, without limiting the matters the Court may take into account in applying that standard of proof, the Court must take into account:-

    (a)the nature of the cause of action or defence; and

    (b)the nature of the subject-matter of the proceeding; and

    (c)the gravity of the matters alleged.

13. The parties’ affidavits exhaustively set out their accounts of the history of their relationship and their position in relation to matters in dispute. I have read and considered that affidavit evidence and do not propose to repeat it at length in these reasons. It is not necessary for a Trial Judge to refer to every piece of evidence or argument presented during a trial. That this is so, was confirmed by the High Court in Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], where Gleeson CJ, McHugh and Gummow JJ said:

    … A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.

14. I have also read the exhibits that were tendered during the hearing and had the benefit of observing the appearance and demeanour of the applicant and the respondent when giving their evidence in Court. The finalisation of the proceedings has been delayed due to the change in the child’s circumstances, which resulted in the filing of additional evidence and provision for the amendment of the parties’ applications with respect to child support. Given that circumstance, I have also reviewed the recordings and transcript of the proceeding, as necessary, in order to  confirm my recollection of parts of the evidence.

15. In what follows, statements of fact constitute findings of fact. In making my findings, I have carefully considered all of the evidence, the nature of the proceedings, the seriousness of the allegations and the consequences that flow from my findings.

    THE PARTIES’ EVIDENCE

    The applicant’s evidence

16. The applicant was cross-examined by the respondent’s Counsel for a period of approximately two-and-a-half days. The applicant gave his evidence through an interpreter.

17. My overall impression of the applicant was that he was an evasive and, at times, non-responsive witness. This was particularly evident when he was cross-examined as to the circumstances of the liquidation of “TT Ltd”. The applicant’s evidence as to those events was inconsistent with that contained in his trial affidavit, and shifted and changed between the first and second days of the hearing.

18. Further, notwithstanding the applicant’s position that he required an interpreter to assist him in giving evidence, at times I was left with the impression that he had a much greater proficiency in the English language than he represented to the Court.

19. For example, on the second day of hearing I observed the applicant to read documents in the English language whilst in the witness box.  When handed the auditor’s report for “TT Ltd” prepared by AW Accountants (Exhibit R2), the applicant commenced reading the document.  When questioned by Counsel for the respondent as to his ability to read that document, the applicant denied that he was doing so and stated that he merely recognised his accountant’s signature on the document.  That evidence was troubling in light of my observations as to the manner in which the applicant was reviewing the document whilst seated in the witness box. 

20. Later in his evidence, the applicant was asked when he had last travelled to Country AA.  The applicant had difficulty in answering that question, indicating that he thought he had been there for about one month; he could not confirm when that travel had occurred.

21. The matter was then stood down for the mid-morning break.  Upon the resumption of cross-examination, Counsel for the respondent repeated the question.  The applicant responded that he had been in Country AA in May 2023.  He was then questioned as to whom he was speaking to on his telephone during the mid-morning break.  The applicant admitted that he was talking to his partner and asking her to assist him in recalling when he had last visited Country AA.  When asked what else had been discussed during the telephone call, the applicant admitted that his partner had questioned him as to the matter’s progress. 

22. It was apparent from the applicant’s evidence that he had discussed his evidence with his partner during the break, notwithstanding warnings given to him not to discuss his evidence with anyone.

23. The applicant’s evidence as to how the purchase of the 4 J Street property was financed was equally unimpressive.  He was evasive and non-responsive when challenged as to which account funds were drawn from to fund that purchase.  It emerged during his cross-examination that notwithstanding his assertions that his only Australian accounts were with the Commonwealth Bank, the applicant did in fact hold accounts with both Westpac and the National Australia Bank, which he had not disclosed. 

24. Similarly, when cross-examined in relation to the acquisition of Motor Vehicle 4, I observed the applicant to be an evasive witness.  Initially, the applicant’s evidence was that he purchased that vehicle at the request of his mother and that he paid a deposit of $50,000 on his credit card for the vehicle.  When questioned as to the contract for purchase, initially the applicant’s evidence was that the contract was signed in his mother’s name.  When questioned as to whether the car was delivered, the applicant confirmed that he did collect the vehicle.  When questioned as to how long he had possession of it, the applicant stated that he could not remember but it was “not a long time”.  He was further questioned as to whether he had it for hours, days or months.  The applicant conceded that it could have been for around one year. 

25. After the luncheon adjournment, the applicant was cross-examined in relation to the Agreement for Sale of New Motor Car (Exhibit R8) (“the Agreement”), being the contract for the purchase of Motor Vehicle 4.  The applicant agreed that he signed that document in June 2019, that the purchase price was $421,000, and that it had an estimated delivery date of October/November 2019.  The applicant stated that it was not delivered to him at that time.  When questioned as to when it was delivered, the applicant’s evidence was that he could not remember. 

26. Only when presented with the Agreement (Exhibit R8) did the applicant concede that the agreement was in his name and not that of his mother’s.  Nonetheless, he maintained that whilst it was his signature on the document, the car belonged to his mother; he continued to maintain that he had signed the contract on behalf of his mother. 

27. When challenged as to what became of that motor vehicle, the applicant stated that his mother sold the vehicle.  The applicant’s filed evidence was that Motor Vehicle 4 was sold by him privately to a Country AA buyer.  When challenged, he admitted that he had contacted the buyer and delivered the motor vehicle to that person, and that at the time of the sale his mother was in Country AA.  The applicant stated that he sold Motor Vehicle 4 for approximately $120,000.  Notwithstanding the fact that the applicant conducted the sale, he could not recall when Motor Vehicle 4 was sold. 

28. My impression of the applicant was that unless presented with documents proving matters, he was unwilling to make any concessions. 

29. As a result of the manner in which the applicant gave his evidence, including but not limited to his lack of candour in relation to aspects of the case, his failure to provide responsive answers to questions asked, and his refusal to make concessions unless presented with documents proving facts, I am satisfied that his evidence ought be treated with caution.

    The respondent’s evidence

30. The respondent was cross-examined by the applicant’s Senior Counsel for a period of a little more than half a day.  She too gave her evidence with the assistance of an interpreter, albeit she was less reliant than the applicant on that assistance.  The respondent’s explanation for her occasional need to seek the assistance of the interpreter was that whilst she was able to answer “social questions” she had difficulty with questions related to the law or that contained legal jargon.

31. Through the course of her evidence, the respondent demonstrated a fixed view in relation to the applicant’s conduct, his wealth and the sources of funds used to acquire property in Australia and was unable or unwilling to make any concessions in relation to those matters.  She demonstrated little capacity to consider any alternate position than that asserted by her as to the source of funds to acquire property. 

32. Similarly, when cross-examined as to her expenditure in relation to the child, at times I observed the respondent to be a non-responsive or evasive witness.  As a result, I formed the view that the respondent’s evidence in relation to those matters must be treated with caution.  That view is bolstered in light of the respondent’s failure to disclose to the Court, or the applicant, the child’s change of school to a state secondary college and her withdrawal from a sporting programme after the conclusion of the trial, resulting in a significant reduction in the child’s expenses due to those changes.

    Conclusion

33. As a result of the manner in which both the applicant and the respondent gave their oral evidence, the Court holds reservations as to the reliability of that evidence. 

34. Both the applicant and the respondent presented as evasive and non-responsive witnesses in relation to various aspects of their case. Further, each demonstrated rigidity and an unwillingness to make concessions in relation to other aspects of their case. 

35. With respect to the applicant, there were demonstrable inconsistencies between aspects of his evidence as contained in his trial affidavit and his oral evidence. 

36. As a result of the manner in which both the applicant and the respondent gave their evidence, I hold concerns as to their candour and the weight that can be attributed to their evidence.  Accordingly, where practicable, the Court will look to independent evidence and/or uncontroversial primary source material to assist in the determination of contentious issues. 

    THE EVIDENCE OF MS Q

37. The applicant’s mother, Ms Q, affirmed an affidavit on 24 May 2023, filed on 2 June 2023.

38. In that affidavit, Ms Q deposed as to monies she alleges have been lent by her to the applicant; at [2] she deposed that she provided her affidavit so that those funds can be repaid to her.   

39. Ms W deposed that she is 71 years of age, and has health problems.  She deposed that she is a business owner, albeit her business interests are largely run and managed by her other son, Mr AX.  She deposed that her company’s main operations are hospitality management.  Further, she deposed that previously she held shares in a real estate development company, that in 2017 she transferred shares in that entity to a third-party purchaser for approximately AUD $13 million, and that those funds were predominantly used to assist the applicant. 

40. Ms Q deposed that she last visited Australia in 2017.[2]

    [2] Affidavit of Ms Q filed 2 June 2023, paragraph 14.

41. Ms Q deposed that the applicant borrowed the sum of approximately AUD $11.6 million from her between 2015 and 2017 and that since 2015 the applicant has repaid to her interest of approximately AUD $934,000.  She deposed at [15] that the applicant owes her approximately AUD $11,488,163.  Further, Ms Q deposed that between 2015 and 2019 she and the applicant entered into three loan agreements to record monies lent to the applicant by her.[3]

    [3] Affidavit of Ms Q filed 2 June 2023, paragraph 16.

42. Ms Q also deposed as to proceedings commenced by her in Country AA in August 2019 against the applicant seeking repayment of the alleged loans. Those proceedings were commenced approximately two months after the parties’ separation and one month after the respondent filed her response in these proceedings seeking a property adjustment.  Ms Q deposed that the proceedings in Country AA were settled less than three weeks later, in September 2019, on the basis that the applicant repay the outstanding principal and interest due by 9 September 2021, that the applicant sell properties in Australia for repayment of the loans and in the event of default, the applicant pay to his mother liquidated damages of an additional 20 per cent of the outstanding loan.  

43. Ms Q deposed as to payments made to her by the applicant following the settlement of those proceedings, including payments into her account with AY Bank of approximately AUD $3.8 million between 2020 and 2021, which sum she agreed could be used by the applicant to repay his company loan and the balance applied to repayment of her loans.[4] 

    [4] Affidavit of Ms Q filed 2 June 2023, paragraph 25.

44. Further, Ms Q deposed that in mid-2022 she sold the City N property for the sum of approximately 8 million local currency (approximately AUD $1,481,440).  She deposes that the net sale proceeds, being the sum of approximately AUD $1,333,296, were retained by her in partial satisfaction of debts owing to her by the applicant.[5]

    [5] Affidavit of Ms Q filed 2 June 2023, paragraph 31.

45. The applicant was on notice that Ms Q was required for cross-examination. 

46. On the first day of hearing, Senior Counsel for the applicant announced to the Court that Ms Q remained in Country AA and was unavailable to give evidence due to ill health.  At that time, no evidence was adduced as to Ms Q’s alleged medical condition nor was an application made for an adjournment of the proceedings, or for her to give her evidence electronically.

47. On the final day of hearing, the applicant sought and was granted leave to file an affidavit of Dr AZ.  That affidavit purports to have been affirmed in City F, Country AA on 18 October 2023 before a witness, Mr AX.  The jurat to the affidavit does not identify Mr AX’s standing to witness an affidavit.  Annexed to the affidavit is a medical certificate, also dated 18 October 2023.  The translation of the medical certificate, which is annexed to the affidavit, provides a diagnosis of Ms Q as follows:-

    1.Cerebral infarction convalescence period;

    2.type 2 diabetes;

    3.Fatty liver;

    4.Atherosclerosis;

48. Further, the certificate states that:-

    The patient came to our hospital due to weakness of the right limb lasting for 1+ month.  The patient was hospitalized […] for acute cerebral infarction 1+ month ago, and his (sic) condition was relieved after treatment.  The patient came to our hospital for a review 10 days ago, and she asked me whether she could travel long distance.  After physical examination, the patient still had unstable blood pressure, high blood sugar, weakness of the right limb, lack of fluent articulation, and occasional cough after drinking water. ... In conjunction with traditional […] medicine rehabilitation treatment, the patient was instructed to eat a low-salt and low-fat diet with regular review to suppress mood fluctuations.  Because the patient is recovering, she was suggested that avoiding long-distance travel, recommending no taking an airplane, and avoiding stimulating cerebral vascular contraction during takeoff and landing, which can induce cerebral infarction again and even endanger life to reduce the risk of cerebral infarction again.

1. In my view, the affidavit of Dr AZ is of little assistance to the applicant or the Court, particularly in circumstances where the jurat to the document is incomplete, and its maker was not available for cross-examination.  Further, the medical certificate annexed to the affidavit lacks particularity; it does not identify when Ms Q suffered the medical event which resulted in her hospitalisation, the period during which she was hospitalised, her prognosis or capacity to travel in the future.  The report appears to relate to a review of Ms Q undertaken some 10 days earlier, presumably on or about 8 October 2023.  Given that circumstance, it is a matter of significant concern to the Court that the witness’s apparent incapacity was not communicated to the respondent or the Court until the first day of trial.

2. Apparently, the request for the preparation of the medical report from the applicant’s lawyer was received by Dr AZ on 18 October 2023, the certificate was prepared by him that day, and then translated on the same day.  Dr AZ’s affidavit was also prepared and affirmed on 18 October 2023.  That sequence of events is extraordinary, given the challenges generally encountered in obtaining medical reports, translation of documents and having affidavits sworn or affirmed in foreign jurisdictions.  In circumstances where the jurat to the affidavit is incomplete, and the witness shares the same name as the applicant’s brother, I have significant reservations as to the authenticity of the document.

3. In addition to those matters, the medical report was not sought by the applicant until 18 October 2023, being the third day of the hearing, and not produced to the respondent or the Court until the final day of hearing.  Accordingly, the respondent has been deprived of any opportunity to make independent inquiries in relation to that evidence.  Further, the respondent has been deprived the opportunity of testing the evidence of the maker of that affidavit.

4. On the face of the affidavit of Dr AZ, whatever medical event was suffered by Ms Q occurred more than one month prior to the commencement of the hearing; the respondent was not informed of that matter until shortly prior to the commencement of the first day of the trial. 

5. The evidence of Ms Q is central to the applicant’s case, it being his position that as a result of loans due to Ms Q, the parties’ liabilities exceed their assets.  The importance of Ms Q’s evidence has been well-known to all parties since the matter was first allocated to my docket, it being an issue raised by the applicant at the outset of the property proceedings.  Having regard to those circumstances, the failure of the applicant to make Ms Q available for cross-examination invites an inference that her evidence would not assist his case.[6]

   [6] Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8.

6. Given their relationship, I am satisfied on the balance of probabilities that the applicant must have been aware of his mother’s alleged medical condition at least one month prior to the commencement of the trial in circumstances where it is asserted that she suffered a medical episode at that time.  I am also satisfied that the applicant has withheld that information from the respondent. 

7. Having regard to the above matters, I am satisfied that little weight can attach to the evidence contained in the affidavit of Ms Q in circumstances where:-

   ·The applicant has not adduced admissible evidence as to Ms Q’s medical condition;

   ·The purported evidence in relation to that condition was only produced to the Court on the last day of the trial;

   ·No application was made by the applicant for either Ms Q or her doctor to give evidence electronically; and

   ·The respondent has been deprived of the opportunity of testing the evidence of Ms Q.

   DISPUTED ITEMS IN THE BALANCE SHEET

8. During closing submissions, Counsel for the parties tendered a joint balance sheet (Exhibit R11) which identifies the respective positions of the parties in relation to the value of their assets and liabilities.  That document identifies the parties’ interests as follows:-

Description		Ownership	Applicant’s Value	Respondent’s value
Assets
1	Monies held in trust by Lander & Rogers (being monies from sale of B Street, Suburb C, Victoria	Joint	$148,407	$148,407
2	4 J Street, Suburb K, Victoria	Applicant	$3,380,000	$3,380,000
3	G Street, Victoria	Applicant	$2,800,000	$2,800,000
4	O Pty Ltd atf O Family Trust (2 J Street, Suburb K, Victoria)	Applicant	$2,850,000	Unknown but at least $2,850,000
5	D Pty Ltd	Applicant	Nil	NK
6	Assets assigned from TT Ltd	Applicant	Nil	NK
7	AB Property	Respondent asserts Applicant	Nil	E $4,145,098
8	M Street, City N (net sale proceeds paid to Ms Q)	Applicant	Nil	E $2,113,757
9	Add-back for CBA withdrawals by Applicant between 11 November 2019 and 29 July 2019, less $2.3m for 4 J Street	Respondent asserts Applicant	Nil	$2,987,286 (sic)
10	BA Ltd	Applicant asserts Respondent	Unknown	Unknown
11	Previous property orders comprising of: -$260,000 by way of litigation funding; and -$192,215.50 by way of part property;	Applicant	$452,215.50	$452,215
12	Previous property orders comprising of: -$200,000 by way of litigation funding; -$150,000 by way of part property; and -$90,000 to be characterised	Respondent	$440,000	$440,000
13	Funds applied following the 1 December 2022 orders	Respondent	$107,550.26	Nil
Assets subtotal			$10,178,172	$19,316,763
Liabilities
14	State Revenue Office for unpaid land tax and vacant residential land tax	D Pty Ltd	$211,057.19	$211,057.19
15	XX Council – outstanding rates for Suburb K properties	D Pty Ltd	$21,145.85	$21,145.85
16	Suburb H Council – outstanding rates for G Street property	Applicant	$17,209	$17,209
17	Personal loan to Ms Q	Applicant	$11,282,233	Nil
18	Personal guarantees of TT Ltd, ZZ Ltd and personal debt to Ms UU	Applicant	$15,498,966	Nil
Liabilities subtotal			$(27,030,611)	$249,412.04
TOTAL (assets – liabilities)			$(16,852,439)	$19,067,351
FINANCIAL RESOURCES
Description		Ownership	Applicant’s value	Respondent’s value
19	AQ Street, City F, Country AA	Z	$1,000,000	E$3,017,078
20	Three shops at E Street, City F, Country AA	Joint (held on trust for Z)	E $4,000,000	E $5,032,142
21	BC Street, City F, Region AO	Respondent asserts Applicant	Nil	E $829,019
Financial Resources subtotal			E $5,000,000	E $8,878,239

1. What follows are my findings with respect to the disputed items in the tendered joint balance sheet. 

   Item 7 –AB Property

2. The respondent contends that the applicant is the registered owner of AB Property.  At [18(b)] of her trial affidavit, the respondent deposes that during the parties’ relationship the applicant took her to inspect the property, which is a shop located in one of the suburbs in the City F area.  She deposes that the applicant told her that he had purchased that property for in excess of 20 million Country AA currency (AUD $4,145,098).  Further, the respondent deposes that she estimates the value of the property to be about AUD $8,055,164.  The respondent attributes a value of $4,145,098 to that property in the parties’ joint balance sheet, that being the amount she contends was the purchase price for the property.

3. In his affidavit in reply at [14], the applicant denies that he owns that property. 

4. The respondent was challenged during cross-examination in relation to her assertion that the applicant owns AB Property.  During cross-examination, she conceded that she has known for some time that the applicant denies that he is the owner of the property.  When questioned as to what steps she had taken to prove her assertion, the respondent provided a non-responsive answer, noting her recollection of where the property was located.

5. The respondent has adduced no independent evidence to prove the assertion that the applicant holds an interest in AB Property.  That this is so, was conceded by the respondent’s Counsel during closing submissions; indeed, he agreed that the only evidence available to the Court as to the ownership or value of the property was the respondent’s “say-so”.

6. In light of that concession properly made by the respondent’s Counsel, and in the absence of any independent admissible evidence as to the ownership or value of the property, I will exclude it from the parties’ balance sheet.

   Item 8 – M Street, City N (sale proceeds paid to Ms Q)

7. The respondent contends that the sale proceeds from the City N property, which were paid to the applicant (who maintains that they were paid to his mother, Ms Q) ought be added back to the parties’ pool of assets.

8. The City N property was sold by the applicant in mid-2022 for the sum of 8 million local currency or AUD $1,668,214.  The respondent contends that the sale price was less than the property’s “true value” which she alleges was AUD $2,113,757.  Further, the respondent is critical of the applicant for not disclosing the sale of the property, noting that she only became aware of the sale upon the filing of the applicant’s affidavit of 22 November 2022.  The respondent does not accept the applicant’s assertion that the sale proceeds were paid to his mother in partial satisfaction of loans allegedly repayable to her.  It is on that basis that the respondent seeks an add-back of the sale proceeds.[7] 

   [7] Trial affidavit of Ms Ton filed 3 July 2023, paragraph 22.

9. The applicant’s position in relation to the proposed add-back is simple; he contends that the proceeds were applied to repayment of debt to his mother.  Further, he challenges the attempt by the respondent to add-back an amount greater than the actual sale price, the figure included in the joint balance sheet being the amount the respondent contends the property should have sold for rather than the actual sale price to a purchaser whom he maintains was arms-length. 

10. The sale proceeds the respondent contends ought be added back to the pool no longer exist; they lie in the hands of the applicant’s mother.  As was observed by Bryant CJ and Thackray J in Bevan, adding back non-existent property may have a distorting impact on the property available for division.  At [79] they observed:

    We observe that “notional property”, which is sometimes “added back” to a list of assets to account for the unilateral disposal of assets, is unlikely to constitute “property of the parties to the marriage or either of them”, and thus is not amenable to alteration under s 79. It is important to deal with such disposals carefully, recognising the assets no longer exist, but that the disposal of them forms part of the history of the marriage – and potentially an important part. As the question does not arise here, we need say nothing more on this topic, save to note that s 79(4) and in particular s 75(2)(o) gives ample scope to ensure a just and equitable outcome when dealing with the unilateral disposal of property.

11. It is well established that adding back notional property is “the exception rather than the rule”, and that the Court retains a discretion as to whether such notional property should be added back or considered as a relevant factor pursuant to s 75(2), and in particular s 75(2)(o) (per Chorn & Hopkins [2004] FamCA 633).

12. At issue in this case is the question of whether the payment of funds to the applicant’s mother has been to pay down debt of the parties, or alternatively, as contended by the respondent, undertaken to remove assets from the parties’ pool of assets.

13. For the reasons that follow, I am not satisfied on the balance of probabilities that the applicant has a liability to his mother to repay debt pursuant to the alleged loan agreements.  Accordingly, I am satisfied that the funds paid to her from the sale proceeds of the City N property ought be added back to the parties’ pool of assets.  However, I am not persuaded that any amount other than the actual sale price ought be added back.  It is conceded by the respondent that the sale price of the City N property was AUD $1,668,214.  Accordingly, that is the amount that will be added back to the parties’ balance sheet. 

    Item 9 – Add-back for CBA withdrawals by applicant between July 2019 and 11 November 2019

14. The respondent contends that between July 2019 and November 2019, the applicant withdrew from his Commonwealth Bank accounts a total of $5,197,286.[8] Although at the commencement of the trial she originally contended that that amount ought be added back to the parties’ balance sheet, by the conclusion of evidence, it was conceded by the respondent that a portion of those funds had been applied by the applicant to the purchase of the property at 4 J Street, Suburb K which was purchased by him for the sum of $2.3 million.  Accordingly, the respondent seeks that the purchase price of 4 J Street be deducted from the amounts withdrawn and that the balance, being the sum of $2,897,286, be added back to the parties’ balance sheet.

    [8] Trial affidavit of Ms Ton filed 3 July 2023, paragraph 111.

15. In his reply affidavit, the applicant provides no response or explanation to account for the withdrawals identified by the respondent at [108] to [111] of her trial affidavit.  The only explanation provided is to be found at [49] of the applicant’s trial affidavit where he deposes to the purchase of the property at 4 J Street (which is conceded by the respondent) as well as the repayment of monies he contends are owed to his mother and for payment of his legal fees.  However, the applicant does not specify the amounts paid to his mother between July and November 2019 from those withdrawals, nor does he identify the amount in legal fees paid by him during that period.  Further, the applicant’s mother, Ms Q, does not identify in her affidavit payments received by her from the applicant during the relevant period. 

16. In circumstances where the applicant has failed to account for the withdrawal of such a significant sum and produces no documents to support his contention as to the payment of legal fees or amounts to his mother, I am satisfied that that amount ought be added back to the parties’ balance sheet.  Accordingly, I will include the sum of $2,897,286 in the balance sheet, being funds withdrawn by the applicant from the Commonwealth Bank accounts (excluding the payment for the purchase of 4 J Street) between July and November 2019. 

    Item 13 – Funds applied following the 1 December 2022 orders

17. The applicant contended that the sum of $107,550 ought be included in the balance sheet as funds applied after the orders made 1 December 2022 in favour of the respondent.  However, during closing submissions, it was conceded by Senior Counsel for the applicant that that item was not pressed and could be deleted from the balance sheet. Accordingly, I will remove that item from the parties’ balance sheet.

    Item 17 – Personal loan from Ms Q

18. The issue of debts owed by the applicant to his mother was a significant issue between the parties. The applicant contends that between 7 May 2015 to 3 May 2017 he entered into three separate loan agreements with his mother, totalling AUD $10.8 million. Those loans comprise of:-

    ·10 million Country AA currency on 7 May 2015 (being approximately AUD $2.17 million) (Exhibit A5);

    ·5 million Country AA currency on 29 September 2015 (being approximately AUD $1.2 million) (Exhibit A5); and

    ·39 million Country AA currency on 3 May 2017 (being approximately AUD $7.51 million) (Exhibit A5).

19. The applicant alleges that those funds were advanced to him by Ms Q for the purpose of discharging his debt owed to “AR Ltd” (“AR Ltd”), with whom he contends he entered into currency exchange agreements between 2013 and 2015 to support his application to migrate to Australia. The respondent denies that she had knowledge of the alleged borrowings from AR Ltd or the applicant’s mother, and further contends that even if they exist, the loans are not liabilities requiring repayment.

20. The applicant alleges that the sum of $11,282,233 is payable by him to his mother, Ms Q, in relation to loans advanced to him.  The respondent opposes the inclusion of that liability in the parties’ balance sheet, maintaining that there are no loans repayable to the applicant’s mother.

21. The difficulty with the applicant’s contentions as to the inclusion of that liability is the variability of his evidence in relation to the alleged liability; there is no consistency as to the extent of the liability or the terms of the alleged loans between the applicant’s trial affidavit, the affidavit of his mother, and his oral evidence.

22. For example, there is no certainty as to the quantum of the amount outstanding under the alleged loans.  At [60] of his trial affidavit filed 1 June 2023, the applicant deposes that the amount outstanding under loans from his mother is AUD $11,488,163.  However, at [61.3] of the same affidavit the applicant deposes as follows:-

    At the time of signing this affidavit I currently owe my mother [Country AA currency] 49.66 million (approximately AUD$10,624,360). 

23. Notwithstanding the amounts deposed to in his trial affidavit, in the joint balance sheet (Exhibit R11) the applicant contends that the amount outstanding to his mother in respect of the alleged loans is $11,282,233.

24. The applicant was cross-examined as to the amounts owing to his mother in respect of the alleged loans. During his oral evidence, the applicant confirmed that he relied on his accountant to calculate the balance owing; he could not confirm the amount said to be owing to his mother.  The applicant’s accountant was not called to give evidence in these proceedings as to the amounts payable by the applicant pursuant to the alleged Loan Agreements.

25. Pursuant to the Settlement Agreement entered into with Ms Q dated 9 September 2019 (Exhibit A5), the applicant is liable to pay liquidated damages in the event of default at an additional 20 per cent of the total amount of the principal and interest outstanding.  The applicant and his mother maintain that he has not satisfied the terms of that agreement.[9] 

    [9] Exhibit A5 (MV6), page 69, paragraph 4.

26. The applicant was cross-examined as to whether the alleged liability as set out in the joint balance sheet includes liquidated damages, as contemplated under the Country AA Settlement Agreement.  The applicant responded that he did not think so.  He was then questioned as to why liquidated damages were not included in the calculation of that loan liability.  The applicant stated that those liquidated damages were not included in the calculations as after he had signed the Country AA Settlement Agreement, he considered that the provision for payment of liquidated damages was “a bit excessive” and conceded that anything was open for discussion between him and his mother.  The applicant confirmed that after he had communicated with his mother regarding those concerns, she had understood his difficulties and did not press the matter. 

27. The applicant was then asked whether his mother was pursuing liquidated damages against him pursuant to the terms of the Country AA Settlement Agreement.  The applicant conceded that the provision for 20 per cent liquidated damages was included as “a caution”.  The applicant confirmed that he continued to have discussions with his mother, Ms Q, regarding repayment of the alleged loans to her.

28. The applicant was also cross-examined as to the difference in the quantum of the alleged liabilities under the loans from Ms Q as contained in his trial affidavit at paragraphs 60 and 61.3.  The applicant could not explain those differences.  The applicant conceded that he could not understand the differences in the claimed amounts and noted that he relied upon people at his company to keep records of such matters.

1. In addition, the applicant will be responsible for payment of the outstanding liabilities to the State Revenue Office for unpaid land tax ($211,057) and outstanding rates in respect of the Suburb K properties ($21,145), leaving him with property valued at $11,015,513.  Accordingly, the applicant will be required to pay to the respondent the sum of $225,479.

2. Having regard to the circumstances of the case, I consider that orders giving effect to that adjustment provide for a just and equitable outcome as between the applicant and the respondent. Orders are also sought by the parties that each provide indemnities to the other with respect to liabilities incurred by them during the relationship.  In my view, such orders are appropriate, particularly with respect to the applicant’s alleged liabilities arising from his business interests and dealings in Country AA.

   CHILD SUPPORT

3. The respondent seeks orders for a child support departure and the payment to her of periodic child support as a lump sum of $119,600.  Further, she seeks orders for the payment of non‑periodic child support by way of a lump sum of $247,481, that payment calculated to meet expenses for the child up to 31 December 2027 in respect of her private school tuition fees, school books and compulsory stationery requirements, school uniforms, technology requirements, extra-curricular activity and school camp and excursion expenses, musical instrument equipment repair and maintenance, medical, dental, orthodontic, psychology and allied health expenses. 

4. As noted earlier in the judgment, the respondent amended her claim for non-periodic child support and reduced it as a result of her disclosure that the child had changed private schools at the end of 2023 and had ultimately withdrawn from the private school she was attending in early Term 3, 2024.  Pursuant to orders made by me on 5 September 2024, the respondent filed her amended application together with affidavit in support and written submissions.  Those documents were filed on 3 and 4 October 2024.

5. The applicant was ordered to file his response to the respondent’s revised claim by 17 October 2024 pursuant to Order 3(b) of the 5 September 2024 orders.  No documents were filed by or on behalf of the applicant in compliance with those orders.  Further, the applicant did not attend the further hearing in relation to these issues listed on 14 November 2024. 

6. The affidavit of the respondent’s lawyer, Ms Rhiannon Noble, filed 3 October 2024, confirms the following:-

   (a)On 19 September 2024, Lander & Rogers caused an email to be sent to the applicant enclosing a letter with the respondent’s proposal with respect to the child’s schooling and the balance of her secondary education and a schedule of expenses sought by the respondent by way of lump sum child support;[23]

   (b)Lander & Rogers received a confirmation as to the delivery of the email to the applicant on 19 September 2024;[24]

   (c)On 20 September 2024 Lander & Rogers sent a further email to the applicant serving a sealed copy of the orders dated 5 September 2024 and confirming that the next hearing date was listed on 14 November 2024.  Further, Ms Noble informed the applicant of the requirement that he personally attend the hearing and that in the event that he does not do so the matter may proceed in his absence with orders being made in his absence.[25] 

   [23] Affidavit of Rhiannon Noble filed 3 October 2024, paragraph 2.

   [24] Affidavit of Rhiannon Noble filed 3 October 2024, paragraph 3.

   [25] Affidavit of Rhiannon Noble filed 3 October 2024, paragraph 6.

7. In addition to the evidence of Ms Noble as to service on the applicant by email of the orders of 5 September 2024 together with the details of the respondent’s amended claim, attempts were made to personally serve those documents upon the applicant by Mr BF at the applicant’s address at G Street, Suburb H on both 20 September 2024 and 29 September 2024.  Those matters are confirmed by Mr BF in his Affidavit of Attempted Service filed 3 October 2024.

8. On 4 October 2024 Ms Noble caused a further email to be sent to the applicant enclosing the following documents:-

   ·Outline of submissions of the respondent dated 3 October 2024;

   ·Affidavit of the respondent affirmed 3 October 2024;

   ·Affidavit of Ms Noble affirmed 3 October 2024; and

   ·Affidavit of Attempted Service of Process Server sworn 2 October 2024.

   Those matters were confirmed by Ms Noble in her affidavit filed 14 November 2024.  Ms Noble also confirmed in that affidavit that a confirmation of delivery of the email to the applicant’s email address was received.

9. Having regard to the evidence of Ms Noble (as contained in her affidavits of 3 October 2024 and 14 November 2024) and Mr BF (in his affidavit of attempted service filed 3 October 2024), I am satisfied that the applicant has had notice of the respondent’s amended claim with respect to lump sum non-periodic child support, the evidence relied upon by her in respect of that amended claim, and the submissions filed on her behalf to support the claim.  I am also satisfied that the applicant had notice of the hearing listed on 14 November 2024.

10. The applicant was called at the commencement of the hearing before me on 14 November 2024.  There was no appearance or response by or on his behalf in respect of that call.  Accordingly, the hearing proceeded in his absence.

    LEGAL PRINCIPLES AND DISCUSSION

11. Section 116 of the Child Support Assessment Act1989 (Cth) (“CSAA”) provides that a liable parent or a carer, being party to an application pending in a Court having jurisdiction under the CSAA, may apply to such a Court for an order in relation to the child in the special circumstances of the case (‘a child support departure application’). An application of this kind may only be made if the Court is satisfied that it would be in the interests of the liable parent and the carer for the Court to consider whether such an order should be made.

12. I am satisfied that the Court’s jurisdiction is invoked in this matter in circumstances where the respondent is the carer entitled to child support, and the applicant is the liable parent, and both are parties to the proceedings in this Court (s 116(1)(b)(i)).  As is evident from this judgment, the parties’ competing property applications before the Court are complex and there is a practical nexus in hearing the respondent’s child support departure application and application for lump sum periodic and non-periodic child support at the same time as the property proceedings.  I am satisfied, having regard to those circumstances, that it is in the interests of both the applicant and the respondent for this Court to entertain the respondent’s application. 

13. The respondent caused a copy of her Amended Response to Application for Final Orders filed on 3 July 2023 to be served upon the Child Support Registrar by letter dated 24 August 2023. That notice was acknowledged by the Child Support Registrar by letter dated 25 August 2023 (Exhibit R14).  Accordingly, I am satisfied that the Child Support Registrar has had notice of the respondent’s application.

14. The respondent tendered the two most recent child support assessments during the course of the hearing.  The first, being an assessment dated 21 November 2022, calculated the applicant’s child support liability at the annual rate of $1,521, being a monthly rate of $126.75 for the period of 1 July 2023 to 29 February 2024 (Exhibit R12).  Pursuant to an assessment dated 23 August 2024, the applicant was assessed to pay child support for the child for the period 1 October 2024 to 31 December 2025 at the rate of $143.33 per month, being the sum of $1,720.00 per year (Exhibit R13).

15. For the Court to grant a departure order, as sought by the respondent, pursuant to s 117 of the CSAA, the respondent must establish a ground for departure as identified in s 117(2) of the CSAA. Further, once one or more grounds of departure is established, pursuant to s 117(2), the Court must be satisfied that it would be just and equitable as regards the child, the carer entitled to child support, and the liable parent, within the meaning of s 117(4), to make a particular order and “otherwise proper” within the meaning of s 117(5) to make a particular order (see Gyselman & Gyselman (1992) FLC 92-279 at 79,064).

16. The ground relied upon by the respondent is that set out at s 117(2)(b)(ii), that is that in the special circumstances of the case the costs of maintaining the child are significantly affected because the child is being cared for, educated or trained in the manner that was expected by her parents.

17. In circumstances where the parties enjoyed a high standard of living during the relationship, acquiring multiple properties and luxury motor vehicles and agreed to enrol the child at a private school at the commencement of her education, and at the time of hearing were committed to maintaining her enrolment at a private school, have engaged her in a range of extra-curricular activities including a sports club and music tuition, I am satisfied that that ground is established.

18. The respondent deposes at Part N of her Financial Statement filed 3 July 2023 that the weekly expenses for the child total $1,402.  Those claimed expenses include provision for:-

    ·Household repairs   $100;

    ·Motor vehicle maintenance       $66;

    ·Clothing and shoes  $100;

    ·Entertainment and hobbies  $100;

    ·Child-minding   $150;

    ·Repairs to furnishings and appliances   $75

    ·Dry cleaning   $25;

    ·Books and magazines  $25.

19. I do not consider allowance for those expenses to be reasonable in circumstances where the home, motor vehicle and furnishings are property retained by the respondent.  Having regard to the child’s age, I do not consider an allowance of $150 per week for child-minding to be reasonable.  Further, in circumstances where the child attends a school at which uniforms are worn (the cost of which is part of the claim for non-periodic child support) I consider the clothing claim to be excessive and will allow $50 per week for that expense.  Similarly, I do not propose to make any allowance for dry cleaning or books or magazines as sought by the respondent.  As to the claim for entertainment expenses, again I consider that claim to be excessive, particularly in circumstances where the cost of the child’s music tuition forms part of the claim for non-periodic child support and will allow the sum of $40 per week.

20. In addition, in my view the respondent’s claims as to the child’s expenses in relation to food ($250), household supplies ($50), children’s activities ($150) are overstated and ought to be reduced to $250 in total.  Having regard to those findings I will reduce the child’s expenses by the sum of $731.00.

21. As a result, I am satisfied that the child’s reasonable living expenses total the sum of approximately $671 per week.

22. It was submitted on behalf of the respondent that in circumstances where the parties have accumulated assets valued at in excess of $9 million it is just and equitable and otherwise proper that there be a departure order as sought by the respondent. 

23. Further, it was submitted that in circumstances where the current assessment requires the applicant to pay the sum of $126.75 per month and where the applicant’s oral evidence was that he does not work and has not sought work and seemingly is unlikely to work in the immediate future, it is appropriate that there be an order for lump sum child support.  It was submitted that the Court can have no confidence that proper child support will be paid by the applicant having regard to his evidence.

24. Section 123 of the CSAA provides that the Court may make an order that a liable parent, in this case the applicant, provide child support in the form of a lump sum payment to be credited against the amount payable under the liability of any relevant administrative assessment. The effect of the orders sought by the respondent is to provide to her a lump sum payment for each child support year between 1 July 2023 and 31 December 2027 (when the child will have attained the age of 18 and completed her final year of school).

25. Section 123A of the CSAA provides that the Court may make such a lump sum order for child support if the carer makes an application under s 123(1)(b) and the Court is satisfied it would be “just and equitable as regards the child, the carer entitled to child support and the liable parent” and “otherwise proper”.

26. Section 123A(5) requires that in determining whether it would be just and equitable to make an order for lump sum payment the Court must have regard to the matters in ss 117(4), (6), (7), (7A) and (8) of the CSAA. Those matters include the needs of the child, the income, property and financial resources of each parent who is a party to the proceeding, the earning capacity of each parent who is a party to the proceeding, and hardship to the carer parent or liable parent, caused by the refusal or making of a lump sum order.

27. As I have already observed, the evidence in relation to the applicant’s income-earning capacity is most unsatisfactory. Seemingly, he intends to await the arrival of his partner from Country AA before commencing any course to enhance his English-speaking ability and therefore his capacity to obtain appropriate employment in Australia. 

28. Historically, the applicant has been engaged in the operation of businesses involved in the wholesale and retail of Country AA products and also in the export of Australian products to Country AA and has earned significant income from those endeavours (as disclosed by him to the Immigration Department in his application for permanent residency (Exhibit R4).  Further, the applicant has had access to significant funds remitted from Country AA to his bank accounts in Australia since his arrival in this country in about 2014. He has had the financial wherewithal to commit to the purchase of Motor Vehicle 4 at a cost of $420,000.  He has purchased substantial parcels of real estate in his own name and in the name of entities controlled by him, including neighbouring multi-million-dollar properties in Suburb K, a property at Suburb C and the apartment at G Street currently occupied by the respondent and the parties’ child.  Further, he has seen fit to support the child’s attendance at an elite private school. 

29. Having regard to all of those factors, I do not accept his position that he does not have the financial capacity to contribute to the child’s day-to-day support.  That he has elected to make no effort to secure employment since the cessation of the operation of his business in 2022 does not entitle him to absolve himself from responsibility for the support of the parties’ child.  In light of the above matters and my findings as to the applicant’s property, financial resources and income earning capacity, I am satisfied that the applicant has capacity to contribute to the child’s support.

30. The respondent’s evidence is that she is seeking employment and is hopeful of securing a position as a graduate or intern. 

31. Given that position, and having regard to my earlier findings with respect to the parties’ capacity to work and earn income, coupled with my findings as to their respective property entitlements, I am satisfied that in the circumstances of this case it is just and equitable and otherwise proper that there be a departure from the administrative assessment of child support to provide that the applicant pay to the respondent periodic child support as follows:-

    (a)the sum of $335 per week (being one half of the child’s reasonable weekly living expenses) for the period 1 July 2023 to 30 June 2024 (being a total of $17,420 for that period);

    (b)the sum of $350 per week for the period 1 July 2024 to 30 June 2025 (being a total of $18,200 for that period);

    (c)the sum of $360 per week for the period 1 July 2025 to 30 June 2026 (being a total of $18,720 for that period); and

    (d)the sum of $375 per week for the period 1 July 2026 to 31 December 2027 (being a total of $29,250 for that period).

32. The applicant has paid only nominal periodic child support since the issue of the assessment dated 21 November 2022 (Exhibit R12).  The child’s educational and extra-curricular expenses have otherwise been met from the sale proceeds of the Suburb C property held on trust for the parties by the respondent’s lawyers. 

33. In circumstances where the applicant maintains a position of not seeking work until such time as he has attained proficiency in the English language, and in circumstances where he does not propose to commence English language courses until his partner commences living with him in Australia, it was submitted that an order for lump sum child support is appropriate.  That conduct of the applicant, including his refusal to consent to payment of the child’s school fees from funds held on trust for the parties by the respondent’s lawyers[26], coupled with my findings as to his non-disclosure of his financial position (as identified earlier in the judgment), persuades me that a lump sum order is appropriate, albeit not at the level sought by the respondent.  

    [26] Affidavit of Ms Ton filed 3 October 2024, paragraph 14

34. In light of my findings as to the applicant’s conduct, the child’s weekly expenses, the amount of periodic child support that ought be paid by the applicant as detailed above I consider it just and equitable and otherwise proper that that liability be paid as a lump sum to the respondent , that sum being $83,590, such amount to be credited as 100 per cent of the applicant’s liability under any administrative assessment for the period 1 July 2023 to 31 December 2027.

35. As to the question of non-periodic child support, section 124 of the CSAA provides that the Court may make such order if satisfied that it would be just and equitable as regards the child, the carer entitled to child support and the liable parent and otherwise proper to make an order for such support other than in the form of periodic amounts.

36. The child commenced attending AP School in Prep.  She has been engaged in a range of activities, including sports and music lessons since that time.  Inevitably there are significant costs associated with those pursuits.  In all of the circumstances of the case, I am well satisfied that it is just and equitable and otherwise proper that the parties share in the cost of such expenses.

37. The child will continue to attend a private school until the end of 2027. I am satisfied that provision ought be made for her continued attendance at such school, as was intended by the parties when she commenced her education.  I am also satisfied that provision should be made for payment of the costs associated with such attendance including textbooks, stationery, technology requirements, uniform requirements, camps, school excursions and the like. I am also satisfied that it is appropriate that the parties share in the cost of the child’s medical expenses. 

38. The respondent estimates the total costs of those expenses to be in the order of $247,481.

39. The respondent detailed the child’s expenses at [128] to [133] of her trial affidavit.  She was cross-examined in relation to those expenses.  Having regard to her oral evidence, it is my view that many of the claimed expenses for the child were overstated or exaggerated, particularly with respect to the costs associated with the child’s involvement at a sporting club, her sports clothing, transport, meals and other related costs.

40. At [131(g)]) of her trial affidavit the respondent estimated the annual costs associated with the child’s sport to be $60,300 per annum.  However, during cross-examination, the respondent conceded that the actual costs incurred in 2023 were approximately $34,000.  Having regard to that concession, I treat the respondent’s evidence with respect to the child’s expenses with caution. 

1. At [133] of her trial affidavit, the respondent makes provision for the child’s medical expenses until the conclusion of her secondary schooling.  Her estimate as to those expenses is approximately $45,500 and includes provision for psychologist fees of $7,500 and out of pocket medical expenses totalling approximately $10,000.  Those estimates are speculative in nature.  This was conceded by the respondent during her oral evidence.  Nonetheless, I do consider it to be appropriate that there be some provision for the child’s medical expenses, particularly payment of private health insurance which had been maintained by the applicant up until the time of the parties’ separation and which the respondent indicates she seeks to reinstate upon the conclusion of these proceedings. 

2. Sensibly, the respondent’s claim for non-periodic child support was significantly amended and reduced in her affidavit filed 3 October 2024.  The applicant has filed no material in response to that evidence, nor did he appear at the hearing before me on 14 November 2024.  Accordingly, the respondent’s evidence with respect to those revised expenses is unchallenged.  In the circumstances, I accept the respondent’s evidence with respect to those expenses.

3. Again, I consider that a just and equitable and otherwise proper outcome would be for the parties to contribute equally to those expenses, having regard to the property to be retained by each at the conclusion of these proceedings as well as my findings with respect to their respective income earning capacities.  Accordingly, I will make orders for the applicant to pay the sum of $123,500 by way of lump sum non-periodic child support for those expenses.

I certify that the preceding two hundred and sixty-six (266) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johns.

Associate:

Dated: 26 February 2025