Vu & Ton (No 7)

Case [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…

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AGLC
Vu & Ton (No 7) [2025] FedCFamC1F 115
Case
[2025] FedCFamC1F 115
Decision Date

CaseChat Overview and Summary

The case of Vu & Ton (No 7) involved a dispute between Mr Vu and Ms Ton over property settlement and child support following their separation. The couple had one child, born in 2009, and had lived together in various properties in Australia and Country AA. The legal issues included the valuation of the property pool, the inclusion of alleged debts and undisclosed accounts, and the add-backs of funds withdrawn post-separation. The court had to determine the appropriate division of the property and the child support obligations. The court found both parties to be evasive and non-responsive, casting doubt on the reliability of their evidence. Based on the independent evidence and primary source material, the court decided on a 75/25 division of the property in favour of Mr Vu. In terms of child support, the court ordered Mr Vu to pay a lump sum for periodic support and another lump sum for non-periodic expenses, including private school fees and other related costs.

The court's orders included the payment of specific sums to Ms Ton from the sale proceeds of certain properties, the transfer of ownership of particular properties, and the sale of other properties under agreed terms. Additionally, the court detailed the indemnification and trust arrangements for various properties and businesses. Child support orders required Mr Vu to pay specified lump sums for the support of their child, covering both periodic and non-periodic expenses. These orders aimed to ensure the financial security of the child and address the financial responsibilities of both parents post-separation.

Orders

Orders of the court

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.

Background

Background to the litigation

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

Evidence

Evidence Before The Court

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’ EVIDENCEThe applicant’s evidence 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. 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. 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. 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. 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. 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. 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. 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.

Decision

Reasons for decision

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 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. 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. With respect to the applicant, there were demonstrable inconsistencies between aspects of his evidence as contained in his trial affidavit and his oral evidence. 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 The applicant’s mother, Ms Q, affirmed an affidavit on 24 May 2023, filed on 2 June 2023. 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. 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. Ms Q deposed that she last visited Australia in 2017.[2][2] Affidavit of Ms Q filed 2 June 2023, paragraph 14. 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.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.