Wang and Jong

[2010] FamCA 562

FAMILY COURT OF AUSTRALIA

WANG & JONG [2010] FamCA 562

FAMILY LAW – PROPERTY – Contributions – s 79(4)(d) - (g) matters – Just and equitable alteration

Family Law Act 1975 (Cth) s 79(4)(d) - (g)

APPLICANT: Ms Wang

RESPONDENT: Mr Jong

FILE NUMBER: SYC 8430 of 2007

DATE DELIVERED: 7 July 2010

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 11 June 2010

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Litigant in person

SOLICITOR FOR THE RESPONDENT: Litigant in person

Orders

1. Pursuant to s 79 Family Law Act, an order is made in the terms of paragraphs 2 to 6 below.

2. Within 14 days the parties do all things and sign all necessary documents to cause the sum of $40,705 to be paid from the St George Bank to the husband. 

3. The wife be declared to be solely entitled to:

   3.1.the balance of the monies in the St George Bank;

   3.2.monies in the credit union;

   3.3.the 2007 Honda motor vehicle;

   3.4.her superannuation.

4. The wife will indemnify the husband in relation to any liability arising from her credit card debt.

5. The husband be declared to be solely entitled to:

   5.1.the balance of the monies in his bank account China ICBC;

   5.2.his motor vehicle;

   5.3.his superannuation.

6. Each party will otherwise be declared to be solely entitled to any asset and solely responsible for any liability which is otherwise in their respective names.

7. If either party refuses or neglects to sign (within fourteen (14) days of a written request to do so) any documents necessary to effect the terms of these Orders, the Registrar of the Sydney Registry of the Family Court of Australia is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act to execute such documents on behalf of such party.

IT IS NOTED that publication of this judgment under the pseudonym Wang & Jong is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 8430 of 2007

MS WANG

Applicant

And

MR JONG

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. This case is about whether or not any alteration should be made in the property held by each of the parties and if so, what that alteration should be. 

2. The parties were married for about eight years and had one child.  Both parties obtained tertiary qualifications during the period of the marriage and now both receive an income which is sufficient to support themselves.  Only one piece of real estate was acquired during the time the parties were together, a property in China.  That property was sold around about the time of the separation.

3. Both parties are intelligent people who represented themselves.  Both wished to analyse in minute detail the history of their contributions during the time that they were together and explore movement in funds. 

4. It was the wife’s case that she worked throughout the time the parties were together whilst the husband had significant periods when he was not in paid employment.  Both parties have received assistance from their families, both financially and non financially.

5. The overall pool of assets to be divided is relatively modest. The main “asset” that each of the parties now has is their earning capacity, which will provide them with some ability in the future to regenerate their capital.

APPLICATIONS OF THE PARTIES

1. The wife does not seek any alteration of the property currently held in the respective names of the parties and accordingly in effect seeks a declaration under s 78 Family Law Act (“FLA”) that each party retain the assets that are currently in their possession and control. The husband seeks an order under s 79 that he be paid, from the funds or assets held by the wife, the sum of $70,000 plus interest on that money for a period of two years (presumably at the rate prescribed by the Family Law Rules). 

SHORT HISTORY

1. The parties commenced to live together in June 1999 and married in Beijing, China in 1999. 

2. In 2000 a unit was brought in Beijing, by the parties, in the wife’s name.

3. There is one child of the marriage, who is known as “Z”, who was born in China in September 2005. 

4. In early July 2006 the husband came to Sydney and studied at Macquarie University. 

5. On 4 November 2006 the wife left Beijing and came to Sydney, leaving the child primarily in the care of the paternal grandparents.

6. On 17 May 2007 the child and the paternal grandparents came to Sydney to live with the parties. 

7. In October 2007 the unit in Beijing in the wife’s name was sold by her. 

8. The parties separated on 4 November 2007.  The wife has recently filed an application for divorce which is yet to be dealt with.

9. There were contested proceedings before Rose J (over 7 days) in relation to what time the husband would spend with the child and in what circumstances. 

10. On 30 November 2009 his Honour ordered sole parental responsibility to the wife.  The husband has been seeing the child since that time at W Contact Centre.  The husband was ordered to undertake counselling from a psychiatrist or psychologist as recommended by the Chapter 15 expert with that person to provide a further report to the court with a view to expanding the child’s time with her father.  It was clear in the property hearing before me that issues in relation to the child are ongoing.  The husband is currently continuing to see the child once a week at a contact centre. 

CREDIT

Wife

1. The wife impressed me as a witness who provided evidence in a consistent manner.  Her written evidence was not in any significant way shaken by questions asked of her by her husband.

Husband

1. I was not, on an overall basis, impressed with the way the husband gave his evidence. 

2. In contrast to the wife, the husband on a number of occasions was asked questions that led him to give evidence that was inconsistent. 

3. The most obvious example was when the husband gave evidence about monies that he said his parents brought from China.  Produced during the hearing (and I have marked it Exhibit 24), is a statement of account from St George covering the period from January 2009 to July 2009.  That account indicates an opening balance in January 2009 of $88,336.  When asked initially where the monies in that account had come from, the husband said that in 2006 his parents had forwarded $70,000 to him for the purposes of providing funds for their visa application.  Their visa application cost the sum of $80,000.  The wife pointed out to the husband that, in evidence he had given me on 31 March 2010, he had said that his financial position had changed because he had paid one half of his parent’s visa application. When asked further questions by me, he had confirmed that he had contributed around $40,000 of the $80,000 required. 

4. The wife then referred the husband to a statement he had made in his own handwriting to the Child Support Agency in 2010 in the following terms:

   “The father is in debt to pay for paternal grandparent’s $80,000 migration application and processing fee.  If take the expense into account, the father should pay less child care support.”

5. Consequently, the husband had made three different representations about the payment of his parent’s visa application.  On 31 March 2010 he had indicated on his oath that he had paid $40,000 of it.  In oral evidence before me on 11 June 2010 he indicated that he had received $70,000 out of the $80,000 from his parents.  In the representation to the Child Support Agency earlier in 2010, he had said he had paid it all.

6. Some explanation as to these inconsistencies may be found in the fact that on 12 May 2009 and on 18 June 2009, two amounts of approximately $30,000 went out of the St George account. The husband’s evidence is that they went back to his parents.  The husband’s final position seemed to be that he asserted he had paid the majority of his parent’s visa application fees.  However, the manner in which this evidence was given and the different versions given by the husband about this topic, leave me having little confidence in the husband’s evidence generally.

Conclusion in relation to credit

1. Where there is a discrepancy between the evidence of the wife and the evidence of the husband, I will prefer the evidence of the wife. 

MORE DETAILED CHRONOLOGY

1. The parties commenced to live together in June 1999.

2. The husband quit his job in October 1999 and was unemployed until February 2000 when he secured employment with EC Company.

3. The parties married in Beijing, China in December 1999. 

4. On 23 June 2000 a unit was brought in Beijing, by the parties, in the wife’s name. The deposit of approximately $7,140 was paid by the wife. The balance was secured by a loan, which was repaid by the end of 2004.

5. In early April 2001 the husband ceased working at EC Company and secured another job in late April 2001 with GL Company.

6. In March 2002 the wife commenced her masters of Commerce with the University of NSW (Beijing campus), paid by her employer. She completed this in May 2004.

7. In May 2002 the father started his MBA at Peking University. The tuition fees were initially paid for by both parties’ savings. The MBA was completed in May 2005.

8. In March 2005 the husband took a holiday to South East Asia, funded by a credit card that the wife ‘authorized’ to the husband. The cost was $3,333.

9. In mid 2002 the wife bought a car and met the repayments for the 4 year loan. The main purpose for buying the car was to assist the husband in attending university.

10. In October 2004 the husband ceased working with GL Company. He remained unemployed until he secured employment with M Company in late March 2005.

11. In August 2005 the maternal grandmother came to Beijing to assist the wife with the birth and care of the child who was soon to be born. She stayed until November 2005.

12. The only child of the marriage, “Z”, was born in China in September 2005.  The mother had five months paid maternity leave and returned to work in February 2006. She said she cared for the child outside work hours.

13. At the end of November 2005 the paternal grandmother came to live with the parties to assist in caring for the child.

14. In June 2006 the husband ceased work with M Company. He then moved to Australia in early July 2006 to study at Macquarie University.  He remained unemployed until April 2007. He expended $7,000 in the first 4 months of his relocation. During this period of the husband’s unemployment, the wife was solely responsible for the whole family’s expenses, including the paternal grandmother.

15. In October 2006 the wife sold the car for approximately $7,000. These proceeds, together with her savings amounted to approximately $25,000. This money was used for the wife’s resettlement in Australia, to pay the husband’s tuition fees, and to buy a car for $9,000 in Australia.

16. On 4 November 2006 the wife left Beijing and came to Sydney, leaving the child primarily in the care of the paternal grandparents. The mother transferred from her employment with B Company in China to B Company in Australia. Her transitional unemployment was 4 days. She continued to support herself and the husband.

17. Separation under one roof occurred in early January, when the husband and wife signed a ‘divorce agreement’.

18. At the end of April 2007 the husband secured employment. The wife continued to pay the parties’ expenses as the husband’s income was spent on tuition fees.

19. On 17 May 2007 the child and the paternal grandparents came to Sydney to live with the parties.  The wife had began renting a home in E from 30 January 2007 and had furnished the house in preparation. The paternal grandparents’ arrival was delayed by the paternal grandfather’s ill health.

20. In October 2007 the wife travelled to Beijing and sold the unit in the wife’s name.  She received no income for the leave required to do this but continued paying the parties’ expenses in Australia. The husband provided her with access to his China bank account.

21. The parties physically separated on 4 November 2007 after a violent incident from which an AVO was issued to the husband.  The wife has recently filed an application for divorce which is yet to be dealt with. The child lived with the mother from this time. The maternal grandmother came to Sydney on 9 November 2007 until July 2008 to assist the wife with the child. The child began attending pre-school 2 days per week because the wife thought it was important for her to socialise and learn English.

22. There were contested proceedings before Rose J (over 7 days) in relation to what time the husband would spend with the child and in what circumstances. 

23. On 30 November 2009 his Honour ordered sole parental responsibility to the wife.  The husband has been seeing the child since that time at W Contact Centre.  The husband was ordered to undertake counselling from a psychiatrist or psychologist as recommended by the Chapter 15 expert with that person to provide a further report to the court with a view to expanding the child’s time with her father.  It was clear in the property hearing before me that issues in relation to the child are ongoing.  The husband is currently continuing to see the child once a week at a contact centre. 

APPROACH

1. In this matter my task is to:

   48.1.Identify and value the property, assets, financial resources and liabilities of the parties;

   48.2.Identify relevant contributions and assess them;

   48.3.Consider relevant matters referred to in Section 79(4)(d) – (g) FLA;

   48.4.Ensure my order adjusting the property, assets and liabilities of the parties is just and equitable.

BALANCE SHEET

1. On 31 March 2010 I discussed with each of the parties details provided by them in their most recent financial statements.  Arising from that discussion, I generated a balance sheet which was provided to each of the parties at the commencement of the final phase of the hearing.  A number of matters were disputed.  I set out that balance sheet below.  Determinations have been made in relation to disputed items and those values are shown in bold on the balance sheet.  My reasons for the decisions about disputed items is provided below. 

Assets
Item no.	Title	Description	Husband	Wife	Agreed/ Determined	Value
1	W	St George Bank	$69,000.00	$69,000.00	Agreed	$69,000.00
2	W	Credit Union	$3,000.00	$3,000.00	Agreed	$3,000.00
3	W	2007 Honda motor vehicle	$15,000.00	$15,000.00	Agreed	$15,000.00
4	W	Superannuation	$26,500.00	$26,500.00	Agreed	$26,500.00
5	W	Legal fees	$36,887.00	$36,887.00	Agreed	$36,887.00
6	W	Monies paid for expenses relating the maternal grandmother	$8,000	$0.00	Determined	Nil
7	W	Funds held by wife at separation	$30,000.00	$17,000	Determined	$17,000
8	W	Balance of funds from sale of China unit not otherwise accounted for	$10,000.00	$0.00	Determined	$0.00
9	H	Bank account China ICBC	$1,000.00	$1,000.00	Agreed	$1,000.00
10	H	Funds held by husband at separation	$15,000.00	$27,416.00	Determined	$22,616.00
11	H	Motor vehicle	$6,000.00	$6,000.00	Agreed	$6,000.00
12	H	Superannuation	$12,800.00	$12,800.00	Agreed	$12,800.00
Total assets			$209,803.00
Liabilities
Item no.	Title	Description	Husband	Wife	Agreed/ Determined	Value
13	W	Credit Card	$2,000.00	$2,000.00	Agreed	$2,000.00
Total liabilities			$2,000.00
Total net assets			$207,803

Item 1

1. On 31 March 2010 there was an agreement that the current monies in the St George Bank was $69,000.  During submissions, the husband indicated that he had assumed that interest would have been earned on those monies over a two year period.  I indicated to him that the figure had been taken from the wife’s financial statement which she had filed on 15 March 2010.  The figure had not been challenged by the husband during the hearing and no other record of the St George account in the wife’s name had been provided.  Consequently, the agreement in the sum of $69,000 was the figure to remain on the balance sheet. 

Item 6

1. The wife’s evidence is that part of the proceeds from the sale of the China unit were used by her to bring her mother to Australia at a time shortly after the separation.  The wife’s evidence, is that at that time, the child was only going to child care two days a week and the wife needed assistance with the child.  The wife’s evidence further is that her mother quit her job to come to Australia. At the time of the separation there was a domestic violence incident and a domestic violence order was made.  I accept that the wife was in difficult circumstances in Australia; that she needed at that time to maintain her job and she needed somebody she trusted to assist her in child care arrangements for the child.  In those circumstances, it is not appropriate that the amount that the wife spent for expenses relating to her parents should be added back against her on the balance sheet and item 6 will be counted as nil. 

Item 7

1. The wife had funds (independent of the proceeds of sale of the China unit) at separation.  She estimates those funds to be in the sum of $17,000.  The husband told me on 31 March 2010 that he thought the sum was between $20,000 and $30,000.  The wife filed a financial statement on 15 February 2008 (exhibit 23).  That statement details the funds the wife held at that time.  Two accounts are referred to in item 37 which have a total of about $126,000.  The wife says she spent about $21,000 on a motor vehicle.  The overall expenditure therefore was about $147,000. She said she brought $130,000 from the proceeds of the sale of the China unit.  That would mean that the wife’s current assertion that she had $17,000 in other savings at the date of separation is consistent with evidence that she provided in her financial statement in February 2008.  No statements from any financial institution, relating to those accounts, were tended in evidence before me.  I am unaware as to whether the husband required discovery of those statements.  Against this evidence, the husband gives imprecise and vague evidence of what his belief was as to the monies held by the wife at the date of separation and he gave a range of $20,000 - $30,000.  I accept the wife’s evidence that the figure was $17,000.  The wife did not argue that that $17,000 should be discounted on the basis that part of those monies were expended on other items recorded on the balance sheet.

Item 8

1. Item 8 relates to the balance of funds from the sale of the China unit.  Both parties agree that the sale price was $140,000.  The wife asserts that the net proceeds that she brought with her to Australia were $130,000.  The husband asserts that the wife has not properly accounted for the other $10,000.  Part of the explanation by the wife is that she paid agent’s fees in the sum of $6,000.  It was put to the wife in cross examination that in China it is normally the purchaser who pays agent’s fees on conveyancing transactions.  The wife accepted that that was so but in the circumstances of this case, (where the wife travelled to China for a period of two weeks for the purposes of affecting this sale), she said that she, as the vendor, paid the agent’s fees, in order to expedite the sale. The remaining funds were expended on living expenses and costs associated with the trip. 

2. I accept the wife’s explanation and evidence that she only brought back to Australia $130,000 and therefore the additional sum of $10,000 will not be added back onto the balance sheet as against the wife. 

Item 10

1. In evidence before me on 31 March 2010, the husband stated that at the date of separation the balance in his account was $15,000.  The wife has sought an amount of $27,000 be added back against the husband as the figure for his savings as at the date of separation.  In support of that contention, the wife refers to a Dragon Direct Saver Account with St George (exhibit 21).  That document does show that as at the date of separation there was $27,616 in the husband’s direct saver account.  That account had reduced to $15,000 by 27 December.  The husband has withdrawn $7,000 from the account on 12 November; $5,000 from the account on 17 December and $8,000 from the account on 18 December.  There were other debits and credits between the date of separation and 27 December.  The husband said he spent about $5,000 re-establishing his accommodation after separation.  The husband however has not otherwise satisfactorily explained where this money went and it is appropriate given the record that I have (in exhibit 21), that the amount of $22,616 be added back against the husband ($27,616 - $5,000).

Item 12

1. Initially the husband indicated that his superannuation was $2,800.  The wife queried the accuracy of that statement.  The husband conceded that the statement of his superannuation of $2,800 was as at March 2008 and that he had been in gainful employment since that time and statutory superannuation had been taken.  I asked the husband to do a further calculation which he did. The wife did not seek to challenge that further calculation (of $10,000).  The husband’s overall superannuation therefore has an agreed value of $12,800. 

CONTRIBUTIONS

1. The wife, in particular, wishes to criticise the husband for his lack of income generating activity during periods of unemployment during the marriage and emphasised the fact that he used time during the marriage to obtain his professional qualifications.  The wife asserts that the husband was out of employment for periods totalling one year and eight months.  The husband says that at least part of that time he was assisting a friend and received some remuneration from that friend.  The husband disputes some of what the wife says about his time out of the workforce during the marriage but there is common ground that the husband spent well over a year out of the workforce during the marriage. 

2. The wife went to some trouble to attempt to establish that she earned more income than the husband during the time that they were married.  She bases that analysis on detailed records that she has summarised relating to her own income and her memory of statements made to her from time to time by the husband as to what was his level of income.  The husband disputes that the wife’s memory is accurate in relation to his income.  I do not however have any documentation from the husband that would establish his levels of income from time to time. 

3. Overall, I have formed the view that the parties arranged their lives, during the time that they were together, in a way that allowed them both to study at a tertiary level and that up until the date of separation, this was an arrangement that was part of the mutual partnership which was the parties’ marriage. 

4. The totality of the wife’s tuition was paid by her employer B Company.  The wife points to the fact that there was significant monies expended on the husband’s tertiary tuition (a figure of about $41,000).  During the husband’s first tuition, he had two different jobs and six months of unemployment.  The initial payment came from the parties’ savings.  During his second tuition the husband was unemployed for the first nine months.  The husband said that tuition fees were normally paid in advance and that his sister contributed $6,372 towards his tuition in August 2002 (MBA at Peking U).  Savings during the marriage and the sale of the car in China went partly towards the payment of the second tuition.  From July 2006 to December 2006 the husband finished half his study at a cost of $15,000 paid from the family savings.  Overall, the payment for study for the husband was funded more directly from the savings of the parties than was the wife’s, which were wholly subsidised by her employer. 

5. Both parties emphasised the support that was given by family members.  I have already, when discussing item 6 on the balance sheet, referred to contributions made by the wife’s mother.  The maternal grandmother assisted the mother with the child after her birth from August to November 2005 and after separation from 9 November 2007 to July 2008.

6. The husband points to the fact that his mother quit her job to come to Beijing to assist in looking after the child and the child remained in China with his parents for six months whilst both the parties were in Australia and that his parents then came to Australia.  The wife agreed in cross examination that the paternal mother-in-law minded the child between February 2006 and November 2007 whilst she was at work and for six months of that period the parties were in Australia and the child was in China with the paternal grandparents.  The husband asserts that his parents have given a lot of financial assistance as has his sister.

7. The wife has been primarily responsible for the care of the child since the separation.  The husband seems to have paid regular child support, but given the disputes between the parties, has had little time with the child. 

Conclusion in relation to contributions

1. The wife has established to my satisfaction that there should be some adjustment in her favour when the overall contributions of the parties, from the time the parties commenced to live together to date of hearing, are considered on a global basis.  I find that there should be a five percent adjustment in the wife’s favour arising out of the contributions they have both made. 

SECTION 79(4)(d) - (g) MATTERS

1. The husband’s current level of income is about $80,000.  He is healthy and has tertiary qualifications. 

2. The wife’s current level of income is $68,000.  She says that that is lower than what her market skills could achieve, but she is currently comfortable in her present employment because it offers her considerable flexibility, which is something she needs in order to be able to properly care for the child.  Although the wife suffers from Hepatitis B it has not affected her ability to earn an income.

3. The wife will receive slightly more than the husband arising out of my assessment of contributions, but the pool is quite small. 

4. The husband says he has responsibilities to his parents (although it seems his parents have at least $60,000 in capital reserves on the evidence the husband has given). 

5. The husband has appropriately made the concession that he has a slightly better ability in the future to regenerate his capital than does the wife. 

Conclusion in relation to s 79(4)(d) - (g) matters

1. The wife will continue to have the primary responsibility for caring for the child, notwithstanding that she will be assisted financially by the payment of regular child support by the husband. At the current time the orders of Rose J as they relate to the child have not been fully implemented and the husband is still only seeing the child two hours once a week at a contact centre, although he has an application pending in relation to his time with the child. 

2. I conclude that some adjustment needs to be made in the wife’s favour for s 79(4)(d)-(g) matters and I assess that adjustment should be five percent.

JUST AND EQUITABLE

1. Based on my findings in relation to contributions and s 79(4)(d)-(g) matters, the overall adjustment in the wife’s favour would be ten percent, leading to a 60/40 adjustment in the wife’s favour of the overall net assets.

2. That adjustment could be achieved by a distribution of the assets in the manner set out in the following table:

Husband gets 40.0%
Assets
Item No.	Description	Percentage	Value
9	Bank account China ICBC	100%	$1,000
10	Funds held by husband at separation	100%	$22,616
11	Motor vehicle	100%	$6,000
12	Superannuation	100%	$12,800
Husband receives		$40,705
Net Assets to Husband		$83,121
Wife gets 60.0%
Assets
Item No.	Description	Percentage	Value
1	St George Bank	100%	$69,000
2	Credit Union	100%	$3,000
3	2007 Honda motor vehicle	100%	$15,000
4	Superannuation	100%	$26,500
5	Legal fees	100%	$36,887
6	Monies paid for expenses relating to her parents	100%	$0
7	Funds held by wife at separation	100%	$17,000
8	Balance of funds from sale of China unit not otherwise accounted for	100%	$0
Liabilities
Item No.	Description	Percentage	Value
13	Credit Card	100%	$2,000
Wife pays Husband			$40,705
Net Assets to Wife			$124,682

1. As can be seen, the wife will need to pay the husband an amount of $40,825 from the funds held in her name, being the balance of the proceeds of the sale of the China unit (item 1).  Standing back, I consider that to be a just and equitable alteration of property between the parties. 

I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts.  

Associate: 

Date:  7.7.2010