Wu & Leong - [2023] FedCFamC2F 480

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wu & Leong [2023] FedCFamC2F 480

File number(s): CAC 1783 of 2013

Judgment of: JUDGE MANSFIELD

Date of judgment: 28 April 2023

Catchwords: FAMILY LAW PROPERTY Final Orders to proceedings that have been on foot for over nine years – Antiquated transactions permitted as addbacks – Neither party’s case as to extensively greater contributions or section 75(2) factors made out - Mixed titles to real properties, potential capital gains tax liabilities at large and a non-commutable pension present significant difficulties to arriving at final orders that are capable of being adhered to and enforced in both financial and practical terms.

Legislation:
Child Support (Assessment) Act 1989 (Cth)

Family Law Act 1975 (Cth) ss75, 79, 81, 90SM. 90XS, 90XT, 90XZD

Family Law Legislation Amendment (Superannuation) Act 2001 (Cth)

Cases cited:
Bulow & Bulow (2019) FLC 93-885

C & C (2005) FLC 93-220

Dickons & Dickons [2012] FamCAFC 154

D & D (2006) FLC 93-256

Dovgan & Dovgan [2021] FamCA 306

Kennon & Kennon (1997) FLC 92-757

Kowaliw & Kowaliw (1981) FLC 91-092

Mullis & Quimby [2023] FedCFamC1A 16

Norbis v Norbis [1986] 10 FamLR 819

AJO & GRO [2005] FamCA 195

Preston & Preston(No 2) [2022] FedCFamC2F 303

Rosati v Rosati (1998) FLC 92-804

Stanford v Stanford (2012) 247 CLR 108

Taffner & Taffner [2021] FamCAFC 68

Weir and Weir (1993) FLC 92-338

Division: Division 2 Family Law

Number of paragraphs: 126

Date of hearing: 30 October – 2 November 2022

Place: Canberra

Counsel for the Applicant: Mr Masters

Solicitor for the Applicant: SCB Legal Pty Ltd

Counsel for the Respondent: Mr O’Keefe

Solicitor for the Respondent: Tu’Ulakitau McGuire
ORDERS

CAC 1783 of 2013

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS WU

Applicant

AND:
MR LEONG

Respondent

order made by:

JUDGE MANSFIELD

DATE OF ORDER:

1 APRIL 2023

PURSUANT TO PT VIII OF THE FAMILY LAW ACT 1975 (CTH), THE COURT ORDERS THAT:
The real properties
1.Within 28 days, the applicant wife is to:
(a)Do all such things as are necessary to transfer her right, title and interest in the real property and improvements comprising Volume … Folio … Edition … being the property more commonly known as A Street, Suburb B in Region T (“the Suburb B property”) to the husband, who is declared the sole legal and beneficial owner of the property.
(b)Do all such things as are necessary to discharge any loans in joint names, whether or not secured by mortgage registered over the Suburb F property, to indemnify and keep indemnified the husband against any and all liabilities connected to the Suburb F property.
(c)Do all such things as are necessary to discharge any loans in joint names, whether or not secured by mortgage registered over the Suburb D property, to indemnify and keep indemnified the husband against any and all liabilities connected to the Suburb D property.

2.Within 28 days, the respondent husband is to:
(a)Do all such…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Wu & Leong

Details

AGLC: Wu & Leong [2023] FedCFamC2F 480
Case: [2023] FedCFamC2F 480
Decision Date

CaseChat Overview and Summary

Wu and Leong are married applicants who have been litigating for over nine years. The proceedings have been on foot since the wife filed for parenting and property orders in November 2013. The husband was represented under the family violence scheme and the wife represented herself. The court considered the parties' positions and legal issues including whether to include the addbacks contended for by the wife, the assessment of contributions and section 75(2) factors, how to account for potential capital gains tax implications consequential to final orders, the treatment of the husband’s interests in Super Fund H which is in the payment phase, and crafting of orders to retain a just and equitable result whilst finally determining the financial relationship between the parties. The court held that the wife’s contentions in relation to addbacks were not accepted in full. The court held that the husband and wife’s contributions were equal except for the contributions attributable to the wife by way of the gifts from her parents. The court held that an equalisation of the pool and a modest adjustment in the wife’s favour is a just and equitable result in monetary terms. However, the manner in which the parties’ interests should be altered in order to achieve a just and equitable result in practical terms presented a significant difficulty in this case. The court made orders for the transfer of the real properties and a cash adjustment of $133,193. The court also made orders to account for capital gains tax and the husband’s interests in Super Fund H. The court dismissed all other outstanding applications between the parties.

Orders