Xinyi & Qiu
[2022] FedCFamC2F 1715
Federal Circuit and Family Court of Australia
(DIVISION 2)
Xinyi & Qiu [2022] FedCFamC2F 1715
File number(s): PAC 519 of 2021 Judgment of: JUDGE NEWBRUN Date of judgment: 13 December 2022 Catchwords: FAMILY LAW – PROPERTY – Property adjustment final hearing – Just and equitable property adjustment orders made. Legislation: Family Law Act 1975 (Cth) ss 75(2), 79(2), 102NA Cases cited: Lotta & Lotta [2017] FamCA 50 Division: Division 2 Family Law Number of paragraphs: 56 Date of last submission/s: 17 November 2022 Date of hearing: 11 November 2022 Place: Parramatta Counsel for the Applicant: Mr O’Reilly Solicitor for the Applicant: Sharon Payne Family Lawyers Solicitor for the Respondent: The Respondent appeared in person ORDERS
PAC 519 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS XINYI
Applicant
AND: MR QIU
Respondent
Ordermade by:
JUDGE NEWBRUN
DATE OF ORDER:
13 DECEMBER 2022
THE COURT ORDERS THAT:
1.In accordance with the Orders below, and by way of settlement of property pursuant to section 79 of the Family Law Act 1975 (Cth) (“the Act”), the net assets (including superannuation) of the parties and either of them be divided in the proportion 55 per cent/45 per cent in favour of the Wife.
2.Within 28 days of the date of these Orders, the parties shall do all acts and things and sign all documents necessary so as to effect sale of the property situate at and known as B Street, Suburb C being the whole of the land contained in Certificate of Title, folio identifier … (“the B Street, Suburb C Property”) in the following manner:
(a)The parties shall retain D Law Firm to act as the conveyancer on the sale and shall provide all information and do all things necessary for the conveyancer to prepare a contract for sale for the B Street, Suburb C Property;
(b)The parties shall list the B Street, Suburb C Property for sale by public auction with Real Estate Agent E;
(c)The reserve price for the purpose of such auction will be such as the parties agree upon within seven (7) days of the B Street, Suburb C Property being listed for auction, or in the absence of agreement, is to be determined by the Agent;
(d)In the event the bidding at the auction does not reach the reserve price, the parties may negotiate with the highest bidder or any other interested person and effect a sale of the B Street, Suburb C Property at a price agreed by the parties, but failing agreement, the parties must accept any offer within five per cent below the reserve price and must sell the property at that price;
(e)In the event the B Street, Suburb C Property remains unsold within fourteen (14) days of the auction provided for in Order 2(b), the parties shall do all acts and things and sign all documents necessary to immediately relist the B Street, Suburb C Property for sale by public auction again, on a date nominated by the agent in the manner listed in Order 2 above, at a reserve price five per cent lower than the previous reserve price and this Order shall repeat until the property is sold.
3.Upon completion of the sale of the B Street, Suburb C Property pursuant to these Orders, the proceeds of sale shall be paid in the following manner and priority:
(a)In adjustment of water rates and council rates;
(b)In payment of the Agent’s fees and commission due on the sale, including any auctioneer’s costs;
(c)In payment of legal costs and outlays relating to the sale;
(d)In payment of the loan secured by mortgage against the B Street, Suburb C property;
(e)Subject to Order 11 below, in the event that there is money owed on the loan secured against the property situated and known as F Street, Suburb G with folio identifier… F Street, Suburb G (“F Street, Suburb G”), the balance shall be paid into that loan.
4.Within 28 days of the date of these Orders, the parties shall do all acts and things and sign all documents necessary so as to effect sale of the property situate at and known as H Street, Suburb J, New South Wales being the whole of the land contained in Certificate of Title, folio identifier … (“the H Street, Suburb J Property”) in the following manner:
(a)The parties shall retain D Law Firm to act as the conveyancer on the sale and shall provide all information and do all things necessary for the conveyancer to prepare a contract for sale for the H Street, Suburb J Property;
(b)The parties shall list the H Street, Suburb J Property for sale by public auction with an Agent agreed to between the parties, but failing agreement with K Real Estate Agents;
(c)The reserve price for the purpose of such auction will be such as the parties agree upon within seven (7) days of the H Street, Suburb J Property being listed for auction, or in the absence of agreement, is to be determined by the Agent;
(d)In the event the bidding at the auction does not reach the reserve price, the parties may negotiate with the highest bidder or any other interested person and effect a sale of the H Street, Suburb J Property at a price agreed by the parties, but failing agreement, the parties must accept any offer within five per cent below the reserve price and must sell the property at that price;
(e)In the event the H Street, Suburb J Property remains unsold within fourteen (14) days of the auction provided for in Order 4(b), the parties shall do all acts and things and sign all documents necessary to immediately relist the H Street, Suburb J Property for sale by public auction again, on a date nominated by the agent in the manner listed in Order 4 above, at a reserve price five per cent lower than the previous reserve price and this Order shall repeat until the property is sold.
5.Upon completion of the sale of the H Street, Suburb J Property pursuant to these Orders, the proceeds of sale shall be paid in the following manner and priority:
(a)In adjustment of water rates and council rates;
(b)In payment of the Agent’s fees and commission due on the sale, including any auctioneer’s costs;
(c)In payment of legal costs and outlays relating to the sale;
(d)In payment of the loan secured by mortgage against the H Street, Suburb J property;
(e)Subject to Order 11 below, in the event that there is money owed on the loan secured against the F Street, Suburb G, the balance shall be paid into that loan.
6.Within 28 days of the date of these Orders, the parties shall do all acts and things and sign all documents necessary so as to effect sale of the property situate at and known as L Street, Suburb M, New South Wales being the whole of the land contained in Certificate of Title, folio identifier … (“the L Street, Suburb M Property”) in the following manner:
(a)The parties shall retain D Law Firm to act as the conveyancer on the sale and shall provide all information and do all things necessary for the conveyancer to prepare a contract for sale for the L Street, Suburb M Property;
(b)The parties shall list the L Street, Suburb M Property for sale by public auction with an Agent agreed to between the parties, but failing agreement with N Real Estate;
(c)The reserve price for the purpose of such auction will be such as the parties agree upon within seven (7) days of the L Street, Suburb M Property being listed for auction, or in the absence of agreement, is to be determined by the Agent;
(d)In the event the bidding at the auction does not reach the reserve price, the parties may negotiate with the highest bidder or any other interested person and effect a sale of the L Street, Suburb M Property at a price agreed by the parties, but failing agreement, the parties must accept any offer within five per cent below the reserve price and must sell the property at that price;
(e)In the event the L Street, Suburb M Property remains unsold within fourteen (14) days of the auction provided for in Order 6(b), the parties shall do all acts and things and sign all documents necessary to immediately relist the L Street, Suburb M Property for sale by public auction again, on a date nominated by the agent in the manner listed in Order 6 above, at a reserve price five per cent lower than the previous reserve price and this Order shall repeat until the property is sold.
7.Upon completion of the sale of the L Street, Suburb M Property pursuant to these Orders, the proceeds of sale shall be paid in the following manner and priority:
(a)In adjustment of water rates and council rates;
(b)In payment of the Agent’s fees and commission due on the sale, including any auctioneer’s costs;
(c)In payment of legal costs and outlays relating to the sale;
(d)In payment of the loan secured by mortgage against the L Street, Suburb M property;
(e)Subject to Order 11 below, in the event that there is money owed on the loan secured against the F Street, Suburb G, the balance shall be paid into that loan.
8.Within 28 days of the date of these Orders, the parties shall do all acts and things and sign all documents necessary so as to effect sale of the property situate at and known as O Street, Suburb P, New South Wales being the whole of the land contained in Certificate of Title, folio identifier … (“the O Street, Suburb P Property”) in the following manner:
(a)The parties shall retain D Law Firm to act as the conveyancer on the sale and shall provide all information and do all things necessary for the conveyancer to prepare a contract for sale for the O Street, Suburb P Property;
(b)The parties shall list the O Street, Suburb P Property for sale by public auction with an Agent agreed to between the parties, but failing agreement with Real Estate Q;
(c)The reserve price for the purpose of such auction will be such as the parties agree upon within seven (7) days of the O Street, Suburb P Property being listed for auction, or in the absence of agreement, is to be determined by the Agent;
(d)In the event the bidding at the auction does not reach the reserve price, the parties may negotiate with the highest bidder or any other interested person and effect a sale of the O Street, Suburb P Property at a price agreed by the parties, but failing agreement, the parties must accept any offer within five per cent below the reserve price and must sell the property at that price.
(e)In the event the O Street, Suburb P Property remains unsold within fourteen (14) days of the auction provided for in Order 8(b), the parties shall do all acts and things and sign all documents necessary to immediately relist the O Street, Suburb P Property for sale by public auction again, on a date nominated by the agent in the manner listed in Order 8 above, at a reserve price five per cent lower than the previous reserve price and this Order shall repeat until the property is sold.
9.Upon completion of the sale of the O Street, Suburb P Property pursuant to these Orders, the proceeds of sale shall be paid in the following manner and priority:
(a)In adjustment of water rates and council rates;
(b)In payment of the Agent’s fees and commission due on the sale, including any auctioneer’s costs;
(c)In payment of legal costs and outlays relating to the sale;
(d)In payment of the loan secured by mortgage against the O Street, Suburb P property;
(e)Subject to Order 11 below, in the event that there is money owed on the loan secured against the F Street, Suburb G, the balance shall be paid into that loan.
10.Pending the sale of the B Street, Suburb C Property, the H Street, Suburb J Property, the L Street, Suburb M Property, the R Street, Suburb S Property and the O Street, Suburb P Property, the Husband shall do the following:
(a)All acts and things necessary to ensure that all rental monies received in respect of those properties is paid into the respective loans secured against those properties;
(b)Provide all authorities necessary to real estate agents and auctioneers acting on the sale of the properties for the Wife to obtain any and all information regarding the sale of the properties;
(c)Keep each property in good order and repair; and
(d)Co-operate in all reasonable ways with requests by real estate agents and/or prospective purchasers including but not limited to:
(i)Providing keys to obtain access;
(ii)Doing all things necessary to facilitate access to the property at all reasonable times and facilitating access for inspection without interference;
(iii)Refrain from doing or saying anything which has the effect of hindering or preventing an inspection or a sale of the property being effected.
11.In the event that upon the sale of any one of the properties in accordance with Orders 2 to 9 above the loan for the F Street, Suburb G has been paid in full, and taking into account Order 13 below relating to the transfer of the Husband’s right, title and interest in the F Street, Suburb G to the Wife, the balance of proceeds shall then be paid as follows:
(a)A sum sufficient to the Wife to effect an overall division of 55 per cent of the net assets (including superannuation) in her favour;
(b)The balance to the Husband.
12.In giving effect to Order 11, in the event that the F Street, Suburb G loan is paid out in full and the net assets (including superannuation) cannot be ascertained due to other properties remaining unsold, the balance of the proceeds pursuant to Order 11 is to be paid into the trust account of Sharon Payne Family Lawyers until such time as the net assets (including superannuation) can be ascertained and then it shall be paid in accordance with Order 11.
13.Within 42 days of payment in full of the loan secured by mortgage against the F Street, Suburb G, the parties shall do all acts and things and sign all documents necessary to transfer the Husband’s right, title and interest in the F Street, Suburb G to the Wife.
14.Pending the transfer of the F Street, Suburb G the Wife shall have exclusive possession of the property.
15.Within 14 days, the Husband in his capacity as director of T Pty Ltd (“the Company”) do all acts and things necessary to transfer to the Wife the Motor Vehicle 1 registered in the name of the Company.
16.Except as otherwise specified in these Orders, the Husband is hereby declared the sole legal and beneficial owner of all items of personal and real property in his possession or of which he is the registered proprietor as at the date of these Orders, including but not limited to all or any money standing to the credit of the Husband in any bank or building society, superannuation shareholdings, motor vehicles and any present or future expectation under a trust or estate.
17.Except as otherwise specified in these Orders, the Wife is hereby declared the sole legal and beneficial owner of all items of personal and real property in her possession or of which she is the registered proprietor as at the date of these Orders, including but not limited to all or any money standing to the credit of the Wife in any bank or building society, superannuation, shareholdings, motor vehicles and any present or future expectation under a trust or estate.
18.Except as otherwise specified in these Orders, the Husband remains solely responsible for all debts, including credit card debts, in his sole name.
19.Except as otherwise specified in these Orders, the Wife remains solely responsible for all debts, including credit card debts, in her sole name.
20.In the event that either party fails to execute any deed or instrument necessary to give effect to these Orders within fourteen (14) days of a written request to do so, a Registrar of the Federal Circuit and Family Court of Australia at Parramatta is hereby appointed pursuant to the provisions of section 106A of the Act to execute the Deed or instrument in the name of the defaulting party and do all acts and things necessary to give validity and operation to the Deed or instrument.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 Xinyi & Qiu has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE NEWBRUN:
Introduction
These are Reasons for Judgment relating to a final hearing held before the Court on 11 November 2022 relating to property proceedings.
The Wife appeared, legally represented. The Husband appeared in person; he had not taken up the opportunity to obtain legal representation through the Commonwealth Family Violence and Cross-Examination of Parties Scheme pursuant to the Court’s Orders and related Notations of 4 August 2022. The Court had previously made an order under section 102NA of the Family Law Act 1975 (Cth) (“the Act”). Accordingly, at the final hearing the Husband was not permitted to cross-examine the Wife.
The Wife had made family violence allegations against the Husband and previous apprehended domestic violence orders had been made and an AVO remained in force against the Husband for the protection of the Wife.
At the outset of the final property hearing, the Court determined the Husband’s Application in a Proceeding filed 10 November 2022 in which he sought orders, inter alia, that the final hearing be adjourned “until the AVO restraints are lifted so that the husband is able to have direct dialogue with the wife regarding the family issues”. That Application was dismissed with the Court giving oral reasons for that determination. The Court observes that the final hearing of these property proceedings had been previously set down for hearing on 4 August 2022 (two day final hearing) but was vacated with a fresh final hearing of 11 November and 9 December 2022 appointed.
Also at the outset of the final property hearing, the Wife’s counsel made an application that the final hearing proceed on an undefended basis but this application was refused by the Court.
PROPOSALS
In relation to the property proceedings, the Wife sought final orders as set out in her Case Outline filed 9 November 2022, but not her proposed orders 2 and 3 which she did not press (because a property at R Street, Suburb S, registered in the Husband’s name, had been sold); she sought orders, inter alia, that the net assets of the parties be ascertained, valued and divided 60 per cent to the Wife and 40 per cent to the Husband. Such proposed orders were reflected in her Amended Initiating Application filed 9 May 2022. In her proposed order 1, the words “matrimonial property” were replaced with the words “net assets (including superannuation)”, and in proposed order 14 the words “asset pool” were replaced with the words “net assets (including superannuation)”.
In relation to the property proceedings, the Husband declined to inform the Court exactly what property orders he sought. He told the Court he did not seek to rely upon his earlier filed Response document (filed 6 July 2021) because he contended that his former solicitors had not acted properly for him. The Husband told the Court, in this context, that his only requirement was for the Court to obey Australian family law. The Court proceeded on the basis that the Husband opposed the making of the Wife’s proposed orders and that he sought property adjustment orders which were just and equitable between the parties pursuant to section 79(2) of the Act.
MATERIAL RELIED UPON
The Wife relied upon the following documents:
(a)Amended Initiating Application filed 9 May 2022;
(b)Her Affidavits filed 8 May 2022 (and related annexures), 19 October 2022 and 17 November 2022;
(c)Her Financial Statement filed 8 May 2022;
(d)Affidavit of valuation of Mr U filed 25 July 2022;
(e)Annexure 2 of the Husband’s Affidavit filed 6 July 2021;
(f)The Husband’s Financial Statement filed 6 July 2021; in particular the Husband’s affidavit on page 1 of that Financial Statement and items 37 and 41 of that Financial Statement;
(g)Her Case Outline filed 9 November 2022.
The Husband relied upon the following documents:
(a)His Affidavit filed 10 November 2022.
Exhibit A was simply an aide-memoir for the Court, prepared by the Wife’s side, to assist the Court in understanding the effect of the Wife’s proposed orders.
Evidence
The Court has considered the documentary material relied upon by the parties discussed above, and the Husband’s oral evidence.
The standard of proof applied by the Court in respect to the evidence is the balance of probabilities. The Court does not propose to set out the entirety of the evidence. Relevant evidence relating to the issues to be determined will be set out below under the headings “Balance sheet”, “Contributions”, and “Section 75(2)”.
The Court should state that it accepts the Wife’s evidence where in conflict with the Husband’s evidence. Again, there was no cross-examination of the Wife and the Husband’s evidence relied upon was scant.
legal principles
In Lotta & Lotta [2017] FamCA 50 Foster J stated:
281 The approach to the determination of an application under s 79 of the Act is set out in Stanford v Stanford (2012) 247 CLR 108 and further considered by the Full Court in Bevan & Bevan [2014] FamCAFC 19, Chapman & Chapman (2014) FLC 93–592 and Scott & Danton [2014] FamCAFC 203.
282The Court must identify the existing legal and equitable interests of the parties in the property, the liabilities and financial resources of the parties at the time of the hearing and then whether it is just and equitable to make a property settlement order.
283Such a consideration should not be guided by an assumption that the parties’ rights to or interests in property are or should be different from those that then exist. The question is whether those rights and interests should be altered.
284There is no presumption that one or other party has the right to have the property of the parties divided between them or a right to an interest in marital property that is fixed by reference to the various matters in s 79(4). The Court needs to conclude that it would be unjust or unfair to leave property rights intact under s 79(2) of the Act.
285In many cases this requirement is readily satisfied where the parties are no longer in a marital or de facto relationship and, thus, for example, the common ownership or use of property by husband and wife will no longer be possible or the express or implicit assumptions that underpinned existing property arrangements such as the accumulation of assets or financial resources by one for the benefit of both have been brought to an end with the relationship.
286In particular, such a circumstance arises where both parties seek property adjustment orders but are unable to agree as to same. Here the wife seeks an order for adjustment of property and the husband contends that there should be no such adjustment.
287It is thus important to ascertain the present property and resources of the parties so as to facilitate a consideration of the s 79(2) question.
288In some circumstances it is not possible to determine whether it is just and equitable to make adjustment orders as to the parties’ present property rights without a consideration of s 79 (4) matters.
289Section 79(4) requires a consideration of the contributions made by the parties as defined in s 79(4)(a) to (c). The Court must then consider s 79(4)(d) to (g) in particular the subjective considerations as to the parties by having regard to the provisions of s 75(2) in so far as they are relevant (s 79(4)(e)).
290The Court can then consider the “justice and equity” of the actual orders to be made: Russell & Russell (1999) FLC 92–877; Teal & Teal [2010] FamCAFC 120, in the context of the Court’s obligation to make “appropriate orders” as provided for in s 79(1) of the Act.
Balance sheet
The Balance Sheet set out in the Wife’s Case Outline for the final hearing is now set out.
BALANCE SHEET Ownership Description Applicant’s value Respondent’s value Assets 1 J F Street, Suburb G NSW $1,650,000 $ 2 J B Street, Suburb C, NSW $760,000 $ 3 J H Street, Suburb J NSW $740,000 $ 4 H L Street, Suburb M NSW $1,550,000 $ 5 H O Street, Suburb P NSW $1,375,000 $ 6 W Commonwealth Bank Account …01 $25,821 $ 7 J National Australia Bank Account …70 $785 $ 8 H Westpac Choice …10 $4,589 $ 9 H T Pty Ltd $35,000 $ 10 H NAB Classic banking …01 $0 $ 11 W Household contents $5,000 $ 12 H Household contents $5,000 $ Total $6,151,195 $ Addbacks 13 $ $ Total $ $ Liabilities 14 J Fixed Rate investment property loan …86 (L Street, Suburb M NSW) $793,364 $ 15 J NAB Choice Package Home loan …03 (F Street, Suburb G) $655,055 $ 16 J NAB Tailored home loan …94 (H Street, Suburb J NSW) $331,747 $ 17 J NAB Tailored home loan …23 (O Street, Suburb P) $325,729 $ 18 J …76 Perpetual Trustee Company Limited B Street, Suburb C $485,464 $ Total $2,591,359 $ Superannuation Member Name of Fund Type of Interest Applicant’s Value Respondent’s Value 19 W Super Fund 1 Accumulation Interest $21,880 $ 20 $ $ Total $21,880 $ Financial Resources Ownership Description Applicant’s Value Respondent’s Value 21 $ $ 22 $ $ Total $ $ Net Total Assets (Including Superannuation) Total $3,581,716 $
In relation to item 6, the Commonwealth Bank account of the Wife, the current value is $25,675; see the copy CBA statement sent to the Court by the Wife’s solicitors on 13 November 2022.
In relation to item 7, the joint National Australia Bank account, the current value is $2,135; see the copy NAB screenshot of the present balance of that account being annexure C to the Wife’s Affidavit filed 17 November 2022.
In relation to item 9, T Pty Ltd, the Husband’s Annexure 2 to his Affidavit filed 6 July 2021 states that this company, which appears to be the entity through which the Husband works as a tradesman, owns a Motor Vehicle 2 and a Motor Vehicle 3. The evidence adduced by the Wife is that the Motor Vehicle 2 (she refers to it as the Motor Vehicle 1) is now worth $45,900 and that it is owned by this company. There is no evidence as to the value of the Motor Vehicle 3 and whether it continues to be owned by the company. It would appear that the only asset of substance owned by the company is the Motor Vehicle 2, and its value of $45,900 shall be substituted for the Husband’s previously stated value for the company of $35,000.
In relation to item 19, the current Super Fund 1 superannuation balance is about $26,311.
The final balance sheet accordingly will be as follows:
BALANCE SHEET Ownership Description Value Assets 1 J F Street, Suburb G NSW $1,650,000 2 J B Street, Suburb C, NSW $760,000 3 J H Street, Suburb J NSW $740,000 4 H L Street, Suburb M NSW $1,550,000 5 H O Street, Suburb P NSW $1,375,000 6 W Commonwealth Bank Account …01 $25,675 7 J National Australia Bank Account …70 $2,135 8 H Westpac Choice …10 $4,589 9 H T Pty Ltd $45,900 10 H NAB Classic banking …01 $0 11 W Household contents $5,000 12 H Household contents $5,000 Total $6,163,299 Addbacks 13 $ Total $ Liabilities 14 J Fixed Rate investment property loan …86 (L Street, Suburb M NSW) $793,364 15 J NAB Choice Package Home loan …03 (F Street, Suburb G) $655,055 16 J NAB Tailored home loan …94 (H Street, Suburb J NSW) $331,747 17 J NAB Tailored home loan …23 (O Street, Suburb P) $325,729 18 J …76 Perpetual Trustee Company Limited B Street, Suburb C $485,464 Total $2,591,359 Superannuation Member Name of Fund Type of Interest Value 19 W Super Fund 1 Accumulation Interest $26,311 20 $ Total $26,311 Financial Resources Ownership Description Value 21 $ 22 $ Total $ Net Total Assets (Including Superannuation) Total $3,598,251
From the above, it can be seen that the parties’ net non-superannuation assets are $3,571,940, and the Wife’s superannuation is $26,311. The total net asset pool is accordingly $3,598,251.
Section 79(2) of the Act
The Court is satisfied that it is just and equitable in this case to alter the property interests of the parties in light of the breakdown of their relationship, the fact that they will no longer have the joint use and enjoyment of their property, and the fact that the continuance of the current legal ownership of their property would not afford them justice and equity.
Contributions
The parties’ cohabitation commenced upon marriage in about 1998. Final separation occurred on about 27 July 2019.
At cohabitation the parties had no significant property.
During the parties’ relationship the Husband worked full time as a tradesman. He established a company T Pty Ltd of which he was the sole director in about 2009. He contributed his earnings to the purchase of various real estate properties (real estate properties of the parties in joint names – three properties, and three properties in his name, with the Court noting that the R Street, Suburb S property registered in the Husband’s name was sold in about September 2022; see items 1–5 in the above final Balance Sheet) as well as towards the maintenance of home loans taken out in relation to those properties.
During the relationship the Wife worked in employment at various times as set out in her Affidavit filed 8 May 2022. Her income was contributed towards the family’s expenses as well as towards meeting some of the expenses of at least one of the properties. She contributed about $80,000 for the deposit on the property at B Street, Suburb C, from her wages account.
Post separation, the Wife continued to meet some of the expenses for one of the properties as asserted by her.
The Wife has been the primary carer of the child X (born in 2005) from birth to date. This has been a very significant contribution by the Wife.
The Wife has been residing in the F Street, Suburb G since separation and it would appear that the rental income from the parties’ investment properties has been paid into the loans for those properties as well as for the loan for the F Street, Suburb G property. The Husband, since separation, has resided at the L Street, Suburb M property registered in his name. The Wife’s superannuation asset with Super Fund 1 is now valued at $26,311. As at separation in about July 2019 it was about $10,188.
The Court accepts the evidence of Mr U, valuer.
Taking into account the above matters, and viewing the parties’ overall contributions holistically, the Court assesses the parties’ contributions to non-superannuation and superannuation assets to be about equal.
Section 75(2) of the Act
The Husband is 49 years, and the Wife 47 years.
The parties’ child X is presently 17 years, having turned 17 years in 2022. The Husband presently pays no child support to the Wife. The Wife meets all expenses relating to the child including significant school fees. The Wife will remain the primary carer of the child aged 17 years. It is unlikely, prospectively, that the Husband will pay child support to the Wife.
The Wife suffers from a medical condition. Her specialist medical report dated 8 April 2021 states, inter alia, that her syndrome has not progressed and that the Wife continues to have glandular limited symptoms that are well-managed with topical therapy. It states that the Wife has no symptoms concerning her medical condition involvement particularly no neuralgia, arthralgia or other symptoms particularly fevers, night sweats or weight loss. In summary, her specialist states that they think the Wife is doing very well and has remained stable.
Nevertheless, the Wife asserts, and the Court accepts, that although she is currently working about 30 hours a week she does not wish to work more than those hours because of her concern that her health condition might deteriorate if she does, and further, she is concerned that if she works more than those hours she will contract the COVID-19 virus and her immune system will not be able to fight the virus. The Court accepts the Wife’s concerns in this context.
The Husband, in about June 2021, was diagnosed with severe depression, adjustment disorder and severe panic disorder together with post-traumatic stress disorder responses, as set out in his psychologist’s report dated 4 September 2021. That report states that the Husband has engaged well in psychological therapy and reported improved ability to manage his psychological symptoms. The report however did state that the Husband was at risk of relapse in times of stress due to ongoing interpersonal difficulties and triggers such as being away from his son. However, the report is dated 4 September 2021 and there is no current evidence from the Husband’s psychologist pertaining to the Husband’s present mental health. The Court observed the Husband give lucid oral evidence, including during brief cross examination of him, and often during the final hearing he chose to speak in the English language rather than through the provided Mandarin interpreter. His submissions to the Court were lucid albeit he tended to concentrate on the unfairness of the proceedings, in particular that he has been prevented from privately negotiating with the Wife.
The Husband asserts that his general health has deteriorated as a whole by reason of his mental health issues since early 2020. He alleges severe headaches from time to time, and constant ringing in the ears. He asserts he felt suicidal in August 2021 and was placed in a mental hospital ward against his will at that time however there is no contemporary medical or other health professional evidence adduced by the Husband in this context. There is no evidence from his treating GPs and indeed the Husband states that he has stopped seeing doctors as a whole.
The Husband’s physical appearance at Court at the final hearing suggested possible difficulties in walking because the Husband was using a walking stick. The Husband asserts that he still works as a tradesman albeit casually by reason of suffering from tennis elbow in one arm. However, again, there is no medical or other health professional evidence adduced by the Husband in these respects.
The Husband, aged 49 years, has significant years ahead of him of income earning potential before retirement. Further, and as referred to below, the Husband has failed to provide adequate financial disclosure, including such disclosure relating to his company; accordingly it may well be that such disclosure would have revealed that the Husband’s work income has not been adversely affected by alleged adverse health issues of the Husband. The Court does not accept that the Husband has experienced any significant loss of work capacity.
The Wife has a modest superannuation entitlement.
The Court accepts that the Husband has failed to provide adequate financial disclosure to the Wife as requested by the Wife’s solicitors; for example, the Wife’s solicitor’s detailed letter of request for financial disclosure by the Husband dated 30 October 2020 (see Annexure R to the Wife’s Affidavit filed 8 May 2022 and the Husband’s dismissive reply to that letter dated 31 October 2020) was, in substance, not answered by the Husband. This lack of financial disclosure by the Husband was further evidenced by his statements to the Registrar on 6 April 2021, and his failure to file and serve an Undertaking as to Disclosure as ordered by the Registrar on 27 October 2021. This lack of financial disclosure by the Husband is relevant to the Court’s finding above as to the Husband’s work capacity, and as submitted by the Wife, this should be taken into account under section 75(2)(o) of the Act.
The Court accepts the Wife’s evidence that the Husband sent money to a woman for the purpose of establishing her small business in the sum of about $10,000. The Court accepts the Wife’s evidence that the Husband sent about $32,000 to another woman in China. The Husband sold the R Street, Suburb S property, registered in his name, this year, and he has failed to account for the sum of about $48,182. These sums should be taken into account under section 75(2)(o) of the Act in favour of the Wife.
The Court is not satisfied that the $30,000–$40,000 sent by the Husband to his family during the parties’ relationship, about 15 years ago, should be similarly taken into account, as the Wife was aware of these payments and does not adduce persuasive evidence that a loan came into being between the Husband’s parents and the parties. The Court does not accept that on 27 April 2021 the Husband withdrew $20,000 from the parties’ NAB joint account and that he also withdrew more than $20,000 from the business account, both sums allegedly withdrawn without explanation; the bank statements in evidence do not support these allegations.
The Court does not accept that any adjustment should be made in favour of the Wife by reason of the family violence asserted by the Wife to have been perpetrated against her by the Husband during the relationship.
The Wife sought a ten per cent adjustment under section 75(2) of the Act.
Taking into account the above matters, there should be an adjustment in favour of the Wife of five per cent representing $179,912 by reference to the net asset pool of $3,598,251.
Thus the adjusted contributions finding is 55 per cent to the Wife and 45 per cent to the Husband.
Justice and equity
Pursuant to the Court’s contribution assessment, the Husband should be left with assets representing, in value, 45 per cent of the net assets including superannuation, being $1,619,212 (45 per cent of $3,598,251).
The Husband has a property in China which he informs the Court is a one bedroom, 20 metre squared apartment the value of which he does not know. There is no evidence that this property was purchased by the Husband after the parties’ cohabitation commenced and during their relationship.
With the $1,619,212 he can probably purchase, inter alia, accommodation, if he so desires.
The Wife will be entitled to 55 per cent of the net assets including superannuation, a sum of $1,979,038 (55 per cent of $3,598,251).
Should the Wife retain:
(a)The property at F Street, Suburb G, unencumbered: $1,650,000;
(b)CBA account: $25,675;
(c)NAB account: $2,135;
(d)Her household contents: $5,000;
(e)The Motor Vehicle 2: $45,900, representing the effective value of T Pty Ltd;
(f)Her superannuation: $26,311;
totalling $1,755,021, then the Wife will need to receive cash of $224,017 (being $1,979,038 less $1,755,021) from the sale of properties, excluding the property at F Street, Suburb G.
Should the Husband retain:
(a)Westpac Choice account: $4,589;
(b)His household contents: $5,000;
totalling $9,589, then the Husband will need to receive cash of $1,609,623 (being $1,619,212 less $9,589) from the sale of properties, excluding the property at F Street, Suburb G.
Again, the Wife remains the primary carer of the child aged 17 years, and the Court refers to its discussion above under section 75(2) relating to, inter alia, her earning capacity. The Husband by comparison is aged 49 years, and the Court refers to its discussion above relating to his work capacity and his health.
The Court is of the view that its proposed property adjustment orders will represent a just and equitable property settlement between the parties.
The Court makes orders accordingly.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Newbrun. Associate:
Dated: 13 December 2022
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