XIONG and Hoang and Anor - [2019] FCCA 2914

FEDERAL CIRCUIT COURT OF AUSTRALIA

XIONG & HOANG & ANOR

[2019] FCCA 2914

Catchwords:
FAMILY LAW – Property settlement – marital relationship – substantial monies advanced by the husband’s mother for purchase of real estate and construction of houses – whether loans or gifts – whether the wife owns property in China in addition to a car park.

Legislation:
Family Law Act 1975, ss.72(1), 75(2), 79(2), 79(4), 106A

Cases cited:
Bevan v Bevan (2013) 279 FLR 1; (2013) 49 Fam LR 387; [2013] FamCAFC 116
In the Marriage of Weir (1992) 110 FLR 403; (1992) 16 FamLR 154; (1993) FLC 92-338
Stanford v Stanford (2012) 247 CLR 108; (2012) 293 ALR 70; (2012) 87 ALJR 74; (2012) 47 Fam LR 481; (2012) FLC 93-518; [2012] HCA 52
Trevi & Trevi [2018] FamCAFC 173

Applicant:

MS XIONG

First Respondent:

MR HOANG

Second Respondent:

MS HAM

File Number:

MLC 11592 of 2016

Judgment of:

Judge Riley

Hearing dates:

8 and 9 May 2019

Date of last submission:

18 June 2019

Delivered at:

Melbourne

Delivered on:

14 October 2019

REPRESENTATION

Solicitors for the applicant:

Knight Family Lawyers

Counsel for the applicant:

Mr Chislett

Solicitors for the first respondent:

Winstan Lawyers

Counsel for the first respondent:

Mr Cash

Advocate for the second respondent:

In person

Solicitors for the second respondent:

None

DECLARATION

The purported loan agreement dated 15 June 2017 between the first and second respondents is a fabrication and is void and of no force or effect.

ORDERS

The first respondent forthwith do all such acts and things to immediately offer for sale by public auction the property situate at and known as A Street, Suburb B, Victoria, more particularly described in certificate of title volume … folio … (“the real property”), with a reserve of at least $750,000 unless otherwise agreed in writing by the applicant and the first respondent.
The second respondent forthwith remove her caveat on the real property at her own expense.
The proceeds of sale be applied:
(a)firstly, to the proper and reasonable costs of sale;
(b)secondly, of the balance, 65% to the wife; and
(c)thirdly, the residue to the husband.
Contemporaneously with the payment to the applicant of 65% of the balance of the proceeds of sale, she withdraw at her expense her caveat on the real property.
Within seven days, the first respondent transfer to the applicant at the first respondent’s expense the whole of his right, title and interest in the Motor Vehicle C motor vehicle registered number ….
The first respondent sign all documents and do all things necessary to effect the transfer of the Motor Vehicle C, including the transfer of any insurance policies relating to the vehicle.
The first respondent retain the Motor Vehicle D motor vehicle registered number ….
In the event that any of the parties fail to execute any document required by any of these orders, then, pursuant to s.106A of the Family Law Act 1975, a registrar of the Federal Circuit Court of Australia be appointed to execute in the name of the relevant party the required document.
Unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money due under these or any subsequent orders:
(a)each of the applicant and the first respondent be solely entitled to the exclusion of the other to all property, including choses in action, in their possession as at the date of these orders;
(b)any money standing to the credit of the applicant and the first respondent in a bank account is to be retained by the person in whose name the account is;
(c)any insurance policy be the sole property of the owner named thereon;
(d)each of the applicant and the first respondent be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and
(e)any joint tenancy of the applicant and the first respondent in any real or personal estate is otherwise expressly severed.
The applicant and the first respondent have liberty to apply in relation to the sale of the real property.

NOTATIONS

Section 121 of the Family Law Act 1975 provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 11592 of 2016

MS XIONG

Applicant

And

MR HOANG

First Respondent

And

MS HAM

Second Respondent

REASONS FOR JUDGMENT

Introduction

This is an application for property adjustment under s.79 of the Family Law Act 1975 (“the Act”). The applicant is the wife. The first respondent is the husband. The second respondent is the husband’s mother.
The husband’s mother was joined as a party to the proceeding by orders made on 25 September 2018. The husband’s mother was represented by solicitors from 20 November 2018 until 6 December 2018 but was otherwise unrepresented. She did not file any material, except for her written closing submissions filed on 18 June 2019. It seems that she was in China or Country U at all material times. She was given leave to participate in the final hearing by video link. She gave evidence by video link through an interpreter. She was not present by video link for the entirety of the final hearing.
There are two children of the relationship, X born on … 2009 (“X”) and Y born on … 2011 (“Y”). X is nine years old and Y is eight years old. On 8 May 2019, which was the first day of the final hearing, final parenting orders were made by consent. They provided for the parents to have equal shared parental responsibility, X and Y to live with their mother, and X and Y to spend time with their father each week from after school on Friday until 1pm on Sunday, half school holidays and on special occasions.

Chronology

On … 1976, the husband was born in China. He is now 43 years old. On … 1988, the wife was born in China. She is now 31 years old.
The husband came to Australia to study in 1998. He became a permanent resident in 2004 or 2005 and an Australian citizen on … 2007.
On … 2007, the husband became the registered owner of the land at A Street, Suburb B. He subsequently arranged for the construction of a house on that property which eventually became the former matrimonial home. The husband said that he paid for the land and the construction of the house with money he borrowed from his mother. The wife said that the money for the purchase of the land was a gift to the husband and the money for the construction of the house was a gift to the husband and the wife. The husband’s mother said that the money for both the purchase of the land and the construction of the house was a loan.
In late 2007, the husband and wife met in China.
The husband alleged that, on … 2008, the wife got a 30 year lease of the factory at City D, H Province, China. The wife said that she got the lease in 2011, it had rarely been tenanted and she had disposed of it. The husband’s mother said that she arranged for the wife to get the lease in the wife’s name, but the husband’s mother paid for all of it.
In … 2008, the husband bought the land at J Street, Suburb K. He subsequently arranged for the construction of a house on that property which eventually became an investment property. The husband said that he paid for the construction of the house with money borrowed from his mother. The husband conceded in cross-examination that, during the marriage, from 2010 until 2016, he and the wife had the benefit of the rental income from that property. The wife said that the money for the purchase of the land was a gift to the husband and the money for the construction of the house was a gift to both the husband and the wife. The husband’s mother said that the moneys for both the purchase of the land and the construction of the house were loans.
The husband and wife had a traditional wedding in China in … 2008. In … 2008, the wife received a partner visa, which allowed her to travel to Australia. The husband and the wife commenced cohabitation in Australia in … 2008.
The husband was largely unemployed throughout the relationship. The husband alleged that the wife ran an online business from home, whereby she exported baby formula and other items to China. The wife denied that, saying that she had tried to establish an online export business but it failed and said she ultimately only sent items to friends and relatives in China.
On … 2009, X was born. On … 2011, Y was born. The parties were in dispute about who cared for the children. The husband said he did the bulk of the child care, because he was unemployed and the wife was busy running her online business. The wife said that she did the bulk of the child care except for a relatively short period of time when she was sick.
On … 2012, the wife’s aunt, Ms L, became the registered owner of the apartment at City M, H Province, China and its car park. The husband alleged that the aunt holds both the apartment and car park on trust for the wife. The wife denied that apartment and car park were hers. The husband’s mother said that she paid for the apartment and carpark and put them in the name of the aunt, who was her friend, because it was more convenient.
The husband alleged that, on … 2013, the wife became the registered owner of the apartment at City M, F District, China and the associated car park. The wife disputed that she owned the apartment but conceded that she owned the car park.
On 2 December 2015, a final intervention order was made against the wife for the protection of the husband and the two children. The order was made in the wife’s absence and was expressed to last for one year. It excluded the wife from being within 200 metres of the Suburb B property.
Notwithstanding the intervention order, in December 2015, the parties separated under one roof.
In April 2016, the husband sold the J Street, Suburb K property for $525,000, and transferred $518,000 of the proceeds to his brother in Country U. The husband said that he did so at the direction of his mother, to whom he owed the money he had used to buy the J Street, Suburb K property and to build the house on it. The wife said that the $518,000 was part of the pool because the money advanced by the husband’s mother was a gift and not a loan. The husband’s mother said that the proceeds of sale of the J Street, Suburb K property were hers.
On 6 April 2017, the husband and wife were divorced.
On 15 June 2017, the husband and his mother purportedly entered into a written agreement which recorded that the husband had previously borrowed $872,355 from his mother in instalments paid from 2008 until 2010. In the loan agreement, the husband granted his mother a charge over his A Street, Suburb B property. The husband’s mother has registered a caveat over the A Street, Suburb B property.
The wife vacated the A Street, Suburb B property on 3 July 2017. X and Y went to live with her after about one month.
In April 2018, the husband vacated the A Street, Suburb B property in anticipation of selling it. On 21 June 2018, the husband sold the A Street, Suburb B property, with a settlement date of 21 September 2018. The sale was rescinded because the husband’s mother refused to withdraw her caveat. It was a condition of the sale contract that the husband would not be liable for any penalty if the contract was rescinded because the caveat was not removed. The husband is now living in rental accommodation, and the A Street, Suburb B property is vacant.
In … 2018, the wife repartnered. She has had another baby with her new partner.
In about September 2018, the father got a casual job working in a business. He earns on average $225 per week. The wife now works as a customer service officer in a business. She earns $440 per week from that job, and also receives per week $90 as a parenting payment, $237.16 as family tax benefit and $90.22 as rental assistance, making a total of $857.38 per week.
On 8 May 2019, being the first day of the trial, the parties agreed to final parenting orders whereby X and Y would live with their mother and spend each weekend, half of school holidays and time on special occasions with their father.

Issues in dispute

The principal issues in dispute were:
a)whether the $872,000 advanced by the husband’s mother to the husband for the purchase of the A Street, Suburb B property and the construction of a house on it was a loan or a gift, with the wife saying it was a gift and the husband and his mother saying it was a loan;
b)whether the money advanced by the husband’s mother to the husband for the purchase of the A Street, Suburb B property and the construction of a house on it was a loan or a gift, with the wife saying it was a gift and the husband and his mother saying it was a loan;
c)whether the proceeds of sale of the A Street, Suburb B property, being $518,000, which was sent by the husband to his brother in Country U, should be included in the pool as an addback;
d)whether the wife owns any more property in China than City M, F District car park;
e)whether the wife ran an online export business from home; and
f)the proportions in which the husband and wife looked after X and Y and attended to domestic tasks.

Material relied upon

The wife relied upon:
a)her amended initiating application filed on 10 April 2019;
b)her financial statement sworn on 10 April 2019; and
c)her affidavit affirmed on 10 April 2019.
The husband relied upon:
a)his affidavit affirmed on 12 February 2018;
b)his affidavit affirmed on 26 April 2018;
c)his amended response filed on 30 April 2019;
d)his financial statement sworn or affirmed on 29 April 2019;
e)his affidavit affirmed on 29 April 2019; and
f)the affidavit affirmed by Mr N on 6 May 2019.
The husband’s mother did not file any material, other than her written closing submissions, but relied upon her oral evidence.

Credibility issues

I do not consider that any of the parties were entirely reliable witnesses. The husband’s mother said some things that were dramatically different to the husband’s version of events.
For example, in relation to the husband’s credibility, the husband’s mother said that the properties in the aunt’s name, were held on trust by the aunt for the husband’s mother. This was consistent with the wife’s claim that she had no interest in the City M, H Province apartment and carpark and inconsistent with the husband’s claim that the aunt held the apartment and carpark on trust for the wife.
As another example, to explain various transactions in his bank account, the husband said that his mother had sent him $1,000,000 to invest on her behalf but that he had later repaid it all to her. The husband’s mother agreed that she had sent him $1,000,000 to invest, but said he had only repaid $300,000. The $1,000,000 was different money from the funds advanced to buy the A Street, Suburb B and J Street, Suburb K properties.
The husband’s evidence was also often implausible. For example, he said that he was earning about $225 per week, but that his expenses were about $959 per week. He firstly said that he made up the shortfall by borrowing from his niece, then he said he borrowed from his niece’s mother, then he said that he used $10,000 or $11,000 that he had had in the bank.
Much of the wife’s evidence simply stretched credibility, for example, that she worked in a business, sometimes three nights a week, and did not receive any payment at all because she was simply helping out a friend.
The husband attacked the wife’s credibility by saying that she had failed to produce the bank statements for the account ending in the numbers …. The wife maintained that she had produced those statements. The husband was adamant that she had not. The wife was eventually able to produce a document which showed that the account ending in the numbers …, the statements of which she had produced, was linked to the account ending in the numbers …. I am satisfied that the wife did, in effect, produce the statements for the account ending in the numbers ….
I consider that the husband’s mother’s evidence lacked credibility. For example, she claimed that the J Street, Suburb K property was her investment, but the husband and wife received the rental income from that property during their relationship. Moreover, she claimed that she entered into a loan agreement after the husband and wife separated for monies that she said that she had lent them many years earlier. It is implausible that she would have entered into a genuine loan agreement at that time.

Apartment City M, H Province, China

As mentioned above, on … 2012, the wife’s aunt, Ms L, became the registered owner of the apartment at City M, H Province, China and its car park). The husband alleged that the aunt holds both apartment and car park on trust for the wife. The wife denied that apartment and car park were hers. The husband’s mother said that she paid for the apartment and carpark and arranged for them to be registered in the name of the aunt, who was her friend, because it was more convenient.
The husband produced evidence that about $62,000 was transferred from Mr O, who was said to be a member of the husband’s mother’s staff, and Mr P, who was said to be the husband’s mother’s accountant, to the wife’s aunt between … 2012 and … 2016.
The wife accepted that she sent the husband a text message on 5 March 2017 in which she said:
The China one, I still need to pay off 4300 a month, 500 for body corporate, 5,800 a month. Factory rental is not enough to pay. And the name is not written under my name. It’s written as my second auntie. How could she be shameless to give me.
The wife said that the China one mentioned in that text message referred to apartment City M, H Province, and presumably the car park, which belonged to her aunt. The wife said she had never paid any money into the apartment.
The wife said that, if the husband’s mother had transferred money to the aunt, it was not clear that the aunt had used the money to buy the apartment. The wife was unable to explain why the husband’s mother would have transferred money to the wife’s aunt if it was not for the wife’s benefit. The wife said that, if she tried to sue her aunt for the property, she would not be able to get it.
The wife was unable to satisfactorily explain why she said in her text message on 5 March 2017 that she was paying 4,300 plus 500 a month for the apartment. At first she said that she was angry when she sent the text message. That explains nothing. When pressed, after previously saying that she had never paid any money for the apartment, the wife said that she had given her aunt money to make payments for the apartment. Eventually, the wife said that her aunt had made 95% of the payments for the apartment.
The wife agreed that she and the husband lived in the apartment in 2012. The wife said that her aunt let them stay there.
The husband’s mother gave evidence via video link. She said that her occupation is a customer service officer She said that she is presently living in Country U. She said that the wife’s aunt is her friend. She said that the aunt offered to introduce her niece to the husband. The husband and the niece later got married. That is, the niece is the wife in this proceeding.
The husband’s mother said in her oral evidence that:
a)she asked the wife’s aunt to buy an apartment in H Province in the aunt’s name for the husband’s mother;
b)she arranged for RMB297,513 (about $50,000) of her money to be paid from Mr O, and her accountant, Mr P, to the aunt for that purpose from … 2012 to … 2016;
c)in addition, she arranged for RMB57,578.83 (about $12,000) of her money to be paid from her accountant, Mr P to the aunt for that purpose from … 2012 to … 2012;
d)the payments were so that the aunt could make the repayments on the apartment; and
e)she had the apartment put in the aunt’s name rather than her own because she did not live in H Province, it was inconvenient for her to travel back and forth, and she believed that the apartment would eventually belong to the husband and the wife in any event.

I prefer the husband’s mother’s evidence and the wife’s evidence on this issue. I conclude that the apartment and carpark are held by the aunt on trust for the husband’s mother. I consider that the husband’s mother originally intended the apartment and car park to eventually belong to the husband and wife. However, after separation in 2015, the husband’s mother stopped paying for the apartment and carpark, and the wife made some repayments. That explains the wife’s text message on 5 March 2017. Technically, the apartment and carpark are held by the aunt on trust for the husband’s mother. As such, they do not form part of the property pool. I consider the wife and the husband’s mother to have been largely truthful about this issue and the husband to have been largely untruthful about this issue.

The husband’s income

The husband said that he now works as a labourer on a casual basis. He said he earned on average $225 per week and his rent was $312 per week. He said he made up the shortfall with borrowings from his niece.
When it was pointed out to the husband that his financial statement said that his weekly expenditure was $959, leaving a shortfall of $734, he said that Centrelink made up the difference. When it was pointed out that his financial statement said that he received no government benefits, he said that was his mistake. He produced a letter from Centrelink on his mobile telephone which showed he had received a payment from Centrelink of $280. When it was put to the husband that he still had a shortfall, the husband said that he had borrowed up to $20,000 from the mother of his niece.
When it was pointed out to the husband that his financial statement said that he spent $5,000 per year on holidays, he said that he still had $10,000 or $11,000 in the bank.
The husband was shown a statement for an ANZ account ending in the number … (exhibit 4) which he said was his. The husband said that his mother had sent him $1,000,000 for investment purposes, which he had moved around in his accounts, and then returned to her. The husband’s mother said that he had only repaid $300,000.
I am not at all satisfied that the husband has been honest with the wife and the court about his income. Consequently, the rule in the decision of the Full Court of the Family Court in In the Marriage of Weir (1992) 110 FLR 403; (1992) 16 Fam LR 154; [1993] FLC 92-338 applies. The Full Court said in that case:
32.This Court has pointed out in a line of cases leading up to the recent decision of the Full Court in Black and Kellner (1992) FLC 92-287, that it is the duty of a party involved in property proceedings in this jurisdiction to make a full disclosure of their financial affairs. See also Giunti and Giunti [1986] FamCa 1; (1986) FLC 91-757, and Muzzacappa and Muzzacappa [1987] FamCA 20;(1987) 11 FamLR 957. It is clear enough from his Honour's findings in the present case that the husband had not done so and had in fact pocketed the proceeds of a substantial number of cash sales. It is obvious that in most cases of this nature it is difficult enough for the other party to establish that fact let alone establish the quantum of what has been taken.
33.It seems to us that once it has been established that there has been a deliberate non disclosure, which follows from his Honour's findings in this case, then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature.
34.It is true that in the case of Monte and Monte (1986) FLC 91-751, the Full Court said that to found jurisdiction under s79 in relation to property other than that which had been identified, the trial judge was obliged to make a finding as to the existence and value of other undisclosed property, even though the unsatisfactory nature of the evidence made it necessary to express that finding in the most general terms both as to identity and value.
35.We confess to some difficulty with this proposition. We should have thought that the Court's jurisdiction to make an order going beyond the identified property arises once there is sufficient evidence to support a finding that the party has not made a full disclosure of his or her assets.
36.The difficulty then arises as to what order should be made. However we are troubled by the proposition which seems to arise from Monte and Monte that if a party is either cunning enough or vague enough to cover his or her tracks sufficiently to prevent a Court making a finding as to the amount that has not been disclosed, then the other party fails. We do not believe this to be the law and insofar as the decision in Monte and Monte supports such a proposition, we do not believe that it should be followed.
…
41.In this case, we think that it is possible for this Court to make an assessment, using Mr Calabro's evidence to set some limit upon the amount removed by the husband.
Applying Weir to the husband’s case, I consider that the court need not be circumspect in making findings against him.

The A Street, Suburb B and J Street, Suburb K properties

On … 2007, the husband became the registered owner of the land at A Street, Suburb B . He subsequently arranged for the construction of a house on that property which eventually became the former matrimonial home. The husband said that he paid for the land and the construction of the house with money he borrowed from his mother. The wife said that the money for the purchase of the land was a gift to the husband and the money for the construction of the house was a gift to the husband and the wife. The husband’s mother said that the moneys for both the purchase of the land and the construction of the house were loans.
In … 2008, the husband bought the land at J Street, Suburb K. He subsequently arranged for the construction of a house on that property which eventually became an investment property. The husband said that he paid for the construction of the house with money borrowed from his mother. The husband conceded in cross-examination that, during the marriage, from 2010 until 2016, he and the wife had the benefit of the rental income from that property. The wife said that the money for the purchase of the land was a gift to the husband and the money for the construction of the house was a gift to both the husband and the wife. The husband’s mother said that the money for both the purchase of the land and the construction of the house was a loan.
The husband said in paragraph 60(e) of his affidavit affirmed on 29 April 2019:
On 2 December 2017, during a conversation with me, the Applicant sent various text messages in Chinese with words to the effect that the Applicant acknowledged and reaffirmed to me that both my mother and I had said that our former family home had been purchased with my mother’s money, for which only my mother would have a say so as to who would have the right to let someone reside at the home and the Applicant said:
“This house was purchased with your mum’s money”
“Only she has the say”
“You also said this before”
“And this is also what your mum said”
If my mother had gifted monies to me for the land purchase and the construction of our formal (sic) family home, then I would have the say as to who get[s] to stay at our former family home and the Applicant would not have argued that “only [my mum] has the say”.
The wife agreed in cross-examination that she sent the texts in question. She claimed that, notwithstanding that she said in a text that only the husband’s mother had a say about the house, she believed that the husband’s mother had given the money to her and the husband. She said her evidence to prove that it was a gift was that there was no loan agreement and there was no request for repayment in the 10 years that she and the husband had the benefit of the money.
The husband produced a loan agreement dated 15 June 2017, between the husband and his mother, which recorded that the husband had previously borrowed $872,355 from his mother in instalments as follows:
a)on 10 January 2008, $20,000.00;
b)on 29 February 2008, $12,495.00;
c)on 17 April 2008, $129,985.00;
d)on 14 November 2008, $99,985.00;
e)on 24 November 2008, $99,985.00;
f)on 24 December 2008, $99,985.00;
g)on 16 January 2009, $99,985.00;
h)on 21 January 2009, $99,985.00;
i)on 30 January 2009, $99,985.00;
j)on 8 October 2009, $99,985.00; and
k)on 24 June 2010, $9,980.00.
Following separation, the husband’s mother placed a caveat on the A Street, Suburb B property. The husband sold the property, but the sale could not be completed because the husband’s mother refused to remove her caveat.
The husband was asked in cross examination why he was not living in the A Street, Suburb B property, which he owned outright. He said he was trying to sell it and did not want the wife to complain about him living there.
The husband’s mother said that:
a)she had given the husband money to buy two blocks of land, being A Street, Suburb B and J Street, Suburb K;
b)one was for her to invest, being J Street, Suburb K, and it did not belong to the husband;
c)the two blocks were in the husband’s name;
d)when she visited Australia, she bought another block of land that was in her name;
e)in 2017, she sent $500,000 to the husband to build a house on the block of land in her name;
f)she paid for the houses constructed at the A Street, Suburb B and J Street, Suburb K properties;
g)the money she spent on the A Street, Suburb B and J Street, Suburb K properties was not a gift, but investments, and she expected the properties to be sold for her profit;
h)she did not come to Australia to participate in the proceedings because it was a nine hour flight and if she had to travel by herself she would get dizzy and scared;
i)she instructed the husband to pay the $500,000 proceeds of sale of the J Street, Suburb K property to her other son in Country U because it was her money;
j)she needed capital so instructed the husband to sell the J Street, Suburb K property;
k)she did not instruct him to sell it because the husband and wife’s marriage had ended;
l)she refused to remove the caveat from the A Street, Suburb B property because she had transferred $1,000,000 to the husband, but he had not repaid $700,000, so if he was able to sell the house he might just spend the money;
m)the husband still owed her $870,000 for the loans for the A Street, Suburb B property; and
n)she was very sad when the husband and wife got divorced.
The evidence given by the husband’s mother that the J Street, Suburb K property was her investment property does not sit well with the husband and the wife having the benefit of the rental income from that property during their marriage.
Obviously, the written loan agreement was dated long after the sums were advanced, and well after the husband and wife’s marriage had ended. I consider the loan agreement to be wholly self-serving and of negligible evidentiary value. I accept the wife’s evidence that the husband’s mother did not ask for the money to be repaid until after the husband and wife had separated.
I consider that the wife’s text messages do not prove that the husband’s mother lent the money, as opposed to giving it. Either way, it was literally true to say that the money for the purchase of both properties was the husband’s mother’s. When the wife said that only the husband’s mother had the right to say who would live in the properties, I do not consider that was intended to be true in a literal or legal sense. I consider that the wife made those comments in a rhetorical manner, and as a sign of respect to the husband’s mother.
The facts that the J Street, Suburb K property was sold after separation, and the proceeds of sale dispatched offshore, reek of an intention to remove assets from the reach of the court. I am completely unpersuaded by the assertion of the husband’s mother that she needed capital. She did not explain what she intended to do with the capital, or provide any evidence that she had another plan for the money that she had previously been content to supposedly leave invested in the J Street, Suburb K property.
I do not accept that the monies provided by the husband’s mother for the purchase of the A Street, Suburb B property and the J Street, Suburb K property were intended by the husband’s mother to be loans. I consider that they were intended to be gifts. If they were actually loans, I daresay that there would have been at least a note to that effect dating from the time of the first advance. The fact that no loan agreement was created until after separation indicates that the loan agreement dated 15 June 2017 was fabricated.
This means that the A Street, Suburb B property and the proceeds of sale of the J Street, Suburb K property form part of the pool. As the husband has disposed of the proceeds of sale of the J Street, Suburb K property, the proceeds will be added back: Trevi & Trevi [2018] FamCAFC 173 at [46].

Employer R

It was put to the wife in cross-examination that she worked at a business called Employer R in 2017 and 2018. She agreed that she had worked there, at times. However, she said that she was not paid for her work because she was simply helping out a friend. She did not disclose any income at that time. She said that she was also studying full time during that period. She accepted that she sometimes worked three nights in a row at Employer R.
The husband’s niece, Mr N, affirmed an affidavit on 6 May 2019. She said that she worked with the wife at Employer R. She said they sometimes worked the same shifts. The niece was not cross-examined. I accept her evidence. However, she did not say in her evidence that she had any knowledge of the wife being paid for her work.
I consider it to be implausible that the wife would have worked the many hours at Employer R that she seems to have if she was not being paid at all. I consider that the wife has concealed from the court some of her income during 2017 and 2018. This is fundamentally dishonest.
Applying Weir to the wife’s case, the court need not be circumspect in making findings against her.

The wife’s online business

The husband alleged and the wife denied that she ran an online business during the relationship whereby she sold items such as baby formula, medications and vitamins to people in China. The wife denied that, and said that she simply sent such items to her friends and family in China.
The wife was then taken to exhibit H-9 to the husband’s affidavit affirmed on 26 April 2018. That exhibit consists of an advertisement on WeChat which had numerous photographs of tins of baby formula and said:
I have been quietly taking orders for milk powders. Even though it is not easy to buy milk powders. I still keep up the effort. Only these are original milk powders packed in Australia. Those labelled with Chinese characters in shops are not originally packed milk powders. If you need any milk powders, please directly leave me a message or send me a private message.
At first the wife said that she had merely forwarded that message. She then said that she had just copied and pasted someone else’s message. When asked why she would have done that, she said that she had thought that she would try to earn some money through an online business but failed.
The husband produced about 200 receipts showing purchases from Chemist Warehouse, supermarkets and such like of baby formula and other items: H-29. The wife agreed that she had bought baby formula, but denied buying, for example, $271 worth of goat soap. The wife maintained that she had only bought items for friends and relatives. She denied that the receipts produced by the husband had anything to do with her.
Some of the receipts were obviously for ordinary supermarket items, such as the receipts dated 11 and 18 January 2015. Some of the receipts were obviously for quantities of baby formula, vitamins and so on that probably could not have been used by one family in a year. However, the husband made no effort to analyse the receipts and show how many tins of baby formula and so on were bought in any particular time frame. It is not for the court to undertake that sort of analysis. In any event, the husband would have needed to have put any such analysis to the wife for comment, which he did not do.
Some of the receipts show the last four digits of the cards that were used to purchase the items, and some have a fly buys number. However, the husband made no attempt to confirm with the wife that those cards or the fly buys number were hers.
The husband also produced 31 shipment records, showing that the wife had sent goods to people in China: H-30. Some of the dates were illegible but the vast majority of them seemed to be for the first six months of 2015. That works out to a little more than one shipment a week. There was no translation of these records, so it was not possible for the court to discern the names of the addressees, or the descriptions of the contents. However, the wife went through a number of delivery dockets in cross-examination and said that they were addressed to her school friends or relatives. It was not put to her that that was not true.
The husband relied particularly on a translation of a document which the wife conceded was in her handwriting: H-45. It listed various cosmetic items and gave a retail and staff price for each. It then said:
Total Turnover:   ¥4635
Profit:                  ¥1186
Profit Ratio:       25.6%
The wife said that she did not have any staff and she had tried to establish an online business but failed. This document is slim evidence of the wife’s overall profit from her business. In any event, ¥1186 works out to be about $247. There was no indication of the timeframe over which that profit was made. The document is consistent with the wife’s claim that she attempted to conduct an online business in exporting baby formula, vitamins and so on, but that it was not successful.
The husband also put to the wife that she operated an online selling business during the relationship. The wife agreed that a particular post that was dated 18 August 2016 was from an account that she used with her children. It had a number of photographs of products and said:
I can help you to buy products from china! Such as …! And also accept wholesale, made to order! all products in China, need to wait for shipping, please pay the deposit before order! Which one you like, tell me, I give you more details about the products, including material, size, functions …..
The wife said that she did not sell any products and was only helping a friend.
I consider, consistently with the wife’s admissions, that she did attempt to conduct an online business. I consider, contrary to her position, that the business included sales on her own account and that she sold goods to people who were not her friends and relations. I suspect that the online business was more successful than the wife conceded. However, on the evidence, I am unable to conclude that the wife’s online business was particularly lucrative. If it had been successful, it would have meant that the wife would have made significant contributions to the support of the family. However, I am unable to be satisfied of that.

Factory

As mentioned above, the husband alleged that the wife obtained a 30 year lease of factory … on … 2008. The wife denied that. She said that she obtained a 30 year lease of the factory from 2011. A translation of the lease agreement is exhibit H-40 to the affidavit affirmed by the husband on 29 April 2019. The lease is dated … 2011. It said that S Pty Ltd leased the factory to the wife from … 2008 until … 2037. The wife said in cross-examination that:
a)she only began leasing the factory in 2011;
b)it was not a factory but a 263 square metre storage facility;
c)she paid the rent;
d)she did not rent it out to anyone else;
e)she left it vacant;
f)she rented it because she was thinking of using it to store items;
g)at the time, she was thinking of running a business;
h)eventually, she could not afford the rent so she relinquished the lease.

The wife agreed in cross-examination that she told the husband in 2016 that she was receiving rent for the factory at that time. However, she told the court that she had not told the husband the truth about that matter.
Exhibit H-12 to the husband’s affidavit affirmed on 26 April 2018 is a translation of an undated text message from the wife to the husband, which she agreed she sent in July 2016. The translation of the message said:
The factory rent has all been used to pay mortgage.
The wife denied that there was a mortgage. The court asked the interpreter to translate the message from the original. The interpreter said that the message said:
Factory rent all used to pay off apartment/room.
The wife said that she paid rent of 10,000RMB per year for the factory. It was put to the wife that the husband’s mother paid the rent for the factory and had done so until 2016. The wife said that the husband’s mother paid the rent in some years but the wife paid the rent in most years. The wife denied that the husband’s mother paid the rent on the factory until mid-2016.
The wife was taken to paragraph 50 of the husband’s affidavit affirmed on 29 April 2019. It contains a summary of payments from 2012 to 2016 that the husband said were made by or on behalf of his mother to the wife’s aunt, on behalf of the wife.
According to the summary, the recipient of the payments was Ms L, who the wife agreed is her aunt. It was put to the wife that the first four payments were made by Mr O, who was a member of the husband’s mother’s staff. The wife said she had did not know the relationship between Mr O and the husband’s mother.
The wife conceded that the husband’s mother had transferred to the wife’s Chinese bank account for X and Y’s expenses about $78,000 over the period 2010 to 2014. The detail of those payments is contained in table 4 at page 13 of the husband’s affidavit affirmed on 29 April 2019. That table shows payments from Mr O directly to the wife amounting to 390,000RMB, or $78,000. The wife accepted that she had received those payments, and said that they had been given to her by a person acting on behalf of the husband’s mother. She said that she was not aware that Mr O was a member of the husband’s mother’s staff, and thought they were just friends.
The wife accepted that she sent the husband a text message on 5 March 2017 in which she said:
The China one, I still need to pay off 4300 a month, 500 for body corporate, 5,800 a month. Factory rental is not enough to pay. And the name is not written under my name. It’s written as my second auntie. How could she be shameless to give me.
When shown that text message, after saying earlier that she had never rented out the factory, the wife said that she had only rented out the factory for one month for cash under the market rate. She then said that she had rented it out for a few months around … 2017. She categorically denied that the factory was tenanted in 2016.
The wife agreed that she had sent the husband a text message on 7 July 2016 saying that:
Each month the rental from the factory is more than RMB $3000!
The wife then said that she only received cash rental payments for a few months, and if it was a long term rental the money would have gone through her bank account.
The wife also claimed that the factory was now rented out by the government to another tenant instead of her. She produced a lease dated 1 January 2019 evidencing that (exhibits 1 and 2). The wife had not disclosed that document prior to trial. The wife claimed that she had terminated her lease of the factory in December 2018.
I do not understand why the lease to the wife would have commenced in 2008 when the lease itself was dated 2011. However, the wife did not suggest that the lease was a fabrication, so I accept that the lease exhibited to the husband’s affidavit was genuine and that the lease of the factory to the wife began in 2008.
Although the husband claimed that his mother had paid the rental for the factory until mid-2016, the husband did not provide a money trail showing that funds provided by his mother were used to pay for the rental on the factory. The wife conceded that the husband’s mother paid the rental on the factory in some years, and she paid the rental in other years. In the absence of anything more concrete from the husband or his mother, I accept the wife’s evidence on that issue.
However, I consider that the wife was not truthful with the court about renting out the factory. At first, she said it was only rented out for one month, then she said it was rented out for only a few months in 2017. She categorically denied that the factory was rented out in 2016, even though she sent the husband a text message on 7 July 2016 saying that the factory rental was more than RMB3000.
I consider that the wife rented out the factory from no later than 2016. I accept her evidence, which was not challenged, that she relinquished the lease on the factory with effect from 1 January 2019, and that the factory is now leased by another person and the wife now receives no income from it. I consider that the wife received rental income from the factory from 2016, or earlier, until the end of 2018.

Valuations of Chinese property

The wife conceded that, notwithstanding orders requiring her to do so, she did not get a valuation of the apartment at City M, H Province, China or car park because her aunt did not allow her to get them and she did not get a valuation of the factory because she was no longer leasing it.

Apartment City M, F District, China

The wife conceded that she owned the car park but denied that she owned the apartment. The husband produced a house holding agreement dated 29 July 2016 in respect of the apartment: H-42. There is a Chinese version and a translation. It is difficult to understand, because it depends on Chinese law and no expert evidence was provided to the court on the effect of the agreement. However, it names the wife and her aunt. It says that the aunt is the actual owner and occupier of the apartment, even though it is registered in the name of the wife. It says that the aunt has made all of the payments for the apartment and would continue to do so. It says that the wife will transfer the apartment to her aunt upon request prior to 19 July 2020.
It seems to me that the wife holds the apartment on trust for her aunt. Consequently, the apartment does not form part of the property pool. I consider that the wife has not made any of the repayments for the apartment.

The distribution of household chores

The husband claimed that he prepared the children for school and took them to school. The wife said that was only for a short period when she was unwell. She said that, generally, she looked after the children and the husband and wife took the children to school together. The wife said that she did all the household chores.
I found the wife to be more plausible on this issue and accept her evidence in relation to it.

The legislation

Section 79 of the Act gives the court power to alter the interests of the parties to a marriage in the property of the parties to that marriage. Sub-section 79(2) of the Act provides that:
The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
Section 79(4) of the Act sets out the matters the court must take into account when considering what orders, if any, should be made for the alteration of the interests of the parties in property. Those matters are:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
The matters to be taken into account under s.75(2) of the Act are as follows:
(a)the age and state of health of each of the parties; and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
(e)the responsibilities of either party to support any other person; and
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party’s role as a parent; and
(m)if either party is cohabiting with another person — the financial circumstances relating to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii)vested bankruptcy property in relation to a bankrupt party; and
(naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i)a party to the marriage; or
(ii)a person who is a party to a de facto relationship with a party to the marriage; or
(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties to the marriage; and
(q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.

The approach to applications under s.79

In Stanford v Stanford (2012) 247 CLR 108; (2012) 293 ALR 70; (2012) 87 ALJR 74; (2012) 47 Fam LR 481; (2012) FLC 93-518; [2012] HCA 52, the High Court explained the proper approach to an application under s.79 of the Act as follows:
37.First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. … The question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.
38.Secondly, although s 79 confers a broad power on a court exercising jurisdiction under the Act to make a property settlement order, it is not a power that is to be exercised according to an unguided judicial discretion. In Wirth v Wirth, Dixon CJ observed that a power to make such order with respect to property and costs “as [the judge] thinks fit”, in any question between husband and wife as to the title to or possession of property, is a power which “rests upon the law and not upon judicial discretion”. … (footnotes omitted)
39.Because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is “just and equitable” to make the order is not to be answered by assuming that the parties’ rights to or interests in marital property are or should be different from those that then exist. All the more is that so when it is recognised that s 79 of the Act must be applied keeping in mind that “[c]ommunity of ownership arising from marriage has no place in the common law”. Questions between husband and wife about the ownership of property that may be then, or may have been in the past, enjoyed in common are to be “decided according to the same scheme of legal titles and equitable principles as govern the rights of any two persons who are not spouses”. The question presented by s 79 is whether those rights and interests should be altered. (footnotes omitted)
40.Thirdly, whether making a property settlement order is “just and equitable” is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised “in accordance with legal principles, including the principles which the Act itself lays down”. To conclude that making an order is “just and equitable" only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act. (footnotes omitted)
…
42.In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4). (emphasis added)(footnotes omitted)
Stanford requires the following matters to be determined in applications brought under s.79 of the Act:
a)whether the parties have separated;
b)the assets and liabilities of each party;
c)the contributions of each party;
d)the future needs of each party;
e)bearing in mind all of the foregoing matters, whether it is just and equitable to make any orders altering the interests of the parties in their property; and
f)what orders, if any, are just and equitable in all the circumstances of the case.
Stanford does not require these matters to be addressed in any particular order. In most cases, it would seem rational to consider them in the order set out above.
The approach outlined above is consistent with the decision of the Full Court of the Family Court in Bevan v Bevan (2013) 279 FLR 1; (2013) 49 Fam LR 387; [2013] FamCAFC 116. I note that in that case, the Full Court said at [89]:
In our view, it will be less likely that the separate issues arising under s 79(2) and (4) will be conflated if judges refrain from evaluating contributions and other relevant factors in percentage or monetary terms until they have first determined that it would be just and equitable to make an order.

The wife’s proposal

The wife proposed final property orders in her closing submissions filed on 17 May 2019 as follows:
1.The Husband shall forthwith do all such acts and things necessary to immediate[ly] offer for sale by private auction the property situate and known as A Street, Suburb B, Victoria more particularly described in Certificate of title Volume … Folio … (“the real property”) for sale.
2.The Second Respondent forthwith remove her caveat on the real property at her own expense.
3.That in the event the First or Second Respondents fail to comply with orders 1 and 2 then pursuant to s.106A of the Family Law Act 1975 (Cth) a Registrar, or other officer of the Melbourne Registry of the Federal Circuit Court of Australia be appointed to execute the contract, transfer, withdrawal of Caveat or all other deeds or documents necessary to sell and settle the sale of the real property, and to be signed in the name of the First or Second Respondents and otherwise do all such acts and things required to give validity and operation to this Order and the conclusion of the sale of the real property.
4.From the net proceeds of sale:
(a)the Wife receive the sum $628,500 (“the payment”).
(b)the Husband to receive the residue of sale.
5.That contemporaneously with the payment the Wife withdraw at her expense her caveat on the real property.
6.That within 7 days (Due Date) of the date of these Orders the husband transfer to Wife the whole of the Husband’s right, title and interest in the Motor Vehicle C registered number … (Vehicle Transfer) in his possession and control.
[7.]That the Husband sign all documents and do all things necessary to effect the Vehicle Transfer, including the transfer of any insurance policies relating to the vehicle (Vehicle Transfer Forms).
[8.]That the Husband retain the Motor Vehicle D registered number … in his possession and control.
[9.]That unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money under these or any subsequent orders;
a.Each party be solely entitled to the exclusion to the other to all property, including choses in action, in the possession of such party as to the date of these orders, with the contexts and chattels in the former matrimonial home to be subject of a division between the parties;
b.Any money standing to the credit of the parties in a bank account are to be retained by the party in whose name the account appears;
c.All insurance policies are to become the sole property of the owner named thereon;
d.Each party be solely liable for and indemnify the other against any liability encumbering any item of property, to which the party is entitled pursuant to these orders;
e.Any joint tenancy of the husband and wife in any real or personal estate is otherwise expressly severed.

Essentially, the wife sought a 50:50 split, with the proceeds of the J Street, Suburb K property being included in the pool, and with the wife to get the Motor Vehicle C. The wife relied primarily on her future needs. She accepted that the husband had a springboard argument, based on the gift made by the husband’s mother of the purchase price for the blocks of land at A Street, Suburb B and J Street, Suburb K. However, the wife maintained that the gifts by the husband’s mother of the money to build the houses on those blocks of land were gifts to both the husband and the wife, so the husband should not get credit for them.

The husband’s proposal

The husband proposed final property orders in his closing submissions filed on 5 June 2019 as follows:
(1) that the husband shall, within 60 days, arrange with the paternal grandmother, to the exclusion of the wife, for the sale of the property situate at A Street, Suburb B in the State of Victoria which is more particularly described in Certificate of title Volume … Folio … (“the A Street, Suburb B property”) or otherwise agreed between the husband and the paternal grandmother.
(2)That the paternal grandmother shall remove her caveat on the A Street, Suburb B property at her own expense at least 7 days prior to the settlement of the sale of the A Street, Suburb B property.
(3)That the wife shall immediately withdraw her caveat on the A Street, Suburb B property at her own expense.
(4)That in the event the husband, the wife and/or the paternal grandmother fail to comply with orders 1 and 2 then pursuant to s.106A of the Family Law Act 1975 (Cth) a Registrar, or other officer of the Melbourne Registry of the Federal Circuit Court of Australia be appointed to execute the contract, transfer, withdrawal of Caveat or all other deeds or documents necessary to sell and settle the sale of the A Street, Suburb B property, and to be signed in the name of the husband, the wife or the paternal grandmother and otherwise do all such acts and things required to give effect validity and operation to this Order and the conclusion of the sale of the A Street, Suburb B property.
(5)That the paternal grandmother shall retain 100% of the net balance of the proceeds of sale of the A Street, Suburb B property.
(6)That the loan agreement between the husband and the paternal grandmother dated 15 June 2017 shall be set aside upon the event that the paternal grandmother receiving 100% of the net balance of the proceeds of sale of the A Street, Suburb B property.
(7)Orders 6 (first and second parts), 7 and 8 of the applicant’s Orders sought in her written submissions are not opposed.
(8)Orders 1,2,3,4 and 5 of the applicant’s Orders sought in her written submissions are opposed.
(9)That the wife shall retain her interest in the assets in China.
Essentially, the husband was happy to transfer the Motor Vehicle C to the wife, and was happy for the A Street, Suburb B property to be sold. However, he wanted all of the proceeds of the sale of that property to go to his mother. He was happy for the wife to retain all of her property in China.

The husband’s mother’s proposal

The husband’s mother proposed final property orders in her closing submissions filed on 18 June 2019 as follows:
1.The paternal grandmother concedes with Orders 1, 2, 3, 4, 5, 6, 7 and 8 of the Orders sought by the husband.
2.Order 9 of the orders sought by the husband is opposed.
3.The assets in China shall be dealt with in accordance with the law in China.
Essentially, the husband’s mother agreed with the husband’s proposed orders, except that she wanted the assets in China to be dealt with according to the law in China.

Whether the parties have separated

The parties agreed that they had separated.

Assets and liabilities

It was not suggested that the parties have any joint assets or liabilities.
The parties agreed that the wife has:
a)a car park in China, valued at $26,000;
b)$15,832 in the ANZ bank; and
c)$187 in a bank in China.
It was not suggested that the wife has any individual liabilities.
The husband alleged that the wife has $2,000 in superannuation. However, she did not concede this, and was not cross-examined about it, so I do not accept it.
The husband alleged that the wife also has apartment in City M, F District, China. However, as found above, I consider that the wife holds the apartment on trust for her aunt. As such, the apartment does not form part of the asset pool.
The husband also alleged that the wife has apartment City M, H Province and car park in China. I have found that they are held by the wife’s aunt on trust for the husband’s mother. As such, they do not form part of the asset pool.
The husband alleged that the wife has a factory. However, as found above, I consider that the wife no longer has the leasehold of the factory.
The husband alleged that the wife has a Motor Vehicle T in China worth $10,000. The wife did not concede that and I do not accept it.
That means that the total for the wife’s individual assets plus superannuation less liabilities is $42,019.
The parties agreed that the husband owns unencumbered the A Street, Suburb B property. The wife said it was worth $775,000 and the husband said it was worth $750,000. A valuation dated 22 August 2017 was exhibit H-21 to the husband’s affidavit affirmed on 12 February 2018. It valued the property at $800,000. That valuation is out of date, given the known falls in the real estate market in recent times. For rough calculation purposes, I will give the A Street, Suburb B property a value of $762,500, but ultimately it will be sold and the proceeds divided in percentage terms.
The parties agreed that the husband previously owned unencumbered the J Street, Suburb K property and that its proceeds of sale are $518,000, which has been transferred to the husband’s brother. As discussed above, that sum will be added back to the pool as money that the husband now has.
The parties agreed that the husband owns unencumbered a Motor Vehicle D and a Motor Vehicle C. The parties agreed that the husband would retain the Motor Vehicle D and transfer the Motor Vehicle C to the wife. The parties differed on the values of the two cars. They were not valued. The wife said the Motor Vehicle D was worth $12,800, while the husband said it was worth $12,000. For rough calculation purposes, I will give it a value of $12,400. The wife said the Motor Vehicle C was worth $17,000 while the husband said it was worth $20,000. For rough calculation purposes, I will give it a value of $18,500.
The parties agreed that the husband has $10,000 in the ANZ bank.
The husband claimed that he had a debt of $872,355 to his mother. As discussed above, I do not consider that he has any such debt, as the monies advanced by his mother were gifts.
The husband also claimed, and the wife disputed, that he had a debt of $28,000 to his niece’s mother. I do not accept that claim.
The husband conceded that he had superannuation of $604.
Therefore, the husband’s agreed total individual assets less liabilities plus superannuation amounted to $1,322,004.
Therefore, the parties’ total agreed combined assets less liabilities plus superannuation amounted to $1,364,023.

Contributions

a. Initial contributions

The parties agreed that the husband’s initial contributions included the husband’s mother financing the purchase of the land at A Street, Suburb B and J Street, Suburb K. As discussed above, the wife conceded that this money was a gift to the husband. As such, it should be regarded as a contribution by the husband.
At the commencement of the relationship, the wife had a carpark at City M, F District, China and the lease of a factory in China.

b. Contributions during the marriage

The parties agreed that the husband’s mother, during the relationship, provided the money for the construction of houses on the A Street, Suburb B and J Street, Suburb K properties. As discussed above, the wife claimed that the funds were a gift to her and the husband. I do not accept that. It seems to me to be extraordinarily unlikely that the husband’s mother would have gifted anything to the wife if she had not been in a relationship with the husband. Consequently, the funds gifted by the husband’s mother for the construction of the A Street, Suburb B and J Street, Suburb K properties should be regarded as a contribution by the husband.
Neither party worked very much during the relationship. They appear to have largely been funded by the husband’s mother. Indeed, the wife conceded that the husband’s mother had provided $78,000 for the expenses of X and Y. This money should also be regarded as a contribution by the husband.
The husband claimed that he was the primary carer of X and Y. I do not accept that. I consider that the wife was their primary carer, and also that she did most of the household chores.

c. Contributions post separation

The parties agreed that the husband’s post-separation contributions included payment to the wife of minimal child support, being $9 per week.
The parties agreed that the wife’s post-separation contributions included the primary care of X and Y and the associated costs, including school fees, medical expenses and groceries.

The s.79(4)(d), (e), (f) and (g) and the s.75(2) factors

As X and Y, who are 9¾ years old and eight years old respectively, will live predominantly with their mother, she will have considerable future needs. The husband pays her $9 per week in child support.
The husband is 43 years old and in good health. Although he has a tertiary education in Australia, he has recently been working as a casual labourer earning about $225 per week, supplemented by some social security benefits. I daresay the husband has a much higher earning capacity.
The wife is 31 years old and in good health. She is currently working in a business and earning about $440 per week. She also receives about $420 per week in parenting payments, rent assistance and family tax benefit. It is not apparent that the wife has a greater earning capacity than she is currently exercising.
The husband could be expected to have an ongoing financial resource in the form of gifts of substantial amounts of money from his mother.
The property of the parties is discussed elsewhere in these reasons.
The wife has a responsibility to support her new child. The financial circumstances of her new relationship were not made known to the court.
Neither the husband nor the wife has any creditors. It was not suggested that the marriage affected either party’s earning capacity.

Whether it is just and equitable to alter the parties’ property interests

The parties agreed that it would be just and equitable to alter their property interests in this case. In view of paragraph 42 of Stanford, the fact that the parties are no longer living in a marital relationship and the various findings made above in relation to contributions and future needs, I also consider that it would be just and equitable to alter the parties’ property interests in this case.

What order is just and equitable?

The financial contributions made by the husband were very substantial, but are offset to some degree by the wife shouldering the lion’s share of the child care and domestic responsibilities. The wife’s future needs are considerably greater than the husband’s.
In all the circumstances of this case, I consider that a 60:40 split in the husband’s favour would be appropriate.
Contrary to the proposal of the husband’s mother, I do not consider that the property in China should be dealt with separately under Chinese law. None of the parties suggested that prior to or during the trial. This court is seized of the entire matter. It is relatively straightforward to include the Chinese assets in any division of property.
The parties agree that the A Street, Suburb B property should be sold. As the funds for it were a gift from the husband’s mother, and not a loan, she should have no involvement in the sale of the property. The husband alone should be required to sell the A Street, Suburb B property. It should have a reserve of $750,000, which the husband conceded that it was worth. In the event of any difficulty, the parties will be given liberty to apply regarding the terms of sale. There should be the usual order under s.106A of the Act.
As the total pool is $1,364,023, the wife needs to have $545,609.20. She presently has assets worth $42,019 and will receive the Motor Vehicle C which is worth about $18,500. That means that, apart from the proceeds of sale of A Street, Suburb B , she will have about $60,519. Taking that sum from the $545,609.20 due to the wife means that the she will need to receive about $485,090.20 from the proceeds of sale of A Street, Suburb B . By my calculation, she should receive about 65% of the proceeds of sale of the A Street, Suburb B property. There will be orders accordingly.

I certify that the preceding one hundred and fifty-five (155) paragraphs are a true copy of the reasons for judgment of Judge Riley

Date: 14 October 2019