Yeng & Sun

Case [2025] FedCFamC1A 106

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Yeng & Sun [2025] FedCFamC1A 106

Appeal from: Sun & Yeng (No 5) [2024] FedCFamC1F 702
Appeal number: NAA 333 of 2024
File number: SYC 8025 of 2022
Judgment of: MCCLELLAND DCJ, GILL & BRASCH JJ
Date of judgment: 18 June 2025
Catchwords: FAMILY LAW – APPEAL –  PROPERTY – Appeal from orders dividing the parties’ property so the husband and wife received 50 per cent each of the matrimonial pool – Where the appellant contends that the primary judge erred in assessing the contributions of the parties as equal – Where the appellant contends the primary judge provided inadequate reasons to explain his treatment of funds provided to the appellant by his parents – Where reasons do not establish why the primary judge held that a sum of cash from the appellant’s parents was a gift to both spouses – Reasons inadequate – Appeal allowed – Costs certificates granted – Written submissions in respect to whether the matter should be remitted or whether the Full Court should re-exercise discretion.  
Legislation:

Family Law Act 1975 (Cth) s 79

Federal Proceedings (Costs) Act 1981 (Cth)
Cases cited:

Angelakis v Psychology Board of Australia [2024] SASC 133

Boyle (A Pseudonym) v The Queen (2022) 299 A Crim R 92; [2022] SASCA 50

Chief Commissioner of Police v Crupi (2024) 419 ALR 271; [2024] HCA 34

Hambart & Hambart [2023] FedCFamC1F 642

House v The King (1936) 55 CLR 499; [1936] HCA 40

Wainohu v New South Wales (2011) 243 CLR 181; [2011] HCA 24

Number of paragraphs: 55
Date of hearing: 2 April 2025
Place: Sydney
Counsel for the Appellant: Mr Stapleton
Solicitor for the Appellant: Longton Legal
Counsel for the First Respondent: Dr Ingleby with Mr Mellas
Solicitor for the First Respondent: Lander & Rogers
The Second Respondent: Did not participate

ORDERS

NAA 333 of 2024
SYC 8025 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR YENG

Appellant
AND:

MS SUN

First Respondent

MS HAU

Second Respondent

ORDER MADE BY:

MCCLELLAND DCJ, GILL & BRASCH JJ

DATE OF ORDER:

18 JUNE 2025

THE COURT ORDERS THAT:

1.The appeal is allowed.

2.The Court grants to the appellant a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.

3.The Court grants to the first respondent a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.

4.Within 21 days of the…

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Yeng & Sun [2025] FedCFamC1A 106
Case
[2025] FedCFamC1A 106
Decision Date

CaseChat Overview and Summary

The appeal in the matter of Yeng & Sun was heard before the Full Court of the Family Court of Australia. The appeal was brought by the husband, Mr Yeng, against the property settlement orders made by the primary judge. The wife, Ms Sun, and the husband's mother, Ms Hau, were the first and second respondents respectively. The appeal centered on the primary judge's assessment of the parties' contributions to the matrimonial pool and the treatment of funds provided by the husband's parents. The husband argued that the primary judge erred in assessing the contributions of the parties as equal and provided inadequate reasons for his treatment of the funds provided by the husband's parents.

The legal issues before the court were whether the primary judge erred in finding that the contributions by the parties were equal, and whether the primary judge provided sufficient reasons for his decision. The court had to determine if the primary judge's assessment was unreasonable or plainly unjust, and if the reasons provided were adequate. The court needed to consider the nature of the contributions and whether the primary judge had properly applied the relevant principles in assessing the contributions.

The court found that the appeal had merit and was allowed. The primary judge's reasons for finding that the contributions by the parties were equal were inadequate. The court noted that the reasons did not establish why the primary judge held that a sum of cash from the husband's parents was a gift to both spouses. The court emphasised that reasons must identify the relevant principles of law, refer to relevant evidence, state the judge's findings upon material questions of fact, and provide an explanation for those findings and the ultimate conclusions reached. The court concluded that the primary judge's failure to sufficiently explain his reasoning constituted an error of law.

The court allowed the appeal and granted costs certificates to both parties, indicating that it would be appropriate for the Attorney-General to authorise a payment to each party in respect of the costs incurred in relation to the appeal. The court also directed the parties to file written submissions within 21 days, addressing whether the matter should be remitted for re-hearing before a different judge or whether the Full Court should re-exercise discretion.

The final orders of the court were that the appeal was allowed, costs certificates were granted to both parties, and the parties were to file written submissions regarding the appropriate course of action moving forward.

Orders

Orders of the court

NAA 333 of 2024

SYC 8025 of 2022

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR YENG

Appellant

AND:

MS SUN

First Respondent

MS HAU

Second Respondent

ORDER MADE BY:

MCCLELLAND DCJ, GILL & BRASCH JJ

DATE OF ORDER:

18 JUNE 2025

THE COURT ORDERS THAT:

1. The appeal is allowed.

2. The Court grants to the appellant a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.

3. The Court grants to the first respondent a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.

4. Within 21 days of the date of these orders, the parties are to file written submissions, of no more than 3 pages, in respect to the question as to whether the matter should be remitted for re-hearing before a judge other than the primary judge, or whether the Full Court should re-exercise discretion.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

We have determined that the appeal has merit and must be allowed for the reasons that follow. RELEVANT FACTS AND BACKGROUND In circumstances where the appeal falls on two discrete issues, we set out the background insofar as it is relevant to the determination of those issues. The husband was born in 1976 and is currently 48 years of age. The wife was born in 1978 and is currently 47 years of age. The second respondent, Ms Hau (“the second respondent”), is the husband’s mother. She was born in 1948 and is currently 76 years of age. The husband and wife married in 2001. They were married for 20 years and had two children, who are now teenagers, and live with the wife in Country B. The husband also lives in Country B. The wife initiated these proceedings in 2022. The trial commenced on 25 September 2023 and proceeded across eight days in four tranches, concluding in December 2023. Judgment was formally reserved on 19 July 2024, when the last submission was received into evidence. Judgment was delivered on 13 November 2024. In setting out the husband and wife’s assets, his Honour noted (at [6]) that the balance sheet was largely agreed. However, the primary judge was required to determine whether the husband’s mother, the second respondent in the proceedings, had an equitable interest in funds and property acquired from funds sourced from an amount of approximately $5 million, which were transferred from Country B by or on behalf of the husband’s mother for the purpose of acquiring financial bonds, to facilitate the intended migration of the husband’s parents to Australia. The history of transactions relating to those funds were largely set out in pleadings filed by the second respondent which, omitting controversial contentions, is as follows (at [9]):(a) in February 2013 the husband’s mother was told that to obtain a significant investor visa she needed to invest AUD $5 million [in Australia] on certain terms;(b) while assisting his mother to set up the necessary accounts in Australia so as to give effect to the deposit of funds in accordance with the significant investor visa, in early 2013 the husband opened Commonwealth Bank account #...69 and Commonwealth Bank account #...77 and the husband lodged an authority to operate both accounts naming the husband as an authorised signatory to both accounts;(c)in early 2013 the husband’s mother deposited approximately AUD $4,900,000 into Commonwealth Bank account #...69;(d)by late 2013 funds standing to the credit of the husband’s mother in the two Commonwealth Bank accounts identified above totalled AUD $5,038,615.87;(e) on the instructions of the husband’s mother, the husband transferred AUD $5,000,000 to the New South Wales government and in late 2013 she acquired NSW Waratah Bonds in an equivalent sum; [we will reference that $5 million as the “Waratah Bonds funds”](f)the NSW Waratah Bonds matured in early 2018 generating interest in the period between late 2013 to early 2018 of $685,518.90;…(h)in late 2016 the husband and wife entered into a contract to purchase the whole of the land known and described as Unit 1 K Street, Suburb J in the State of New South Wales … (“Unit 1”); (i)the same day the husband and wife entered into a contract to purchase the whole of the land known and described as Unit 2 K Street, Suburb J in the State of New South Wales … (“Unit 2”); (j)in late 2019 the husband used his ability to transact on his mother’s two bank accounts so as to misappropriate the sum of AUD $5,851,860;(k)the misappropriated sum of AUD $5,851,860 was deposited into an account in the joint names of the husband and the wife;(l)in late 2019 the husband and wife completed their purchase of Unit 1 and Unit 2 by paying $1,206,030 and $1,226,030 respectively from funds in their joint account into which the allegedly misappropriated sum of AUD $5,851,860 had earlier been deposited; (m)legal title to Unit 1 and to Unit 2 is held by the husband and wife as joint tenants; …

Evidence

Evidence Before The Court

Relevant principles to assist in determining whether the parents intended to gift funds to only their child or to both their child and their child’s partner, were comprehensively considered by Schonell J in Hambart & Hambart [2023] FedCFamC1F 642, where his Honour observed at [99]–[102]:In relation to the question of a gift, Fogarty J in Gosper and Gosper (1987) FLC 91-818 (“Gosper”) said at 76,167–76,168:…Where a gift is made solely to the donor’s relative…and that spouse applies that property to the marriage, that is a direct financial contribution solely by that party and will be assessed in the ordinary way alongside other contributions by each party to the marriage. ……The critical case is where a relative of one of the parties gifts property to both of the parties to that marriage. Dependent upon the circumstances of the case it is, in my view, open to Court in such a case to look at the actuality and treat that as a “financial contribution made directly ... on behalf of’” the spouse relative (see for example Rainbird, Matthews, W., Underwood, Abdullah, Freeman, cf. Cleary, Hogan J. in Freeman, and Antmann).In many such cases that gift was made only because of that relationship and in reality as a means of benefiting that relative in that marriage. It was made “because she was a daughter of that family” as was said in W.’s case at p. 75,527. It is clearly a “financial contribution” and one “made directly” to the acquisition, conservation and improvement of property. In such cases it is open to the Court to conclude, if the facts justify it, that it was made “on behalf of” one spouse.In other cases the evidence, including evidence that the donor intended to benefit both spouses, may not justify that conclusion. If so, the application by the parties of that property to the marriage would, at least at that point, be an equal contribution by them.In Kessey & Kessey (1994) FLC 92-495 (“Kessey”) their Honours considered Gosper and held at 81,149–81,150:… In our opinion the application of the principles enunciated in Gosper should not be so limited. Rather, those principles should be regarded as being applicable in all cases where there has been an advance of money or property by a parent (or perhaps even by some other relative) of one of the parties, to one or both of the parties (or to their property), and the circumstances of the advance cannot be categorized as a loan, or as any other recognized commercial transaction.…… In other words, a contribution by a parent of a party to a marriage to the property of the marriage will be taken to be a contribution made by or on behalf of the party who is the child of the parent unless there is evidence which establishes it was not the intention of the parent to benefit only his or her child. In W & W [2000] FamCA 1302 [at 138], the Full Court noted that Kessey:… effectively puts the onus on the spouse who is not the child of the generous parent to place evidence before the Court that the parent did not intend to benefit only his or child, absent which the benefaction of the parent will be presumed to be a contribution by or on behalf of the child spouse…(Emphasis added)

Decision

Reasons for decision

The guidance provided in the authorities setting out the nature of the requirement of providing adequate reasons was usefully summarised by Doyle J in Angelakis v Psychology Board of Australia [2024] SASC 133 at [355]–[356], as follows:Turning to the obligation to give reasons, the principles were summarised in Boyle (a pseudonym) v The Queen [[2022] SASCA 50 at [119] (Livesey P, Lovell and Bleby JJA)]:Reasons are to be read as a whole [R v Ricciardi (2017) 128 SASR 571 at [25]]. It is not necessary for a judge or magistrate to give extensive and elaborate reasons [R v Ricciardi (2017) 128 SASR 571 at [25]; R v Mayger (2013) 116 SASR 488 at [21]; R v Keyte (2000) 78 SASR 68 at [52]; Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385–386]. The content and detail of reasons will vary according to the nature of the specific jurisdiction and jurisdictional powers exercised by each court, as well as the particular matter the subject of the decision [DL v The Queen (2018) 266 CLR 1 at [32]]. However, an appellate court should not have to guess or speculate as to what a magistrate or judge may or may not have meant, particularly on an important issue. The reasons must be more than a bare statement of the principles of law applied and the findings of fact made; there must be exposed a reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached [Fleming v The Queen (1998) 197 CLR 250 at [28]]. Reasons must identify the relevant principles of law, refer to relevant evidence, state the magistrate or judge’s findings upon material questions of fact and provide an explanation for those findings and the ultimate conclusions reached by the magistrate or judge [DL v The Queen (2018) 266 CLR 1 at [32]–[33]]. Obviously, there are limits to the requirement to deal distinctly with every item of evidence and argument presented. Justice Nettle dissented in the outcome in DL v The Queen [(2018) 266 CLR 1]. However, even on his statement of the principles, it is relevant to consider whether evidence was ‘cogent’, and whether arguments are ‘substantial’. In a passage recently referred to by the Court of Appeal with approval in the context of the reasons required to be given by the South Australian Employment Tribunal [Return to Work Corporation of South Australia v Wastell [2024] SASCA 98 at [102] (Livesey ACJ, Bleby and David JJA)], his Honour said [DL v The Queen (2018) 266 CLR 1 at [131]]: Since parties must be able to see the extent to which their cases have been understood and accepted, a trial judge will ordinarily be expected to expose his or her reasoning on points critical to the contest between the parties. This applies both to evidence and to argument. If a party relies on relevant and cogent evidence which the judge rejects, the judge should provide a reasoned explanation for the rejection of that evidence. If the parties advance conflicting evidence on a matter significant to the outcome, both sets of evidence should be referred to and reasons provided for why the judge prefers one set of evidence to the other. Similarly, while a judge is not required to deal with every argument and issue that might arise in the course of a trial, if a party raises a substantial argument which the judge rejects, the judge should refer to it and assign reasons for its rejection. And in providing reasons, the judge is required to make apparent the steps he or she has taken in reaching the conclusion expressed, for reasons are not intelligible if they leave the reader to speculate as to which of a number of possible paths of reasoning the judge may have taken to that conclusion. Failure sufficiently to expose the path of reasoning is therefore an error of law. (Emphasis added)

Ratio Decidendi

Legal Principle Established

In his Amended Notice of Appeal, the husband relies on two grounds. They are:1In making orders 1 to 11 inclusive made on 13 November 2024 (“the relevant orders”) in circumstances where:1.1 at the commencement of their relationship the husband and wife had no appreciable or valuable assets between them;1.2 the husband and wife did not expend their own money acquiring real estate in Australia;1.3 the Husband’s income in Australia was de minimis;1.4 the Wife did not work;1.5 in or about 2007, the Husband’s parents provided to the parties approximately $400,000 which was used by the parties for the purchase and improvement of [the Suburb NN property] which was sold in 2014 for $855,000 the proceeds of which were retained by the parties;1.6 in or about 2010, the Husband’s parents transferred title to the property at [AA Street, Suburb BB, City CC, Region Z, Country B] to the Husband for no consideration;1.7in or about October 2012, the Husband’s mother transferred $900,000 to the Husband which in 2013 he used to purchase [the OO Street, Suburb LL property] which he sold in May 2022 for $1,770,000 and from the proceeds of sale paid $680,000 to each party as a partial property distribution leaving $374,169;1.8in or about 2013, the Husband’s mother transferred approximately $5 million to an account in her name operated by the Husband (“the mother’s account”) which money the Husband could do whatever he wanted with of which the Husband:(a)applied $5 million to the purchase of a bond in the name of his parents which matured [in early] 2018; (b)deposited the funds received on maturity of the bond and interest earned on the bond to the mother’s account;(c)withdrew from the mother’s account approximately $5.9 million (“the visa money”) from which he:(i)applied $1,206,030 and $1,226,030 respectively (total of $2,432,060), towards the purchase of [the Suburb J apartments] in [late] 2019;(ii)paid $3,409,632 to his mother between January and March 2021;1.9the net assets including superannuation of the parties as at the date of the relevant orders:(a) had a value of $17,866,550.60;(b) included the [City CC] property at a value of $223,858;(c)included $374,169 being the balance of net proceeds of sale of the [Suburb LL] apartment;(d)included the [Suburb J] apartments at a combined value of $2.2 million;(e)included as an add back $3,409,632 which the Husband had paid to his mother;(f)included as partial property distributions two amounts of $680,000 paid to the parties;(g)included no amount as owing by either of the parties to either of the Husband’s parents in respect of the mother’s funds, the primary judge erred in finding that the contributions by the parties were equal (AB p194, R [433]):1.10 as such finding is unreasonable or plainly unjust and is plainly wrong;1.11failed to take into account a material consideration, namely the receipt and application of the mother’s funds, and should have found that the contributions by the Husband were materially greater than those of the Wife, such that the relevant orders were not just and equitable and the discretion miscarried.2In making the relevant orders, the primary judge failed properly and sufficiently to explain his reasoning for making such orders in that he failed properly and sufficiently to explain why he found that the contributions of the parties were equal.CONSIDERATION