Federal Circuit and Family Court of Australia
(DIVISION 1)
Yeung & Tsang [2022] FedCFamC1F 810
File number(s): SYC 6734 of 2021 Judgment of: HARTNETT J Date of judgment: 28 October 2022 Catchwords: FAMILY LAW – PROPERTY – Adjustment of property assets – Where it is just and equitable to adjust the parties’ property interests – Where the parties lived apart for employment reasons and for many years but contributed all of their income – Where there was a joint bank account – Where otherwise the parties kept separate bank accounts – Where the parties have three properties, one in City J and two in Australia – Where the husband is earning and has historically a higher income than the wife – Where the wife is currently unemployed – Where the wife has mental health issues – Where there is one adult child of the marriage – Where the husband has remarried – Contributions assessed equally save for those post separation earnings of the husband – A 5 per cent adjustment in the wife’s favour under s 75(2) matters – Husband to retain the two properties in Australia and the Wife to retain the City J property – Division of 45 per cent to the husband and 55 per cent to the wife should be made. Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 75(2), 79, 90SM, 90XC
Cases cited: Bell & Nahos [2016] FamCAFC 244
Bevan & Bevan (2013) FLC 93-545
Dickons & Dickons (2012) 50 Fam LR 244
Mallet v Mallet (1984) 156 CLR 605
Division: Division 1 First Instance Number of paragraphs: 80 Date of hearing: 6 – 7 October 2022 Place: Heard in Parramatta, delivered in Melbourne Counsel for the Applicant: Mr Morahan Solicitor for the Applicant: Accuro Maxwell (Sydney) Counsel for the Respondent: Ms Coulton Solicitor for the Respondent: Zhang Shijing Lawyers ORDERS
SYC 6734 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS YEUNG
Applicant
AND: MR TSANG
Respondent
order made by:
HARTNETT J
DATE OF ORDER:
28 OCTOBER 2022
THE COURT ORDERS THAT:
1.Within 90 days of the date of these orders, and, contemporaneously:
(a)the wife do all things and sign all documents necessary to transfer to the husband, at the husband’s expense, all of her right, title and interest in the real property known as and situated at C Street, Suburb D in the State of New South Wales, being the whole of the land comprised in Certificate of Title Folio Identifier Auto Consol … (“the Suburb D Unit”).
(b)the husband do all things and sign all documents necessary to secure a release of the wife from any and all liability with respect to the mortgage on the Suburb D Unit to E Bank (registered mortgage number: …) and associated home loan (account number …77);
(c)the husband do all things and sign all documents necessary to transfer to…
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- AGLC
- Yeung & Tsang [2022] FedCFamC1F 810
- Case
- [2022] FedCFamC1F 810
- Decision Date
CaseChat Overview and Summary
In the case of Yeung & Tsang, the parties sought a just and equitable division of their property interests, including superannuation entitlements, following the end of their marriage. The husband, born in 1964 and remarried, resided with his new wife in City J, while the wife, born in 1967, lived alone in the City J Apartment. The parties married in 1994 and purchased several properties together before their divorce. The wife had primarily cared for their son and did not work until late 2009, receiving accrued benefits from her employment in the amount of approximately $196,000 AUD. The husband had contributed to the family finances post-separation and had remarried. The wife proposed a 5% adjustment in her favor based on the factors outlined in section 75(2) of the Act, while the husband did not concede to this proposal.
The legal issues before the court included determining the appropriate division of the parties' property interests, including superannuation entitlements, and considering the factors outlined in section 75(2) of the Act. The court had to decide whether the wife's proposal for a 5% adjustment was warranted, taking into account the husband's post-separation contributions and the overall fairness of the division of assets. The court also needed to decide whether the wife should be able to become the sole registered proprietor of the City J Apartment and continue her occupation of that property, while also recognizing the husband's post-separation contributions.
The court found that the wife's proposal for a 5% adjustment was warranted to ensure justice and equity between the parties, considering the factors outlined in section 75(2) of the Act. The court also found that it was just and equitable for the wife to receive 60% of the parties' asset pool, excluding superannuation entitlements and the husband's post-separation contributions, to provide her with the ability to become the sole registered proprietor of the City J Apartment and to continue her occupation of that property. The court further found that the husband's post-separation contributions should be recognised in the division of the parties' property interests.
Accordingly, the court made orders that provided for the wife to receive 60% of the parties' asset pool as described in the reasons, giving proper recognition to the matters which favoured the wife in a s 75(2) consideration, and to the fact of the husband's 100% contributions post mid-2018 as conceded by the wife. The court also made orders for the wife to become the sole registered proprietor of the City J Apartment and for the husband's post-separation contributions to be recognised in the division of the parties' property interests.
The legal issues before the court included determining the appropriate division of the parties' property interests, including superannuation entitlements, and considering the factors outlined in section 75(2) of the Act. The court had to decide whether the wife's proposal for a 5% adjustment was warranted, taking into account the husband's post-separation contributions and the overall fairness of the division of assets. The court also needed to decide whether the wife should be able to become the sole registered proprietor of the City J Apartment and continue her occupation of that property, while also recognizing the husband's post-separation contributions.
The court found that the wife's proposal for a 5% adjustment was warranted to ensure justice and equity between the parties, considering the factors outlined in section 75(2) of the Act. The court also found that it was just and equitable for the wife to receive 60% of the parties' asset pool, excluding superannuation entitlements and the husband's post-separation contributions, to provide her with the ability to become the sole registered proprietor of the City J Apartment and to continue her occupation of that property. The court further found that the husband's post-separation contributions should be recognised in the division of the parties' property interests.
Accordingly, the court made orders that provided for the wife to receive 60% of the parties' asset pool as described in the reasons, giving proper recognition to the matters which favoured the wife in a s 75(2) consideration, and to the fact of the husband's 100% contributions post mid-2018 as conceded by the wife. The court also made orders for the wife to become the sole registered proprietor of the City J Apartment and for the husband's post-separation contributions to be recognised in the division of the parties' property interests.
Orders
Orders of the court
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Background
Background to the litigation
The parties sought that the Court make a just and equitable alteration of their property interests, including superannuation interests, acknowledging that pursuant to s 90XC(1) of the Act a superannuation interest is to be treated as property. The parties’ marital relationship is at an end, and they each conceded that there must be a division of their property in the circumstances described in these reasons.Background The husband was born in 1964 and was 58 years at trial. Following the parties divorce, and in late 2019, the husband remarried. He resides with his wife in City J. The wife was born in 1967 and was 55 years at trial. The wife has not re-partnered and resides alone in the parties’ City J Apartment. The parties commenced their relationship in late 1991 and commenced cohabitation in 1993 following their purchase of the property known as and situated at M Street, City J (“M Street Apartment”). At the time both parties were in employment. In late 1994, the parties married in City J. In 1995, the parties purchased their second property known as and situated at N Street, City J (“the N Street Apartment”) In 1997, the parties’ adult son Mr B was born. Following the child’s birth, the wife took little time off work, resuming full-time employment in or around early 1998. In late 1998, the parties purchased, as joint tenants, the property known as and situated at F Street, Suburb G, City J (“the City J Apartment”). In early 2006, the parties and their child obtained permanent residency in Australia. In early 2007, the husband and wife discharged the City J Apartment mortgage. In mid-2008, the wife lodged a claim for payment of accrued benefits due to her upcoming permanent departure from City J. She received a sum of local currency (approximately $196,000 AUD) which was deposited into the parties’ joint account. In mid-2008, the wife and the parties’ son, then aged 10 years, arrived in Australia. The wife obtained rental accommodation in Suburb D and otherwise made all necessary arrangements to establish the parties’ child in Australia, including his schooling and extra-curricular activities. She had the sole care of the child. As a consequence, the wife did not obtain employment, compatible with her responsibilities for the sole care of the child, until late 2009. In 2010, the wife and child were granted Australian citizenship. In December 2010, the wife purchased the Suburb D Unit. In 2011, the City J Apartment, in which the husband had resided since the wife’s departure from City J, was rented out by the parties, with the rental income being deposited in the parties’ joint bank account for their mutual use. At that time, the husband’s employment required him to relocate to Country O. In late 2014, the husband’s employment contract was terminated and he migrated to Australia, to join his wife and son. In 2015, the husband purchased the Suburb K House. The parties moved into this property shortly thereafter and commenced renting out the Suburb D Unit. The wife received the net rental income for this property from that time. Her receipt of that rental continued until the trial. The net income was never large, being approximately $4,000 in the last financial year. The wife applied such income to reduction of the mortgage secured over the property, and on rare occasion to her living expenses.
Evidence
Evidence Before The Court
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Decision
Reasons for decision
The wife proposed an adjustment of 5 per cent in the wife’s favour having regard to the matters in s 75(2) of the Act. The husband did not concede this apportionment. In my view, the wife’s proposal is a warranted adjustment to that part of the asset pool that does not include the monies entirely contributed to by the husband post separation to ensure justice and equity between the parties. Those post separation earnings are another relevant matter to be considered by the Court.Conclusion 55 per cent of the asset pool excluding superannuation entitlements, but including the husband’s post separation contributions is a sum of $3,208,959.60. The wife seeks this adjustment of property interests. 50 per cent of the asset pool excluding superannuation entitlements and excluding the husband’s post separation contributions is $2,639,973.50. The husband seeks this adjustment of property interests. The differential is $568,986.10. If the wife were to receive, the Court not being bound by the parties orders sought, a 60 per cent adjustment of the pool as set out in [76] above, the wife would receive a sum of $3,167,968.20. Justice and equity in the circumstances of this case requires that the wife have an ability to become the sole registered proprietor of the City J Apartment and to continue her occupation of that property. It also requires the husband’s post separation contributions to be recognised. The value of the City J Apartment is $3,197,416. I am satisfied that orders which provide for the wife to receive 60 per cent of the parties asset pool as described in [76] above gives proper recognition to those matters which favour the wife in a s 75(2) consideration, and to the fact of the husband’s 100 per cent contributions post mid-2018 as conceded by the wife. Accordingly, I shall make orders in these terms to give effect to a just and equitable division of the parties property interests.
Ratio Decidendi
Legal Principle Established
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