Ying & Qigang (No 3) - [2024] FedCFamC2F 1482

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ying & Qigang (No 3) [2024] FedCFamC2F 1482

File number(s): MLC 197 of 2019

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 25 October 2024

Catchwords: FAMILY LAW – Property – said to be a “2 day” case that stretched over 9 days – final hearing elongated over 2 years – expert evidence taken on the courts own motion as to the law of Country F – section 277 of Country F legislation – witness/parties unable to lawfully give evidence electronically from Country F – parties in lockdown in Country F – matter adjourned until parties in Australia – accrued jurisdiction – duty to determine controversies if within jurisdiction – competing fraud allegations – lots of alleged “add backs” – chaotic conduct of the case – a party drafting witness and aligned party affidavits – party interpreting affidavits to witnesses/parties – effect on reliability of evidence – weight to be given to broad opinion and conclusionary evidence – allegations of substantial transfers of cash – dispute of ownership of dwelling in Country F – Dwelling in Country F registered in name of husband and wife-weight to be given to decision of courts of Country F – whether parties bound by decisions of courts of Country F – allegations of non-disclosure – allegations of “hidden” bank accounts – need for actual satisfaction of events or circumstances alleged – court satisfied of possibility of events alleged but does not have actual satisfaction of events alleged – effect of section 81 – effect of section 139 of the FCFCOA Act – section 139 does not command a lower standard of proof – whether court satisfied of events and circumstances that mean it is just and equitable to change recorded ownership of dwelling in Country F – accrued jurisdiction- claims of third parties against Husband not proven and dismissed – accrued jurisdiction claims of Husband against third parties not proven and dismissed – assurance of support lodged with Services Australia – just and equitable that one party transfer all right and title in those funds to the other spouse – save as to order relating to assurance of support, application to alter property interests dismissed.

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 75, 79, 80 & 81

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 139

Limitation of Actions Act 1958 (Vic) ss 5 & 27

Cases cited:
Akbar & Gandega [2023] FedCFamC1A 174

Bambrick & Gorman [2023] FedCFamC1F 654

Bao v Qu; Tian (No2) [2020] NSWSC 588

Blass & Blass [2022] FedCFamC1A 63; (2022) FLC ¶94-085

Bosanac v Federal Commissioner of Taxation (2019) 267 FCR 169, [2019] FCAFC 116

Briginshaw v Briginshaw (1938) 60 CLR 336

Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731, [2005] NSWCA 110

Fox v Percy (2003) 214 CLR 118

Hickey and Hickey and the Attorney-General [2003] FamCA 395; (2003) FLC 93-143 

Ibbott & Chaconas and Ors [2014] FamCA 73

Johnson v Page (2007) FLC 93-344

Keskin & Keskin and Anor [2019] FamCAFC 236; (2019) FLC 93-932

Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369

Ogilvie v Adams [1981] VR 1041

Parshen v Parshen (1996) FLC 92-720

Stanford v Stanford [2012] HCA 52

VL Finance Pty Ltd v Legudi [2003] VSC 57

Ying & Qigang [2023] FedCFamC2F 111

Division: Division 2 Family Law

Number of paragraphs: 304

Date of last submission/s: 1 May 2023

Date of hearing: 17 & 18 November 2020, 1 & 2 February 2021, 15 & 16 February 2021, 19 & 20 January 2023 and 1 May 2023.

Place: Melbourne

The Applicant In Person

The First Respondent In Person

The Second Respondent In Person

The Third Respondent In Person

ORDERS

MLC 197 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS YING

Applicant

AND:
MR QIGANG

First Respondent

MR YING

Second Respondent

MS JIAN

Third Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

25 OCTOBER 2024

THE COURT ORDERS THAT:
1.Pursuant to section 79 of the Family Law Act 1975 (Cth) (‘the Act’), the applicant, Ms Ying and the first respondent, Mr Qigang do all acts and things and execute any necessary document to cause and ensure that the deposit or ‘assurance of support’ of AUD $10,000 paid in respect of the application for a visa concerning the residence of the Second Respondent, Mr Ying when no longer required, and is released, that such sum be paid to Ms Ying (‘the assurance of support order’).
2.Save as provided in the assurance of support order herein, the application of Ms Ying for property alteration orders pursuant to section 79 of the Act, be and is dismissed.
3.Save as provided in the assurance of support order herein, the response of Mr Qigang wherein he sought property alteration orders pursuant to section 79 of the Act, be and is dismissed.
4.The applications of the second respondent, Mr Ying, and of the third respondent, Ms Jian, seeking orders for restitution and/or the payment of money by Mr Qigang as damages for fraud and/or restitution and/or as money had and received, be and are dismissed.
5.The application of Mr Qigang seeking payment from Mr Ying and Ms Jian on account of rent of a dwelling situated in Country F (‘the City E property’) be and is dismissed.
6.All extant applications be and are otherwise dismissed.

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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE O’SHANNESSY
INTRODUCTION

The questions I must decide in this case are what, if anything, should be done about an apartment in City E in Country F, registered as jointly owned by a once married, but now separated, couple living in Australia and money long ago deposited into the bank account in Australia of one of the parties by the parents of one of them.
BACKGROUND
Once upon a time in Country F the applicant wife, Ms Ying and the first respondent husband, Mr Qigang married, and a short time later migrated to Australia. In 2008, at about the same time as migrating to Australia, they became the registered owners of an apartment in City E, located in Country F (‘the City E property’). That registration recorded Mr Qigang owning or being entitled to 20% and Ms Ying owning or being entitled to 80% (‘the 80/20 registration’). The registration of the ownership of that property was entrusted to the third respondent, the maternal grandmother, Ms Jian. Later, Ms Jian and the second respondent, the maternal grandfather, Mr Ying (collectively referred to as ‘the Grandparents’), lived in the City E property.
In Australia in 2009, Mr Qigang and Ms Ying had a child, X born in 2009. Proceeding the birth of X, the Grandparents came to Australia, applied for permanent residency, and lived with Mr Qigang and Ms Ying and baby X. In the course of applying for migration visas and living with Mr Qigang and Ms Ying, the Grandparents and/or Mr Qigang transferred substantial sums of money (‘the Grandparents’ Money’) into Mr Qigang’s bank account. What the Money was used for is controversial.
After 10 years of marriage Mr Qigang and Ms Ying separated and thereafter lived apart in Australia. Thereafter the Grandparents returned to City E and lived in the City E property. Soon after, furious disagreement about the City E property and what happened to the Grandparents’ Money broke out. Mr Qigang and Ms Ying had only a little property in Australia, and each received or retained some of that property after separation. Whether that de facto or by default property division was appropriate is also at issue in these proceedings.
Ms Ying was born in 1977 and is now aged 47 years. Mr Qigang, was born in 1980 and is 44 years. The parents met in 2002 and commenced a relationship in 2003. They married in 2005[1] and in 2008 emigrated from Country F to Australia where they have lived since. Both became Australian citizens in 2013. There is one child of the relationship born in 2009 and now aged 15 years. The parties separated on a final basis in August 2016 and divorced in 2018. Both Ms Ying and Mr Qigang have since re-partnered.
[1] Although the marriage was registered in 2006 and nothing turns on that.
Chaotic conduct of the case
Ms Ying had commenced property division proceedings back on 10 January 2019. This matter had been listed for final hearing before another Judge back in the middle of 2020. At that time, Ms Ying filed affidavit evidence for the final hearing on the morning of the listed final hearing, contrary to orders for filing of evidence. In that circumstance the trial was vacated. The proceedings were later listed before me. These were covid times with all the difficulties of those times as well as the relaxed swearing/affirming rules for affidavits of evidence in chief.
At a call over in October 2020 I was told the matter was ready to proceed and would take two days of court time. I accepted what I was told. The matter having been previously listed for final hearing with affidavits of evidence in chief filed, and taking account of what I was told about the matter being ready to proceed, on 7 October 2020 I made orders that permitted the parties to rely on previously filed material but to file “updating” evidence, that is “updating” from the last filed material. I listed the matter for a two-day hearing several weeks hence. Shortly before the “new” listed before me final hearing, Ms Ying filed an avalanche of further material[2] including what purported to be “affidavits” of her parents sworn or affirmed in Country F.
[2] Mr Qigang was able to file a responding affidavit.
The matter was then heard over 9 days in “chunks” of time as court time was available and parties were available to appear. The usual practice of the court was and is that Family Law Act 1975 (Cth) (‘the Act’) matters likely to take longer than three or four days of court time are transferred to the Family Court of Australia, now Division 1 of the Federal Circuit and Family Court of Australia,[3] as that court is set up to accommodate longer and/or more complex cases. The court relied, and relies, to a substantial extent upon parties and their legal practitioners for realistic assessment of readiness for final hearing and likely length of final hearing. At the time of the end of the first two day chunk of time, 18 November 2020, I had fixed[4] other final hearing cases before me for the next 10 or so months. Nine day cases are not usually listed for hearing in this court. But a case once commenced must be finished.
[3] Since 1 September 2021.
[4] Since about 2022 the listing of cases is managed by Judicial Registrars and my docket is much smaller.
The parties’ various and many annexures were not separately tendered, and the parties proceeded on the basis that annexures to their affidavits had been tendered in evidence and I acquiesced in that approach and proceeded on that basis.
Unfortunate nature of documents & potential contamination of witnesses evidence
Mr Qigang asserted that the Grandparents’ affidavits were “fraud” and should not be admitted into evidence. It turned out the documents that purported to be “affidavits” of the Grandparents, who I am satisfied at all material times needed the assistance of interpreters, had not been prepared and sworn or affirmed or authenticated in a regular way. The process of those documents being filed was frankly disclosed after I pressed for explanation:
HIS HONOUR:          Yes. Yes. Now, can I take you to the affidavits that have just come in recently.
MS ROTHSCHILD:     Yes.
HIS HONOUR:          Or what purport to be an affidavit. Okay. Let’s take the grandmother’s affidavit, first. Okay.
MS ROTHSCHILD:     Yes.
HIS HONOUR:          Her address is given as [City G][5]. Now, there’s no signature on the document. Well, there’s an electronic signature. Just take me through how this affidavit was prepared.
[5] This was a slip or error as the witnesses address was given as “[City H of Country F]” but nothing turns on this error. The address indicated a potential need for an interpreter.
MS ROTHSCHILD:     So, your Honour, basically, it was prepared in – basically, information was taken from the other affidavit and it was shown to [Ms Jian] and
HIS HONOUR:          Where? Where was it shown to [Ms Jian]?
MS ROTHSCHILD:     Well, it was emailed to her and shown to her in [Country F] where she is currently.
HIS HONOUR:          Okay. Does she need an interpreter?
MS ROTHSCHILD:     My client interpreted the affidavit for her, as she did for the father.
HIS HONOUR:          So when [Ms Jian] is being cross-examined, she will require an interpreter.
MS ROTHSCHILD:     Yes, that’s right. A [Country F] interpreter if possible, your Honour.
HIS HONOUR:          And Mr – I just want to go to the father’s affidavit if I can. Now, how was [Mr Ying]’s affidavit prepared?
MS ROTHSCHILD:     So, your Honour, my client, in conjunction with her father, prepared the affidavit together. They sent it to us. My office then refined it and took some more information from the other affidavit. We then emailed it to – [Ms Ying] emailed it to her father and she explained it to him in [Country F language]. And we then, with his instructions, signed it with an electronic signature.
HIS HONOUR:          And did those – just hang on. So you affixed the signature on his instructions on the version that came back. And that version that came back, did that come from [Mr Ying] or from your client?
MS ROTHSCHILD:     That came from my client, your Honour.
HIS HONOUR:          All right. And in regard to the affidavit of [Ms HH], is that in the same category? Is that done the same way?
MS ROTHSCHILD:     Yes. They were all done the same way: [Ms HH], [Mr Ying] and [Ms J], they were all done the same way.
HIS HONOUR:          Okay. All right. And do you agree it would be usual on an affidavit that has been interpreted to include in the document the details of who interpreted the document?
MS ROTHSCHILD:     Yes, your Honour. That would be appropriate.
HIS HONOUR:          Right. [Mr Qigang], what do you say about – do you have anything to say about those affidavits?
[MR QIGANG]:         Yes. I don’t agree with the procedure, to do affidavits this way, especially [Ms Ying]. The parents’ affidavits were copied from her own affidavit. There’s a saying that if you repeat a line three times, it becomes the truth. In psychology, that’s illusion of truth effect. She integrated herself
…
[MR QIGANG]:         Do we think the witness’ judgment will be reliable or come from one person, [Ms Ying].
HIS HONOUR:          What do you say I should do with those affidavits?
[MR QIGANG]:         Not admit them.
…
Ms Ying’s solicitor sought the opportunity to regularly interpret and swear the Grandparents’ documents overnight. Mr Qigang, making a concession to try and get the final hearing underway, told me that he did not object to the filing of the now independently interpreted affidavit but would cross-examine the deponents.
Notwithstanding Mr Qigang’s concession I then ruled as follows:
HIS HONOUR: Okay. Thank you. Thank you. And – thank you. All right. So my ruling on this is that I will not treat the affidavits of the parents as affidavits. I will review that after I have evidence that they’ve been interpreted. Otherwise they will not be taken into evidence. So your circumstance of having them interpreted to them will be, on that basis, if I’m assured that that’s – and there’s evidence that has occurred – then I will permit them to be relied upon as an affidavit so that we can just get on with it...
Later Ms Ying’s solicitor told me that she had arranged, overnight, for the Grandparents’ documents to be independently interpreted to them and affirmed. The trial proceeded. Later, Mr Ying, Ms Ying’s father was called for cross-examination by video link from Country F[6] and, with an interpreter he told me as follows:
[6] This was at a point in the trial before the court became aware of the possibility that in was illegal in Country F to prepare or give evidence in a foreign court without permission of local authorities.
HIS HONOUR:          … [Mr Ying], you will recall last night you were read out some material from a translator to you.
…
THE INTERPRETER: I remember.
HIS HONOUR:          Okay. You remember. Okay. What do you say about what the translator read to you?
THE INTERPRETER: What I heard is the material for appeal.
HIS HONOUR:          Yes. What do you mean by “the material for the appeal”?
THE INTERPRETER: I meant the document prepared for me.
HIS HONOUR:          Okay. And by “the appeal” do you mean the Australian court case?
THE INTERPRETER: Yes, that’s right. That’s the case that is being heard at the moment. Maybe the word I choose was not so correct.
HIS HONOUR:          So what was read out to you was not so correct; is that what you mean?
THE INTERPRETER: I’m sorry, the interpreter would like to interrupt
HIS HONOUR:          Yes.
THE INTERPRETER: - - - and confirm with your Honour. The interpreter wishes to say that the last sentence the witness just said is, “Maybe the word I just said or the word I choose in the evidence was not proper enough.”
HIS HONOUR:          Okay. Thank you, [Mr Ying]. What I want to know is what you say about what was read out to you.
THE INTERPRETER: I believe basically it reflects my requirements and hopes.
HIS HONOUR:          And do you recall your wife, [Ms Jian], having something read out to her?
THE INTERPRETER: Yes. It was before – it happened before that was read to me.
HIS HONOUR:          Okay. And in regard to what was read to you, [Mr Ying], was it true and correct in every particular?
THE INTERPRETER: It’s all correct.
HIS HONOUR:          Or was it just roughly correct?
THE INTERPRETER: The main facts are correct.
HIS HONOUR:          Pardon? The main facts are correct. But not – do you mean by that, not every aspect of what’s in the document?
THE INTERPRETER: Just some words are not proper enough. The basic facts are correct.
It is to the credit of the witness that at the end of the process all that was contended was that the “basic facts” of the document “are correct”, rather than the whole of the document being true and correct.
Ms Ying’s mother, Ms Jian, was also called for cross-examination and, with an interpreter, told me as follows:
HIS HONOUR:        Do you have available to you a copy of what is described as – in English as an affidavit that is said to have been filed on 16 November 2020 made by you?
THE INTERPRETER: Yes.
HIS HONOUR:           Do you have that in hardcopy or on the computer?
THE INTERPRETER: I have both.
HIS HONOUR:        When you first saw the document who interpreted – sorry – could you read the document.
THE INTERPRETER: I can read the [Country F] one.
HIS HONOUR:        And when you say you can read the [Country F] one, do you have or had you had a [Country F] version of the document that has been referred to this morning as an affidavit by you.
THE INTERPRETER: Yes.
HIS HONOUR:           When did you first see the document in English?
THE INTERPRETER: The English one should be on the 16th – 15 – should be 15.
HIS HONOUR:           And did anyone interpret that document to you?
THE INTERPRETER: Yes.
HIS HONOUR:           Who? And what’s that person’s name?
THE INTERPRETER: The name. I can’t remember the name. I need to look that up because I hired her.
HIS HONOUR:        Okay. And how did that happen? How was it interpreted to you with that person?
THE INTERPRETER: I asked my friend to find this interpreter for me.
HIS HONOUR:           Yes. And do you mean that you found an interpreter?
THE INTERPRETER: She used to be in the translation industry.
HIS HONOUR:           So you mean, yes, you found one. Is that what you mean?
THE INTERPRETER: Yes.
[…]
HIS HONOUR:           And how did you arrange for the translation to occur?
THE INTERPRETER: I wrote it in [Country F Language] and I asked to the person to translate that into English because my English is very limited.
HIS HONOUR:        Yes. Thank you. And then what did you do with the document?
THE INTERPRETER: This document, I found it through my daughter.
HIS HONOUR:           Did you see that document again?
THE INTERPRETER: Later. I didn’t read it carefully.
HIS HONOUR:           Okay. And when you say later, did someone send it to you?
THE INTERPRETER: After it was translated it was sent to me.
HIS HONOUR:           By who?
THE INTERPRETER: […]’s father. The translator.
HIS HONOUR:        Okay. And what did – did you do anything with the document or send it to anyone?
THE INTERPRETER:   No. I only sent it to my daughter.
HIS HONOUR:        And has your daughter sent you any other version of that document?
THE INTERPRETER: No. Because I wrote it.
HIS HONOUR:        Fair enough. You can say that. When I make a comment, you can say that. And the – did you have a document – did you have a conversation with a translator last night?
THE INTERPRETER:   I communicated with the translator.
HIS HONOUR:           And can you tell me what occurred with the translator.
THE INTERPRETER: What occurred with the translator. We had some communications on the things I wrote.
HIS HONOUR:           Yes. Can you tell me what happened in that communication.
THE INTERPRETER: In that conversation the person read the things I wrote. The person check the things with me.
[…]
HIS HONOUR:        In that conversation the person wrote the things that I wrote. Is that what you said?
[…]
THE INTERPRETER: Read the thing I wrote and double-check the thing with me.
HIS HONOUR:        And in your mind what document was the person reading from?
THE INTERPRETER: The one I wrote?
HIS HONOUR:           That is the [Country F Language] one.
THE INTERPRETER: Yes.
HIS HONOUR:        Have you had sent to you an English version of the [Country F Language] document that you wrote? Sorry, of the document you wrote in [Country F Language].
THE INTERPRETER: The English version I asked someone else to translate it into English version.
HIS HONOUR:        No. I’m sorry. I think you mean you got someone else to translate your [Country F Language] version into English.
THE INTERPRETER: Yes.
HIS HONOUR:        Did you ever put a mark or a signature on an English version of the [Country F Language] document that you wrote?
THE INTERPRETER: Those were translated by someone else than me.
HIS HONOUR:        Yes. And, [Ms Jian], did you ever have a conversation with anyone whereby you swore that the contents of the [Country F Language] one or the English one were true and correct?
[…]
THE INTERPRETER:   Okay. Are you saying that – are you asking about did I swear in this document?
HIS HONOUR:        Did you affirm that it was true and correct to anyone in an official capacity?
THE INTERPRETER: The content are true and correct.
HIS HONOUR:        Yes. I know that you say that but I want to know before this morning did you go through that process with anyone else.
THE INTERPRETER: No
HIS HONOUR:        Thank you. [Ms Jian], I’m just going to take you off the line for a minute. We will still need you so don’t go away. Thank you or your attendance. I just need to talk to your daughter’s lawyer for a little while. Actually, before I go do you know how your husband, [Mr Ying], made – prepared his document or statement? Did you have any role in that?
THE INTERPRETER: No. No. He wrote it by himself.
HIS HONOUR:           In [Country F Language]?
THE INTERPRETER: But he also asked me in terms of some things.
HIS HONOUR:        Yes. Did he write it himself in [Country F Language] or English?
THE INTERPRETER: [Country F Language].
HIS HONOUR:        And were you involved in the process of getting that translated? Did you see what he did with the document he wrote in [Country F Language]?
THE INTERPRETER: He arranged someone who translated it.
HIS HONOUR:        Thank you. Did you see that? Did you see or hear those arrangements being made?
THE INTERPRETER: I saw and sometimes he also had some discussion with me.
HIS HONOUR:        Okay. And was it the same translator that you retained to translate your [Country F Language] document into English?
THE INTERPRETER: Yes.
HIS HONOUR:           And was that done on the same day?
THE INTERPRETER: Same day, maybe not.
HIS HONOUR:        Thank you. And when you were writing your [Country F Language] statement about what happened how long ago was that?
THE INTERPRETER: Like, several days. I can’t remember.
HIS HONOUR:           But just recently?
THE INTERPRETER: Yes.
[…]

I then sought to clarify the production of the document purporting to be an affidavit with Ms Ying’s solicitor.
HIS HONOUR:        Thank you. Ms Rothschild, the document that purports to be an affidavit sworn by this witness, it appears to me was never a document made by this witness nor sworn by the witness or affirmed by the witness save that the document that we now have was read out last night to the witness and the witness has had some comments about that document. But it appears to me that what has happened here is that the witness wrote out a statement in [Country F Language], had it translated to English, sent it to either her daughter or your office, that then that document… had further information put in it by your office in – with the assistance of your client. Then … your client, I’m told, interpreted that document to the witness, but that’s not the witness’s evidence. And then that a document has returned on 16 November as if it’s an affidavit when it wasn’t. Isn’t that the reality?
MS ROTHSCHILD:   Your Honour, this information was – this information was given to me and my understanding was that this was the information given by the parent and it was information given by way of affidavit. Certainly, it has sufficient
HIS HONOUR:        Hang on, hang on, hang on, hang on, hang on. Just break that down one step at a time. Yes. It was information of the parents. So the [Country F Language] version that the parents wrote or, sorry, that the witness wrote according to the witness was translated into English, was that sent to your client or to your office?
MS ROTHSCHILD:   That was sent to my client, your Honour. I didn’t see the [Country F Language] version.
HIS HONOUR:        No, no. The English version that was sent. Is that correct? That it was – who translated it from [Country F Language] to English?
MS ROTHSCHILD:   That would have been my client, your Honour.
HIS HONOUR:        [Ms Ying], just consider yourself still under oath, please. Did you translate your parents’ [Country F Language] version to English?
[MS YING]:I would say – yes – I translated it but not completely would be right.
HIS HONOUR:           Okay.
[MS YING]:So they had someone translate it in [Country F]. Yes. I mean, I translated it then sent to [Ms Rothschild].
HIS HONOUR:           You
[MS YING]:               Yes.
HIS HONOUR:           You translated the [Country F Language] version
[MS YING]:               Yes.
HIS HONOUR:          and sent it to [Ms Rothschild]. That’s someone in Rothschilds’ office?
[MS YING]:               Yes.
MS ROTHSCHILD:   To me, your Honour. To [Ms Rothschild]. Me.
HIS HONOUR:        Sorry, Ms Rothschild. Okay. Now, did you say you didn’t translate the whole thing or you did? I just didn’t understand that, [Ms Ying].
[MS YING]:I would say I translated 99 per cent of the content but I’m not exactly – some – something I just – yes – I just don’t think – yes. Well
HIS HONOUR:           Okay.
[MS YING]:               That’s what I would say. Yes.
HIS HONOUR:        And then do you know anything about the English translation that your mother says that she obtained?
[MS YING]:Yes. She – I think that she obtained from the – somewhere close to where she live. The person doing the power attorney and lessor is also doing the translation. She didn’t refer me to that, but I didn’t really – can I be honest. I didn’t really use that version.
HIS HONOUR:        No. I want you to be honest […] this is sworn evidence you’re giving me.
[MS YING]:               Yes.
HIS HONOUR:           Do you follow? Okay.
[MS YING]:I didn’t use that version. I translated it myself and sent it to [Ms Rothschild], but the contents like last night was
HIS HONOUR:        Just hang on. Just stop. Yes. Why didn’t you use the version that your mother used – had prepared for you and sent to you?
[MS YING]:Just some – yes – just some word. I wouldn’t say like that way. Yes. Just sort of the way to explain things and also ..... yes, yes. Just what are the things. Yes. But it’s
[…]
HIS HONOUR:        Thank you, [Ms Ying]. Ms Rothschild, the – I am aware of the difficulties of having complex documents translated between [Country F] and Melbourne and sworn and the difficulties of having – filing documents, but the position appears to me that I can’t regard either the document filed on 16 November or the document filed on 16 November as this witness’s affidavit. For a start, the document filed on 16 November was not ever sworn or purported to be sworn by the witness. Simply has an English – on the English document there’s simply her signature attached. She never swore the document before anyone, did she?
MS ROTHSCHILD:   No, your Honour.
HIS HONOUR:        Who attached the signature that showed that it was sworn? Did that happen in your office or did your client do that?
MS ROTHSCHILD: So, your Honour, it – I don’t think that the – that it was – that we wrote that it was sworn in front of anybody because it wasn’t. We just put the client’s – my office would have put the client’s name on it.
HIS HONOUR:        Yes. So then merely because of my complaint yesterday the document was then translated overnight to the witness.
MS ROTHSCHILD:   Yes, your Honour.
HIS HONOUR:        But the document that the witness is listening to is not the document that she wrote in [Country F Language] in the sense that this is a different document that has been revised by your office and your client; correct?
MS ROTHSCHILD:   Yes, your Honour.
HIS HONOUR:        And what I’m grappling with is how do I give the document that has been read out to the witness the status of an affidavit of her evidence-in-chief? And I don’t think I can, can I?
MS ROTHSCHILD: Your Honour, I understand, obviously, your Honour’s reservations in relation to the affidavit and its obvious flaws or what purports to be an affidavit. All I can simply suggest is that the witness did ..... through an interpreter swear that it is true and correct. She has explained the circumstances of its compilation and I believe that she would attest to the truth of it. [Mr Qigang] is here and he has indicated that he can cross‑examine the mother on that affidavit and obviously
HIS HONOUR:        Well, I don’t think – hang on, hang on. I think we should stop calling it an affidavit. It is a document that on oath she says she agrees with as true and correct.
MS ROTHSCHILD: Yes, your Honour. So a document that the mother agrees with is true and correct. [Mr Qigang] obviously has issues with that document. He is free to cross-examine the mother. I – even insofar as the mother says she didn’t write that exact document, she would agree that that’s the gist of what she was trying to say so
HIS HONOUR:        And that – and on one level, that’s what happens in every time an affidavit is prepared. The lawyers have a responsibility to prepare the document. They don’t write out verbatim – type up verbatim what the client says
MS ROTHSCHILD:     Well, yes, yes.
HIS HONOUR:           and that process is privileged as well, exactly what was said.
MS ROTHSCHILD:   Your Honour, I certainly agree that there’s deficiencies in relation to the swearing. However, I would submit ..... that that was remedied by yourself by having that witness sworn in in relation to that document that your Honour feels is appropriate, but I think it’s still appropriate to admit that document into evidence, perhaps, not to call it an affidavit, to simply call it a document and [Mr Qigang] can cross-examine. I can then re-examine and your Honour will give it the weight that your Honour will give it and
HIS HONOUR:        Yes. Thank you. [Mr Qigang], I propose to admit the document into evidence not as an affidavit in the ordinary course but as a document that the witness has adopted as being true and correct. There are subtle differences between them. Do you have anything to say about that?
[MR QIGANG]:          Your Honour, I don’t have a comment on it.
HIS HONOUR:           Thank you.
[MR QIGANG]:          I’m satisfied ..... yes
HIS HONOUR:           Thank you
The evidence of these important witnesses (the Grandparents) prepared in this manner was most unfortunate and impaired my confidence in the reliability of the evidence of those witnesses (and later parties). The proceedings had been previously fixed for final hearing. Updating affidavits were permitted. When that matter was again fixed for final hearing evidence in chief had already been filed and served. Then, mere days before the final hearing, an avalanche of material was served, that included documents that purported to be “affidavits of evidence in chief”, prepared by a solicitor, but were far from it. What was served was a document prepared by a party (in English) then read, over the telephone, to Country F Language speaking witnesses (by the aligned party) who had largely prepared the document, and although bilingual, was not a qualified interpreter and far from independent and not a solicitor. This was at a point when the party was represented by a solicitor and the document produced at the end of that process, on its face, purported to be prepared by the solicitor and was filed and served by that solicitor.
Although not expressed in these terms, Mr Qigang’s objection to the documents attributed to the Grandparents (as their evidence in chief) was both an objection and a submission that the Grandparents’ documents were in substance merely their adoption of Ms Ying’s position and hence not his or her own independent evidence. That issue has been dealt with, in different circumstances, over many years in many courts. There is no evidence of how reflective the final document was of the version written in Country F by each of the Grandparents.
Authorities on potential contamination of witnesses
In Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731, [2005] NSWCA 110, Sheller JA, with whom McColl JA and Windeyer J agreed, as the NSW Court of Appeal, made important observations about the need for witnesses evidence to be their own independent evidence. The case concerned liability for a collision between skiers of a ski lift operator. Unsurprisingly there were a number of witnesses to events. Prior to the trial, witnesses had been provided with documents that included a solicitor’s letter summarising the hoped for evidence of various witnesses about contentious events and had read them. Also, the witness had discussed his evidence with other witnesses and to the same events in including one occasion of 45 minutes in preparation for the trial. It became apparent that at least three witnesses called by one side had discussed among themselves what the evidence of each of them would be. And a number of witnesses had been called to a joint teleconference with a representative of one of the parties for the purpose of discussing their witness statements. In that context the other party alleged that the witnesses had been “coached” in their evidence and hence their evidence was unreliable.
In that context Sheller JA observed:
30.It has long been regarded as proper practice for legal practitioners to take proofs of evidence from lay witnesses separately and to encourage such witnesses not to discuss their evidence with others and particularly not with other potential witnesses. For various reasons, witnesses do not always abide by those instructions and their credibility suffers accordingly. In the present case, it is hard to see that the intention of the teleconference with witnesses discussing amongst themselves the evidence that they would give was for any reason other than to ensure, so far as possible, that in giving evidence the defendant’s witnesses would all speak with one voice about the events that occurred. Thus, the evidence of one about a particular matter which was in fact true might be overborne by what that witness heard several others say which, as it happened, was not true. This seriously undermines the process by which evidence is taken. What was done was improper. The process adopted was more concerned with ensuring that all the witnesses gave evidence which would best serve their employer’s case. This realisation makes particularly sinister the precept in the Witness Protocols for Court Cases and Arbitration Hearings, “Not about facts about credibility”.
That same passage was recited by Austin J (at first instance) in Ibbott & Chaconas and Ors [2014] FamCA 73 at [28] with the observation that this “cautionary note of the NSW Court of Appeal is instructive”. Austin J also more crisply stated proper practice to best maintain or not interfere with the reliability of a witness’ evidence as follows:
27.Witnesses should not read another witness’ affidavit and simply adopt that evidence as their own. The evidence of witnesses should be independently collated and recorded in their affidavits in the form recollected by the witnesses individually. Discrepancies in evidence are to be expected, not artificially eradicated. In so far as they participate in the process, lawyers are duty bound to preserve the integrity of evidence (see NSW Solicitors Rule 25; Australian Barristers Rules 69-71).
In Bosanac v Federal Commissioner of Taxation (2019) 267 FCR 169, [2019] FCAFC 116 the Full Court of the Federal Court of Australia, Greenwood, Burley and Colvin JJ, dealt with the same issue on appeal. The primary judge found that a party to the case, Mr Bosanac, had read the affidavits of other witnesses and had spoken to them about some of the transactions he was endeavouring to prove and that there was a risk that because of those conversations the evidence the witnesses gave was “infected” with Mr Bosanac’s “objectives and hopes”.
On the appeal the Full Court observed:
102.The observation by the primary judge that there was a risk from conversations between a party to litigation and witnesses who are advanced to corroborate the party's account is unremarkable. It did not require support as a matter of law from the decision in Perisher Blue.
103.The vice of a party to proceedings engaging in conversations with prospective witnesses concerning the evidence that they might give in proceedings is the subtle way in which the evidence may be tainted by suggestions made by the interested party in the course of the conversations. Ordinarily witnesses are not asked leading questions in the course of giving evidence. Likewise, a legal practitioner should not pose leading questions when preparing an affidavit or witness statement. These rules are designed to assist in preserving the integrity of the account of the witness. They may be compromised if a party engages in conversations with witnesses of the kind described by Mr Bosanac. It is not necessary to demonstrate, in addition, specific respects in which the evidence was tainted. It would be necessary to cross‑examine other witnesses about the conversations with a party if it was to be submitted ultimately that they were not to be believed or that their evidence had been concocted or suborned. However, where the point of concern was the subtle effect that such conversations may have, all that need be demonstrated was that the conversations occurred.
Attempting to work out who was responsible for the train wreck of the manner of the obtaining of the “affidavits” (including their interpretation) of each of the Grandparents and the other witnesses does not assist or cure the issue of the reliability of those documents and the oral evidence of the Grandparents and those witnesses.
I do make some allowance of the difficulty, for a party and for their solicitor, of arranging evidence during covid and for witnesses who do not speak the language of the forum, but I must take account the evidence as it is presented to me. I also take into account the necessity of Ms Ying to discuss with her parents what had happened.
But the reality here is that a party (Ms Ying) either drafted, or largely drafted the “affidavit” of the witnesses (and in the case the Grandparents, later aligned parties) and attempted to interpret that document to the witnesses who could not read the document in the language in which it was written. After that exercise, the same document was interpreted by a qualified interpreter although I cannot be satisfied that the interpreter was entirely independent of the witness. The evidence of the witnesses was that they agreed with the end result of documents. I do not accept those documents recorded the witnesses account of what each of them saw, heard or felt.
Those events and circumstances undermined the process by which evidence is expected to be given. Those events and circumstances substantially undermine my confidence in the reliability of the evidence of Ms Ying, the Grandparents and the other two witnesses, Ms J and Ms Ying, that is the end result of that process. In that circumstance I have looked at contemporaneous records, common ground events and the apparent logic of events[7] (to the extent that can be discerned) as well as the demeanour of the parties and witnesses in oral evidence in weighing all evidence.
[7] And see the discussion of the precedent or authority of the case of Fox v Percy (2003) 214 CLR 118 later in these reasons.
Need for procedural fairness to all parties
When the case and the final hearing started, only Mr Qigang and Ms Ying were parties. Further detail about the background to the case is set out in Ying & Qigang [2023] FedCFamC2F 111. I then made orders that the Grandparents be joined as parties to the case as the second and third respondents. When the Grandparents were able to appear in court,[8] some time was taken to ensure procedural fairness was accorded to them and the other parties.
[8] They said required an interpreter and an independent interpreter was provided at the court’s expense.
To assist them, on the first day they appeared in court as parties, I set out my understanding of the case and the events behind it and gave Mr Qigang and Ms Ying the opportunity to correct or comment on my summary.
It will be useful to set out that oral summary of my understanding given to the parties at that point of the case:
HIS HONOUR: […] And you can interpret as we go along, but this is for your benefit and also for the benefit of the parties, recapping. So [Ms Ying] and [Mr Qigang] were married in 2006. They separated in – married in [Country F] in 2006. They came to Australia, and they separated in Australia in August of 2016. They were divorced in 2018, and these proceedings started way back in January 2019. [Mr Ying] is [a professional], and… [Ms Ying] … [Ms Ying] has remarried...
…
And the [final hearing] started with only those two parties, that is, the former husband and [Ms Ying], and at that stage [Ms Ying] was represented by a solicitor….but [Mr Ying] and [Ms Jian], the parents of [Ms Ying], were witnesses in [Ms Ying]’s case, and they gave evidence and were cross‑examined by video link from [Country F].
Because the case exceeded the number of days which [I] had been told it would take, the case has been done in a number of chunks. The case has another layer of litigation in it, and that is that there have been two court cases in [Country F] about the property which is the subject of the proceedings, and when I use the term “[Country F]”, I mean [Country F], and I use the term “[Country F]” merely as shorthand.
[Ms Ying] gave evidence and was cross-examined by [Mr Qigang], [Mr Ying] gave evidence and was cross‑examined by [Mr Qigang], and [Ms Jian] gave evidence and was cross-examined by [Mr Qigang], and at one point, when [Ms Ying] had not finished cross-examining [Mr Qigang], we ran out of time again and the matter was adjourned.
I then became aware of further information about the law in [Country F], and according to the [Country F Rules], it is unlawful for a citizen of [Country F] to give evidence or gather evidence for the purposes of a court case in a foreign jurisdiction [from [Country F]]. I took evidence from an expert as to the law in [Country F] as to that aspect. And as I understood it, neither myself or the court or any of the parties were aware of that restriction at the time of the case proceeding. And I have given a ruling… to [Mr Qigang] and [Ms Ying] that I do not regard that evidence that came from [Country F] as illegally obtained because it’s quite legal here. The problem is for the parties or the persons giving evidence from [Country F]. And this court respects the law of [Country F] as it operates in [Country F].
In addition, in this case [Mr Qigang] and [Ms Jian] and [Ms Ying] had participated in two court cases in [Country F]. The first case was a first instance case where [Mr Qigang] bought a case alleging that the title or registration of the title to the dwelling in [City E] had been obtained by the fraud on [Ms Jian]’s part aided by [Ms Ying]…
…
That case involved an application against, what I understand to be, the equivalent of the registrar of titles in Victoria. That is the government body charged with the responsibility of registering the ownership of dwellings in [that part of] [Country F]. And to my recollection, [Mr Qigang], [Ms Jian], and [Ms Ying] were witnesses in that court case.
At first instance, the [Country F] court determined that the title had been regularly or ordinarily registered and that there had not been a reason to interfere with that [registration]. [Mr Qigang] appealed that case to a higher court and the appeal court determined that the court at first instance had not made any error and did not see any reason to change the title to the [City E] property.
When this case started, [Ms Ying]’s position when she was represented by a solicitor, was that the title to the [Country F] property had been determined by the [Country F] court.
[Mr Qigang]’s case was that regardless of the names or proportions of the registration of the property, …I should order [Mr Qigang] and [Ms Ying], who are the only registered proprietors, to do all things to sell that property and divide the proceeds. The other part of …[Ms Ying]’s case initially was that the [Country F] title could remain as it was, but at an early point in the case her solicitor ceased to act for her and [Ms Ying] became, like [Mr Qigang], a litigant in person. And at some point after she commenced to represent herself, [Ms Ying]’s case changed where she sought orders that I order [Mr Qigang] and her to do all things to change the title in the property in [City E] so that it was registered in her name.
And neither [Mr Qigang] or [Ms Ying] suggested that I had authority or jurisdiction to change anything in [Country F], but both of their cases proceeded on the basis that the authorities in [Country F] were likely to follow the lawful directions of the registered proprietors of that property in [City E] to either sell it or …[for] the title to be registered in [Ms Ying]’s name.
The other part of [Ms Ying]’s case was that [Ms Jian] and [Mr Ying] had, during the marriage, advanced money to [Mr Qigang] and that he had improperly or incorrectly kept it for his own personal purposes, as opposed to the purposes for which he was meant to apply it. And that [Ms Ying] sought an order to the effect that [Mr Qigang] pay her money that, she said, was owed to her parents, and [Mr Qigang] disputes (those) allegations of improper use of the funds, though he acknowledges that he received money from [Ms Jian] or [Mr Ying]. But [he] says he applied it as was intended by the parties at all material times...
It also became apparent during [Ms Ying]’s cross‑examination of [Mr Qigang], now that she represented herself and did not have a solicitor, that her case really was that the property in [City E] had been paid for substantially or entirely by [Mr Ying] and [Ms Jian] and that it was really their property that she wanted to hold on trust for them. And [Mr Ying]’s evidence was to the effect that the property had been registered in the names of [Mr Qigang] and [Ms Ying] for the purpose of assisting orderly transfer of ownership upon [Ms Jian] and [Mr Ying]’s ultimate (passing), to make it easier for the title to be transferred.
The consequence of that …under the law in Australia is that if an issue in a court case would affect a person, that person should be a party to the court case. So I heard submissions from [Ms Ying] and [Mr Qigang] about whether or not [Mr Ying] and [Ms Jian] should be parties to the proceedings, and I made orders that they would [each] be a party to the proceedings.
Then there was an impediment in the case proceeding whilst [Ms Jian] or [Mr Ying] were in [Country F] because, were I to hear from them further, now that they’re (each) a party to the case, they would be in breach of the law of [Country F]. And I was told that [Mr Ying] and [Ms Jian], or one of them, had sought permission from the local authorities in [Country F] to participate in this court case and that was refused. Hence, in that conundrum, it was necessary that I wait until [Ms Jian] and [Mr Ying] were present in Australia to participate in the court case about the property in [City E] and the money that they say they’re owed by [Mr Qigang] – for them to participate in their own court case. And I heard from the parties again in December of 2022 when, by this stage, [Ms Jian] and [Mr Ying] were in Australia.
At that point, my recollection is that it was indicated by [Ms Jian], [Mr Ying], [Mr Qigang] and [Ms Ying] that all parties wished the case to proceed from thereon rather than scrub everything and start again, but on the basis that the evidence that [Mr Ying] and [Ms Jian] had already given would remain in the court case.
So where we are as of today is that we now have what appears to me, on the information I have, that all the persons who should be a party to the dispute are now before the court. Because I have accepted that [Mr Ying] and [Ms Jian] should be parties to the court case doesn’t mean that I’ve accepted that what [Ms Ying] and [Mr Ying] and [Ms Jian] say is correct and what [Mr Qigang] says is incorrect. It simply means I have the proper parties before me to assist (determine) that.

None of the parties indicated any disagreement with that summary. After time for all parties to reflect, all parties confirmed they wished to proceed with the hearing on the basis of the evidence already provided being taken into account.
THREE COURT CASES IN COUNTRY F
In mid-2019 Mr Qigang, described as the Plaintiff, commenced a claim in City E Court against a government authority[9], described as the defendant and against Ms Ying described as the Third Party.[10]
[9] For practical purposes City E Authority can be regarded as a government office fulfilling similar functions as the Titles Office does or once did in Victoria.
[10] An uncontroversial English transaction of the decision was tendered as exhibit H3.
That court handed down its decision with reasons in late 2019. The decision is self-explanatory and salient parts include the following:
The Plaintiff [Mr Qigang] claims that: [in] 2006, the Plaintiff and the Third Party registered their marriage in [City K, Region L]. Then, they migrated to Australia [in] 2008 and became naturalized Australian citizens [in] 2013. Before immigration, the Plaintiff and the Third Party sold a former joint property located in [City K] to purchase the house located at [M Street, Suburb N, City E]. [In] 2008, the Plaintiff and the Third Party jointly entrusted the Third Party’s mother to handle the delivery of aforesaid property and obtain the ownership certificate. [In] 2009, the Third Party’s mother, without informing the Plaintiff, exceeded her authority and took the liberty of dividing the share of property right, registering 20% as the Plaintiff and 80% as the Third Party’s. The ownership registration materials of the house, namely the Power of Attorney and the Joint Ownership Application submitted by the Defendant as evidence, are forged by Others…
…
The former [City E real estate authority] failed to carefully review the application materials and verify the registration of the share of property ownership to the Plaintiff, leading to the error of the property right registration and seriously infringing the legitimate rights and interests of the Plaintiff. The house property mentioned in the case was jointly purchase by the Plaintiff and the Third Party during the existence of their conjugal relations, and shall belong to the community property according to law…
…
[In late] 2018, the Third Party sent a photo of the property ownership certificate of the aforesaid house to the Plaintiff. Only then did the Plaintiff know that the property was wrongly registered as 20% property rights for the Plaintiff and 80% property rights for the Third Party…
…
The Third Party [Ms Ying] claims that: in [early] 2008, the Third Party’s parents, as the main contributor, made full PAYMENT TO PURCHASE THE HOUSE PROPERTY OF [the [City E] property]. Initially, such property had meant to be registered 100% under the name of the Third Party. Through family consultation, the Third Party proposed to add the Plaintiff’s name, indication the ration of 2/8. The reason why the Third Party, as [Ms Ying], did this was to give consideration to the Plaintiff’s inferiority complex, which was formed due to the poverty of his original family and the struggling process of his growth, also as to enhance the Plaintiff’s sense of security and family belonging. It was a misrepresentation and inconsistent with the facts that in the Plaintiff’s complaint, he denied that he had already known about the purchase and registration process of the house property and claimed the agent exceeded her authority to divide property shares without informing the Plaintiff…
…
The whole process was reasonable, legal and flawless. It is untrue that the Plaintiff claimed that he purchased the property located at [the [City E] property] what the income from selling the property in [City K]. The aforesaid property in [City K] (also purchased by the Third Party’s parents as the main contributor before the Plaintiff and the Third Party were married in 2004) was indeed sold, but the selling period was from [mid] 2008 and the income was more than 280,000, whilst the total price of the property located at [the [City E] property] was more than […], which was fully paid in [early] 2008…
…
Our court identifies facts by trial as follows: [in] 2008, the Plaintiff and the Third Party signed a […] housing sale and purchase contract with [the real estate corporation], and made full payments to purchase the property located at [the [City E] property]. This contract stipulates that [a real estate corporation] shall deliver the qualified […] house to the Plaintiff and the Third Party before [late] 2008. [In] 2008 the Plaintiff and the Third Party handled the online filing of he aforesaid […] Housing Sale and Purchase Contract. [In] 2008, the Plaintiff and the Third party handled the notarization of entrustment, and entrusted the Third Party’s mother [Ms Jian] as their agent to handle the following matters in the name of the Plaintiff and the Third Party: “1. Fully entrust [Ms Jian] to handle all relevant matters regarding the property located in [the [City E] property], such as handling the house delivery and obtaining the ownership certificate…
…
The Plaintiff holds that: the former [City E] Real Estate [Authority] failed to carefully review the application materials of property registration, leading to the error of the property right registration and seriously infringing the legitimate rights and interests if the plaintiff. Therefore, the Plaintiff took it to court…
…
According to the parties’ claim and defence, our court thinks that the focus f the case is that: 1. Whether the Plaintiff’s lawsuit exceeds the statutory time limit for prosecution; 2. Whether [the government authority] has fulfilled its obligation of reasonable and prudent review when registering the property involved in this case.
After Mr Qigang was unsuccessful in his application, based on allegations of fraud, to have the government authority alter the record of title from 80/20 in Ms Ying’s favour to equality, he appealed to the Region L Court. That court sitting as a “collegiate bench” of three officers handed down its decision with reasons in early 2020.[11]
[11] An uncontroversial English translation of the appeal decision was tendered in evidence as exhibit H4.
That appeal decision is self-explanatory and salient parts included the following:
…
…Upon review, the examination of evidence by the court of first instance to the laws and regulations. Our court hereby confirms the facts of this case ascertained by the court of first instance according to law…
…
After reviewing the above materials, the authority handled the registration according to law, which has fulfilled the obligation of reasonable and prudent review. The Appellant holds that: he has immigrated to a foreign country, the signature “[MR QIGANG]” on the Joint Ownership Application of the above materials was forged by the agent, and the housing registration authority failed to fulfill its obligation of reasonable and prudent review. In this connection, our court thinks that: first of all, the property owner or its entrusted agent has the right to determine the share of the joint ownership of the house; Secondly, [MR QIGANG] and [MS YING] had immigrated to a foreign country at the time, entrusting an outsider [MS JIAN] to handle housing registration. As mentioned above, the entrustment procedures involved in the case did not expressly exclude the trustee from submitting the Joint Ownership Application; At last, the registration authority has formally reviewed the Joint Ownership Application, fulfilling its obligation of reasonable and prudent review formally, but also to review essentially whether the Joint Ownership Application was signed by the Appellant himself, which is beyond the capacity of the registration authority and the limit of reasonable and prudent review. Such grounds of appeal are untenable.
To sum up, the judgment of first trial shall be affirmed as the ascertainment of facts in the judgment of first trial is found to be clear and the application of laws and regulations is found to be correct.
(emphasis added)
Mr Qigang also said he had planned to sue the Grandmother in Country F for the alleged fraud but says that that plan was abandoned due to covid-19. No one suggested anything turns on that.
THE CHANGING ITERATIONS OF PARTIES’ CASES
The second and third respondents, the Grandparents, were neither parties nor witnesses until very late, as discussed earlier. The positions of Mr Qigang and Ms Ying changed radically during the proceedings.
Orders sought by Mr Qigang at different times
Back when this case started, in his Response filed 31 January 2019, Mr Qigang pressed that Ms Ying’s Initiating Application seeking adjustment of property be dismissed. He did not seek property alteration orders himself, but he stated, “the split of the property in [Country F] is a matter of overseas jurisdiction.”[12]
[12] Mr Qigang’s Response filed 31 January 2019 under the heading, “Orders sought by Respondent”.
Later on, and then ultimately before me, and after his applications to the Courts of Country F for a declaration as to the registration of the ownership of the City E property were unsuccessful, Mr Qigang alleged, in substance, that the 80/20 registration of the title to the City E property was obtained by fraud and that Ms Ying’s position in those Country F courts was part of that fraud. His case was that he and Ms Ying paid for the City E property.
Though Mr Qigang had earlier, when the Country F court cases were on foot, sought to exclude the City E property from consideration, before me he sought that he and Ms Ying do all acts and things to cause the City E property to be sold and the proceeds divided equally between he and Ms Ying. He also sought damages or occupation rent, from the Grandparents, for the long period of the Grandparents occupation of the City E property.
Mr Qigang ultimately sought an order, and I understood pursuant to section 79 and section 80 of the Act that the parties, being Australian citizens and being present in Australia, should do all acts and things to cause and effect the sale of the City E property and the distribution of the proceeds of sale equally between Ms Ying and Mr Qigang. I understood he was seeking orders in personam, that is seeking orders that compelled him and Ms Ying to do certain acts or things, not orders that of themselves changed or confirmed the existing title to the City E property in Country F.
Of course, this Court would not have jurisdiction to change or deal with the title to the City E property in Country F, but it was not disputed this court has jurisdiction to compel the parties to do certain things, including with regard to property owned by them in a foreign country, when making property division orders pursuant to section 79 of the Act.
The common law rule known as the Mocambique rule[13] meant that:
Conventionally, also, jurisdiction would not be asserted with regard to a claim involving foreign land or foreign rights such as patents regarded as having a purely local and strictly territorial sphere of operation, and this was so even if the proposed defendant to the claim was present in or able to be physically served within an Australian court or territory.
…
This case is now regarded as authority for two propositions: (1) an English (and Australian) court will not exercise jurisdiction in respect of the title 2 or possession of land situated abroad; and (2) the court will not entertain an action for trespass to foreign land even if the plaintiff’s title is not in issue[14].
[13] See Nygh’s Conflcit of Laws in Australia, Davies M, Bell A, Brereton P & Douglas M, 10^th Ed., Lexis Nexis Butterworths, 2020 at 27 and British South Africa Co v Companhia de Mocambique [1893] AC 602.
[14] Ibidim at 79, 3.118.
At earlier points each of Ms Ying and Mr Qigang had embraced such a position in regard to the City E property.
The learned authors of Nygh’s Conflict of Laws in Australia go on to discuss exceptions to the Moçambique rule and opine as follows at page 82:
3.131The Moçambique rule does not apply to actions arising out of contract or a personal equity between the parties. The best known example of this exception however, is the jurisdiction of courts of equity in personam in relation to foreign land against persons present within the forum in cases of contract fraud and trust….[In] Penn v Lord Baltimore[15] … the plaintiff sought specific enforcement of the agreement. To the defendant’s objection that the suit concerned land situated outside England, Lord Hardwicke LC replied that equity could act in personam against a defendant who was present before the court by ordering that he carry out the conveyance as agreed or face sanctions against his person or his English assets….
…
3.137although some courts occasionally still take the position that the Mocambique rule prevents accord from making orders for the disposition of foreign real property in matrimonial proceedings, the better view is that such cases fit within the first exception to the rule because the courts order creates a personal obligation requiring the divorced spouse to convey an interest in the foreign property.[16]
[15] (1750) 27 ER 1132.
[16] And see the host of Family Court of Australia cases cited in the footnote, #443, to this observation.
In his text, Family Law,[17] Dr Dickey, Q.C. opines:
[17] Family Law, Dickey A, 5^th Ed., lawbook Co. 2007, footnotes and citations omitted.
Order may be made in respect of property located in other jurisdictions
Proceedings under section 79 are in personam, and not in rem. In other words, proceedings under this section are by one person against another, and not by a person directly against property. But virtue of both this fact and the wide terms of section 7991), the court can make an order under this subsection in respect of property wherever it may be located, whether in or outside Australia. The court can make an order in respect of property located abroad by making an order that a party to a marriage deal with it in a particular way.
Two associated observations may be made in this regard. The first is that orders made (as well as proceedings) under section 79(1) are in personam, and not in rem, they accordingly bind only the parties to the proceedings. The second is that the common law jurisdictional bar on domestic courts adjudicating upon rights to foreign land- commonly known as the rule in the Moçambique- almost certainly does not apply to proceedings for an alteration of property interests.
I accept the observations of Dr Dickey and of the authors of Nygh’s Conflcit of Laws in Australia. I am satisfied there is jurisdiction to make orders pursuant to section 79(1) of the Act, compelling a husband and a wife in Australia (in this case Mr Qigang and Ms Ying), to deal with property in Country F in a particular way. Either as sought by Ms Ying and the Grandparents or as sought by Mr Qigang.
Orders sought by Ms Ying at different times
In this court Ms Ying relied upon the Country F decisions as concluding the question of whether the 80/20 registration of the title to the City E property was obtained by fraud and as determining the ownership question which included the question of who had paid for the City E property and in what proportions.
Until the first day of the final hearing, Ms Ying did not seek any orders concerning the City E property at all.
On the first day of final hearing, while represented, in oral submission, Ms Ying changed her position and sought orders to the effect as follows:
HIS HONOUR:          … All right. Ms Rothschild, one more question in your case so that I understand before we call your client. Your position as to the title of the [Country F] property is it stays as it is, with [Mr Qigang] having 20 per cent, your client having 80 per cent? And your client has also alleged that she holds it on trust for her parents, as I understand it? Did I get that correctly?
MS ROTHSCHILD:     Yes, your Honour. In relation to the [Country F] property, because my client is alleging that there is so much money that has been hidden by [Mr Qigang], she would seek that his 20 per cent basically be – well, sold or transferred to her, so to speak, in lieu of the money that he has taken for that. That’s what she would be seeking in relation to the property. She would be seeking that basically his 20 per cent basically is really hers and his – that gets divided. His 10 per cent is then transferred to her in lieu of the money that he has already received from the marriage. And basically the rest of the property is held in trust for her parents.
HIS HONOUR:          So she – apart from the orders that’s in her outline of case, she seeks an order that he do all acts and things necessary to transfer all his right, title and interest in the property… the [Country F] property – to her?
MS ROTHSCHILD:     Correct.
HIS HONOUR:          And how does that affect the sums of money that you otherwise seek in the application?
MS ROTHSCHILD:     Well, your Honour – so the sums of money that we otherwise seek, as your Honour has rightly pointed out, we actually don’t know where to find that money. We’ve pointed to his property that he owns. He owns a car. He has a little bit of money in bank accounts. The rest, we don’t know where they are. If your Honour made an order that he needs to repay my client, we would look to that [Country F] property to claw back some of the money that [Mr Qigang] has taken from the matrimonial asset pool.
HIS HONOUR:          All right. [Mr Qigang], do you understand the case that the applicant makes?
[MR QIGANG]:         Yes, I understand, but I don’t agree.
…
I permitted Ms Ying to so radically change her case. Later, Ms Ying put the failure of her case as the responsibility of her previous solicitors. I understood that at all times Ms Ying also sought orders for the transfer of Mr Qigang’s registered interest in the City E property to her on the basis she would hold it for her parents.
Further orders were pressed (via email) on 16 February 2021 to my Chambers. This was exhibited as W9.6. The email read as follows:
As per your Honor this morning's hearing.
I sit under your wisdom in this matter. I would like to bring about a final separation in relation to our finances. I don’t want to be chasing money at a later point. If this accords with your thinking I would ask that this money be repaid to my Father or perhaps that an order would make [Mr Qigang] the sole beneficiary of the $10,000?
Then [Mr Qigang] can pay to my father $10,000 now.
This $10,150.00 money out from [Mr Qigang] CBA BSB[…] A/C:[…] on 01/06/2015 can be removed from 'marital assets pool assessment' then.
At the start of the final hearing, when represented, and until Day 9 of the final hearing Ms Ying also sought the orders as set out in her outline of case filed 10 June 2020 as follows:
1.That there be an equitable property settlement of all property (including choses in action) in the possession of the parties at the date of these Orders.
2.The Respondent should pay the Applicant a total sum of $225,000[18] which represents 50 percent of the matrimonial asset pool, notably:
[18] Ms Ying’s affidavit of evidence in chief filed 8 June 2020, just before the 2020 final hearing listing (‘the June 2020 affidavit’), at [67] under the heading “Final Orders Sought”, had sought a payment from Mr Qigang of a different amount: $261,415.95
a.The Respondent pays the Applicant $20,000 from the $40,000 that went missing from the proceeds of sale of the [Suburb P] house.
b.The Respondent pays the Applicant $25,000 on behalf of [Q Pty Ltd] for funds acquired from [Mr Ying] to purchase the company car.
c.The Respondent pays the Applicant 80% of [Q Pty Ltd]’s income from [early] 2015 to [mid] 2016 for her contract work, totalling $40,000.
d.The Respondent pays the Applicant $100,000 for the sum transferred by the Respondent from [Mr Ying]’s account to his own.
e.The Respondent pays the Applicant $40,000 for funds held in a missing bank account[19].
3.In addition, half of the total income made by the respondent between 2015-2016 from [his employer] (this full amount being $46,831.90) which was not included in the family income pool. This half amount is $23,415.95.
4.Such further or other orders as this Honourable Court deems fit.
[19] The June 2020 affidavit described this “e.” item as “funds stolen by bank account”.

On the morning of 19 January 2023 Ms Ying varied her application to seek different orders and, with no objection from Mr Qigang, I permitted her to do so by her simply telling me the different orders she then sought. Those new orders used the orders sought in the outline of case as the template. The orders sought were then:
1.That there be an equitable property settlement of all property (including choses in action) in the possession of the parties at the date of these Orders.
2.The Respondent should pay the Applicant a total sum of $225,000 which represents 50 percent of the matrimonial asset pool, notably:
a.The Respondent pays the Applicant 40% of the sale proceeds of the [Suburb P] house and 40% to the parents ([Mr Ying] and [Ms Jian]) and retain 20% for himself.
b.The Respondent pays the Applicant $25,000 on behalf of [Q Pty Ltd] for funds acquired from [Mr Ying] to purchase the company car.
c.The Respondent pays the Applicant 80% of [Q Pty Ltd]’s income from [early] 2015 to [mid] 2016 for her contract work, totalling $40,000.
d.The Respondent pays the Applicant $100,000 for the sum transferred by the Respondent from [Mr Ying]’s account to his own.
e.The Respondent pays the Applicant $80,000 for funds held in a missing bank account.
3.In addition, half of the total income made by the respondent between 2015‑2016 from [R Company] (this full amount being $46,831.90) which was not included in the family income pool. This half amount is $23,415.95.
4.Such further or other orders as this Honourable Court deems fit.
[emphasis added to identify changes as advised by Ms Ying]
I asked Ms Ying to put the new orders she had told me about on the morning of 19 January 2023 (Day 9) in writing. When pressed after lunch that day she did so and emailed a version of those in Country F Language to the Grandparents and in English to the court and Mr Qigang. Those orders are in an email that is exhibit W10. The orders then sought are as follows:
1.The 1st respondent pays the 2nd and 3rd respondent $35,000 for their share in the proceeds of sale from the [Suburb P] House
2.The 1st Respondent pays [Mr Ying] $25,000 on behalf of [Q Pty Ltd] for funds acquired from [Mr Ying] & [Ms Jian]
3. 80% fair share of income from [Q Pty Ltd] - $40,000
4.The 1st respondent pays dad -$100,000- money missing from Dad’s bank accounts
5.The 1st Respondent pays the Applicant $130,000 for funds held in missing bank accounts and unfair borne cost.
6.The 1st Respondent pays the 2nd respondent $10,500 held for his assurance for Visa
7.The 1st Respondent remove his name from the title & transfer the entirety of his share from the [City E] Property to the Applicant or a monetary equivalent.
Furthermore, Ms Ying further added another order she sought on the morning of 20 January 2023. This order was in email form and is exhibited W17.
8. The 1st respondent pays the applicant $27,490.50 for court costs and legal fees.
In preparation for the last day of the final hearing that would include final address, Ms Ying filed a document on 27 April 2023 at 6.42 PM that sought different orders again.[20] I understood that document to be a written submission in final address. That document pressed final orders as sought by Ms Ying as follows:
1.That there is to be an equitable property settlement of all property (including choses inn action) in the possession of the parties at the date of these Orders.
2.The Respondent pays the Applicant a total sum of $65,319.94 which represents 80 percent of the restored matrimonial asset pool.
[Image removed]
3.The Respondent pays the Applicant legal and court cost total $25,435.50 as stated in the Applicant’s affidavit filed 16/09/2023.
4.        That there be an equitable division of superannuation between the parties.
5.        Such further or other orders as this Honourable Court deems fit.
[20] That document also alleged that Ms Ying had “exchanged” the 20% of the City E property for 430,000, said to be AUD$93,478 from the Grandparents and said to be applied to the purchase of Mr Qigang and Wife’s Suburb P home.
On the day before the last day of hearing, 30 April 2023, Ms Ying sent by email further written (unpaginated) submissions[21] that recited, yet again, different orders sought: Those orders sought were as follows:
[21] Those submissions should have been marked as an exhibit and by omission, on a long busy day, they weren’t but will be marked W20.

The Applicant 80% $84,637.82

The Respondent pays the Applicant $65,319.94
1.That there is to be an equitable property settlement of all property (including choses in action) in the possession of the parties at the date of these Orders.
2. The Applicant who disadvantaged by the non-disclosure should be entitled to a percentage increase in the share of the martial pool.
3. The Second Respondent and Third Respondent have 100% [City E] property.
4. The First Respondent pays back the stolen money $98,479.06 of the Second Respondent and Third Respondent from the total value of $157,028.04 adds back. Then the balance $58,548.98 be ‘added-back’ into the property pool.
5. The Respondent pays the Applicant a total sum of $75,439.94 which represents 80 percent of the restored matrimonial asset pool.
6. The First Respondent pays the Applicant legal and court cost total $25,435.50 as stated in the Applicant’s affidavit filed 16/09/2023.
7. That there be an equitable division of superannuation between the parties.
8.Such further or other orders as this Honourable Court deems fit.

Supported by Ms Ying, the Grandparents (in substance) sought orders to the effect that the City E property was theirs and that Mr Qigang pay them the money that he dishonestly removed from their account. It appeared they supported or adopted Ms Ying’s figure of that sum being what Ms Ying said it was:
(a)$100,000 as asserted at [67(d)] of Ms Ying’s affidavit filed 8 June 2020 and outline of case filed 10 June 2020; or
(b)$74,361.69 as asserted at [5] of part H of Ms Ying’s outline of case filed for final hearing on 16 November 2020 and the exact figure being the amount “..I am missing” asserted in the document put forward as an affidavit and filed on 16 November 2020 and Mr Qigang “disclose all information as to where the AUD $10,000 ‘Assurance of Support’ needs to be refunded to[22];
[22] The exact same words are used in Ms Ying’s outline of case and the document put forward as an affidavit of Mr Ying
Orders sought by grandparents
The Grandparents supported Ms Ying’s case. They asserted that they had paid for the City E property and registered it in the names of their daughter and son-in-law for ease of transmission upon their passing. They asserted that Mr Qigang had dishonestly taken their money from their Australian bank account and that they, or their daughter, should have it back from Mr Qigang.
APPLICABLE LAW
It is necessary to set out the legal principles I must apply in this case.
Property division principles
The property orders dispute falls to be determined by application of Part VIII of the Act and in particular the provisions of sections 75, 79 and 80. The relevant parts of section 79 are as follows:
Section 79      Alteration of property interests
(1)In property settlement proceedings, the court may make such order as it considers appropriate:
(a)in the case of proceedings with respect to the property of the parties to the marriage or either of them--altering the interests of the parties to the marriage in the property; or
…
including:
(c)an order for a settlement of property in substitution for any interest in the property; and
(d)       an order requiring:
(i)        either or both of the parties to the marriage; or
…
to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.
…
(2)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.
(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(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.
By section 79(4)(e), the shopping list of largely prospective factors of section 75(2), that are the same factors to be considered when considering spousal maintenance, must be had regard to.
Relevant parts of section 75 provide as follows:
Section 75Matters to be taken into consideration in relation to spousal maintenance
(1)In exercising jurisdiction under section 74, the court shall take into account only the matters referred to in subsection (2).
(2)      The matters to be so taken into account are:
(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)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
…
(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
…
(3)In exercising its jurisdiction under section 74, a court shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit.
(4)      In this section:
"party" means a party to the marriage concerned.
The Court has wide powers as set out as section 80 of the Act:
Section 80 General Powers of Court
(1)The court, in exercising its powers under this Part, may do any or all of the following:
(a)order payment of a lump sum, whether in one amount or by instalments;
(b)       order payment of a weekly, monthly, yearly or other periodic sum;
(ba)order that a specified transfer or settlement of property be made by way of maintenance for a party to a marriage;
(c)order that payment of any sum ordered to be paid be wholly or partly secured in such manner as the court directs;
(d)order that any necessary deed or instrument be executed and that such documents of title be produced or such other things be done as are necessary to enable an order to be carried out effectively or to provide security for the due performance of an order;
(e)       appoint or remove trustees;
(f)order that payments be made direct to a party to the marriage, to a trustee to be appointed or into court or to a public authority for the benefit of a party to the marriage;
(h)make a permanent order, an order pending the disposal of proceedings or an order for a fixed term or for a life or during joint lives or until further order;
(i)        impose terms and conditions;
(j)        make an order by consent;
(k)make any other order (whether or not of the same nature as those mentioned in the preceding paragraphs of this section), which it thinks it is necessary to make to do justice; and
(l)subject to this Act and the applicable Rules of Court, make an order under this Part at any time before or after the making of a decree under another Part.
(2)The making of an order of a kind referred to in paragraph (1)(ba), or of any other order under this Part, in relation to the maintenance of a party to a marriage does not prevent a court from making a subsequent order in relation to the maintenance of the party.
Stanford v Stanford [2012] HCA 52; (2012) FLC 93-518 (‘Stanford’)
The case of Stanford makes it clear that the starting point for the exercise of the Court’s jurisdiction under section 79 of the Act to alter the property interests of parties to the marriage is the identification of the existing legal and equitable interests of each of the parties in their property.
In Stanford the majority stated some fundamental propositions about section 79 proceedings. In Stanford the essential issue was whether it was just and equitable to make any property order at all, in circumstances where the consortium vitae or marriage relationship had not broken down by way of a separation and the Wife’s needs were otherwise provided for.
The Family Court of Western Australia had made an order for a property settlement that would have necessitated the sale of the former matrimonial home where the elderly husband continued to reside. For 37 years prior to the wife moving to a nursing home, the parties had made their matrimonial home in that house registered in the husband’s name. The wife’s expenses in accommodation were being met and she had the benefit of a sum set aside in the event she needed anything further. It was the second marriage for both of the parties. During the proceedings the wife died. The beneficiaries of her will were her daughters from her long ago relationship before marriage to the husband.
The High Court varied the order of the Full Court and found that in the circumstances it was not just and equitable that a property settlement or property alteration order be made at all. This was so despite 37 years of marriage and contribution by the wife. Hence section 79(4) contribution, even 37 years of it, was not to be conflated with the section 79(2) “just and equitable” requirement but should be considered separately.
Apart from the general observations about section 79 the High Court also observed that it should not be concluded that the making of an order is just and equitable only because of, or by reference to, the matters in section 79 without a separate consideration of section 79(2).
The majority observed at [39]:
[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.
Hence a spouse does not automatically share in the ownership of the other spouse’s property because of marriage or cohabitation and marriage and/or cohabitation. And the various contributions described in section 79(4)(a),(b) & (c) and/or the various other factors described in sections 79(4)(d) to (g) that include the largely prospective factors of section 75(2) (often not inaccurately called “needs” factors) do not of themselves, inevitably or automatically, entitle a spouse or de facto partner to a property alteration order pursuant to section 79 or section 90SM of the Act.
But the majority also observed at [42]:
[42]In many cases where an application is made for property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice by 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 the wife. No less importantly, the express 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... And the assumption that any adjustment of 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)[23]. 
[23] And/or section 90SM(3).

I have tried to follow and come to grips with the minutia of Ms Ying’s case including Ms Ying’s claim for Mr Qigang to reimburse her 50% of expenses, as outlined earlier in these reasons. Such a claim is not recognised by Part VIII of the Act but if the evidence satisfied me of those facts that would be relevant to assessing the quality of the respective contributions (at the second step of the preferred approach discussed earlier) of Mr Qigang and Ms Ying. Having done so I am not persuaded of the dishonesty of Mr Qigang or the hidden accounts or the hidden income (or income kept apart) aspects of Ms Ying’s case. Such efforts did not satisfy me, on the balance of probabilities, of Ms Ying’s case and occupied a substantial amount the court’s time. Ms Ying’s assertions that any unexplained use of cash or withdrawal of cash from either her account or Mr Qigang’s account must be a fraud by Mr Qigang is not supported and I am not so satisfied.
The Act, nor the precedent authorities, does not require or encourage a retrospective witness box audit of the years of expenditure and/or withdrawals from bank accounts and/or application of income by either party. Mr Qigang’s denial of impropriety or dishonesty and his complaint that it was unreasonable to expect him to account for and justify the application of all of his income and withdrawals from bank accounts over many years, many years ago has some support from the Full Court authority of Parshen v Parshen (1996) FLC 92-720 (‘Parshen’).
In that property division case the issue was whether funds received by the husband from his overseas family during the marriage should be regarded as a contribution by him. The learned Trial Judge determined they should not. The Full Court found that to be wrong. I recite the following passage from page 83,665 of that decision:
However before us Counsel for the wife contended that in the absence of evidence or a concession by the wife that the sum of $70,801 received in 1991 and the sum of $9,700 received in 1987 had been used for the joint benefit of the parties, it could not be inferred that these moneys had been so used. Thus, it was contended on behalf of the wife, the sums in question could not in any event have been taken into account as contributions by the husband.
We do not agree with these contentions advanced on behalf of [Ms Ying]. In our view, in the absence of evidence to the contrary, it should be inferred in proceedings pursuant to the provisions of s 79 that moneys howsoever received by a party during the course of the parties' cohabitation, are used by that party for the benefit of the family unit. Such moneys, in those circumstances, thus constitute a financial contribution by the party who received the moneys.
(emphasis added)
That case dealt with receipt by a party of capital sums from outside the marriage. By analogy that could also apply to receipt of income. Although the case did not deal with the application of funds withdrawn from bank accounts of the parties, the principle of an inference that may be drawn absent proof to the contrary in Parshen maybe, depending on the circumstances, analogous to the case of allegations of misuse of funds from the parties’ bank accounts.
I acknowledge that some care must be taken in a case of a multitude of fraud allegations that broad denials, the drawing of inferences and the application of the apparent logic of events do obscure fraudulent or recklessly wasteful transactions. But because of the period of time that has elapsed since the withdrawals were made, the period of time over which they are alleged to have been made, the multitude of withdrawals, the difficulty and time consuming nature of any attempt to justify those transactions and because the apparent logic of events means parties ordinarily withdraw money during a marriage for the purposes of the marriage and the principle that the party making an allegation has the burden of proving it, in this case I am satisfied that the Parshen inference should be drawn, or would need to be rebutted, as to the application of Mr Qigang’s income and the application of withdrawals from bank accounts.
Taking all of those matters into account, I am not satisfied on the balance of probabilities of the case and allegations of Ms Ying of:
(a)Mr Qigang‘s improper and/or fraudulent and/or unauthorised withdrawals of money from the accounts of Mr Qigang and Ms Ying; and
(b)Mr Qigang’s improper failure to apply his income to the purposes of the marriage.
Taking all of the above matters into account, I am not satisfied on the balance of probabilities of the case and allegations of the Grandparents of Mr Qigang improperly, or dishonestly, or without authorisation, withdrawing money from the bank accounts of the Grandparents or either of them. I dismiss the claims and/or actions the Grandparents have made in these proceedings against Mr Qigang.
In this case all parties assert that it is just and equitable to make property alteration orders, albeit very different ones. At the moment part of the financial affairs of the parties are joined together. Ms Ying and Mr Qigang remain registered as co-owners or at least co- registrants of the City E property and the Grandparents, at least at times, live there. Hence I also consider the command of section 81 of the Act:
Section 81 Duty of court to end financial relations
In proceedings under this Part, other than proceedings under section 78 or proceedings with respect to maintenance payable during the subsistence of a marriage, the court shall, as far as practicable, make such orders as will finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them.
I do not consider that section 81 is a source of power. The Lexis Nexis Australian Family law Commentary opines thus:
[s.81.1] Introductory comment Section 81 contains a direction as to how the powers of the court under Pt VIII should be exercised, but it does not, by itself, confer an independent power upon the court to make an order otherwise than in accordance with ss 74 and 79: see In the Marriage of Slattery (1976) 2 Fam LR 11,251; FLC 90-110: see also In the Marriage of Apathy (1977) 3 Fam LN 22; FLC 90-250. Section 81 only comes into play once it is decided that ss 72, 73, 79 is applicable. It then has a bearing on the final form of the order. It is to be read subject to s 83 in the case of maintenance orders and s 79A in the case of orders under s 79.
[s81.2] “as far as practicable” The court’s duty is qualified by the words “as far as practicable”. It has been said that the effect of this is to make the duty imposed in s 81 subordinate to other duties imposed on the court, such as the duty to make orders for spousal maintenance that are “proper” under s 74. Thus, if it is not possible for a court to effect a clean break while complying with s 74, the requirements of s 81 will be met by making an order for continuing periodic payments : see In the Marriage of DJM and JLM (1998) 23 Fam LR 396 at 427-8; FLC 92-816. Likewise, the section does not mandate the ending of financial relationships at all costs, and orders need to be made having regard to the facts of the case including the financial circumstances of the parties. For example, there can be a delay in the end of the financial relationship to allow finalisation of a development or to allow a subdivision: see Bokin & Wild [2022] FedCFamC1A 209.
[s 81.3] Application of s 81 Section 81 may be used to avoid parties being left as joint owners of property…
THE FOUR STEP ANALYSIS OF THE PREFERRED APPROACH
The first step of the preferred approach (discussed above) and the first necessary consideration of Stanford (at [37]), of identifying “… the existing legal and equitable interests of the parties in the property” are for practical purposes the same.
Initially neither Ms Ying or Mr Qigang pursued any claim to the property interests that each had in property obtained after separation. Both pursued their respective claims about the City E property. Ms Ying pursued her claim for a payment from Mr Qigang based on her suite of alleged “addbacks”, arising from her post relationship attempt at a retrospective audit of household income and application, and her claim that she should be paid the money Mr Qigang had removed from her parents bank accounts. Very late in the case Ms Ying alleged that some of the money Mr Qigang had deprived her of must have been contributed to the dwelling he had purchased post separation with his current partner and hence she should be regarded as having an equitable interest in that property and that she had made a contribution to it.
In the section 79 exercise, when it is just and equitable to make a property alteration order, it is not necessary that there be a connection, financial or temporal, to any of the property of the parties available to alteration by section 79. Rather all contributions, direct and indirect, financial and non-financial, including as home maker and parent to the parties children. Must be had regard to and, together with the largely prospective factors of section 75(2), weighed to achieve orders, if any are to be made, that are just and equitable. There is no category of exempt from section 79 property. But of course the circumstances of any property, including how and when property was acquired, e.g. by a post separation gift or inheritance from a relative at one extreme and property jointly purchased during a marriage long ago with only savings made during the marriage at the other would inform the weighing of all of those disparate matters, that is all contributions assessed retrospectively and section 79(4)(d) to (g), including section 75(2) factors, assessed prospectively.
The first step: identify the existing interests of the parties in all property
Often the issue of addbacks are resolved at this point of consideration. It is convenient to deal with that at this point.
The law about addbacks
The law in regards to “add backs” is conveniently summarised (up to date) in the matter of Bambrick & Gorman [2023] FedCamC1F 654 at [91] through to [101] in inclusive and with respect I adopt that recitation:
91Add backs are traditionally considered under s 75(2)(o). However, I will deal with the evidence and applicable legal principles now so my conclusions can be included in the table of property interests.
92The law in relation to add backs is settled so I will mention just a few of the authorities.
93In GVC v HPC (1998) FamCA 143 the Full Court (comprising Nicholson C J, Ellis & Kay JJ) stated:
[46]Whilst not seeking to place a fetter upon the exercise of discretion of a Trial Judge in individual cases, it seems to us that the concept of adding monies reasonably disposed of back into the pool, ought be the exception rather than the rule. The parties are entitled to reasonably conduct their affairs post separation in a manner that is consistent with properly getting on with their lives.
94In the decision of M & M, (1998) FamCA 42, the Full Court, comprising Baker, Kay and Chisholm JJ observed (as quoted by the Full Court, comprising Finn, Kay and May JJ in Chorn v Hopkins (2004) FLC 93-204 at 79,314):
There seems to be no appropriate basis for notionally adding back monies that existed at separation but which have been subsequently spent on meeting reasonably incurred necessary living expenses. Neither the Family Law Act nor the case law requires that parties go into a state of suspended economic animation once their marriage breaks down pending the resolution of their financial arrangements. Parties are entitled to continue to provide for their own support. Whether any expenditure so incurred is reasonable or extravagant is a matter that can be determined by the Trial Judge..
95In Omacini and Omacini (2005) FLC 93-218 the Full Court comprising Holden, Warnick and Le Poer Trench JJ stated, in effect, that there were three clear categories of cases where the court had determined that it was appropriate to notionally add back to the property to be divided between the parties. First, were where the parties had expended money on legal fees. Second, where there had been a premature distribution of assets which were divisible between the parties. Third, where one of the parties have undertaken reckless investments or deliberately set out to diminish the value of the divisible assets. In relation to legal fees, their Honours stated:
30.To date, three clear categories of cases have emerged where the Court has determined that it is appropriate to notionally add back to the pool of assets, that is, assets that no longer exist. They are:
(a)Where the parties have expended money on legal fees. In DJM and JLM (1998) FLC 92-8l6 the Full Court said at 85,262:
" 11. 6 For reasons set out in Farnell, s 117 provides that each party to proceedings under the Family Law Act shall bear their own costs unless the Court otherwise orders. Failing to add back monies expended by parties on costs frequently has the effect of defeating the policy of s 117 by permitting the pool of available assets for distribution between the parties to be diminished by any monies that either of the parties have managed to spend on their costs up to the date of trial. We are of the view that the normal approach ought be to add costs already paid back into the pool. Whilst there may be cases where that approach is inappropriate, the reasons why it is not taken ought normally be spelt out. "
96In relation to premature distributions, their Honours stated:
(b)Where there has been a premature distribution of matrimonial assets. In Townsend and Townsend (1995) FLC 92-569 Nicholson CJ as he then was with whom Fogarty and Jordan JJ agreed, said at 81,654:
"In my view, what occurred in this case, as I said during the course of argument was, in fact, a premature distribution of a proportion of the matrimonial assets. What the husband did was to distribute to himself an asset in which the wife had a legitimate interest. In such circumstances I consider that it would be unjust in the extreme to simply treat such conduct by the husband as a matter to which regard should be had under section 75(2). It seems to me that the husband has had the benefit of that money. Had he retained, for example, the taxi licence instead of selling it, that would have been brought into account as an item of property which would have been dealt with in the same way as the remaining items of property in this case. Accordingly, I am of the view that the correct way in which to deal with the husband's receipt of those moneys is to bring them into the pool of assets on a notional basis and make a distribution accordingly."
97In relation to reckless and wanton expenditure, their Honours stated:
(c)In the circumstances outlined by Baker J in Kowaliw and Kowaliw (1981) FLC 91-092 at 76,644:
, 'As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a)where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b)where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
Conduct of the kind referred to in para. (a) and (b) above having economic consequences is clearly in my view relevant under sec 75(2)(0) to applications for settlement of property instituted under the provisions of sec 79."
98In Omacini’s case, the Full Court went on to observe “[as] the Full Court said in Browne v Green (1999) FLC 92-873 at 86,360:
"44. We agree with her Honour that the principles stated by Baker J in Kowaliw certainly do not constitute any form of fixed code. They are no more than guidelines for use in the exercise of the discretionary jurisdiction conferred by s 79 of the Family Law Act 1975. Nevertheless, they have over the considerable period of time since they were enunciated, become a well accepted guideline in this jurisdiction - a guideline the use of which assists in the achievement of the important goal of consistency within the jurisdiction. "
99In SMB & MFB (2006) FamCA 46 the Full Court, comprising Bryant C J, Kay & Warnick JJ, held:
[71] In the present case, no finding was made by the Trial Judge that the Wife had either embarked on a course of conduct designed to minimise the value of the matrimonial assets, or that her expenditure was reckless, wanton or negligent.
[72] Thus, we think that there is a fundamental flaw in the pool created by the Trial Judge which included a notional addback of the monies that the Wife had received on account during the hearing. Absent any negative finding about the Wife’s expenditure which she had detailed in her Affidavit and which she asserted to be her reasonable annual expenses, we cannot see any basis upon which His Honour ought reasonably to have added back the sum of $102,500.00 to the asset pool.’
100In C & C [1998] FamCA 143 the Full Court, comprising Nicholson CJ, Ellis and Kay JJ observed that it will be “the exception rather than the rule” that a direct dollar adjustment equivalent to the amount of the alleged dissipation of the pool is made to the otherwise entitlement of a party.’ In Bevan & Bevan (2013) FLC 93-545 the Full Court comprising Bryant CJ, Finn and Thackray JJ said the following about add backs:
[79]We observe that “notional property”, which is sometimes “added back” to a list of assets to account for the unilateral disposal of assets, is unlikely to constitute “property of the parties to the marriage or either of them,” and thus is not amenable to alteration under s 79. It is important to deal with such disposals carefully, recognising the assets no longer exist, but that the disposal of them forms part of the history of the marriage – and potentially an important part. As the question does not arise here, we need say nothing more on this topic, save to note that s 79(4) and in particular s 75(2)(o) gives ample scope to ensure a just and equitable outcome when dealing with the unilateral disposal of property” things.
101Whether property is to be added back into the divisible assets is a matter of what is just and equitable in the circumstances of the case. As was stated by Murphy J in Trevi & Trevi (2018) FLC 93-858, with which Alstergren DCJ (as he then was) and Kent J agreed:
36. Paid legal fees occupy a particular position in the consideration of addbacks by reason of s 117(1) of the Act; a matter not relevant to any other form of expenditure or dissipation of property the subject of an addback claim.
37. An order failing to addback legal costs is a pre-emptive decision about one party paying the other’s legal costs. The statutorily prescribed default position is that neither party pays all or some of the other party’s costs.
38. If, contrary to the demands of that section, there is to be a payment of costs, the award is dependent upon a finding of justifying circumstances which, in turn, is dependent upon (non-exhaustive) considerations all of which are informed by antecedent events - for example, whether one party has been “wholly unsuccessful” and “the conduct of the parties to the proceedings”. An award of the costs of trial, if any, is in the usual run of events made after the respective entitlements of the parties to a settlement of property have been assessed and, importantly, any awarded costs are paid from the assessed entitlement to property received by the paying party.
39.As has been said, legitimate guidelines “guide the exercise of a discretion”; they do not replace it. Guidelines, must “[preserve], so far as it is possible to do so, the capacity … to do justice according to the needs of the individual case”. The decision to addback or not addback paid legal fees remains a matter of discretion. But, a finding that it is just and equitable to not addback an amount of legal fees so paid is a finding that it is just and equitable for the other party to contribute to the costs of the first party in that proportion as part of an overall assessment of the justice and equity governing their property division.
40.The considerations just referred to are plainly always important and central to the exercise of that discretion in respect of paid legal fees.
41.The passages from Chorn, quoted above, draw a distinction between legal costs met from property that would otherwise be available at trial and legal costs met from funds “generated by a party post-separation from his or her own endeavours or received in his or her own right (for example, by way of gift or inheritance)”. The proposition there advanced, that such expenditure “would generally not be added back”, also needs to be seen as a guideline informing the relevant discretion rather than determining it. A further distinction is suggested in Chorn between funds generated in that manner and “[f]unds generated from assets or businesses to which the other party had made a significant contribution or has an actual legal entitlement”.
42.The latter suggestion recognises the discretion inherent in the task and also, perhaps, that in the particular circumstances of a case, adding back sums generated post-separation in the different manners suggested might create injustice as much as it might cure it.
(footnotes omitted)
No addbacks proven

I am not persuaded that any of the alleged “addbacks” should be made because I am not persuaded, on the balance of probabilities, of the essential facts said to justify or compel such findings.
Mr Qigang’s case and Ms Ying’s case paid little or no attention to home maker and parent contributions or to prospective section 75(2) factors. But I must take those matters into account to the extent the evidence permits. Each party filed and relied on financial statements during covid lock down (October 2020). Neither challenged what the other asserted in the financial statement of the other.
Ms Ying’s property
Ms Ying deposed to (and I accept) that she co owns (50%) with her current and post separation partner, Mr O, a property (and infer a dwelling and her home) whereby her 50% was said to be valued at $340,000 and subject to a mortgage debt (and I infer obtained to purchase the property) where her 50% was $82,325. I infer that Ms Ying was asserting her 50% of the dwelling purchased, after separation from Mr Qigang, was about $257,000. In addition she asserted a 50% interest in a bank account held with Mr Ying (then holding a total of $32,250) of $16,125. Ms Ying asserted she owned household contents of $8,000 and held superannuation of $43,000 with no other debts.
Hence Ms Ying asserted, apart from the City E property, she held non superannuation property valued at about $281,125 and superannuation valued at $43,000, or total property and superannuation of $324,125. No request was made by Mr Qigang for up to date expert valuation and no further evidence about value was led by Ms Ying. These assertions of ownership and value were unchallenged and I accept them as close enough because they are unchallenged and not implausible.
I had no evidence of the value of the City E property although I accept it is valuable. On Ms Ying’s case as pursued, admissible evidence of the value of the City E property was not required because she sought that Mr Qigang transfer his interest in the City E property to her, to be held for her parents, whatever its value.
Mr Qigang’s property
Mr Qigang deposed to (and I accept) that he co owns (50%) with his current and post separation partner, Ms GG, a property (and infer a dwelling and his home) whereby his 50% was said to be valued at $262,500 and subject to a mortgage debt (and I infer obtained to purchase the property) where his 50% was $206,339. I infer that Mr Qigang was asserting his 50% of the dwelling, purchased after separation from Mr Qigang, was about $56,000. In addition he asserted owning 100% of a motor car valued at $10,000, and house hold furniture valued at $2,000 and 100% of a bank account of $3,373. He asserted he held a superannuation interest of $61,348. Those assertions were unchallenged and I accept them as close enough because they are unchallenged and not implausible.
Mr Qigang asserted debt of a credit card of $7,866. I accept that was the balance of that debt but I am not satisfied that debt relates in any way to the parties relationship or that it would be just and equitable to regard it as a liability against the parties pool of property. But I take its existence into account as a liability of Mr Qigang’s.
No debt to the Grandparents proven
For the reasons I have set out above I have dismissed the Grandparents claims against Mr Qigang and hence there is not a further debt of Mr Qigang’s to record or take into account.
No hidden bank account proven
Our adversarial system works, or muddles through, on the time honoured principle of law and common sense that the person who makes an allegation carries the burden of proving it on the balance of probabilities. I am not satisfied, or put another way I do not have a comfortable satisfaction that Mr Qigang has, or had, a hidden bank account during the marriage where he secreted funds. That is not a declaration that I am satisfied that Mr Qigang never had a hidden or undisclosed bank account.
HELP Debt
Mr Qigang asserts a HELP debt of $23,939. That is a real debt and I acknowledge it. But the nature of a HELP debt is that in the ordinary course of events Mr Qigang will not be called upon to pay it other than by modest instalments from his future income as he earns it. It can be regarded as causing him to have a higher rate of marginal taxation than otherwise. It is not appropriate to include or deduct it as a debt like, for example, a mortgage debt to a non-related bank.
Hence Mr Qigang asserted, apart from the City E property, he held non superannuation property valued at about $71,373 and a superannuation interest valued at $61,348, or total property and superannuation of $132,721 (without deducting the credit card debt of Mr Qigang). No request was made by Ms Ying for up to date expert valuation and no further evidence about value was led by Ms Qigang. These assertions of ownership and value were unchallenged and I accept them as close enough because they are unchallenged and not implausible.
I repeat that I had no admissible evidence of the value of the City E property although I accept it is a valuable property. On Mr Qigang’s case as pursued, admissible evidence of the value of the City E property was not required because he sought the sale of the City E property and equal division of sale proceeds, whatever its value. Notwithstanding that it was not disputed the Grandparents had spent some money or the City E property readying it for occupation, Mr Qigang’s case his not make any allowance for that.
I addition there exists the $10,000 immigration deposit of assurance of support for the Grandfather’s visa. This is in Mr Qigang’s name although it is undisputed the source of funds, directly or indirectly, was a gift from the Grandparents. In substance it should be regarded as the joint property of Mr Qigang and Ms Ying.
The total pool of property
It is appropriate to recognise the very different nature, form and characteristics of the parties superannuation interest. Although valuable, given the parties ages and obligations to care for their child that superannuation will not be available to them, other than to contemplate or plan retirement, for many years. Hence the property pool or the identification of all of the parties interest in property is as follows.

Ms Ying’s non superannuation property $281,125

Ms Ying’s superannuation $43,000

Ms Ying’s total all property $324,125

Mr Qigang’s non superannuation property $71,373

Mr Qigang’s superannuation $61,348

Mr Qigang’s total all property $132,721

Immigration deposit (not yet available) Assumed or notional $10,000

The City E property Valuable but value not known

Total all property (not inc City E) $466,846

To the extent I am satisfied property exists and not including the City E property, Ms Ying holds 69% (not including the Immigration deposit) of that property or roughly more than double and a bit less than 2 ½ times what Mr Qigang holds.
Apart from the City E property, Mr Qigang made no claim to any of Ms Ying’s property. The sum of add backs and effectively compensation Ms Ying sought, apart from what her parents sought, is more than the value of all of Mr Qigang’s property.
Mr Qigang had put in evidence an “appraisal”[56] from a person in Country F said to be an expert in valuation of property in City E. This valuation or any other was not agreed and there was not consent to this appraisal being relied upon. It was not a single expert valuation. The writer of the appraisal was not available for cross-examination, the appraisal was annexed to Mr Qigang’s affidavit and was hearsay. In those circumstances and acknowledging the trouble Mr Qigang went to for this information, however this information is not relied upon. I am satisfied the City E property is valuable, but I do not make any finding to the value of the property.
[56] Annexure MRQ-11 to Mr Qigang affidavit filed 10 November 2020
Step two of the preferred approach: contribution
The parties did not press any finding or address this concept because of the way they pursued their respective cases. It is common ground that at one point the available proceeds of sale of the former matrimonial home were divided $30,000 to each of Mr Qigang then other adjustments were made. What were made and should have been made are controversial and I am unable or the evidence to make findings about that.
The source of the funds for the deposit on the former matrimonial home are in dispute. That sum, about $67,514 is asserted to be a gift from the Grandparents, on the one hand, and the savings and investments of Mr Qigang and Ms Ying on the other. Given the nature of the evidence and the extent to which it is unreliable, I am not able to make a finding about that disputed fact.
Of the available assets in the lead up to final separation and as at separation, including those of the company, I am satisfied that Mr Qigang ended up with more than half. I am not able to make a finding, on the reliable evidence, as to what would have been an equal division at that time or the value of the assets to be divided but I am satisfied they were modest.
There is no reliable evidence of the (likely) chain of financial events, and the parties had little interest in tracing same given the nature of their cases, that caused or contributed to each of the parties now having what they have.
The nature of the evidence and the nature of the parties contentions and cases does not permit precise findings as to contribution to the available pool. But I am satisfied that by hard work and thrift Ms Ying has made the overwhelming contribution to the assets she retains. And I am satisfied that by hard work and thrift Mr Qigang has made the overwhelming contribution to the assets he retains.
As to the City E property, I do not have a comfortable satisfaction of the case any of the parties as advanced. Nor am I able to make a finding as to any alternative, for example some mixture or partial acceptance of parts of any parties’ case or cases.
The $10,000 deposit/assurance with the Department of Immigration
It was common ground that Mr Qigang, and or Mr Qigang and Ms Ying, paid or directed the $10,000 assurance deposit made to facilitate the grandfather’s immigration visa. I am satisfied it should be regarded as being indirectly contributed by Ms Ying because the source of the funds was a gift from her parents because of the filial relationship between donor and recipient. I am satisfied that when that assurance or deposit is not required that it should be paid to Ms Ying who can deal with it as she sees fit. It should not become the sole property of Mr Qigang. Mr Qigang should execute any authority or document necessary to ensure those funds, when available (10 years after deposit) are paid to Ms Ying not retained by Mr Qigang. Mr Qigang does not oppose this or seek to retain it.
Step three of the preferred approach: section 75(2) factors
Section 75(2) is recited earlier in these reasons. Mr Qigang and Ms Ying are of similar age and it is not asserted they are in other than reasonable health. At the end of the first step of the preferred approach, and putting aside the City E property, Ms Ying has more property than Mr Qigang, but each own relatively modest property.
Mr Qigang is more highly educated than Ms Ying and to at least some extent, and not unreasonably, some of the parties income and/or resources, available during the marriage were applied to further Mr Qigang’s professional qualifications. As a result of that education, at trial, he was earning more than Ms Ying. According to his unchallenged financial statement earns a decent but in professional terms, modest, income. Ms Ying, at the covid lock down time of her financial statement only received modest “jobkeeper” income. Ms Ying is however, as demonstrated by her capacity to examine and collate financial records in these proceedings, capable and diligent and capable of employment and earning an income. I am satisfied her earning capacity is less than Mr Qigang’s but the parties did not pursue this issue and I make no further finding about income disparity.
The child of Ms Ying and Mr Qigang is now about 12 years and lives with Ms Ying and spends time with Mr Qigang. I infer that to a modest degree the care of that child would impede Ms Ying’s ability to pursue employment. Mr Qigang supports that child by providing for her when she is with him and by paying assessed child support to Ms Ying.
I have no evidence of the capacity of the partner of Ms Ying to earn income. I have no evidence of the capacity of the partner of Mr Qigang to earn income. Mr Qigang supports his child, now about 5 years, with his current partner.
The parties did not address section 75(2) factors or press for any adjustment on account of section 75(2) factors. I am satisfied that, apart from the City E property, Mr Qigang and Ms Ying are capable, hardworking people who can and do support themselves, their partners and children but are of comparatively modest circumstances.
I am not satisfied that I should make any property order adjustment on account of section 75(2).
Step Four: what orders are just and equitable?
A this point I must stand back and consider what orders are just and equitable. I bear in mind the elucidation of law in Stanford that I must not assume there should be final property alteration orders, or assume community of property, or conflate contribution (even many years of it) as the sole justification for finding orders any orders would be just and equitable. I have considered the circumstance that Mr Qigang and Ms Ying remain registered in Country F as the joint owners of the City E property and only the Grandparents have resided in the property, attended to its outgoings and paid for repairs for some years and the command of section 81 of the Act, recited earlier. I take into account the bitter unhappiness of all of the parties with that state of affairs. That all would much prefer, and have sought, the alternative of findings and orders as each seeks does not, of itself, make final property adjustment order just and equitable.
I have no evidence of the law, or its consequences, in Country F, of the co-ownership of real property or whether and how that can or is resolved when the persons registered as co-owners are in bitter dispute about the property and its ownership. I have no evidence of the rights, if any, of the Grandparents to address their rights or claims in Country F. Those matters would require either agreement or expert evidence.
The law of this land says I should not go on an expedition of research myself as to the law of a foreign jurisdiction[57]. I resist the temptation to endeavour to work that out myself. However, taking into account the two decisions of the Country F courts that are in evidence, I have no reason to believe that there would be a lacuna in the Country F law in that regard or that it would lack procedural fairness or common sense from the cultural perspective of Country F. But I make no finding about that.
[57] The opposite is the case for the law of any matter in the Commonwealth of Australia, see section 143 of the Evidence Act 1995 (Cth).
Section 81 does not command or permit some lower or other standard of proof, or tempering of the command of section 79(2), merely to end the married parties’ financial relationship, no matter how much that end may assist all parties. I am to do so “as far as practical”. It is neither practical or permitted by law to make orders that are not “just and equitable”. It is not “just and equitable” to make final property adjustment orders without a factual underpinning or just because that would be a good idea or because that would, at least at first instance, quell a controversy.
In this case, after taking into account the written and oral evidence, and the nature of the evidence, including the uncertain reliability of some of it (as discussed earlier in these reasons), none of the parties have persuaded me of their respective cases, or of the underlying facts each asserts where there is a dispute about those that would permit alternative orders that are just and equitable.
The absence of a comfortable satisfaction of any parties factual assertions, or of any alternate position (ie some inference drawn or some mixture of parts of the parties’ cases) means I am unable to make necessary findings that when applied to the law would justify or compel orders that I am satisfied are just and equitable. I must follow section 79(2). Save as to the assurance of support deposit, I am not satisfied, on the evidence that it is just and equitable to make any order pursuant to section 79. In that circumstance I am commanded that I “shall not make an order under [section 79]”. That is notwithstanding the command of section 81 and the position of [42] of Stanford (recited above).
In the unusual and exceptional circumstances or the manner of the presentation of the evidence in this case, my decisions does not quell the disputes in favour or against any of the parties. The end result is that Ms Ying and Mr Qigang remain registered as co-owners of the City E property and this is contrary to the scheme or object of section 81. In regard to Section 139, I quell the controversy and grant remedies to the parties to the extent that I can on the evidence by dismissing all of the parties claim, save for the order pursuant to section 79 relating to AUD $10,000 assurance of support.
Save as to the AUD $10,000 assurance support order, all extant applications, and claims, including those of the Grandparents in the accrued jurisdiction, are dismissed.

I certify that the preceding three hundred and four (304) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy.
Associate:
Dated: 25 October 2024

File number(s):	MLC 197 of 2019
Judgment of:	JUDGE O'SHANNESSY
Date of judgment:	25 October 2024
Catchwords:	FAMILY LAW – Property – said to be a “2 day” case that stretched over 9 days – final hearing elongated over 2 years – expert evidence taken on the courts own motion as to the law of Country F – section 277 of Country F legislation – witness/parties unable to lawfully give evidence electronically from Country F – parties in lockdown in Country F – matter adjourned until parties in Australia – accrued jurisdiction – duty to determine controversies if within jurisdiction – competing fraud allegations – lots of alleged “add backs” – chaotic conduct of the case – a party drafting witness and aligned party affidavits – party interpreting affidavits to witnesses/parties – effect on reliability of evidence – weight to be given to broad opinion and conclusionary evidence – allegations of substantial transfers of cash – dispute of ownership of dwelling in Country F – Dwelling in Country F registered in name of husband and wife-weight to be given to decision of courts of Country F – whether parties bound by decisions of courts of Country F – allegations of non-disclosure – allegations of “hidden” bank accounts – need for actual satisfaction of events or circumstances alleged – court satisfied of possibility of events alleged but does not have actual satisfaction of events alleged – effect of section 81 – effect of section 139 of the FCFCOA Act – section 139 does not command a lower standard of proof – whether court satisfied of events and circumstances that mean it is just and equitable to change recorded ownership of dwelling in Country F – accrued jurisdiction- claims of third parties against Husband not proven and dismissed – accrued jurisdiction claims of Husband against third parties not proven and dismissed – assurance of support lodged with Services Australia – just and equitable that one party transfer all right and title in those funds to the other spouse – save as to order relating to assurance of support, application to alter property interests dismissed.
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) ss 75, 79, 80 & 81 Federal Circuit and Family Court of Australia Act 2021 (Cth) s 139 Limitation of Actions Act 1958 (Vic) ss 5 & 27
Cases cited:	Akbar & Gandega [2023] FedCFamC1A 174 Bambrick & Gorman [2023] FedCFamC1F 654 Bao v Qu; Tian (No2) [2020] NSWSC 588 Blass & Blass [2022] FedCFamC1A 63; (2022) FLC ¶94-085 Bosanac v Federal Commissioner of Taxation (2019) 267 FCR 169, [2019] FCAFC 116 Briginshaw v Briginshaw (1938) 60 CLR 336 Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731, [2005] NSWCA 110 Fox v Percy (2003) 214 CLR 118 Hickey and Hickey and the Attorney-General [2003] FamCA 395; (2003) FLC 93-143  Ibbott & Chaconas and Ors [2014] FamCA 73 Johnson v Page (2007) FLC 93-344 Keskin & Keskin and Anor [2019] FamCAFC 236; (2019) FLC 93-932 Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369 Ogilvie v Adams [1981] VR 1041 Parshen v Parshen (1996) FLC 92-720 Stanford v Stanford [2012] HCA 52 VL Finance Pty Ltd v Legudi [2003] VSC 57 Ying & Qigang [2023] FedCFamC2F 111
Division:	Division 2 Family Law
Number of paragraphs:	304
Date of last submission/s:	1 May 2023
Date of hearing:	17 & 18 November 2020, 1 & 2 February 2021, 15 & 16 February 2021, 19 & 20 January 2023 and 1 May 2023.
Place:	Melbourne
The Applicant	In Person
The First Respondent	In Person
The Second Respondent	In Person
The Third Respondent	In Person

MLC 197 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS YING Applicant
AND:	MR QIGANG First Respondent MR YING Second Respondent MS JIAN Third Respondent

ORDER MADE BY:	JUDGE O'SHANNESSY
DATE OF ORDER:	25 OCTOBER 2024

The Applicant 80%	$84,637.82
The Respondent pays the Applicant	$65,319.94

Ms Ying’s non superannuation property	$281,125
Ms Ying’s superannuation	$43,000
Ms Ying’s total all property	$324,125
Mr Qigang’s non superannuation property	$71,373
Mr Qigang’s superannuation	$61,348
Mr Qigang’s total all property	$132,721
Immigration deposit (not yet available)	Assumed or notional $10,000
The City E property	Valuable but value not known
Total all property (not inc City E)	$466,846