Yuan & Shun (No 2) - [2023] FedCFamC2F 668

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Yuan & Shun (No 2) [2023] FedCFamC2F 668

File number(s): MLC 6943 of 2017

Judgment of: JUDGE HARLAND

Date of judgment: 1 June 2023

Catchwords: FAMILY LAW – final property hearing – undefended – husband and counsel excused from hearing after adjournment opposed – non-disclosure – wastage – gambling

Legislation:
Family Law Act 1975 (Cth) ss. 75(2), 75(2)(o), 79(1)-(2), (4), 81, 102NA, 106A

Sentencing Act 1991 (Vic) s.85B(1)

Transfer of Land Act 1958 (Vic) s. 32

Cases cited:
Benson & Drury [2020] FamCAFC 303

Black & Kellner (1992) FLC 92-287

Chang & Su [2002] HCATrans 549

Kowaliw and Kowaliw (1981) FLC 91-092

Stanford v Stanford (2012) 247 CLR 108

Division: Division 2 Family Law

Number of paragraphs: 62

Date of last submission/s: 15 May 2023

Date of hearing: 15 May 2023

Place: Melbourne

The Applicant No appearance

Counsel for the Respondent Mr Ellis

Solicitor for the Respondent Stephen Peter Byrne Lawyer
ORDERS

MLC 6943 of 2017

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR YUAN
Applicant

AND:
MS SHUN
Respondent

order made by:

JUDGE HARLAND

DATE OF ORDER:

1 June 2023

THE COURT ORDERS THAT:
1.The husband his servants and agents be and are hereby restrained by injunction from:
(a)transferring, disposing or otherwise dealing with the husband’s interest in the real property situate and known as D Street, Suburb E in the State of Victoria being the whole of the land more particularly described in Certificate of Title Volume … Folio … (“Suburb E property”); and/or
(b)encumbering or further encumbering the Suburb E property; and/or
(c)drawing down upon the loan account ending #...02 secured by mortgage encumbering the Suburb E property.

2.The solicitor for the wife send a letter to the occupants of the Suburb E property by registered post notifying them that the wife is seeking orders for the sale of the Suburb E property which would require them to vacate that property.
3.The parties do all acts and things and sign all documents necessary to list the Suburb E property for sale on such terms and conditions as shall be determined solely by the wife (“the Sale”), including but not limited within 14 days of a written request:
(a)irreovacably instructing a selling agent of the wife’s choice to conduct the conveyancer on the instructions of the wife;
(b)signing and producing to the wife a statement produced in accordance with Section 32 of the Transfer of Land Act 1958 (Vic);
(c)signing and producing to the wife a Contract of Sale; and
(d)signing and producing to the wife any other document or doing any other thing necessary to facilitate the sale of the Suburb E property.

4.Upon settlement of the sale of the Suburb E property, the proceeds be applied as follows:
(a)firstly, payment of all costs and commissions of the sale;
(b)secondly, to discharge any encumbrance on title; and
(c)thirdly, the remaining proceeds of sale to the wife.

5.In the event that either party fails…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Yuan & Shun (No 2)

Details

AGLC: Yuan & Shun (No 2) [2023] FedCFamC2F 668
Case: [2023] FedCFamC2F 668
Decision Date

CaseChat Overview and Summary

This case involved an application by the wife, Ms Shun, for property settlement orders following the breakdown of her marriage to the husband, Mr Yuan. The Federal Circuit and Family Court of Australia (Division 2) was tasked with determining the just and equitable distribution of the parties' property and financial interests. The court faced several key legal issues, including the extent of the wife's non-financial and parenting contributions, the husband's failure to meet his disclosure obligations, and the impact of family violence on the wife's capacity to contribute during the marriage.

Judge Harland found that the husband's significant non-disclosure and evidence of wastage rendered it impossible to accurately ascertain the parties' asset pool. The court noted that the husband had deliberately failed to comply with multiple disclosure orders and had engaged in significant gambling and unexplained financial transactions. Given the husband's non-cooperation and lack of transparency, Judge Harland decided to take the husband's non-disclosure and unexplained financial activities into account as a significant factor under s.75(2)(o) of the Family Law Act 1975 (Cth). The court also considered the severe family violence the wife had endured, which had a substantial impact on her mental health and ability to work.

In reaching a decision, the court evaluated the contributions made by both parties during and after the marriage. The wife had made significant contributions, including primary care for their child, financial support during the relationship, and sacrifices to accommodate the husband's controlling behavior. Despite the husband's initial contributions, including ownership of the matrimonial home, his failure to support the wife financially post-separation and his lack of parenting involvement weighed heavily in the court's consideration.

Judge Harland concluded that it was just and equitable for the wife to receive the whole of the net equity in the former matrimonial home, given the husband's non-disclosure and failure to explain significant financial transactions. The court also ordered the husband to indemnify the wife against any debts he claimed to owe. The final orders included restraining the husband from dealing with the matrimonial home, requiring the wife's solicitor to notify the occupants of the impending sale, and directing the husband to assist in listing and selling the property. The wife was also granted liberty to apply for further orders as necessary.

Orders