ZE & HENG
[2018] FamCA 97
•26 February 2018
FAMILY COURT OF AUSTRALIA
| ZE & HENG | [2018] FamCA 97 |
| FAMILY LAW – PROPERTY – Where the parties each allege that the other owns property in China – Where the allegations have not been substantiated – Where the wife has used substantial funds from the parties’ mortgage to purchase property – Where the husband does not claim an interest in the wife’s property but seeks to retain half of the parties’ Australian property and his business – Where it is equitable that the husband retain half of the proceeds of sale of the Australian property before the payment of the mortgage, and the wife retain the net balance. FAMILY LAW – PROPERTY – NON-DISCLOSURE – Where the wife has not disclosed assets or financial resources – Where her non-disclosure is taken into account pursuant to s 75(2). FAMILY LAW – SPOUSAL MAINTENANCE – Where the wife seeks $2,000 per month in spousal maintenance – Where the wife is in receipt of a Newstart allowance – Where she has not disclosed her assets and income – Where the wife has not established that she is unable to support herself – Application dismissed. |
| Family Law Act 1975 (Cth) s 75(2) |
| APPLICANT: | Mr Ze |
| RESPONDENT: | Ms Heng |
| FILE NUMBER: | SYC | 3567 | of | 2014 |
| DATE DELIVERED: | 26 February 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Rees J |
| HEARING DATE: | 13 and 14 February 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Johnson |
| SOLICITOR FOR THE APPLICANT: | Lawside Lawyers |
| THE RESPONDENT: | Self-represented |
Orders
That each of the husband and the wife do all things required to sell the property at B Street, Suburb C and to distribute the net proceeds of sale in the following manner and priority:
(a) In payment of legal fees, agents’ commission and costs of sale.
(b) In payment of one half of the balance then remaining to the husband.
(c)In payment of the sum of $750,000, deposited by the husband in the offset account, to the mortgagee.
(d)In payment of the balance of the amount owed pursuant to the mortgage.
(e)The balance remaining to the wife.
That the contents of the property at B Street, Suburb C be divided equally between the husband and the wife. In the event that they are unable to agree on the division, then the husband shall prepare two lists which between them list the whole of the contents and the wife shall choose which list she will take.
That, subject to these Orders, the husband is solely entitled to all personal property currently in his possession, including but not limited to his interest in superannuation and his interest in D Pty Ltd.
That subject to these Orders, the wife is entitled to all items of property, real or personal, owned in her sole name.
That the husband sign any document tendered to him giving effect to Order 4.
That the wife’s application for spousal maintenance is dismissed.
That the wife’s application for the sale of property in China is dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ze & Heng has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 3567 of 2014
| Mr Ze |
Applicant
And
| Ms Heng |
Respondent
REASONS FOR JUDGMENT
Mr Ze (“the husband”) and Ms Heng (“the wife”) married in China in 1968. There was one child of their marriage, a son now aged 31 years.
The proceedings before the Court relate to property settlement and spousal maintenance.
The husband and the wife were both born in China. They married in China and their son was born there.
In December 1989 the husband migrated to Australia, the wife and their son remaining in China. The relationship continued.
In China, the wife worked full time. She and their son lived with the husband’s parents and they looked after the child. The husband asserts, and the wife denies, that until 1995, the husband sent money to China. That dispute cannot be resolved, but there is no assertion that the husband used his earnings for purposes other than the family.
On 9 September 1995, the wife and their child came to Australia and the family was reunited. They lived in rented premises. The wife found employment. The parties cared for their son together.
In 1997, they bought a house at Suburb E for $225,000 using $100,000 saved by the husband from his employment in Australia and borrowing the balance from the Commonwealth Bank.
Suburb E was sold in 2000 for $405,000 and a property was bought at Suburb C for $500,000, using a mortgage of $170,000 from N Bank.
In 2001 the husband commenced work as a contractor. A company, D Pty Ltd was incorporated as a vehicle for the husband’s contracting enterprise. He is the sole employee of the company. There was no expert evidence of the value of the company. The husband estimated its value to be $79,000 based on his accountant’s assessment. The wife did not accept the husband’s estimate but there was no other evidence and it will be accepted as an admission against interest. There was no suggestion that the company had any significant assets or was other than a mere vehicle for the husband’s employment.
In 2008, Suburb C was sold for $870,000 and the parties bought a property at B Street, Suburb C (“B Street”) for $970,000, free of encumbrance. In 2012, B Street was substantially rebuilt. There is a dispute over whether or not the parties, or the husband, borrowed $100,000 from a friend. The wife denies that this occurred. The husband says the money was borrowed and repaid by him. In either event, the renovations to B Street were ultimately paid for by the parties.
The husband and the wife separated in March 2013 but remained living separately at B Street. At about the time of separation, the wife commenced employment.
Shortly after separation, the parties borrowed $1,000,000 secured against B Street.
The wife deposed that she told the husband that the mortgage represented her share of B Street. She deposed:
…I told the applicant, “I mortgage $1,000,000.00 from the proeprty (sic) in my part of shares and I am going to pay the mortgage, when we divide the property, you can less the money from my entitlement part (sic)”, he agreed. Therefore, I mortgaged $1,000,000.00 to purchase off plan properties, and since then I paid mortgage until today.
How the wife paid the interest on the mortgage is something of a mystery which will be further examined.
It is not in dispute that the wife engaged in a commercial venture to purchase investment property “off the plan” using the $1,000,000 borrowed against B Street and the husband played no part in the venture.
In 2013, the wife purchased a unit at Unit 1, F Street, Suburb G (“Unit 1”) for $425,000 in her own name and a second unit at Unit 2, F Street, Suburb G (“Unit 2”) for $425,000 in the name of their son. In 2017, the husband obtained market appraisals for the two units at $880,000 each.
The parties’ son deposed that he owns Unit 2. He deposed that he borrowed the whole of the purchase price of $425,000 from his mother, the wife. The wife denied that their son borrowed funds from her as he deposed. She said that she bought Unit 2 and gave it to her son.
In cross-examination by Counsel for the husband, the parties’ son said that he had not borrowed any money from his mother to purchase Unit 2 and that she had provided the whole of the money for the purchase. When it was put to him that his assertion in his affidavit was therefore untrue, he retracted that statement and said that he had borrowed $425,000 and owed that amount to the wife. That debt is an asset of the wife.
The settlement of the purchases of Unit 1 and 2 has not taken place. The wife deposed that litigation commenced in the Supreme Court of New South Wales in September 2017 in relation to these properties. A copy of the Statement of Claim was tendered. The wife and the parties’ son as plaintiffs seek specific performance of the contracts.
In the Supreme Court proceedings, the wife is represented by lawyers. In oral evidence she said that she had paid those lawyers $300,000 on account of fees.
In 2014, the wife negotiated to purchase a further six properties in Suburb H “off the plan”. In order to pay the deposits, she asked the husband to consent to a further borrowing of $200,000 secured over B Street. He refused. How she funded the purchases is not clear. The amount required for the deposits on the six properties was $233,480. She had already spent $850,000 from the advance of $1,000,000 buying the two units at F Street, Suburb G. She may have also been required to pay legal fees as the contracts for sale indicate that she had solicitors acting for her. In addition, she would have paid stamp duty which would have been approximately $30,000. She may have had about $100,000 remaining from the mortgage advance. She did not give any evidence about how the purchases were financed other than that she withdrew her superannuation to pay the balance. In cross-examination, she said that she withdrew between $60,000 and $80,000. No documents have been provided to substantiate that assertion.
Unit A, J Street was purchased for $453,000 in the name of the wife.
Unit B J Street, Suburb H was purchased for $369,900 in the name of the husband and the wife.
Unit C J Street, Suburb H was purchased for $355,500 in the name of the husband and the wife.
Unit D J Street, Suburb H was purchased for $351,000 in the name of the husband and the wife.
Unit E J Street, Suburb H was purchased for $366,400 in the name of the parties’ son. He deposed that he is the beneficial owner of that unit and that the deposit was paid by him. In cross-examination by Counsel for the husband, he said that he had not borrowed the deposit from his mother but that she had paid the deposit. In answer to questions asked by me he said that he had borrowed the deposit from her and that he owed her that amount. For the purpose of these proceedings, it will be assumed that the parties’ son owns Unit E and that he owes the wife $36,640.
Unit F J Street, Suburb H was purchased for $439,000 in the name of the wife’s sister.
In relation to the properties purchased in joint names with the husband, the wife asked the husband to execute a document agreeing that he had no interest in those properties and transferring his interest in them to the wife. That document was signed by the husband on 28 July 2014.
The wife does not assert that her sister beneficially owns Unit F.
In total the wife has paid deposits of $233,480 for the six Suburb H units.
In January 2017, a further sum of $1,100,000 was borrowed against B Street.
The husband asserts that he asked the wife not to use the funds but she did not agree. The wife withdrew $350,000 from the loan. The husband then withdrew the balance of $750,000 and has placed those funds in an offset account where they remain. Any interest earned by the deposit of $750,000 is offset against the interest charged against the mortgage.
Both parties seek the sale of B Street. The husband seeks an equal division of the proceeds. He assumes that the mortgagor will have recourse to the $750,000 in the offset account. If not he asks that allowance be made for the fact that he has already received $750,000. The wife wants 60 per cent of the net proceeds, after allowing for the $750,000 already received by the husband.
In relation to the unit properties purchased off the plan at Suburb H, the wife seeks to retain all of those properties and the husband agrees.
They agree that the contents of B Street should be divided between them. The husband seeks an equal division and the wife asks for 60 per cent. There is no evidence of the value of the contents.
Further the wife seeks a superannuation splitting order. There is a modest amount of superannuation, the husband asserts $46,840, and there is no evidence of notice being given to the trustee of the fund. The wife gave evidence that she used her superannuation entitlements of some $60,000 to $80,000 towards the acquisition of the Suburb H units.
The wife also seeks spousal maintenance of $2,000 per month.
THE HEARING
In these proceedings the husband was represented.
The wife, who required an interpreter, represented herself, and prepared her own affidavit material.
The husband relied on an affidavit sworn by him and a Financial Statement. He also relied on an affidavit of Mr Lao, a lawyer practising in China who conducted searches of the public records of property ownership in China. Mr Lao was not required for cross-examination.
The wife relied on an affidavit by her and a Financial Statement. On 5 and 6 February 2018, the wife filed two further affidavits, one by herself and one sworn by the parties’ son.
The wife’s Financial Statement was unhelpful. I am not in a position to determine whether that was deliberate or as a result of her difficulties with English. I note, however, that she gave evidence in cross-examination that she had engaged a solicitor to assist her to prepare the Financial Statement.
Although the wife admitted that she received rent for rooms at B Street of approximately $300 per week that income was not disclosed in her Financial Statement.
Although she deposed that her only income was from a Newstart Allowance and that she was a full time student, she claimed that she paid tax of $13,260. She was unable to explain that assertion.
The mortgage over B Street was not included although she deposed that she paid $1,724.65 per week in mortgage payments despite having no income from which to make such a payment.
She did not provide details of her bank accounts and in cross‑examination she said that she had three separate accounts.
She did not provide details of her credit cards although she said in cross‑examination that she had one.
She did not include the investment units as either property or an investment.
She made no mention of the mortgage over B Street or the repayments of the mortgage.
She did not disclose that she had “cashed in” her superannuation entitlements and used those funds for the purchase of the investment units.
She did not disclose that she had paid about $300,000 to lawyers in relation to litigation in the Supreme Court.
Neither party filed any valuation evidence. It appears to be agreed that the former matrimonial home has a value of not less than $3,000,000. Since both parties seek the sale of that property, valuation evidence is not required. However, there is also no admissible valuation evidence in relation to six properties which are either owned by the wife, or in which she has an equitable interest.
Neither is there admissible valuation evidence in relation to properties in China in which each party asserts the other has an interest.
PROPERTY IN CHINA
The wife asserts that the husband is the owner of property in China which was occupied by his parents, being described as Room 1, K Street, L District, China (“Room 1”) The wife seeks an order that Room 1 be sold and that she receive the whole of the proceeds of sale and 60 per cent of the contents.
There are a number of difficulties with this application, principally among them the fact that Room 1 was sold some time ago and the husband’s parents purchased another property.
In submissions, the wife said that she did not want the property now occupied by the husband’s parents to be sold but that she wanted the husband to pay her, from his share of B Street, the equivalent of 40 per cent of the value of either Room 1 or Unit G, as to which it was not clear.
The husband denies that he has, or has had, any interest in Room 1.
In relation to the property which the wife asserts is owned by the husband, she deposed that Room 1 was assigned to the husband, after he had left China and moved to Australia.
It is undisputed that Room 1 was the home of the husband’s parents. The husband and the wife lived with his parents after their marriage, before he came to Australia, and the wife and their child remained living there until the wife and the child came to Australia in 1995.
The wife asserts that, in 1993, Room 1 became available for purchase for RMB 26,000 of which she contributed RMB 8,000 and the husband’s father contributed the balance.
The wife asserts that, in 2004, the husband purchased a second property, Unit G, in the name of his parents for RMB 1,000,000. The wife deposed:
… [the husband’s] parent said to us “it is your property, when you come back, your family can live in there, it is difficulty (sic) for the process of registration, if [the wife] has no time to come back for signing (sic) the documents, the property can temporarily registered in your mother (sic), my name and the applicant’s brother name, which it may save your (sic) time and money.”
The wife asserts that Room 1 was sold for RMB 410,000 and the husband remitted $100,000 to China to fund the balance of the purchase of Unit G.
The husband denies any interest in property in China although he agrees that he and the wife provided $100,000 to his parents when they sold Room 1 and purchased Unit G. He asserts that, when Room 1 was sold, his parents repaid $50,000.
The husband’s parents, who are the registered owners of Unit G, have not been joined as parties. There is no admissible evidence of the value of Unit G.
The onus lies with the wife to prove that the husband has property in China. The relevant property is occupied by third parties and, on the wife’s evidence, the third parties are registered as owners. Those third parties have not been accorded procedural fairness in that there is no evidence that they have been made aware of the wife’s claim and they have not been joined as parties to the proceedings.
Neither is there any evidence of the law applicable in China to real property, specifically whether a claim for an interest in property can be maintained against the registered owners or whether a transaction, such as that alleged by the wife to have occurred, would, by the operation of the law in China, give rise to any interest in the property.
The admissible evidence in the wife’s affidavits does not establish that the husband has any interest, either legal or equitable, in Unit G.
The husband asserts that the wife has an interest in six properties in China.
The husband engaged lawyers in China to investigate the wife’s property interests. Mr Lao, a lawyer in China, swore an affidavit in the proceedings where he deposed that searches conducted by him indicate that the wife has an interest, with three other members of her family, in a property which was re-developed. According to the terms of the development agreement, the developer transferred five two-bedroom units and one three‑bedroom unit to the wife and her family members. Mr Lao was not permitted to copy the relevant agreement.
The wife, in her trial affidavit, made no reference to those properties. In an affidavit sworn by the wife on 5 February 2018, the wife deposed “I deny the respondent (sic) the allegation which I have six properties in … China. I do not have any property in China at all.” In cross-examination she denied that she had any interest in the properties. However in her cross-examination of the husband, she put to him that the property in China was her ancestral home and that he had made no contribution to it.
The wife’s family members, who, it is asserted, are registered owners with the wife of the properties in China, have not been joined as parties. There is no evidence of the value of those properties or the value of the interest asserted to be the property of the wife.
The onus lies with the husband to prove that the wife has property in China. I accept the evidence of Mr Lao that the wife has an interest in real property in China but I am unable to make any finding in relation to the value of her interest. That interest is a matter to be taken into account when considering s 75(2) of the Family Law Act 1975 (Cth). The husband does not seek any adjustment in relation to the wife’s property in China.
There is insufficient evidence upon which any order could be made in relation to any property situated in China.
DISCLOSURE
The wife has drawn two amounts from mortgages over B Street. In 2013, she withdrew $1,000,000. In 2017, she withdrew a further $350,000. She claims, but has not proven, that she also withdrew up to $80,000 from her superannuation. In all, the wife claims that she has had about $1,430,000, if her evidence in relation to her superannuation is accepted.
She expended a total of $850,000 plus stamp duty of about $30,000 plus legal costs in the purchase of the F Street units.
The deposits on the Suburb H units totalled $233,480. She had solicitors acting for her in relation to those purchases and must have incurred legal costs. The average cost of the units was $390,000. Stamp duty on that amount is about $13,000 so a further amount of about $78,000 must have been paid in stamp duty.
The wife gave evidence that she has paid $300,000 to solicitors in relation to the Supreme Court proceedings.
Thus the wife appears to have spent almost $1,500,000.
However, that is not the end of the matter. The parties’ son deposed that he had paid $2,000 per month towards the mortgage payments for the Suburb H unit which was purchased in his name. That evidence was false. The statements tendered in the husband’s case showed two payments by the parties’ son totalling $500 in 2017. There were no deposits from him in 2016. In cross‑examination he resiled from his evidence that he paid $2,000 per month towards the mortgage.
However, interest was paid. In 2017, the statements show repayments which vary between about $3,559 and $3,914 per month. Assuming in 2017 an average interest payment of $3,700, the wife has paid interest in 2017 of about $44,000.
Prior to January 2017 the interest payment was a little less. The first recorded payment was in the amount of $3,328 although that amount rose by the end of 2016 to about $3,690. If the wife paid interest at that rate from 2013 until the end of 2016, at an average of about $3,500 per month, for four months of 2013 and the whole of 2014 to 2016, a total of 40 months, she paid about $140,000 in interest.
In total, on the basis of that calculation, she has paid more than $180,000 in interest.
If her Financial Statement sworn 16 October 2017 is accepted, she pays $1,725.64 per week in interest, or some $89,000 per annum, and the total interest paid would be much greater than $180,000.
There are further unexplained transactions. The wife tendered what she described as the whole of the mortgage statements (the account ending in ..30) from the first entry on 21 August 2013 until 15 November 2017. The document did not include all of the statements but there were enough to give a picture of the transaction history.
An examination of the statements for the period September 2017 to November 2017 demonstrates the flow of unexplained funds.
The statements contain numerous transfers of funds to and from an account numbered xx42. No statements for the xx42 account were provided by the wife. The amounts were significant. For example between September and November 2017, $36,626 was transferred from the xx42 account to the mortgage offset account. In the same period $33,548 was transferred from the mortgage offset account to the xx42 account. No explanation was given by the wife as to the source of the funds in the xx42 account and no statements were provided by her.
In the same period, there were three transfers from another account described as CBA..02, each in the sum of $2,279.92 and another in the sum of $2,318.60. To another account described as xx02 an amount of $4,358.63 was transferred from the offset account. No statements were provided for the xx02 account.
The wife’s credit cards were paid from the offset account. In the relevant period $8,416 was paid to her Commonwealth Bank credit card. The wife also has a Westpac credit card from which she withdrew $5,000 on 15 December 2017. She was able to pay $7,885 in cash to her Westpac credit card in April 2016.
There were also cash deposits into the offset account in the relevant period totalling $3,100 and direct credits totalling $16,063. The source of those deposits, and the cash paid off the wife’s credit card, was never explained.
In total, the deposits in the relevant period were $69,255.99.
This is not an isolated example and is typical of each period for which statements were provided.
The wife’s Financial Statement was sworn on 16 October 2017, in the middle of the period covered by the statements referred to above. She deposed that her only income was a Newstart allowance of $255 per week.
How the wife serviced the interest payments on the mortgage from 2013 cannot be explained. The source of the funds deposited into the mortgage offset account has not been explained.
I must conclude that the wife has sources of funds which were not disclosed. The origin and the amount of those funds is unknown.
The wife complained that the husband had not provided the whole of his bank statements and the bank statements of D Pty Ltd. Statements from his N Bank account between September 2016 and February 2018 were tendered. The transactions were modest. It would appear that money earned by him in his business was deposited into his personal account. Counsel for the husband told the Court that these were the only statements which the husband could locate. He was not cross‑examined about his bank accounts other than his failure to produce statements and it was not suggested by the wife that the husband had undisclosed accounts or funds. I am not persuaded that the husband has failed to disclose his financial position.
SECTION 79(2)
The significant asset of these parties is their jointly owned home. They have separated and can no longer mutually use that asset. They both seek a distribution of the proceeds of sale, albeit that they do not agree how the proceeds should be divided.
It is just and equitable to make an order dividing the parties’ assets between them.
BALANCE SHEET
No balance sheet was tendered.
I have already determined that the alleged assets in China will not be included in the balance sheet.
The only issue to be determined, in relation to the assets in Australia, is the treatment of the money used by the wife to purchase units in the name of the parties’ son. He variously gave sworn evidence that he had borrowed the whole of the purchase price from the wife and, subsequently, that he had not done so.
It is open to treat the transactions in either of two ways. If the wife has lent a total of $425,000 plus $36,640 (plus costs and stamp duty) to the parties’ son then that money is owed to her and should be included on the balance sheet as her asset. If the wife has purchased assets for $461,640 (plus costs and stamp duty) and given those assets to the parties’ son, then she has chosen to make a premature distribution, without reference to the husband, and that distribution should be taken into account either by adding the amount back into the balance sheet or by properly recognizing the alienation of the funds in considering s 75(2). In either event, the result should be the same and I propose to treat the money used to purchase the units owned by the parties’ son as a loan and an asset of the wife for ease of calculation.
To simply remove from the balance sheet the two units purchased in the name of the parties’ son would create an injustice to the husband.
From the respective Financial Statements, the assets of the parties are as follows. There are no claimed liabilities other than the amount owed on the mortgage.
ASSETS
Owned by
Asset
Husband
Wife
1.
Joint
B Street, Suburb C (to be sold)
E$3,000,000
E$3,000,000
2.
Joint
Contents of Suburb C
Unknown
Unknown
3.
H
D Pty Ltd
$79,000
4.
H
N Bank account
$2,000
5.
H
Commonwealth Bank account
$750,000
6.
H
Interest in superannuation
$46,840
7.
W
Commonwealth Bank account
$26,398
8.
W
Japanese car
$1,500
9.
W
Unit 1 F Street, Suburb G
Not valued (Paid $425,000)
10.
W
Debt owed by son for purchase of Unit 2 F Street, Suburb G
$425,000
11.
W
Debt owed by son for deposit paid on purchase of Unit E J Street, Suburb H
$36,640
11.
W
Equity in Unit A J Street, Suburb H
Not valued (paid deposit of $45,300).
12.
W
Equity in Unit B J Street, Suburb H
Not valued (paid deposit of $36,990).
13.
W
Equity in Unit C, J Street, Suburb H
Not valued (paid $35,550).
14.
W
Equity in Unit D, J Street, Suburb H
Not valued (paid $35,100).
15.
W
Equity in Unit F, J Street, Suburb H
Not valued (paid $43,900).
16.
W
Property in China
Not known
LIABILITIES
17.
Joint
Mortgage over B Street
$2,102,948
CONTRIBUTION
The parties had no assets of any significance at the commencement of their relationship.
During the course of the relationship they both worked. They arranged their lives so that the husband came to Australia, leaving the wife to care for their child in China. However, that was their mutual decision and the wife had the assistance of the husband’s parents.
I cannot determine whether the husband sent money to China to support the wife and their son. However, he was able to save $100,000 to contribute to the purchase of their first home.
There is no suggestion that either party used his or her earnings for any purpose other than the support of their family and the acquisition of their assets.
After separation, the wife used money borrowed against the security of their former matrimonial home to acquire investment units. This was her enterprise and the husband was not part of it. She paid the mortgage payments on the borrowed funds. However, the funds used for the enterprise were funds raised against jointly owned assets. I do not propose to analyse this contribution any further as the husband does not seek any part of the value of the units.
There is no evidence upon which findings can be made in relation to the assets in China.
The contributions made by each of the parties to the assets in Australia are assessed as equal.
SECTION 75(2)
The wife has property in China but I am unable to determine the value of that property or whether she has access to any of it.
The wife also has the investment units. She is in litigation about the Suburb G units. Other than to tender the Statement of Claim, she provided no evidence about the litigation or when it might be resolved. I am not in a position to make a finding about the ultimate value of the Suburb G units to the wife.
It would be unusual if the Suburb G units have not increased in value since their purchase in 2013.
In addition, the wife has purchased the units in Suburb H. She has paid the deposits for the purchases but not yet completed them. There is no evidence as to the expected date of completion and no evidence of their value.
I am not in a position to determine the net value of the wife’s investments.
I am also not in a position to determine what other assets the wife may have other than to say that I am satisfied that she has access to money which has not been disclosed.
The wife gave evidence that she had accumulated superannuation of between $60,000 and $80,000 which she used to purchase the Suburb H units. To that extent, her superannuation has not been contributed to the asset pool available for distribution.
The husband estimates the value of D Pty Ltd as $79,000. That is the only evidence of value. The wife contests this assertion but did not provide evidence to challenge the husband’s estimate.
He also has superannuation of $46,840. It is not clear that he has access to that fund at the present time.
The husband is 60 years old. He will be able to continue in some employment but there is no evidence that his income could exceed its present level of $400 per week. The wife is 59 years old. There is no evidence about the wife’s employment prospects when she finishes her current course of training in March 2018.
If an adjustment were to be made pursuant to s 75(2), it would be made in favour of the husband but the husband does not seek an adjustment in his favour, other than that he retain his superannuation entitlement and his interest in D Pty Ltd.
It is appropriate that he should retain those interests, having regard to the wife having already invested her superannuation in the units and in circumstances where she has not attempted to bring evidence of the value of her investments.
CONCLUSION
The proceeds of sale of the former matrimonial home should be divided equally between the husband and the wife after adjustments to take into account the amounts each has already received.
I propose to make orders requiring the husband to pay back the $750,000 he drew down on the mortgage over B Street. The orders will then provide for the husband to receive half of the proceeds of sale of B Street before the mortgage is paid. The wife will receive the net balance after the payment of the mortgage.
There is no basis upon which the contents of the property should be divided other than equally.
Otherwise, each party will retain the assets in his or her possession.
The wife’s applications in relation to property in China will be dismissed.
SPOUSAL MAINTENANCE
The wife is 59 years old. She has been in employment in various capacities both in China and in Australia.
She deposed that she is currently studying for a diploma which course she commenced in September 2016 and which should conclude in March 2018. There is no evidence given by the wife of her employment prospects on completion of her course. The wife currently is in receipt of a Newstart allowance. The husband deposed that the wife, in addition, receives RMB 3,800 (about $A750) per month from Chinese authorities.
The wife deposes to expenses of $218.66 per week in addition to the repayments of the mortgage secured over B Street. The mortgage will be repaid when B Street is sold.
She deposed that she has about $26,000 in the bank but I do not accept that this is the only fund to which she has access. She appears to have significant funds available to her.
When B Street is sold, the wife will receive a lump sum. On the husband’s application, if B Street sells for $3,000,000 which both parties agree is its approximate value, she will receive about $150,000. She will then hold the interest in her investment properties, whatever that may be, unencumbered.
In addition to her interest in the proceeds of sale of B Street, the wife has an interest in property in China which cannot be quantified.
The wife has not established that she is unable to support herself.
The husband disclosed an income of $400 per week from his employment. He does not have the capacity to pay $2,000 per month as sought by the wife.
The wife’s application for spousal maintenance will be dismissed.
I certify that the preceding one hundred and thirty-six (136) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 26 February 2018.
Associate:
Date: 26 February 2018
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Remedies
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