Zhang and Ling

FAMILY COURT OF AUSTRALIA

ZHANG & LING

[2009] FamCA 148

FAMILY LAW – REVIEW – Property settlement – review of decision of Judicial Registrar

Family Law Act 1975 (Cth)

APPLICANT:

Ms Zhang

RESPONDENT:

Mr Ling

FILE NUMBER:

SYF

3771

2004

DATE DELIVERED:

9 March 2009

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Moore J

HEARING DATE:

2, 3, 4, 18 & 19 September 2008

REPRESENTATION

THE APPLICANT WIFE:

In person

THE RESPONDENT HUSBAND:

In person

Orders

The application of the wife for a review of the orders made by Judicial Registrar Loughnan on 24 December 2007 is dismissed.
The time stipulated by the orders of 24 December 2007 for payment of $7,000 to the wife is extended to on or before one (1) month from the date of this order.

IT IS NOTED that publication of this judgment under the pseudonym Zhang & Ling is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 3771 of 2004

MS ZHANG

Applicant

And

MR LING

Respondent

REASONS FOR JUDGMENT

[The parties have long since divorced but for convenience of identification and to assist in editing for anonymity they will be referred to as ‘wife’ and ‘husband’]

Proceedings

Proceedings for property settlement were instituted by the wife on 26 August 2004. There followed a multitude of appearances for one thing or another, including defaults in compliance with directions, and a hearing before Loughnan JR, which proceed over four separate days for reasons beyond the control of the Judicial Registrar, culminated in judgment delivered on 24 December 2007.
On 18 January 2008 the wife filed an application to review those orders and the husband sought its dismissal. This is the determination of that dispute.
On the first day of the review hearing I heard and dismissed the wife’s application for an adjournment for reasons given at the time and do not now repeat. Counsel and solicitor who appeared on her behalf withdrew upon the dismissal and this was followed by the withdrawal of the solicitor who appeared for the husband. In the result, both parties announced they would be representing themselves. Neither conducted the case in English and both had the assistance of Mandarin language interpreters throughout.
The orders made by the Judicial Registrar on 24 December 2007 are these:
‘1.Within 3 months from the date of these orders the husband pay to the wife the sum of $7,000.
2.Within 3 months from the date of these orders the husband shall deliver to the wife or as she may direct all and any jewellery of the wife in his possession or control.
3.In the event that the husband does not comply with Order 1, the wife and the husband cause the property situate at and known as [C property] (hereinafter called "the former matrimonial home") and being the whole of the land contained in Certificate of Title Folio Identifier No […] to be sold.
4.The wife shall have the authority to conduct such sale either by public auction or by private treaty and to transfer the former matrimonial home to the purchaser or purchasers and to receive and disburse the proceeds of sale.
5.After any necessary adjustments for rates and utilities, the wife shall disburse the proceeds of sale in the following priority:
(a)In payment of costs, expenses and commission of the real estate agent or agents acting on the sale of the property;
(b)In payment of the costs, fees and disbursements of the solicitor or solicitors acting for the parties on the sale of the property;
(c)In payment of the whole of the principal and interest outstanding to the mortgagee.
(d)In payment to the solicitor for the wife the sum of $7,000 together with any interest on that sum at the rate prescribed by the Family Law Rules 2004 from the date the payment was first due pursuant to Order I. to the date of payment; and
(e) In payment of the balance to the husband
6.The husband shall do all acts and things and execute all necessary documents and writings and give all consents necessary to give effect to the orders made herein.
7.Except as otherwise provided in these orders, the husband and the wife each be declared the sole legal and beneficial owners of all items of property or resources including money, motor vehicles, insurances, equities, superannuation entitlements and personal effects currently in the possession or control of each of them respectively.
8.In the event that the husband refuses or neglects to execute any deed or instrument necessary to give effect to all or any of the orders made herein, that the Registrar of the Court be appointed pursuant to s. 106A to execute such deed or instrument in his name and to do all other acts and things necessary to give validity and operation to the said deed or instrument.
9.The operation of these orders is stayed until 4.00 pm on 8 February 2008.
10.The parties are at liberty to restore the proceedings before Judicial Registrar Loughnan by arrangement with his associate and with each other in relation to the form and implementation of the orders.’
The wife seeks orders that would see the property at C sold and the net proceeds distributed equally between them. Dismissal of her review application would retain the obligation of the husband to pay her $7,000. The husband does not oppose that.

Approach

Being a review, the applications are heard de novo according to the same process applied to those being heard for the first time. In this case that involves these steps: (i) identification of the property of the parties and its’ value; (ii) evaluation of their contributions as described in s 79(4)(a)-(c); (iii) evaluation of any adjustment to their contributions by reason of any relevant s 75(2) factors; and (iv) consideration of whether the outcome achieved satisfies the overall just and equitable requirement imposed by s 79. Those matters will be addressed after recording the relevant financial history and other matters.

Evidence

Received into evidence were the exhibits tendered at the hearing before the Judicial Registrar – his Reasons are also available - and bundles of other documents were tendered in the course of this hearing.
The wife relied on evidence from a number of witnesses:
(a)The evidence of her son, Mr N, touches upon the dispute about whether financial support was provided for him while he lived in China and whether property was bought in China for his benefit - at least so far as he knows about it – as well as work he did in the restaurant business for a few months some years ago.
(b)There is evidence from a neurosurgeon, Dr R, who examined the wife on 2 May 2006. He concluded further investigation was necessary but, subject to that, she appears to have mild degenerative lumbar spinal disease which probably has some symptoms of pain - back exercises and/or intermittent physiotherapy is indicated. On the available evidence the doctor would regard her as unfit for any work involving heavy lifting or prolonged stooping. He was not required for cross-examination, although the tentative nature of his report from one examination over 2½ years ago can be noted.
(c)There is also evidence from Dr M, physician, who examined the wife on 8 June 2006. He noted she had been suffering from what appears to be Type II diabetes for the previous three years which was treated with diet and medication. It would probably not affect her employment prospects and she should be able to work full time in a light to moderate job if she wished to do so. He was not required for cross-examination and the same observation applies to his involvement.
The husband called several witnesses:
(a)Mr T is a friend and former work colleague. They met around 1990, they then shared a residence, and they worked as subcontract tradesmen. He was a witness at the parties’ wedding ceremony. On his observations they did not cohabit before their marriage. An important aspect of his evidence relates to his financial dealings with the husband, more particularly about loans he advanced over several years and the husband’s repayment of debt. He also relates a discussion with the wife about her debt and work arrangements around March 2004. His evidence is not inconsistent with the case the husband put.
(b)Mr L is a friend of the husband’s. They worked together as tradesmen from 1990 to 1992 and they have remained friends in regular contact. His evidence relates to money the husband borrowed from him between March 2001 and May 2003 which the husband told him was for the restaurant business. Either the husband or WA Pty Limited [a company established in July 2001] would repay some of the money. After he decided to open his own business in early 2003 he asked the husband to repay what he owed him. An IOU acknowledging debt of $60,000 was produced on 6 June 2003. The husband told him he did not have the money but he offered to let him take some of the furniture and equipment used in the restaurant, which he did, but he says he is still owed about $56,000. His evidence is not inconsistent with the husband’s.
(c)Mr A, also a friend of the husband’s, met him around 1990. He says from the end of 2001 he saw the husband living with his present wife at the C property. His evidence also relates to money he lent to the husband between 1999 and 2001 – on many occasions – towards renovation and improvement to his C property. There were further loans between 2001 and 2002 said to be related to the restaurant business. In July 2003 the borrowings were consolidated and on 16 July 2003 they signed this statement:
‘IOU
[The husband] has, up to date, borrowed the total of $A70,000 dollars from [Mr A]. All the 36 IOUs signed between 1999 and 2002 are void. This IOU is the only proof.
Borrower. [the husband]
16/7/2003’
Mr A says $5,000 was later repaid and he is now owed $65,000. He also gives an account of admissions the wife made in 2002 and 2003 about losing money gambling at the casino. Again, this is all consistent with the case put by the husband.
(d)Ms Dis the husband’s present wife. While she did give evidence on affidavit the husband declined to arrange her attendance for cross-examination, saying he would rather ‘give up’. This means there is a question about the receipt of her affidavit and the weight to be given to it. The substance of her evidence is about the history of her relationship with the husband after they met at the restaurant in September 2001 and their subsequent marriage and the birth of their children but she also discusses borrowings from her family in China. In the circumstances the affidavit is received, but since the timing of some of the events she discusses is controversial, little weight will attach to that aspect of her evidence.
(e)There is also evidence from several medical practitioners:
(i)Dr G outlines the husband’s consultation in April 2006 about his back problem dating back to 1999 and triggered by his work as a tradesman. The doctor says he suffers two different traumatic stresses, elaborated in his opinion and accompanied by copies of x-rays, and he discusses the need for surgery and the consequences if not performed. He concludes by saying the husband is unfit to be involved in activities that would put stress on his neck and back, which precludes him permanently from returning to his pre-injury work as a tradesman in the building industry. Dr G was not cross-examined but, as with the wife’s medical evidence, it can be noted that it is based on examination some time ago now.
(ii)Dr W, psychiatrist, saw the husband on three occasions between March and June 2006 about spells of anxiety and depression. The doctor concluded he probably suffered from dysthymic disorder [chronic low grade depression] in the previous two years, and his absence from work was most probably because of physical pain and mental conditions. He recommended continued attendance on his local doctor for ongoing treatment including anti-depressant medication and he saw no need for ongoing psychiatric treatment. He was not cross-examined, but again the time that has elapsed since he made these observations can be noted.
(iii)Dr H is an ear nose and throat specialist who saw the husband on 5 May 2006 and diagnosed strong allergic rhinitis which required treatment. He was not cross-examined.
There is also evidence from a real estate valuer, Mr Z, who was appointed the single expert to value the home at C. On 27 February 2007 he gave a figure of $435,000. That has not been updated. In another case with a different factual background that might give rise to some hesitation, but there could be no sound reason not to conclude the matter on the best evidence made available by the parties - and their legal representatives before their withdrawal at the outset of the hearing – and determine the claims on that basis. Therefore the figure is accepted for present purposes.

Credit

As for the history, it is difficult to identify much in the way of common ground so findings have to be made about a raft of core facts which underpin the assessment to be made of their contributions - including the start and finish of their relationship, what money if any was contributed by the wife from her earnings, whether or not she acquired property in China, about the existence of debt, and whether money was wasted on gambling. After their lawyers exited both parties staked out their positions with much indignation and emotion which increased the hazards of the fact finding process with the added complication of it all being interpreted – not a criticism of the interpreters who did an able job in the hothouse atmosphere they generated.
To find support for one version of events or the other, documents tendered before the Judicial Registrar and at this hearing have been examined, the evidence of witnesses considered for consistency and plausibility, and otherwise it has been necessary to fall back on the impression gained from presentations. In the final analysis, neither party can escape criticism by reason of shortcomings. But while the husband’s credibility is not without flaws, it is the more persuasive when seen in context and less problematic than the wife’s and his manner was by far the more convincing. This finding will be elaborated in what follows, but it can be said now that insofar as the wife’s evidence is inconsistent with the husband’s, his version is preferred unless it is otherwise demonstrated to be wrong or improbable or inherently unbelievable.
Turning to the witnesses, the evidence of the wife’s son has the obvious limitation that he could not be expected to have knowledge of some matters in dispute and other matters touched upon are of no real significance. A central part of the evidence of the husband’s witnesses - Mr T and Mr L and Mr A – relates to debt and its repayment. Arguments were put by the wife’s counsel to the Judicial Registrar challenging the validity or existence of debt and the wife maintains that position here. But in my assessment all three witnesses gave their evidence in a straightforward way, they impressed as genuine, there is nothing inherently unbelievable about the account they gave of their dealings [although Mr L was obviously in error nominating March 2001 as the time money was advanced for the restaurant] and there is nothing to demonstrate they have done anything other than tell the truth to the best of their ability. Their evidence is accepted.

Background

There is dispute about when the parties’ relationship began and when they separated, but for now it can be said without controversy that they met in Sydney in early 1998, they married in October 1998, they had no children, and their divorce became final in September 2003.
Both parties were born in China: the husband (45) in February 1964; the wife (54) in October 1954. The wife married in 1980 and her son was born in 1982. She separated from her husband in 1997 and in December of that year she came to Australia on a visitor’s visa, leaving her son (15) – who was said to be studying at university - in the care of her brother. In early 1999 her residency status came up for consideration and she was granted permanent residency in March 2002. Her son joined her in Australia in September 2002. She lives in Sydney in rented premises with her son (26).
The husband came to Australia in 1989 on a student visa. In 1994 he married an Australian citizen in China, in 1995 he obtained permanent residency in Australia, and in 1997 they divorced. He met the wife in Sydney not long afterwards and the developments in that relationship will be summarised in what follows. He married his present wife, Ms D, in September 2003 and they now have two children: their first child (nearly 5) was born in April 2004 and their second child (2½) was born in September 2006. They live in his home at C.

Further history

On the wife’s account of events earlier in her life, she graduated from university in China in 1974 and she worked there in the health profession before graduating as a therapist in 1980. She continued medical studies over the years while she worked as a therapist and between 1994 and 1997 she worked at a hospital. It was at that point she separated from her husband and came to Australia. She arrived in Australia in December 1997 with $5,000. Her qualifications were not recognised and a few months after her arrival she began work in Sydney as a masseuse. That was her situation when she met the husband in Sydney in March 1998.
The husband says he trained in China in management but some time after coming to Australia he established himself as a tradesman. In the meantime he married and divorced and obtained permanent residency as just mentioned. He lived in rented premises, he was earning around $60,000 gross per annum and repaying a car loan. That was his situation when he met the wife.
No sooner had they met when the wife moved to Melbourne to work as a masseuse, but she returned to Sydney in April to visit the husband at his request and their relationship began from there. Though she remained living in Melbourne she returned frequently – as she put it: ‘on average I stayed for about 2 to 3 weeks in Melbourne and then returned to Sydney and stay (sic) for a week or two.’ As she would have it, they began living together from this return visit in April whereas the husband says they did not live together before their marriage in October of that year, and even then they continued to live in separate cities.
The few months in dispute is of no material relevance but the husband’s account of it, supported by Mr T’s observations of the domestic arrangements, is accepted. So while the wife obviously did travel back to Sydney during those months, it is more probable than not that their commitment as a couple was developing in that time and for present purposes their relationship can be seen as commencing on their marriage in October. That is not necessarily undermined by the representations in letters written the following year - in English - to support her application for permanent residency even if it is signed by the husband, which he denies [exhibit 2].
On 28 July 1998 the husband signed a contract to purchase in his sole name a home at C for $159,000 - total costs including stamp duty and legal fees amounted to $165,455 [exhibit 4]. He borrowed $119,000 from the St George bank and the difference came from savings he had in his bank account. Indeed, the bank loan application he signed on 6 July 1998 [exhibit 4] reflects savings at the St George Bank [$1,000] and the Commonwealth Bank [$45,891] as well as cash [$3,000]. Exhibits 3, 4 and 10 verify he had almost $46,000 in savings as at 1 July 1998. That he had the wherewithal to accumulate savings beforehand is demonstrated by a letter written at the time by his employer, DT Pty Limited, to the effect that since March 1995 he had been working for them 6 days a week on a basic salary of $630 per week gross excluding overtime [exhibit 4].

However, the wife alleges she deposited money to his account and gave him cash prior to the purchase of the property and so she maintains she made a financial contribution to the acquisition of the C home. In particular, she says she gave him $8,000 initially and then a further $6,000, making a total of $14,000 by June 1998. This came about, she says, because he told her she should not deposit so much cash to her account because it would attract the attention of taxation authorities.
But none of this is substantiated, it is contrary to the husband’s evidence, and I find it to be improbable. While the wife produced a number of deposit slips dated variously and related to various bank accounts, none of them relate to money deposited on any date prior to the date on other documents showing the husband had savings of nearly $46,000 when he contracted to purchase the C home. Also, having met him so recently, her reason for depositing money to his account before June is implausible – quite apart from anything else, one might question the utility of depositing cash to his bank account to supposedly evade tax when that could only shift the supposed problem to him since he was in full time employment. Further, there is nothing to explain how the wife might have generated that kind of money before June. She arrived in Australia in December 1997 with $5,000 which she deposited in two lots to an account she opened with Westpac on 19 January 1998 before withdrawing $2,400 in Melbourne after she moved there [annexure A to husband’s affidavit 23 September 2005]. She returned to visit the husband in mid-April and from there until the end of June is very little time to generate the sort of income necessary to make these deposits as well as meet her own living expenses, even if she did live frugally. In the result, she has not discharged the onus of establishing that the savings the husband had in his account at the time were not his but included money she gave him. As I find, the money put towards the purchase of the C home came from the husband who also entered into the obligations under the mortgage. The purchase was settled in September and he moved to live there.
In July/August 1998 the wife returned to China for several weeks. She says the husband paid for her airline ticket - allegedly because she had given him all her money. She also says she continued to make deposits to his account between September and December 1998 after her return from China and in addition to those deposits she gave him $10,000 in cash [paragraph 40]. The husband disputes this. He says she told him she needed to return to China but had no money and so he lent her $10,000. There is a bank statement for the husband’s account at the Commonwealth Bank - account no ..23 – showing a withdrawal of $10,000 in July 1998. He also says she repaid the loan over time by depositing money to his account.
To support her contention about deposits in this period and about deposits later, the wife produced a number of deposit slips alleging they represent deposits she made from her funds to those accounts and therefore demonstrate financial contributions she made for the husband’s benefit. The deposit slips appear to have featured in private mediation conducted by Mr T at an earlier time and the husband rejected this proposition then and he maintains it now although he identifies some as having been made by her. So it cannot be inferred from her possession of these slips that necessarily she was the depositor or the accounts in question in all instances are the husband’s.
Related to the period between September and December 1998, the wife has several deposit slips for the husband’s account with the Commonwealth Bank - account No …70 - totalling $7,180. Add to that the $10,000 she alleges she also gave him in cash and she would have it accepted that over those few months she gave him a total of $17,180. Of those slips she produced, the husband accepts she deposited a total of $3,680 identified as part repayment of the money he lent her to return to China. His evidence about this is accepted.
Mr T lent money towards the cost of their wedding in October 1998. Notwithstanding their marriage they continued to live in separate cities for the next 15 months. The wife lived in Melbourne where she worked as a masseuse, apparently in accommodation provided by her employer. She had no discernible assets when they married. She says she worked in Melbourne for 2 to 3 weeks and then came to Sydney for 5 days; the husband estimates she returned about once per month. The husband lived in the C home and he continued to work as a tradesman. He had his interest in the C home. He visited Melbourne on one occasion.
Then in January 2000 they both travelled to China but went their separate ways to visit their families who live in different regions. On the wife’s return in March 2000 she did not go back to Melbourne but lived in Sydney from that time. She says she worked here as a masseuse earning $1,000 per week [net after her employer paid the tax] [paragraph 49]. The husband returned from China in May 2000.
As for their financial situation during those first 15 months of marriage, these facts are noted:
(a)After their marriage they opened two joint accounts with the Commonwealth Bank. One was a joint savings account – account No …96 - but the passbook [exhibit 9] shows modest credit balances and little activity in that period – and little activity until the last entry in May 2001. The other was a joint ‘streamline’ account - account No …77 – and the available statements [exhibit 10] also show modest credit balances with little activity – it became more active after the wife came to live in Sydney and the last entry is in August 2001.
(b)The statements of the wife’s Westpac account date from January 1999 and there is not much activity until the balance was reduced to virtually nil in April 1999. The account remained in that state until after she came to live in Sydney [exhibit 2, 12].
(c)As for the wife’s income, there are no tax returns or tax assessment notices for the 1998/99 year but there is a notice of assessment for the year ended 30 June 2000 showing a taxable income of $6,135. Of course she was not working while she was in China in early 2000, but it is plainly impossible to reconcile this assessment with her evidence that she earned $1,000 per week net after she returned to Sydney in March of that year.
(d)There are statements related to an account the husband operated with the Commonwealth Bank – account No …23 [exhibit 10] - and the account he operated with the St George Bank to which deposits were made and from which the mortgage repayments were made [exhibit 3]. The mortgage debt was reduced over this period to $71,000 by January 2000 until just before the departure for China.
(e)He continued to work as a tradesman. There are no documents to indicate the level of his earnings, but there is nothing to suggest he had insufficient financial wherewithal from his earnings to reduce the mortgage by that amount.
(f)In 1999 some work was done on the C home. The wife says a ‘shed’ was constructed and that she contributed financially to the cost and assisted with the construction at times she was in Sydney – in particular, she helped by doing things such as collecting materials, cutting and laying insulation, putting up temporary walls, laying material like old carpet, putting up wall coverings, and cleaning up. She says specifically [paragraph 45] that they built the shed together with no help from outside contractors. This is denied by the husband who says contractors were paid to supply and erect it and that is supported by a contract for the supply and erection of a shed [exhibit 6 before the Judicial Registrar]. His denial is accepted.
Apart from those matters, it is the wife’s case that during the time she lived in Melbourne she often deposited money to the husband’s bank accounts and, again, she presents a number of deposits slips related to several accounts on various dates during this period. The husband’s position on the slips related to this 15 month period will be apparent from what follows:
(a)From May 1999 there are deposits to the husband’s Commonwealth Bank account – account No …23 - totalling $6,100. He accepts she paid this into his account and says it was in further repayment of the money he had lent her to go to China in July/August 1998. That is accepted.
(b)Between July and December 1999 there are deposit slips related to an account with the Bank of Melbourne, a division of Westpac - account number …07 - totalling $11,100. There is nothing on the deposit slips to indicate the name of the account holder and the husband rejects this as having anything to do with him - he has never operated an account with the Bank of Melbourne or Westpac and he knows nothing of it. Since he maintained accounts with other banks whereas the wife opened an account with Westpac soon after her arrival in Australia, that is probably correct. It can also be observed that these deposits were made during the financial year ended 30 June 2000 when the notice of assessment issued to the wife put her taxable income for the year at $6,135, which is difficult to reconcile with her having deposited that amount of money to any account over those five months - unless, of course, she had significantly under-disclosed her income to taxation authorities. Whatever the case, it is accepted they do not represent deposits to any account of the husband’s.
(c)In February 1999 there is a deposit of $1,000 to their joint account with the Commonwealth Bank - account number …77 - but the husband says she did not make the deposit. That is accepted.
(d)In October 1999 there is a deposit slip related to the husband’s account with the St George Bank - account number …41 - for $2,500. Again he says she did not make this deposit. There is nothing on the slip to indicate it was paid in by her; however, the bank statement for the account notes deposit of a cheque for $2,500 on that day and there is nothing to indicate from what source the wife would have received a cheque to be in a position to deposit it to his account or to write a cheque on any account she was operating at the time. The husband’s evidence is accepted.
To summarise, it is accepted that the wife deposited to the husband’s account in this period a total of $6,100 which was her further repayment of the loan before their marriage and she either did not make the other deposits or they were not made to an account of the husband’s.
As noted earlier, in January 2000 they both went to China to visit family in separate regions and after arrival they went their separate ways. Before their departure, according to the husband, the wife approached him to borrow $50,000 so she could buy a property in China for her son’s benefit. He told her he would see what he could do by drawing money from the mortgage and borrowing from a friend. She promised to repay it. He says he drew down $20,000 from the mortgage and he borrowed $30,000 from Mr T and before departure he gave this money to the wife on her promise to repay it. He says she did tell him later that she had bought property in U City and she did repay about $33,000 by making deposits to his account. She denies buying any property in China.
Where does the truth lie? This is drawn from available documents:
(a)The bank statements for the mortgage with St George Bank [exhibit 3] show $40,000 drawn down in January 2000 – increasing the debt back up to $111,000 – and this was deposited to the husband’s savings account with the same bank on the same day. A couple of days later $35,000 was withdrawn from the savings account. It is accepted, therefore, that this large sum of money was drawn from the mortgage account around the time of their departure for China.
(b)There is a document [exhibits 5,11] translated from Mandarin to English headed ‘certificate of ownership’ and dated 21 July 2000. But while the wording was translated, its meaning or effect was not the subject of any evidence from anyone in a position to give it. The wife says the certificate relates to property in U City owned by her brother. His name does appear on the translated document.
It does seem a remarkable confluence of events – a large sum of money is drawn down from the mortgage account on the point of their departure for China, there is no account given for the money withdrawn other than to provide the wife with funds to buy property in China, and her brother would appear to have become the registered owner of property in July of that year. Still, in the final analysis I would stop short of finding on the balance of probabilities that the wife did buy property in China since she is not shown to be the registered proprietor on the certificate, whatever that document might mean. Nonetheless it is accepted that the husband did give her $50,000 which she promised to repay and it is also accepted that she did later repay some of it. What she did with the money after her departure for China could not be the subject of any finding.
The husband says they separated shortly after he returned from China in May 2000 - although they maintained friendly relations, they started a restaurant business together during 2001, and he not only supported her son’s entry to Australia in 2002 but also gave him financial assistance after his arrival. The husband says he began a relationship with his present wife after she started work at the restaurant in late 2001 and she moved into his C home with him at the end of that year. That is supported by evidence from Mr A. The wife, on the other hand, maintains they lived together at the C home and did not separate until September 2002. I shall come back to this issue shortly.
The wife maintains she continued to make deposits to bank accounts after her return from China and she came to live in Sydney. As with the earlier period, she relies on various deposits slips she has in her possession accompanied by the proposition that they all represent deposits she made. Again the husband puts this in dispute although he accepts some represent repayments she made towards the $50,000 he gave her in January 2000, others deposits were made by him since it is his handwriting on the slips and not hers, and others are deposits she made for him when he was too busy to do banking. This comes from the slips:
Commonwealth Bank account in husband’s name – No. …23
(i)In 2000 there are deposit slips totalling $4,340. The husband accepts she paid those funds into that account but they all [blue tags] relate to part repayment of the $50,000.
Commonwealth Bank account husband’s name – No …90
(ii)In 2000 there are deposit slips totalling $8,350 dated from April. The husband accepts she deposited $2,000 which he identified as part repayment towards the debt of $50,000 [blue tags]. In 2001 there are deposit slips totalling $4,600. The husband accepts she deposited $3,800 [blue tags] but again that is to repay the debt. He rejects the August 2001 slip as being a deposit by her.
Commonwealth Bank account joint names – No. …77
(iii)From September 2000 there are deposit slips totalling $7,820 which he accepts she paid into the joint account. There is also a deposit slip for $1,000 to an account No …16 which the husband nominated to be the same as this account which he accepts she deposited.
Westpac account in wife’s name – No …15
(iv)She has a deposit slip dated June 2000 for $1,050 deposited to a Westpac account but the account number is her account and not the husband’s [see exhibit 12]. He does not dispute that she made this deposit.
National Australia Bank, account name not designated, account No …75
(v)There is a deposit slip dated 17 January 2002 showing $1,900 deposited to an account with the NAB. The husband identifies this as an account for WA Pty Limited but he denies the money came from her.
St George account in husband’s name – No. …41
(vi)This is the account the husband maintained when he was banking with St George. From October 2000 there are deposits of $1,700 and in 2002 there are deposits of $3000. There is no handwriting on the slips, which are typed, and there is nothing to indicate who made the deposit. The husband denies the wife did.
In summary, the husband accepts she deposited $18,960 from her funds to accounts other than her own account with Westpac, the majority of it being towards repayment of the $50,000 he borrowed and gave to her in January 2000. That is accepted.
Another development after the return from China was the construction of a ‘granny flat’ at the C home in 2000/2001. The husband also says that between October 2000 and January 2002 he did further work on the home, including the demolition and reconstruction of a wall and building an undercover carport, at a cost of $15,700. It is his evidence that he borrowed funds from Mr A for work on the home and that is supported by the evidence of Mr A. As outlined earlier, the consolidated debt to Mr A was $70,000 as at July 2003 and $65,000 remains owing after repayment of $5,000 in 2004. The wife disputes the money is owing. It can be noted, as the Judicial Registrar did, that there are no bank documents to reflect payment or receipt of the money, the original IOUs are not available, the transaction is not evidenced by any loan agreement, and Mr A has not been pressing for payment. On the other hand, the transactions being in cash makes it unlikely there would be bank documents, the absence of a formal loan document is not of itself remarkable in informal arrangements between friends, and there was a repayment in 2004. Like the Judicial Registrar, I see the issue as falling to be decided ultimately by whether the evidence of the husband and Mr A can be accepted. In my view it can be; therefore it is accepted the husband owes Mr A $65,000.
During 2001 the parties decided to go into the restaurant business. Whatever else is controversial about this, it is beyond contention that it was unsuccessful and closed in early 2003. WA Pty Limited was incorporated in July 2001 with both parties appointed directors, the husband was appointed secretary, and the husband became the sole shareholder. The wife is aggrieved at statements that she was a shareholder, no doubt as part of her case to avoid responsibility for debt associated with the demise of the business, and it is apparent from a company search that she was not a shareholder. Whatever the case, it is not apparent what structure was used to conduct the business - there are no financial accounts or tax returns or any other record to throw light on that – but it is certainly the case that they established the business together and conducted it as a joint venture.
For that purpose they leased premises in B in September 2001. The husband says start up capital came from him as to $35,000, the wife as to $15,000 and then in the course of operating the business they borrowed $60,000 from Mr T and $60,000 from Mr L.
It is not all that clear what the wife’s position is about the source of funds to establish the business or operate it for around 18 - 20 months. Her evidence before the Judicial Registrar appears to have been that start up costs were in the region of $45,000 to $50,000 which was financed by the proceeds of an insurance claim related to a vehicle although she had said something quite different in her affidavit [paragraph 55] to the effect that $30,000 had been drawn on the mortgage for that purpose. Yet it seems to be her contention here that it was unnecessary to borrow money either to establish the business or to meet operating expenses:
(a)In notes attached to a bundle of documents, which can be taken to be part of her submissions, she says they did not need to buy the business, the premises were already fitted out with some equipment, they bought old tables and chairs, she provided a fridge from her home, and other requirements were minimal. She also says they hired a chef at $600 per week, a cook for $400 per week and one waitress for 5 or 6 hours per day.
(b)She submits there is no evidence of money having been received or where it went, the home loan was only about $90,000 and their house was valued at above $480,000 [there is no evidence of that] so why would they need to borrow money from others?
(c)These points are fair as far as they go, but obviously they are not the full picture; for example, even if the figures she puts have any basis in reality they make no mention of the many other expenses obviously associated with leasing premises, employing staff, and running a restaurant. It is very likely capital was required to secure premises and to set up the operation and, given its unsuccessful history, it is also very likely that funds outside operating income were necessary to keep it going. How much was needed cannot be analysed since there is nothing available from either party to permit that, so again the issue falls to be determined on the probabilities either by acceptance of the husband’s case or the wife’s and the former is preferred.

In fact the mortgage debt was increased significantly by refinancing within a few months of the restaurant opening and it is the husband’s case that this was done to repay debt raised for purposes related to the business. In early 2002 he refinanced with Perpetual Trustees Victoria Ltd; the existing mortgage was discharged with payment of $93,530 and this left $145,700. From that the husband says he repaid Mr T $100,000 and the remainder was used to pay bills related to the business.
Yet the wife argues that the $100,000 paid to Mr T at the time was a loan to Mr T from the husband and payments to the husband’s bank account by Mr T in April and August 2002 were repayments of that loan. Both the husband and Mr T reject this. They both say the $100,000 paid to Mr T in January was repayment of earlier loans [there had been the advance for the wedding costs, the money given to the wife to go to China to buy property, and the money to operate the restaurant], then in April the husband borrowed another $20,000 from him and in August another $80,000. The deposits to the husband’s bank account for those amounts on those dates reflect those further borrowings.
I see the wife’s scenario as improbable; after all, when the restaurant business was in its infancy and obviously struggling it is difficult to see why the husband would go and borrow money to lend it to Mr T. It is more probable than not that it was in repayment of earlier loans, consistent with the husband’s and Mr T’s evidence, which is preferred. It is also accepted that there were later borrowings in April and August 2002 which, to be noted shortly, the husband repaid in 2004.
As for the money borrowed from Mr L, that was partly satisfied by him taking some furniture and equipment when he opened his café in 2003 but he is still owed $56,000.
Amongst a bundle of documents the wife presented, using as a reference the paragraphs of the Judicial Registrar’s decision, there is a general submission about liabilities which can be read as her rejecting any responsibility for debt after March 2001, which of course predates the establishment of the restaurant business. Whatever else she had said of their separation, she puts the point this way:
‘If cognizance from judgement “paragraph 33 paragraph 84 paragraph contribution” separate start from march 2000, so march 2001 we separate for one years. By the law is practically divorce. We are not spouse. So after march 2001 the liabilities is none of my business. It’s unfair for me to bear.’
If this is meant to suggest that the debts related to the business are not partly her responsibility - at least when seen in the context of these proceedings – that could not be accepted. Whatever the structure through which the business was operated, it was beyond question a venture they embarked upon together, it is beyond question that it closed because it failed, and there has never been any suggestion I am aware of that the husband pocketed or secreted away funds raised from increasing the mortgage over his home rather than use it to pay business related debt.
The submission made for the wife in the earlier proceedings that there should be added back to the husband’s assets the sum of $145,000 can be disposed of at this juncture. The argument appears to have turned on the proposition that the wife received no benefit from the additional money he borrowed, she had no knowledge of and did not consent to the refinance, there is no evidence other than what the husband says of it as to how the additional funds were spent, and he did not produce any documents to demonstrate how it was spent. But in my view it would be wrong to add the money back as an asset of the husband’s and there is nothing in the circumstances discussed by the Full Court in Omacini (2005) 33 Fam LR 134 to justify doing so [see DJM and JLM (1998) FLC 92-816; Townsend (1995) FLC 92-569; and Kowaliw (1981) FLC 91-092] – the business they both embarked upon was not succeeding, debt was incurred to keep it running, and nothing suggests the husband secreted the money away.
It appears that both parties worked in the restaurant initially, allocating tasks between them, but the weight of the evidence has the wife’s involvement dropping off after a while and when she came in it was for short periods and there were times she took cash away with her. During 2002 the husband did some building work when the business permitted and the wife returned to work as a masseuse.
In August 2002 the wife’s son came to Australia. It is accepted that the husband paid his fare and helped him by establishing accommodation and by paying the bond and some rent as well as providing some furniture. The son worked for a time in the restaurant - the wife says he was not paid - before it closed in March 2003. It is the husband’s evidence that he gave money to the wife at times towards the support her son in China, all up amounting to $25,000. It is not apparent whether this was during the time they lived in different cities or later or both.
In October 2003 the husband married his present wife. Since then he has received financial assistance from his wife’s family: in December 2003 he received over $107,000 AUD and later in 2004 a further $30,464. He says he has used the money to repay debt, including the $100,000 borrowed from Mr T in 2002, and $5,000 to Mr A as well as pay family living expenses. The husband maintains he has an obligation – as a matter of honour – to repay it. It can certainly be accepted that the money was advanced, but it is difficult to know whether or not this obligation he considers he has should be translated here into debt. It appears to have been argued and accepted by the Judicial Registrar that $46,000 was a loan and that amount was included in his liabilities. But whatever the case there, it is not so clear here and ultimately I can see no justification for including it as debt. On the other hand, that the husband has paid Mr T $100,000 from this family money is relevant to consideration of the assessment of the parties’ contributions since the debt was for purposes already outlined.
In December 2003 the husband applied through a mortgage broker to refinance the mortgage with Homeside Lending [NAB]. Subsequent developments are set out in his affidavits which need not be recounted here; suffice to say a false representation was made that he was intending to buy property in Queensland. From the refinance made available, $236,774 was used to discharge the mortgage in favour of Perpetual Trustees and he was prevented from drawing upon the balance of funds initially made available.
In August 2004 the wife commenced the present property proceedings. On 23 December 2004 orders were made by consent restraining the husband from dealing with ‘any part of the advance made to him of $249,571.07 being an advance made on 15 December 2003 other than by applying those funds to mortgage loan […]85 with Homeside Lending until further order’ and he was further restrained from ‘encumbering or drawing on the mortgage secured on [C property]…’ until further order. Then on 19 April 2005 further orders obliged the husband, amongst other tings, to ‘forthwith do all things and sign all documents necessary to draw down $20,000 on the mortgage with Homeside Lending and pay $10,000 to the wife and retain $10,000 for his own purpose’ with the trial judge to determine at the substantive property hearing the how such payments should be taken into account.
He had difficulty getting Homeside Lending to permit the additional draw-downs and so he sought [successfully] to refinance with ING. Ultimately that came about in August 2005 when he discharged the Homeside Lending debt and complied with the orders of 19 April by paying the wife $10,000 and retaining for himself $10,000. There were costs related to the loan. There is no indication what the parties have done with the funds they received, but it may have been spent on legal fees. As at February 2007 the amount of $270,000 approximately was owing under the mortgage. At the time of hearing before the Judicial Registrar the amount owing was $265,609. At the hearing before me no different figure was provided. The husband has made all repayments.
I return now to the issue of when the parties separated. On the wife’s version she remained living at the C home until she went to China in August 2002 and when she returned with her son they separated, which is when she and her son moved into rented premises. They did not separate in 2000 since they had a holiday together to the Gold Coast and Brisbane in May 2001 – she has photographs of them together at the time – and she has a tenpin bowling scorecard and an Impulse Airlines receipt for their travel. What she also has are various receipts for furniture and household goods purchased in September 2002 - Furniture Bargain Centre and Bing Lee - and she maintains this was bought by the husband to establish her and her son elsewhere in other premises where she lived for a few months before moving out.
The photographs establish the holiday in May 2001, certainly premises at B were established at some cost in September 2002 when her son arrived in Australia, the services connected to the C home continued to be issued in joint names for quite some time [even after she maintains they separated], when WA Pty Limited was incorporated in July 2001 the address given for the wife was the C home, and she has a document dated 14 June 2002 sent to her by the Taxation Office at the C address. By no means definitive of her residential address at the time, all of that can be put on her side of the argument nonetheless. But whatever can be made of it, there is other more persuasive material:
(a)It is plain that the parties were on friendly terms – at the very least beyond September 2002 when she says they separated. Her son came to Australia at the time and he worked in the restaurant business with the husband for a while after that, which suggests their supposed separation did not prevent that arrangement.
(b) Furniture was bought and premises established in September 2002. But the strong probability is that this had nothing to do with accommodating the wife away from the C home; rather, almost inevitably the wife seized upon available invoices to construct the establishment of separate premises for her at that time. I say that because by her own representations she had long since left the C home by then.
(c)Exhibit 14 is a bundle of documents from Westpac and it includes an application she signed on 22 February 2002 related to her credit card. She stated her current address to be G Street and, asked for a previous address if living there for less than three years, she nominated the C address. From April 2002 the credit card statements were sent to her at the G Street address until later changed to another Sydney address. She includes in the bundle of documents she presented to accompany her submissions a business card showing G Street to be the address of a Health Centre and beside this she has noted it is her ‘workplace address and visa card post address. This is a commercial property, not living area so it’s fake residential address.’ Whatever the case, she provided this as her address to the bank on 22 February 2002 and she gave the C home as her previous address which is entirely inconsistent with the case she presents here.
(d)Also, the parties signed a joint application for divorce on 14 July 2003, filed in the Federal Magistrates Court on 15 July 2003. Of course their separation had to be not less than 12 months prior to the date of filing and they stated it to have been June 2002. The divorce was granted 11 August 2003 and it became final on 12 September 2003. The husband married his present wife in late September 2003 and their first child was born in April 2004.
(e)To explain why she signed the divorce application stating June 2002 to be the date of their separation, the wife says the husband told her in July 2003 he wanted a divorce because his new girlfriend was pregnant, and so she agreed to putting the date of separation some months earlier than September 2002. Yet, absent some extraordinary phenomenon, when they signed the divorce application on 14 July 2003 the husband’s new wife could not have been pregnant with their first child or at least could not have known conception had occurred. The wife’s evidence has all the hallmarks of her having used later knowledge of the pregnancy and birth to construct an explanation for the date given in the divorce application to suit the case she has wanted to construct here.
The Judicial Registrar makes an observation to the effect that the husband’s credibility is not damaged by putting his name to a date of separation later than he now asserts to be the case since the ground can be established on a ‘by at least’ basis and I respectfully agree with that. Whatever the detail of the falling away of their marriage, there is no doubt he and the wife did maintain an intimate relationship after his return from China in May 2000, since the May 2001 holiday demonstrates that clearly enough, and it may be that as they went about establishing the business during 2001 their relationship was not as clearly delineated as a separation in May 2000 suggests. Nonetheless, it is accepted that the husband did begin his relationship with his present wife after the restaurant business was established and she did live with him at the C home from the end of 2001, which has support from the observations of Mr A, and that circumstance is obviously inconsistent with a separation from the wife in September 2002. For present purposes their marriage can be seen as having come to an end no later than towards the end of 2001.
There are mutual accusations about gambling and losing money as a result. The husband alleges the wife gambled throughout the relationship and in due course he became aware she was taking money from the business for gambling. He accompanied her to the casino at times, but he denies any inordinate or problematic gambling on his part.
On statements for the joint account with the Commonwealth Bank – account No …77 – there are many withdrawals from the Star City ATM although there is no way of knowing who was responsible for that. But to the extent the wife alleges the husband gambled, his evidence of more moderate activity is accepted. On the other hand, in paragraph 76 of her affidavit the wife says ‘I never gambled’ and that must be rejected for these reasons:
(a)There are some statements related to the wife’s Westpac bank account [exhibit 12, 15] from June 2000 through to 2004 and they reflect numerous withdrawals of sums in round figures from an automatic teller machine at Star City [casino], in some instances more than once on the same date. The amounts involved are not modest, at least relatively speaking; for example, those statements that are available show withdrawals from Star City ATM of $3,890 during six months from June 2000 and $13,660 was withdrawn from the same venue during 2002 and in 2003 there are also many withdrawals from the same venue. In all cases the credit balance of her account is maintained a modest level, often less than $100. It would be naïve to see the sort of activity apparent from the statements as related to anything other than gambling.
(b)There are notices of assessment from the ATO [exhibit 4] showing the wife’s taxable income for the years ended 30 June 2001, 2002 and 2003 to be $10,638, $15,865 and $8,803 respectively which defies reconciliation with the withdrawals from her own bank account.
(c)None of that is to conclude the wife lost money or a lot of money on gambling since nothing would permit that, whatever the odds. What can be said is that her denial of gambling has to be seen as a false denial and no weight could be put on what she says of her financial circumstances.
On that topic there is evidence from the wife about fees she paid to solicitors during 2008. She tenders documents which purport to prove that she has paid them $18,800 and they have done nothing or little in return; she gave a brief account of her unsatisfactory experiences with them. The documents are these:
(a)There is a copy of a document in a combination of Mandarin and English purporting to be a costs agreement headed up with the name of a firm styled “[X] International Law Corp”.
(b)There is an “invoice/statement” dated 8 February 2008 said to be for ‘legal fee’ of $8,000. It is in handwriting, there is no letterhead and the form can be readily obtained from any newsagent.
(c)There are three more of the “invoice/statement” forms with no letterhead [although two have a rubber stamp of the name and address of the particular “[X] International Law Corp”], all representing receipts for payments she made to the firm: $4,000 on 21 May 2008, $3,800 on 23 June 2008, and $3,000 on 4 September 2008.
If what she says is true then she should take her grievance up with the Legal Services Commission of New South Wales and seek the return of her money.
Finally, when parties shared a household it is likely they were both involved in some way in the running of the home and it is accepted the wife would have contributed on the domestic front during those times.

Assets and liabilities

Nothing further needs to be said about the value of the C home or the amount owing under the mortgage.
As for the $10,000 paid to each, there is more than one way of approaching this payment and it could be excluded, but it is included since it is reflected in the mortgage debt.
In the arguments put to the Judicial Registrar there is reference to jewellery belonging to the wife – in the wife’s financial statement at $10,000 - and whether or not it was in the husband’s possession. Her sworn statement about it is adopted here.
As for the $18,800 the wife says she has paid to lawyers, it is difficult to see a firm of solicitors generating documents of the kind she tendered as part of their professional practice. But since she says she has paid this money and services have not been provided in return there can be no reason for not including it as part of her assets.
The wife says she has substantial legal fees to pay but whatever is owing – by either party - it should not be brought to account as debt for the purpose of calculating entitlements. As for other debt, her financial statement reflects $29,800 owing to friends and $7,000 in credit card debt. She also says she owes $800 to Alpha City Loan. Assuming that is correct, it obviously relates to how she has conducted her financial circumstances since parting with the husband, now many years ago.
The husband’s debts have been discussed already and the argument about adding back $145,000 to his assets has been rejected.
The best available evidence of the parties’ current financial circumstances indicates this about their respective positions:
Assets - wife
Money paid to X International Law Corp P/Ltd                  18,800
Jewellery   10,000
Court ordered payment   10,000
Household contents        200
39,000
Liabilities – wife
Alpha City Loan   800
Mastercard   7,000
Loans - friends & personal loan     29,800   37,600
Wife’s net position      1,400
Assets – husband
C home  435,000
Less mortgage  265,600
Net equity  169,400
Court ordered payment   10,000
Magna motor vehicle   2,000
Pajero motor vehicle   4,500
Household contents   500
Superannuation   5,500  191,900

Other liabilities – husband
Debt to Mr A    65,000
Debt to Mr L    56,000
Debt – WA Pty Ltd                              4,500  125,500
           Husband’s net position   66,400

Contributions

This is a very short marriage to which no children were born. The brevity of it is underscored by the fact that from their marriage in October until the husband’s return from China in May 2000 they had not lived together and they only shared a common household for the first 15 months when the wife returned to Sydney for short visits. After May 2000 there is no clear line defining the end of their relationship but it was certainly over by the end of 2001 when the husband began living with his present wife.

The wife brought to the relationship little in the way of assets, perhaps some modest savings. The husband had his equity in the C home to which he had contributed his savings of around $46,000. That represented close to 30% of the purchase price of the home.
After their marriage the wife repaid the husband’s advance of $10,000 to enable her to return to China before their marriage and she repaid $33,000 of the $50,000 he had borrowed for her to take to China in early 2000. No doubt she made a contribution from her earnings to their common household day to day requirements in times they spent together. She contributed towards the establishment of the restaurant business, including making some financial contribution as the husband outlined, and she was involved in its operation after it was established, more so initially than later before its demise. But it has not been established that she made any meaningful financial contribution otherwise at any time. No doubt she also contributed around the home by doing domestic chores whenever she was present in the home they shared until she left to establish premises elsewhere.
On the husband’s part, he assisted the wife with a loan to return to China before their marriage and he assisted her further in early 2000 by borrowing and increasing the mortgage on his home to give her $50,000 to take to China. She repaid some but not all of what he gave her. He contributed towards the establishment and operation of the restaurant business and he has been responsible for addressing debt incurred by the business. The wife has not given any assistance with debt generated by their joint venture - in fact she attempts to argue it is none of her responsibility – whereas the husband has absorbed it in one way or another, either by increasing the mortgage debt, by using a large portion of the money he received from his wife’s family for that purpose, or by taking responsibility for the debt which remains. He has been responsible for repayment of the mortgage instalments and other expenses for the home since it was acquired although he has had the occupancy of the home to the exclusion of the wife from at least the end of 2001.
While contributions of the wife can be identified, those of the husband overtake and outstrip them. There cannot be adequate recognition of the weight of his efforts by leaving him with the little he has in the way of net assets – reinforced by the fact that the figures disregard his view about his obligation to repay the money from his wife’s parents, most of which was used to discharge debt arising from their disastrous restaurant venture. The wife has received $10,000 since she started these proceedings, paid by increasing the mortgage debt, and her contributions could not be seen as entitling her to any more. Even if one were to disregard the $18,800 she says she has paid to the firm of solicitors and exclude it from her assets, the weight of the contributions made by the husband to address debt as he has would lead to the same conclusion.

Section 75(2)

The wife is 9 or 10 years older than the husband. Both have health issues.
So far as the wife is concerned, while the evidence indicates some limits on her capacity for work - involving heavy lifting or stooping - it does not exclude her from the paid workforce by any means and her history supports that. She swears in her financial statement to earning $90 per week as a cleaner and otherwise receiving government benefits of $200 per week. But there could be no confidence in what she says of her earnings for reasons which should be apparent from what has been said already. As for the husband, his health difficulties are in a different category because it excludes him continuing with his former occupation as a tradesman in the building industry. In his financial statement he says he is earning $350 per week from Centrelink benefits. Whether he could do some light work was not explored adequately and it may well be that if he had the goal of earning an income and he were to actively seek some paid work in some field he might achieve that goal.
Whatever the case, without sufficient confidence in what the wife’s income might be, it would be impossible to see disparity of future earnings as operating in the wife’s favour here. For that same reason it is impossible to see any suggestion that the husband’s present wife or her family constitute a financial resource for him as operating in her favour.
It could be said that a relevant factor in the husband’s favour is his obligation to his young family and to that there could be added, by reference to paragraph (o), the financial benefit he provided for the wife’s son by establishing him in rented premises on his arrival in Australia in 2002. But that would be to no avail since there is simply nothing from which any adjustment in his favour could be met.
There could be and should be no adjustment for any relevant s 75(2) factors.

Just and equitable

Section 79 is the source of power for the Court to make such order as it considers appropriate altering the interests of the parties in property, but it is not to make an order unless satisfied in all the circumstances it is just and equitable to do so having regard to the matters set out in s 79(4) which have been discussed.
In the circumstances of this case I could not find it would be just and equitable to make any order altering the interests of either in property they now hold. However the husband did not seek to review the orders of the Judicial Registrar and he did not propose any different order to that made on 24 December 2007.
Accordingly, it will be appropriate to dismiss the wife’s application for review of those orders. It will also be appropriate to extend the time for payment of the $7,000 imposed by those orders for a month from this date.

I certify that the preceding eighty-two (82) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Moore

Associate:

Date:

[2009] FamCA 148

9 March 2009

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