The parties underwent a form of civil ceremony of marriage according to the laws of the People's Republic of  China  in October 2001.

both parties undoubtedly contributed in substantial measure to the purchase of the Property W property but I am quite unable on these materials to say in what proportions.

The applicant obtained a property in their joint names and I have no doubt used moneys from the respondent to do so.

currency dealings in  China 

Nonetheless it is quite impossible for me to say how much money the applicant contributed to that purchase.

With an income of that order, he nonetheless maintains that he has been able to make periodic payments on the mortgage and outgoings in the property in excess of $110,000 from 2002 to 2007 when the property was sold (see first affidavit paragraph 38). It is not possible to say what proportion of any such expenditure was made from funds provided by the respondent. His current assertions as to his income and expenditure are wholly unbelievable. He asserts that he has rent of $200 a week and an income of $350 per week (see financial statement filed on 10 January 2008). Notwithstanding that, he says he has been able to return to  China  on a number of occasions since the separation of the parties and appears to assert that he is in the practice of having loans to other parties in tens of thousands of dollars. When challenged as to how a person with his income could have the very substantial financial dealings disclosed by his bank records, he asserted that these in large part reflected informal loans to or from friends. He asserted in relation to a loan from a friend (there is no transcript in this proceeding and my description of names therefore reflects merely a phonetic approximation) called [X]. He said that he borrowed $12,000 from this person because he needed to buy assets to prove that the marriage was genuine. He asserted that he was sure he could call [X] as a witness, but [X] was not called. He asserted a loan to somebody called [S] who repaid him $25,000, shown to have been paid by bank records to his account on 30 January 2002. He was unable to remember Sam's surname and that person was not called. In effect he said he had lots of transactions in his then business account because he was hiding money from his first wife with whom he was involved in some financial disputation. He further asserted that a payment received on 16 December 2002 was from a long-term friend called [H]. He was not sure of [H]’s surname but said that [H] was repaid in 2006 and that there was a document with his solicitor that proved this. He said that he could provide evidence of that loan but no such evidence was produced. The applicant also asserted loans from siblings, including brothers in Australia and a sister in  China . Notwithstanding the provision of a certain amount of evidence from  China  by the respondent, no evidence was called from either the applicant’s sister in  China  or the brothers in Australia. One thing that is immediately apparent from an examination of the bank records of the applicant is that there are a very substantial number of payments just under the $10,000 reportable limit. I have no doubt that what has been happening is that the applicant has been grossly under-declaring his income as the payments he says he has made are completely inconsistent with the income he discloses. The one aspect of the applicant's assertions about his finances for which there is at least some small element of objective proof is the settlement entered into with his first wife, (being “Exhibit R” to the applicant’s affidavit filed on 26 November 2008) in the sum of $60,000. I accept that this settlement took place and was probably the source of at least some of the settlement proceeds for the Property W property.

In about 2001 he stopped his job and went out on his own with a cleaning franchise and his income thereafter has at all times been much, much smaller, somewhere in the range of 10 to 15 thousand dollars per year.

The applicant's evidence is that until 2000 he had a job which was a salaried job paying him approximately $50,000 per year. His tax records are consistent with that assertion.

REPRESENTATION

Both sides gave their evidence with the assistance of interpreters and any assessment of their demeanour is necessarily made more complex by this fact

The documents from  China  all seem to me to have the risk of losing something in translation.

Consideration of the Facts

black market

The Respondent's Case

The Applicant's Case

Agreed Facts or Facts That Are Clearly Established

The Facts - A Brief Overview

REASONS FOR JUDGMENT

FAMILY LAW – Property dispute – extraordinary facts – immigration sham – neither party’s version credible – impossibility of affirmative factual findings – unusual outcome.

ORDERS

Hearing dates: 24 & 25 February, 5 March & 1 May 2009

Applicant: MR LEE Respondent: MS DUAN

Evidence Act 1995, s.140Federal Magistrates Act 1999, s.14Family Law Act 1975, ss.4, 71, 75(2)Marriage Act 1961, ss.5, 23Dr Anthony Dickey - Family Law – Fourth Edition Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225Jones v Sutherland Shire Council [1979] 2 NSWLR 206In the Marriage of Deniz (1977) FLC 90-252In the Marriage of Nemir Osman [1989] FamCA 78In the Marriage of Hosking (1994) FamCA 87R v Cahill [1978] 2 NSWLR 453Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336Granada Tavern v Smith [2008] FCA 646

Lee & Duan [2009] FMCAfam 557 (12 June 2009)

FEDERAL MAGISTRATES COURT OF AUSTRALIA