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WIFE APPEALS AGAINST ORDER FOR NOT RECOGNIZING HER PARENTING AND HOMEMAKING CONTRIBUTIONS IN THE PROPERTY SETTLEMENT

CHAU & CAO (NO. 2)

FAMILY COURT OF AUSTRALIA

[2019] FamCAFC 254

 

This is an appeal filed by the wife from orders made by the primary judge dismissing her application for property settlement.

Facts:

Ms. Chau (Wife and Appellant) filed a Notice of Appeal[1] against final property settlement orders made by the primary judge that dismissed her application for property settlement orders filed in 2014 and discharged an order made by a judge of the Federal Circuit Court of Australia restraining Mr. Cao (Husband and Respondent) from selling or otherwise dealing with real property and any of his investment shares.  Ms. Chau’s appeal was based on the grounds that the primary judge gave too little weight to her parenting contributions from the birth of the parties’ child in December 1991 until June 1993; that the primary judge was in error when she failed to take into account the growth of Ms. Chau’s contribution of $360,000 for 15 years; and that Mr. Cao controlled all the investments in Australia.

Relevant to the appeal is the fact that the parties agree that between 1996 and 1998, Ms. Chau sent a total of $360,000 of her funds to Mr. Cao in Australia to invest on her behalf.  There was no dispute that these funds were placed in bank accounts under Ms. Chau’s name in Australia.  Mr. Cao had returned a total of $435,680 to Ms. Chau, which is $75,680 more than the amount she had given him to invest on her behalf.

Issues:

  1. Did the primary judge give little weight to Ms. Chau’s parenting and homemaking contributions?
  2. Did the primary judge fail to take into account the growth of Ms. Chao’s contribution of $360,000 for 15 years and that Mr. Cao controlled all of the investment in Australia?

Held:

  1. As held in the case of Gronow v. Gronow,[2] a different view by an appellate Court only as to matters of weight will not justify a reversal of the decision of the primary judge.  After consideration of the fact that the parties jointly cared for their child until Mr. Cao returned to Australia in 1993[3], that Mr. Cao made almost all of the relevant parenting contributions,[4] that Ms. Chau did not pay child support or contribute to the enterprise of the family and the support of the child,[5] the primary judge found that Ms. Chau did not make a direct financial contribution and neither did she make a homemaking and parenting contribution which justifies recognition.  Further, the primary judge did not find that she made any indirect contribution to the acquisition, conservation, or improvement of the assets, particularly, to the accumulation of Mr. Cao’s superannuation entitlements.[6]  It is clear that the primary judge accepted that Ms. Chau made homemaking and parenting contribution, but in the circumstances concluded that they do not warrant recognition in a property adjustment order. 
  1. There was no dispute that Mr. Cao controlled Ms. Chau’s money and comingled these funds with his own.  However, it is undisputed that Mr. Cao returned the investment together with further amount of $75,680.  There is not doubt that the primary judge took account of the growth of the funds before the repayment by Mr. Cao.  Further, Ms. Chau made no argument before the primary judge that the repayment by Mr. Cao to her did not represent a proper return of the original investment together with interest, which is now not available for Ms. Chau to raise on appeal.[7]

 

Ms. Chau did not attempt to specify what weight should have been given by the primary judge to her parenting contribution, nor to quantify how such a contribution should have been reflected in any property adjustment order.  Further, she was unable to articulate how an exercise in the nature of an accounting would have resulted in any different result before the primary judge.   Hence, the Court dismissed Ms. Chau’s appeal because it found no merit in its grounds.

 

[1] EA 31 of 2019.

[2] Gronow v Gronow (1979) 144 CLR 513 at 519.

[3] Chau & Cao [2019] FamCA 97 (27 February 2019) at (160).

[4] Ibid at (161).

[5] Ibid at (162).

[6] Ibid at (167).

[7] Metwally v University of Wallongong (1985) 60 ALR 68.

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