Agassi and Ayari (No. 2)

[2020] FamCA 624

FAMILY COURT OF AUSTRALIA

AGASSI & AYARI (NO. 2) [2020] FamCA 624

FAMILY LAW – PROPERTY – Application by the wife for a property settlement – Valuation of property in Australia and Country E – Superannuation – Add-backs – Parties married for over 15 years – No children of the marriage – Parties’ contributions over the course of the relationship assessed as equal – No adjustment made – Orders that the parties be declared the owners of property in their respective names, possession or control – Order for the husband to reimburse the wife for his half-share of expert fees – Applications otherwise dismissed.

Family Law Act 1975 (Cth) ss 75(2) and 79

Stanford & Stanford (2012) 247 CLR 108

APPLICANT: Ms Agassi

RESPONDENT: Mr Ayari

FILE NUMBER: SYC 5697 of 2016

DATE DELIVERED: 31 July 2020

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 16 March 2020, 4, 6, 7, 8 & 11 May 2020, & 6 June 2020 & 8 July 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Matthew Wong & Gillian Wright on 8 July 2020

SOLICITOR FOR THE APPLICANT: Gillian Wright
Craddock Murray Neumann

COUNSEL FOR THE RESPONDENT: Mr Stephen Cairns by direct brief

SOLICITOR FOR THE RESPONDENT:

Orders

1. Ms Agassi (‘the wife’) and Mr Ayari (‘the husband’) as between each other be declared the sole owner in law and equity of any property in their respective names, possession or control.

2. The husband pay $500 to the wife within twenty eight (28) days of this order being re-imbursement to her of one half the expert fees of Professor F.

3. The property proceedings between the parties are otherwise dismissed.

4. All extant applications be dismissed except costs applications, if any, which are to be dealt with in accordance with the Family Law Rules 2004 (Cth).

5. All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.

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 Agassi & Ayari 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 HOBART

FILE NUMBER: SYC 5697 of 2016

Ms Agassi

Applicant

And

Mr Ayari

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. This is a property proceeding between Ms Agassi (‘the wife’) and Mr Ayari (‘the husband’).

2. Conflict arising out of relationship breakdown can be a disaster for couples if their mutual distrust, hate and paranoia enable them, or one or other of them, to undermine or destroy their common sense and their ability to find their own solutions.  This is such a case.

3. The husband and wife in these proceedings have a modest pool of assets and they have expended serious amounts of money.  In terms of the wife she has incurred legal costs of almost $300,000.[1]  The husband has re partnered with Ms B (‘the husband’s present wife’) and they have spent or incurred more than $250,000[2] in legal costs.  From hearing the evidence of the husband and the wife, their mutual distrust was palpable and it was reflected in the cross-examination of witnesses over the six days on which the hearing of this case was conducted.  Without effective case management and the sensible and constructive approach by the counsel and solicitors, this hearing would have run for days longer.

   [1] Exhibit E7.

   [2] Exhibit E28.

4. Fortunately, each of the parties were represented by ethical and competent counsel, and in the case of the wife, ethical and competent solicitors, who enabled the Court and parties to focus on relevant issues.  These legal practitioners assisted the Court in enabling the trial to be substantially conducted remotely using audio/visual systems.  Without their co-operation, not only would the trial have taken many more days to be heard, but the re-commencement of the trial would have been delayed for months, if not years.

5. These proceedings were caught up in the event of COVID-19.  The first day of hearing was 16 March 2020 and it was anticipated that the hearing would proceed, face to face, through that week until completed.

6. However, given the social distancing rules and other community impositions it was not possible to resume the hearing on a face to face basis after day one.

7. Accordingly, the proceedings recommenced on Monday 4 May 2020 and continued on 6, 7, 8 and 11 May 2020 with additional days on 6 June and 8 July 2020.  These were conducted by way of audio visual links through Microsoft TEAMS.  The Court was constituted by me operating from my home using two computers logged in to the program enabling vision of eight people (four people on each screen - as was available for much of that time) and the screening of relevant documents electronically to all participants. 

8. Generally on the primary screen was vision of the barristers for each of the parties, the primary witness and, where necessary, an interpreter.

9. On the second computer and screen was vision of each of the parties and the instructing solicitor/s. 

10. The program was operated by my associate from her home in suburban Hobart.  A court officer opened a computer link in the Hobart Registry of the Family Court and ensured that the proceedings were recorded for the purpose of transcripts.  The wife gave evidence from her solicitor’s office from which, in a different room, her barrister and solicitor appeared.

11. The husband gave evidence from a remote location, as did the husband’s counsel and as did the interpreter.

12. In advance of the hearing, I directed that the parties provide the Court with all of their documents in either Word or PDF form and in hard copy.  Those documents were downloaded and I was able to put those on the screen from time to time as needed for forensic purposes.

The opposing cases

1. The husband and the wife were each born in Country E and they married in Country E.  They moved to Australia, separately, between 2006 and 2008.  They separated in early 2014 (according to the husband) or in September 2015 (according to the wife).  As I determined elsewhere in these Reasons, the separation occurred in September 2015.

2. The wife sought orders in terms of those set out in her minute of order dated 16 March 2020.[3]  These were to the effect:-

   [3] Exhibit E3.

   a)Sale of the husband’s property at G Street Suburb H (‘Suburb H’) with the whole of the nett proceeds of sale paid to the wife after payment out of the Commonwealth Bank loan (the registered mortgagee) and with no payment or re-imbursement to the husband’s present wife.  There were specific orders sought to enable the orderly sale of Suburb H.

   b)Pending the sale of Suburb H the wife is to have exclusive occupation of it and that the husband meet the mortgage repayments on that property.

   c)The wife’s orders made it clear that she eschewed any liability to the husband’s present wife for funds she allegedly advanced against the mortgage over Suburb H or towards that property or either in terms of any equitable interest she may have in respect of Suburb H.

   d)The wife sought a further sum of $63,564.

   e)Otherwise she sought orders that other than as is specifically provided for in the orders, as between themselves each of the husband and wife shall:-

   i)be solely entitled to the exclusion of the other to other property and chattels of whatsoever nature or kind in the possession or control of each of the parties as at the date of the final orders; and

   ii)retain sole responsibility and liability for all and any loans, liabilities and credit obtained by them in their respective names for any purposes and keep indemnified the other party in respect to all and any such liabilities.

   f)The wife sought procedural orders by way of self-executing orders pursuant to s 106A of the Family Law Act 1975 (Cth) (‘the Act’).

3. In her originating application filed 6 September 2016 the wife sought costs. Similarly, the husband sought costs in his response filed 11 November 2016. These costs applications were not argued in the substantive case, for obvious reasons. I provided in the orders that, if necessary, costs may be ventilated after this determination, provided, that such costs applications are made in accordance with the Family Law Rules 2004 (Cth) (‘the Rules’).

4. There were numerous issues raised by the wife in relation to:-

   a)Generally as to the reliability of the evidence of the husband and his witnesses.

   b)The date the parties separated.

   c)The relative contributions of the parties to the matrimonial property.

   d)The wife’s allegation that the husband owned an apartment in City C, Country E.

   e)The profitability of the wife’s business.

   f)The husband’s past employment and, consequently, his income earing capacity.

   g)The veracity of a loan alleged between the husband and his present wife.

   h)The beneficial ownership and value of two apartments in City C, Country E.

   i)The appropriate exchange rate between the local currency and the Australian Dollar.

   j)Whether the husband has retained funds overseas.  

   k)The pool of property and the extent of the liabilities

   l)The parties’ relative contributions, including money allegedly contributed by the wife from her late father’s estate. 

   m)The appropriate division of property between the parties having regard to all of the relevant factors.

5. The husband sought a declaration that each party be declared, as against the other, the sole owner of the property in such party’s ownership, possession or control.  Further, that the wife’s property application be dismissed. [4]

   [4] Husband’s case outline Exhibit E2.

6. In keeping with the level of conflict between the parties, the husband likewise raised numerous issues including:-

   a)Generally, the reliability of the evidence of the wife and her witnesses.

   b)The date the parties separated.

   c)The relative contributions of the parties to the matrimonial property.

   d)The husband’s allegation that the wife beneficially owned two unencumbered apartments in City C (the City C apartments).  

   e)If it was determined that the wife was the beneficial owner of the City C apartments, the Court needed to determine the value of each of the City C apartments.  That valuation would be in local currency. 

   f)The appropriate exchange rate between the local currency and the Australian dollar and the value of the City C apartments in Australian dollars.

   g)The profitability of the wife’s business.

   h)The authenticity of the advances of money by his present wife to him.  

   i)The pool of property and extent of liabilities

   j)The parties’ relative contributions, including money allegedly contributed by the wife from her late father’s estate. 

   k)The appropriate division of property between the parties having regard to all of the relevant factors under s 75(2) of the Family Law Act 1975 (the Act).

7. The husband asserts that there has been a court ordered division of property in Country E.  There is no issue that property orders were made in Country E Court in April 2016.  There was a question of whether there is a jurisdictional barrier to this Court making property orders, and if not, whether the Court should make property orders.  I determined that there was not a barrier to the adjustment of the parties’ Australian property.

8. One of the significant issues in these proceedings was the beneficial ownership and value of the City C apartments.  I needed to determine the legal ownership and the beneficial ownership of those apartments and if either one or both were beneficially owned by one or other of the parties.  If one or other of the parties was the beneficial owner of one or both of the City C apartments, what then was the question of the value of that or those assets.

9. The value could be the value in Country E or the asset being disposed of and then the proceeds of sale transferred to Australia.

10. During most of the hearing, the issues seemed to be as to whether the value of the City C apartments was about $500,000 (as asserted by the wife) or about $600,000 (as asserted by the husband).  At the conclusion of the hearing, there was an issue about the exchange rate and which exchange rate should be used, whether it ought to be:-

    (a)the official Country E Bank exchange rate;

    (b)the value of transferring the monies to Australia; and

    (c)the black market transfer of monies to Australia.

11. It was not clear as to which exchange rates existed and the applicable rates as at the time of hearing.

12. The wife relied upon an old transaction where there was a dispute as to that methodology and there was no expert evidence.  The husband was seeking to rely upon the Country E Bank determined exchange rate.

13. After the parties made their submissions referred to in Exhibits E32, E33 and E44, I arranged for the matter to come back before me and made directions for reliable expert evidence of the exchange rates. 

14. The matter then came back on 6 June 2020 for further argument, including the value and nature of some superannuation property of the husband.  However, it did not deal with the value of the local currency.  

15. These proceedings came back before me on 8 July 2020.  I gave leave for the husband to file and rely upon a further affidavits by his present wife and himself, both sworn and filed 7 July 2020.

16. On 6 July 2020 the wife filed an affidavit by Professor F.  On 8 July 2020, I gave leave for the wife to rely on that affidavit.  This affidavit provided cogent evidence as to the value of the local currency. 

17. At that time, I gave leave for the husband to provide agreed evidence that he and his present wife parented a daughter who was born in … 2020.  I have had regard to the birth of that child in this determination in terms of the husband’s obligation to support the child and provide some support for his present wife.

BACKGROUND

1. The wife is aged 45 and was born in Country E.  As to her health, she has the difficulties to which I have described elsewhere in these reasons.  She is currently working as a manager of her business in Sydney.

2. The husband is aged 41 and was born in Country E.  There no evidence that he has health problems.  He is employed as a public servant and earns about $110,000 per year.

3. The husband’s present wife was born in … 1976 and is now aged 43.  She immigrated to Australia in 2000.  She commenced dating with the husband in about mid 2014 (she believed that the husband and wife were separated).  The husband and his present wife were married on … 2019.  There is one child of that relationship, a daughter who was born in … 2020.

4. The husband and wife met in City C in 1997.  They married and commenced cohabitation on 1 October 2001.  There are no children of the marriage.

5. I have determined that the parties finally separated in about September 2015.

6. I have determined that the husband acquired an apartment in City J in March 2000 using funds provided by his father.  The parties at times lived in that apartment and at times received income in the form of rent from City J.

7. The wife asserts that she was entitled to a one third interest in City J as part of her dowry.  Further, she says she was not paid her one third interest at the time City J was sold in 2011.  I have considered the acquisition, contributions and the like in respect of City J in the overall determination of this property proceeding.

8. City J was sold in 2011 and I accept that the proceeds of sale of City J were used to acquire the parties’ interests in the two ‘off the plan’ apartments in the K Building in City C, Country E (the ‘City C apartments’).  I have discussed the acquisition and dealings with the City C apartments later in these reasons.  

9. The husband immigrated to Australia in 2006 and the wife in June 2008.  They have primarily resided in Australia since that time.

10. In May 2008 the parties each acquired a farming property in Town L in Country E.  I have referred to those properties later in these reasons.

11. In November 2009 the wife purchased a business.  There is evidence that the wife’s business was relocated in September 2014 and the wife undertook an expensive fit out and borrowed money for that purpose.  I have discussed that acquisition elsewhere in these Reasons.

12. The parties applied for Country JJ visas in 2011 and after a short period these visas were granted.  Neither party has taken up that offer of residence in Country JJ.

13. In 2012 the husband commenced a business called M Company and I have determined that he ended that business in 2014.  I have detailed the reasons in that regard later in these Reasons.

14. In 2013 the parties seemingly were involved with a company called N Company. There is no cogent or reliable evidence that the parties have or had some equity in this business, nor is there evidence that they made any significant income from their association with it. 

15. In 2014 the husband purchased and occupied Suburb H.  There is a dispute as to the funding of the acquisition.  I have discussed that issue later in these Reasons.

16. I mid 2014 the husband met his present wife and soon commenced a relationship with her.  I am satisfied he did not inform the wife of that relationship until in or after September 2015.

17. The husband’s parents visited from Country E in December 2014 and stayed for about three months.

18. On 5 January 2015 the husband and his present wife set up a self-managed superannuation fund, Super Fund 1.  The Trustee of the Fund was P Pty Ltd.[5]  The husband rolled over about $49,000 from his existing superannuation fund (Super Fund 2) to the self-managed fund.

    [5] Exhibit E8 pages 201 to 207.

19. Q Pty Ltd purchased a property at Suburb R for $501,000.  This company borrowed about $390,000 from S Bank to fund the purchase.  Q Pty Ltd apparently owns the property as specific property trustees for the Super Fund 1.  In addition, I have determined and accepted that the husband’s present wife lent the trustee of this superannuation fund and Q Pty Ltd (as specific trustee for Suburb R) $37,071 to enable the purchase of Suburb R.[6]

    [6] Ibid page 210 to 226 loan agreement.

20. I accept that in addition to the $37,071 loan the husband’s present wife contributed a lump sum of her superannuation to this self-managed fund and made regular payments to that fund for about two years.

21. In May 2015 the husband and the wife vacated Suburb H and moved into rented accommodation.

22. On 9 August 2015 the husband travelled overseas and in September 2015 informed the wife that their marriage was over and that he had commenced divorce proceedings in Country E.  He commenced those proceedings in Country E on 21 September 2015.  The wife participated and engaged in those proceedings.  Ms T (‘the wife’s elder sister’) represented her interests in that proceeding and employed legal practitioner/s.

23. On … 2016 the City C Family Court dissolved the marriage of the parties and delivered judgment and verdict for a property settlement in respect of the parties’ Country E property.

24. A translation of the City C Family Court judgment was tendered in evidence.[7]  It noted:-

    a)The divorce was an ‘agreed divorce’.

    b)There were no children of the relationship.

    c)The husband’s apartment in the City C apartments was to be transferred to the wife.

    d)The wife ‘had no claim with respect to her dowry, outstanding alimony, compensation and other assets in Country E’.

    [7] Exhibit E12.

1. I have concluded from this judgment that it related only to property in Country E.

2. As a consequence of the judgment, the husband transferred his interest in one of the City C apartments to the wife, who employed her elder sister (as her power of attorney) to undertake and complete that transfer.  That apartment was registered in the name of the wife.

3. The husband returned to Australia on 9 October 2015, having been away about three months.  He again departed Australia about two or three weeks later, on 26 October 2015.

4. On 26 November 2015 the wife’s solicitors lodged a caveat on the title to Suburb H.  There was subsequent lapsing notice before the matter was raised again as a consequence of the commencement of these proceeding.

5. The husband’s present wife gave evidence that her family had offered to financially assist her and that she had an expectation of receiving about $500,000 from them in 2015.  The husband’s present wife said that there were difficulties in arranging for this family money to be transferred from Country E to Australia and as an interim measure the husband’s present wife borrowed $535,000 from Mr U.  That loan and the transfer of the funds is supported by bank and loan agreement records[8] and evidence by Mr U.  There was confusion as to whether this loan was $535,000 or $525,000.  In her affidavit filed 2 February 2018 it was said to be $525,000.  In her affidavit filed 8 June 2017 it was said to be $535,000.  Mr U deposes that it is $535,000.  I have accepted the veracity of the evidence of Mr U and the husband’s present wife, in that regard.  It is likely that the confusion arose because the husband’s present wife had repaid over $10,000 against that loan.

   [8]Annexure “A” 7 “B” to affidavit of the husband’s present wife filed 8 June 2017.

6. On … 2016 the husband married another person in City C. They subsequently divorced.  The husband incurred a debt for her dowry.  This marriage had little bearing on the property issues between the parties.  Although, I have no doubt that the husband’s relationship with his present wife, before formal separation, and his marriage to another woman in … 2016 has in part at least, fuelled the conflict between the husband and the wife.

7. In May 2016 the husband’s present wife transferred $470,000 to the husband’s Commonwealth Bank home loan off-set account.  This payment substantially reduced the mortgage on Suburb H.

8. In August 2016 the husband and his present wife jointly purchased property at V Street Suburb W (‘Suburb W’) for $870,000.[9]  The funding for that purchase came from a registered first mortgage over Suburb W and drawings of $132,824 made against the Suburb H mortgage offset account.  In addition, the husband’s present wife spent a further sum of about $129,000 on renovations to Suburb W.   

   [9] Suburb W has a present value of $810,000 a reduction of $60,000 notwithstanding renovations of $129,000.  I have considered that there was no evidence of reckless wanton or negligent behaviour on the part of the husband and/or his present wife.

9. These proceedings were commenced on 6 September 2016 by the wife.

10. In December 2016 the husband changed the Suburb H mortgage to interest only as he was unemployed around that time.

11. There were a number of costs orders made against the husband, of which I have had regard.

12. There was a tsunami of papers produced in these proceedings by each of the parties.  They were tendered as tender bundles and exhibit bundles.  There were certified and translated copies of documents from Country E including real estate valuations and title transfers of the City C apartments. 

13. In 2017 the husband’s present wife intervened in these proceedings claiming an equitable interest in Suburb H.  She later discontinued a claim of an equitable interest in Suburb H, but pressed the liability for the advance she made against the Commonwealth Bank mortgage offset account.

14. The wife re-married on … 2019.  Her husband, Mr X (the ‘wife’s present husband’) provide affidavit evidence for the wife.

15. The hearing commenced on 16 March 2020 and concluded on 11 May 2020.  The proceedings came back before the Court for further evidence and submissions on 6 June and 8 July in 2020.

16. At the conclusion of this hearing on 11 May 2020 there were two areas where there was a lack of clarity namely:-

    a)the exchange rate in relation to the value of the properties (if in fact they were property of the wife or a financial resource of the wife) having regard to the exchange rate of the local currency; and

    b)the superannuation fund or funds of the husband.

17. The superannuation material, provided on 6 June 2020 and admitted into evidence, enabled determinations to be made as to the values of the husband’s various superannuation funds.

18. The parties provided further evidence and submissions on 8 July 2020 as to the exchange rate etcetera, as I have mentioned earlier in these Reasons.

19. In these Reasons any statement of fact should be treated as a finding of fact unless the contrary is clear from the context of the statement.

THE EVIDENCE

1. The Exhibits were:-

   E1Applicant Wife’s Case Outline dated 15 March 2020;

   E2Respondent Husband’s Case Outline filed 7 November 2019;

   E3Applicant Wife’s Minute of Order dated 16 March 2020;

   E4Applicant Wife’s Balance Sheet (“Version 1”);

   E5Tender Bundle to the Affidavit of the Applicant Wife filed on 27 January 2020;

   E6Tender Bundle to the Affidavit of the wife’s elder sister;

   E7A Costs Notice from Gillian Wright of Craddock Murray Neumann Lawyers Pty Ltd to the Applicant Wife dated 16 March 2020;

   E8 Bundle with handwritten paginations from 265 to 328 (select documents were relied upon being pages 281 to 298);

   E9A copy of the Certificate of Project Royalty Transfer in Country E language and English translated copy (being transfer of unit property from Ms AA to the Applicant Wife);

   E10A copy of the Certificate of the Country E language (…) Project Royalty Transfer and English translated copy (being transfer of unit property with membership code … from the Applicant Wife to Mr BB (the wife’s brother));

   E11A copy of the Certificate of Irrevocable Transfer of a Unit in the Country E language (…) and English translated copy (being transfer of unit property with membership code … from Mr BB (‘the wife’s brother’) to the wife’s elder sister;

   E12A copy of the Judgment No …, Justice Administration of City C dated 6 April 2016 (with respect to the parties’ divorce proceedings) in the Country E language and English translated copy; 

   E13Cover sheet and page 5 para 16 affidavit of wife filed 7 April 2017;

   E14First 3 pages of Exhibit E 2016 document;

   E15Second tender bundle to the affidavit of the respondent husband and at page 203;

   E16Shorter version of Exhibit 8 (contains 64 pages);

   E17Schedule to E16 attached colour documents referred to in E16;

   E18CBA records pages 145, 156, 176 and 177;

   E19Finance application pages 21 to 37;

   E20Original loan agreement husband and the husband’s present wife dated 29 May 2016 (to be returned to husband once proceedings at an end);

   E21Austrac documents (front document followed by 71 pages);

   E22Twelve pages of notebook about business pages (page 12);

   E23Statement of the wife’s elder sister dated 20 May;

   E24Photo of a ring;

   E25The husband’s valuation - Mr CC - unit …;

   E26An 8 page document valuation - wife’s valuer Mr DD;

   E27Valuation of diamond ring;

   E28The husband’s costs statement;

   E29Email from Mr EE (‘Mr EE’ and later ‘the documents manager’) dated 11 May 2020;

   E30Email from husband to wife’s solicitors dated 11 May 2020;

   E31Wife’s Tender Bundle - (Country E Divorce concluding property adjustment between parties) page 35;

   E32Email from Mr Cairns sent by email 20 May 2020 – outline of submissions from counsel for the Respondent - containing Super Fund 2 letter, payment details and S Bank home loan statement and 2 page submission document regarding superannuation;

   E33Submission on exchange rates forwarded 29 May 2020 by respondent husband;

   E34Super Fund 3 statement with balance at 18 February 2020;

   E35GG Bank statement from February to March 2015;

   E36S Bank statement of husband and his present wife from March to September 2015;

   E37Husband’s Super Fund 2 payment $10,766.85;

   E38Husband’s Super Fund 2 rollover $38,129.84;

   E39Super Fund 1 S Bank statement January 2015 to July 2015;

   E40Super Fund 1 S Bank statements January 2015 to January 2020 (60 pages);

   E41P Pty Ltd S Bank Home loan statements May 2015 to October 2019 (30 pages);

   E42Super Fund 4 statement 31 October 2019 to 14 February 2020;

   E43Super Fund 3 annual statements 2017, 2018 and transaction history November 2019 to February 2020;

   E44Submission of wife dated 1 June 2020;

   E45Transaction history Super Fund 3 as at 29 May 2020;

   E46Valuation Suburb R (28 pages); and

   E47Invoice Professor F.

Evidence of the wife

1. The wife gave evidence, through an interpreter, in terms of her affidavit sworn 27 January 2020 and filed 29 January 2020 (‘wife’s trial affidavit’) and her amended Financial Statement sworn and filed 11 March 2020.

2. The wife said, and I accept, that she is presently aged 44 years and she is the owner of a business in Sydney.  She and the husband were married in City C on … 2001 and she remained in an intact marriage with the husband until September 2015 when the husband informed the wife that he was taking legal proceedings to divorce her in Country E.

3. I have commented earlier in relation to the date of separation and I am satisfied that the first time the wife was informed of the final separation by the husband was September 2015.

4. The wife empowered her elder sister to instruct a lawyer to become involved in the divorce and property proceedings in Country E and judgment was delivered in … 2016 and on … 2016 the (consent) divorce was granted.

5. The parties’ marriage certificate from Country E, together with a translation, was part of the wife’s documentary evidence.  This certificate included the terms and conditions of the marriage.[10]

   [10] Exhibit E5, Exhibit A1.

6. The wife attached to her affidavit a judgment of the Family Court of City C[11] and a translation of it.

   [11] Ibid pages 177 and 178.

7. The judgment provided for payment to the wife in gold, the sum of twenty million local currency and that the husband transfer to the wife his entire rights to his apartment in the City C apartments.

8. There is no issue that the husband arranged for the payment in gold and the other matters. 

9. Counsel for the wife took me to the verdict and in particular[12] talked about the judgment being the particular property and ‘other assets in Country E’.  As I have said earlier, this Court case was one in which the wife participated with her elder sister and with legal representation.  It is clear that the Country E Court dealt with property in Country E and not outside Country E. 

   [12] Page 35.

10. The Country E Court may have been aware of the property in Australia, but took no action in relation to that property.  In many ways the judgment implements the agreement in which the parties had entered into when they married in Country E.

11. In the proceedings in the Family Court of Australia the husband engaged and sought orders. 

12. I can, and did, take into account the property the wife received or retained by virtue of the Country E Court orders.  That property included the small property at Town L and, more importantly, apartment 1A (lot …) of the City C apartments, which was transferred from the husband to the wife.

13. In accordance with the Country E Court order, the husband transferred his apartment 1A (lot … of the City C apartments) to the wife in May 2016.[13]  Subsequently, on 23 May 2016 the wife transferred that apartment to her elder sister and no money was paid at that time.  The wife and her elder sister assert that the wife owed money to her elder sister.  I do not believe that evidence of the wife or her elder sister and I am satisfied that the wife retains beneficial ownership in that apartment.

    [13] Exhibit E17 page 5

14. What the wife did not initially tell the Court was that she transferred that apartment or the right to that property to her elder sister and both she and her elder sister asserted the wife had no interest in it.   

15. On 21 November 2015, after the husband and wife separated in September 2015 and before the Country E Court determination in April 2016, the wife transferred her City C apartment (apartment 1B (lot …) to her brother.  In August 2017 the wife’s brother transferred apartment 1B to the wife’s elder sister.  I find that the timing of those transfers was no coincidence.  In that respect, I infer that the wife transferred apartment 1B (lot …) of the City C apartments out of her name to her brother during the course of the Country E proceedings and that that apartment was then transferred to wife’s elder sister the following year for safe-keeping.  I am satisfied that the wife retains beneficial ownership in that apartment.

16. The wife’s evidence in relation to the City C apartments is troubling, to say the least.  She asserts that she knows little or nothing of those transactions.  This is also the case in relation to quality of the evidence of the wife’s elder sister. 

17. The wife and her elder sister were well acquainted with this apartment development.  The wife had acquired an interest in apartment 1B in this development (apartment 1B lot …) as an off-the-plan apartment in December 2011.[14]  The wife’s elder sister was the wife’s attorney in that transaction and in the transfer of apartment 1B to the wife’s brother in late 2015.  The asserted vagueness or outright denial of those transactions and the subsequent transfer of apartment 1B to the wife’s elder sister is disingenuous.

    [14] Exhibit E17 page 13

18. Mr EE is the documents manager of the housing co-operative of K Building (‘the documents manager’) apartment complex and in evidence he made it clear that the wife’s elder sister attended in person in relation to various transactions. 

19. The wife’s explanation in terms of these transactions is inherently implausible, particularly given the evidence of the documents produced from Country E and the evidence of the manager.

20. The wife also pleads ignorance or lack of knowledge in relation to her acquisition of apartment 1A (lot …).  The husband purchased his interest in that property in December 2011 and pursuant to the orders of the Country E Court, to which I have earlier referred, he transferred that property to the wife.  At one stage during cross-examination the wife was asked if the Country E Court ordered the transfer of her husband’s interest in the apartment to her and her answer was no.  That was clearly incorrect.  I am satisfied that the wife was fabricating, dissembling and/or prevaricating in relation to her evidence about the City C apartments.

21. The steps the wife and the elder sister took to deny ownership of those apartments in the wife’s name were significant.  When documents were produced showing the transfers of apartment 1B (lot …) the wife asserted that they were forgeries.  The wife’s elder sister, at all material times, denied ownership of apartment 1B (lot …) and yet the evidence of the documents manager established that it was her apartment.

22. The documents manager gave evidence and was subjected to intimidation, including use of recordings of parts of this Court’s electronic hearing.  I find that the wife’s elder sister was a party to this intimidation.  This effort was designed to conceal the transactions in respect of the two City C apartments and to conceal the wife’s beneficial ownership of these apartments.  

23. The wife and her elder sister did not co-operate in relation to the valuation of the apartments.

24. The documents manager said that at least one of the City C apartments is occupied and that both remain owned by the wife’s elder sister.  As I have said elsewhere in these Reasons, it is more likely than not that these apartments remain the property of the wife and that she has transferred them to create the illusion that she has no significant assets in Country E.

25. The wife gave evidence that she has knee and back injuries.  This is in some levels supported by the material annexed to the wife’s affidavit (which were not subject to objection).[15]

    [15] Exhibit E5 part A22 pages 208 to 256.

26. A report from a Dr LL concluded in May 2016 that the wife had:-[16]

    Transitional lumbosacral vertebral body with possible sacralisation of L5.  At L4/5 there is small broad disc bulge.  There does not appear to be focal left posterolateral disc protrusion encroaching upon medical exit foramen which may impinge upon the exiting left side of nerve at this level.  There is no significant mass effect upon the thecal sac or significant central stenosis.  No encroachment upon the lateral recess.  No suspicious bony lesion.  Mild prominence of the lower lumbar lordosis.

    [16] Ibid page 226.

27. The wife engaged in a medical case conference in June 2016 where she was said to have the capacity for some employment, eight hours per day, five days per week, but may need some ongoing treatment.

28. On 30 August 2017 the workers compensation insurer observed that the wife currently had the capacity to work. 

29. As I understand it, the wife is back to work at the business.

30. In July 2018 the wife married her present husband and they now live together.  The wife’s present husband worked at the business for a period of time, but presently works in transport.

31. The husband asserted that the wife had been given two diamond rings.  He exhibited photographs of those diamond rings in his material.  The wife was cross-examined about those rings and said that they were not real diamonds.  The wife denied that the parties paid $20,000 to $25,000 for these diamond rings. The wife’s evidence was undermined by the evidence of Ms AA.

32. The wife says she no longer has the rings.  I do not believe her.  I accept and prefer the evidence of Ms AA in relation to the rings she saw and the wife’s assertion that they were diamond rings.  There was no valuation of those diamond rings, however, the wife’s evidence in regard to these rings and the nature of the stones and value is fabricated.

33. The wife asserted that the money advanced to the husband by his present wife was, in reality, his own money.  The wife acknowledged in her affidavit filed 7 April 2017 that the husband’s present wife transferred $470,000 to the husband’s CBA mortgage secured over Suburb H.[17]  The wife denied ever saying such a thing, notwithstanding the document being presented to her.

    [17] Exhibit E13 page 2.

34. As to income, the wife asserted in her financial statement filed September 2016 and her amended financial statement filed 11 March 2020, that she had earnings or drawings of $900 per week from the business.  When asked about the difference between what she was earning and what she was spending, she said that the amount she was spending was aspirational, not actual.  I am troubled by that evidence.

35. The wife asserted in her present husband’s visa application that he would be paid $60,225 per year as a manager of her business.  The wife’s present husband, when giving evidence, said he was never paid such monies.  I am satisfied that this was a figure given to the Government to enable the visa to issue and was not based on actual facts.

36. In the wife’s application to the ANZ Bank for loans, she asserted a monthly income of $9,000.  Similarly, to the husband I am satisfied that this was simply a figure given to facilitate the loan and was not in any way based on reality.[18]

    [18] Loan application to ANZ Bank Exhibit E14 – loan application dated February 2016, but based on the wife’s asserted figures of 2014.

1. It is likely that the wife earns more than $900 per week.  However, for this determination I have treated her income as at the level she asserts.

2. I am not convinced that the wife is a witness of the truth.  She prevaricated, she obfuscated in terms of her interest in the apartments in City C and, in other areas, she fabricated some of her evidence. 

3. She is not a reliable witness and I have treated her evidence with great caution.

The wife’s elder sister

1. The wife’s elder sister provided evidence in terms of her affidavit sworn 5 February 2020 and filed 7 February 2020.

2. In addition she provided a statement which was prepared shortly before the hearing and perhaps during the hearing in May 2020.  That statement was admitted into evidence as Exhibit E23.

3. In her affidavit, the wife’s elder sister asserted that she and the wife received an apartment from their late father.  She initially said she had not kept a copy of the judicial decision however, it was contained or parts of it were contained in the subsequent statement.

4. The wife’s elder sister asserted that she did not receive any funds from the husband as he claimed in the Austrac documents.  I have trouble believing her evidence in that regard given my overall assessment of her evidence.

5. The wife’s elder sister gave evidence of the acquisition of the one of the City C apartments, being an off-the-plan apartment in City C.

6. As I said earlier, family law proceedings were commenced in September 2015 and those proceedings took place in City C and the wife was represented by her elder sister who, in turn, employed an attorney. 

7. In terms of those proceedings, the wife received the husband’s interest in one of the City C apartments.  It is clear that the husband transferred his apartment to the wife and she in turn transferred that apartment to her elder sister.  The wife’s elder sister also sold some gold which the husband had been ordered to give to the wife.

8. In relation to that apartment the wife’s elder sister transferred it to herself and says the wife has no beneficial interest in that apartment.  As I said earlier, I do not believe her.

9. The wife’s elder sister gave evidence about the funding of the land in Town L, I regard that evidence as unreliable. 

10. In her statement[19] the wife’s elder sister gave evidence that she interfered with the process of valuation of one of the City C apartments, such interference being in terms of making a formal complaint about the husband’s valuer, despite that valuing process having been ordered by this Court.  Her evidence is consistent with the complaints made by the husband in respect of the difficulties he and his valuer encountered in valuing the City C apartments.

    [19] Exhibit E23.

11. In relation to the transfer of the apartments, there is no issue that the City C apartment owned by the husband was transferred from the husband to the wife who, in turn, transferred the interest to her elder sister.

12. It is not clear how that process took place.  The evidence of the husband is that each of the transferor and transferee obtain an original or some form of the transfer document and another form of the transfer document was registered with the Department of Corporations.  It is the wife’s case that the signatures on some of the transfers are forged.  I have discussed this elsewhere in these Reasons.

13. The wife’s elder sister denied being involved in the transfer of the wife’s City C apartment firstly to her brother and then to her.  That evidence is untruthful.

14. The wife’s elder sister was cross examined by counsel for the father by audio visual link using on Microsoft TEAMS (audio only) from City C and her evidence was given via an interpreter.

15. The wife’s elder sister provided evidence as to her brothers and elder sisters of which she said, consistent with the wife, that there were twelve children of her father’s relationship with the wife and elder sister’s mother, but was not able to give evidence about other children of her father.  She did provide a copy of the orders for the distribution of her father’s estate,[20] although it is not clear precisely how the estate was distributed.

    [20] Exhibit E23 page 10.

16. The wife’ elder sister asserts that only one of the City C apartments was transferred to her, and that was the one ordered by the Country E Court.  She was delightfully vague in relation to some of her answers about her knowledge of the properties and at one stage, said that she had no knowledge of the earlier transfers when in fact she clearly had knowledge; it was set out in her earlier affidavit and in the documents.

17. The documents from the building complex show that she obtained a second property which she denied.  On balance, I prefer the documentary evidence provided by the husband and the evidence of the building manager.

18. The wife’s elder sister was not a reliable witness and when invited to give further evidence late in the trial, declined to do so and I infer that any such evidence would not have assisted the wife’s case.

19. The evidence of the wife’s elder sister was impeached by the documents of transfer of the various City C apartments and the evidence of the husband and the documents manager.

The wife’s present husband

1. The wife’s present husband provided evidence in terms of his affidavit filed 28 January 2020.  He was cross-examined, through an interpreter, during the course of the hearing.

2. The wife’s present husband is aged 43 and is of Country E background.  He met the wife mid-2016 and they developed a relationship from 2018.  They married in 2018.

3. The wife’s present husband is currently working as a courier and, at one stage, worked in the wife’s business.  He was cross-examined in relation to his application for an Australian visa.  He, in that application, asserted that he was earning about $60,000 a year from the wife’s business.

4. The wife’s present husband prevaricated in terms of that evidence, but eventually conceded that it was put more for the purpose of his visa application than in terms of reality.

5. I am satisfied that his assertion to the Australian Government was inaccurate.  I accept that he did work for the wife’s business for a period of 18 months and earnt a modest income.

The husband

1. The husband gave evidence in terms of his affidavits filed 7 November 2019 (‘his trial affidavit’) and his affidavit of 6 March 2020 (‘his March 2020 affidavit’).  He provided updated information in terms of his financial circumstances in his document sworn 4 February 2020 and filed the same day.  That material was read into evidence, subject to weight.  The husband also provided evidence in his affidavit sworn and filed 7 July 2020.

2. On 8 July 2020 the husband informed the Court that he and his present wife parented a daughter in 2020, who now lives with them.  That fact being conceded by the solicitor for the wife.

3. The husband was at times legally represented and at other times, unrepresented in the course of these proceedings.  His trial affidavit was prepared by him and tendered in evidence with it was the documents to which he referred.[21]  This was provided in both hard copy and in electronic form.

   [21] Exhibit E8.

4. During the course of cross-examination of the wife, counsel for the husband went to various documents from Exhibit E8 and they were consolidated into another document which was subsequently exhibited.[22]  This document contains 64 pages.

   [22] Exhibit E16.

5. During the course of his cross-examination the husband was challenged on his recollection of the history, acquisition, sale and ownership of the two City C apartments.  His evidence was consistent with the transfer documents and the evidence of the building manager, Mr EE.  In that regard his evidence seemed reliable.  I have discussed these apartments elsewhere in these Reasons.

6. The husband says that these two apartments in City C were purchased off-the-plan, one in his name (apartment 1A – lot …) and one in the wife’s name (apartment 1B lot …).  He asserts that he paid the whole of the monies for these apartments.  

7. I accept the evidence of the husband that he owned the City J apartment in Country E at the commencement of the relationship and I generally accept his evidence as to the acquisition of that property.  It is supported by his evidence and the documents in his tender bundle.[23]

   [23] Husband’s trial affidavit paragraphs 9 to 13.

8. I prefer the evidence of the husband that he sold City J and used the proceeds to purchase the City C apartments, as off-the-plan investments.

9. The husband is an educated man with qualifications in both Country E and in Australia.  He is employed as a public servant with an income of $2,338 per week (about $121,500 per year).[24]

   [24] Husband’s financial statement filed 4 February 2020.

10. There was some criticism of the husband for not disclosing some work he undertook for a few months in 2016 or 2017.  I accept the evidence of the husband that this was a job where he received no funds and that he went back to working at jobs arranged through an agency.

11. In November 2009 the husband paid $17,000 for the purchase of the wife’s business in Sydney.  The transfer of funds for that payment was identified in bank statements and he was not seriously challenged in cross-examination in relation to that payment.  I have found that the money used for that purchase arose from the joint efforts of the husband and the wife.  I accept that the husband assisted in that business from time to time.

12. The husband operated various businesses over the years of the relationship and subsequently, he provided answers in relation to questions regarding that business.  I have discussed the evidence about his business elsewhere in these Reasons.  His answers in cross-examination in this area were cogent and plausible.

13. The husband was challenged in relation to the signatures on the transfers of the two City C apartments (No. 1B lot … and No. 1A lot …).  The husband had gone to a deal of trouble to obtain copies of the transfers and I accept his evidence that there was one original signed copy retained by the purchaser (and possibly one original signed copy retained by the vendor) and one original signed copy retained by the managers as the records of the apartment complex.  Cleary they were different in relation to apartment 1A (lot …), however, the substance was the same.

14. The wife asserts that the husband has, in some form or other, fabricated or forged a number of the transfer documents in relation to apartment number 1B (lot …).

15. I watched the husband give evidence and he was a very excitable witness.  He had obviously gone to a lot of trouble to arrange for documents to be emailed and then had better copies emailed to him and then finally the original certified copies were sent to him by courier from Country E.

16. As I indicated earlier, the wife’s evidence in relation to these apartments was troubling.  She purported to misunderstand the questions put to her and I took the view that she was dissembling, deflecting or fabricating her responses.

17. On balance, I preferred the husband’s evidence, the associated documentation and the evidence of the documents manager to that of the wife and her elder sister.  

18. Counsel for the wife cross-examined the husband in relation to a number of loan applications where clearly the husband ‘puffed’ his circumstances to achieve loans.  Unfortunately the husband obfuscated and prevaricated in terms of his answers.  This, at some levels, undermined the veracity of his evidence and I have taken into account that approach in terms of assessing the reliability of the husband. 

19. The circumstances of his lease of Suburb H to his present wife was unfortunate.  However, given the monies she had provided to the husband, it was explicable.  It damaged, but did not wholly undermine, the husband’s evidence.

20. Much of the husband’s evidence was supported by documents and his present wife.

21. The husband was cross-examined in relation to the loan agreement between the husband and his present wife dated 29 May 2016.[25]  This document evidenced the loan of $470,000 to the husband by the husband’s present wife.

    [25] Exhibit E20.

22. The husband had delivered the original loan agreement to the Court in accordance with directions made by me.  Unfortunately, the wife’s solicitor was not aware of that circumstance.  As such, on Thursday 7 May 2020 I arranged for the original document to be sent to the Sydney Registry and it was examined by the solicitor for the wife.  In addition, I arranged for a high resolution copy of page 3 (the signature page) of that Exhibit to be forwarded in electronic form to the parties or their legal representatives.

23. The original document has now been returned to the Court file with a note that it is to be returned to the husband 28 days after any final orders are made.

24. I accept the veracity of that loan document.  It supports a loan that has taken place and is itself supported by the evidence of the husband, his present wife, Mr U and the associated bank records.

25. The husband was cross-examined in relation to an application by the wife’s elder sister for residence in Australia which was completed by the husband.  The wife asserts that the signature on that document was forged by the husband.  This was in some levels supported by her elder sister in her evidence.  However, I am not satisfied that the evidence of the elder sister was reliable, particularly in terms of the alleged vagueness of recollection in respect of the properties in the apartment in City C.

26. It is a serious evidentiary matter to assert somebody has forged a signature and the wife has not established that fact given the nature of the evidence that was before me.

27. In cross-examination, the husband was asked if he married another person in … 2016.  The husband conceded that he had entered into a relationship with this woman and applied for an Australian visa for her.  He married her in … 2016 and they separated one year later.

28. He said that his aunt paid a dowry to this wife of about ten to twelve thousand dollars and that he repaid that sum to his aunt.  Clearly from the husband’s evidence, it was a difficult part of his life when he was struggling with the breakdown of his marriage to the wife and struggling in his relationship with his present wife.  It has little moment in terms of these financial proceedings.

29. As asserted by counsel for the husband, the Family Court is not a court of morals.  There is no evidence of significant expenditure apart from the ten to twelve thousand dollars used in dowry.

30. Whilst the evidence raises some concern in respect of the husband’s evidence, as do the circumstances surrounding the loan applications, it has not wholly impeached his evidence as is contended on the part of the wife.

31. I am cautious about the husband’s evidence and I have assessed him in the light of documents and other material which was provided to the Court.

The husband’s present wife

1. The husband’s present wife provided evidence contained in her affidavits filed 2 February 2017 and 8 June 2017.  Those affidavits were read into evidence without objection and subject to weight.  In addition, the husband’s present wife provide evidence of the value of the local currency through her affidavit sworn and filed 7 July 2020.  The husband’s present wife was made available for cross-examination.

2. The husband’s present wife set out in her first affidavit an outline of her relationship with the husband, details of the husband and her present financial circumstances, including their purchase of Suburb W.  She provided evidence of her contributions to Suburb H, the acquisition and maintenance of Suburb W, other contributions and her contributions to the Super Fund 1. 

3. The husband’s present wife set out in her second affidavit a brief history of her relationship with the husband.  It gave details of the loan from Mr U, including the history leading up to the loan and the documents created at the time.  She provide some details as to how the loan funds were used by her.  It also contained responses to questions asked of her by the wife’s solicitors.

4. In her affidavits the husband’s present wife gave evidence that she borrowed money from Mr U.  When cross-examined, she said there was a mistake and confusion in her first affidavit[26] and provided the Court with a satisfactory explanation.

   [26] Second affidavit page 5 paragraph 24.

5. Given her evidence, the evidence of Mr U and the production of the supporting documents, I am satisfied that the husband’s present wife borrowed $535,000 from Mr U.  Further, I am satisfied that the wife used part of those funds to reduce the mortgage on Suburb H by her payment of $470,000.  

6. The husband’s present wife said she had paid interest to Mr U.  She said she had paid interest and she would produce documents if required.  There was no further call in relation to these documents.

7. There was some criticism of the husband’s present wife in relation to the delay between the loan and the use of part of the monies for the purchase of the property at Suburb W.  I am satisfied with her explanation.

8. The husband’s present wife was cross-examined in relation to the telephone calls from somebody called “AJ”.  That person did not give evidence and is related to the husband’s second wife whom he married in 2017.  I accept the evidence of the husband’s present wife in relation to these conversations.

9. I listened to her evidence and whilst she was at times nervous and at times a little agitated, I am satisfied that she endeavoured to be frank and straight forward in her evidence, including her assertion that she said things to upset AJ, and that her evidence is generally reliable, albeit flavoured by her love and affection for the husband. 

Mr U

1. Mr U is a friend of the husband’s present wife and he provided evidence as set out in his affidavit filed 16 February 2018.  He was cross-examined on his evidence.  

2. Mr U asserted that in January 2016 he advanced by way of loan to the husband’s present wife the sum of $535,000.[27]  He also produced a copy of his bank statement showing the available funds and the source of those funds.[28]  He provided a copy of the bank cheque dated 25 January 2016.[29]

   [27] Mr U’s affidavit filed 16 February 2018, paragraph 1.

   [28] Ibid annexure 2.

   [29] Ibid annexure 1.

3. Mr U had provided these funds to the husband’s present wife as he regarded her as a friend and he was informed by her that she could not get funds out of Country E from her family.  

4. Mr U prepared an agreement in relation to that loan which he annexed to his affidavit.[30]  He was cross-examined in relation to the ‘emergency situation’ referred to in paragraph 5 of the agreement annexed to the affidavit and said that this was the difficulty getting the money out of Country E.  I accept the veracity of that agreement.

   [30] Ibid annexure 3 and annexure “A” to the affidavit of the husband’s present wife filed 8 June 2017.

5. He said that his friendship with the husband’s present wife has deteriorated due to the fact that the $535,000 had not been repaid to him in full.  The husband’s present wife has repaid $12,130.[31]

   [31] Mr U’s affidavit filed 16 February 2018, paragraph 8.

6. It was put squarely to him that he was acting as a ‘go-between’ and he denied that assertion.  He said the funds were his and gave cogent sensible evidence and responses to questions. 

7. His evidence was not impeached and I am satisfied that he made the advance to the husband’s present wife as asserted by him.  I regard his evidence as being both cogent, reliable and supported by objective business records.

Mr NN 

1. Mr NN and his wife Ms AA are or were friends of the husband and of the wife.  Mr NN gave evidence in terms of his affidavit sworn 21 February 2020 and filed 6 March 2020.

2. He gave his evidence by TEAMS audio visual link and through an interpreter.  There was a challenge to his affidavit as it was not shown as being translated.  This witness seemed to understand some levels of English, but in any event, paragraphs 1 to 17 and paragraph 19 were translated to him by the interpreter in the course of cross-examination.  He confirmed the accuracy of his evidence.

1. Tendered in evidence were copies and translations of the transfer of the eventual apartment 1A (lot …) of the City C apartment to Mr NN[32] and the transfer of that apartment to the husband on 19 December 2011.[33]  

   [32] Exhibit E16, page 26.

   [33] Ibid page 27.

2. This witness was not in any way seriously challenged in terms of the material contained in his affidavit once it had been translated.  He was asked questions about his ownership of some commercial interests in that site and when he spoke to people.  This seemed more in the form of a fishing expedition rather than challenging the substantive evidence contained in his affidavit.

3. Paragraph 18 of his affidavit was not read into evidence and I have ignored it. 

4. From my observations of Mr NN giving evidence and listening to his responses, I am satisfied that he was frank in giving evidence and it was reliable.

Ms AA

1. Ms AA gave evidence in terms of her affidavit sworn 2 February 2020 and filed 6 March 2020.  She works as a health professional.  She spoke English particularly well and did not need the use of an interpreter.

2. She was not challenged in relation to the transactions whereby she acquired and sold an interest in one of the City C apartments as set out in her affidavits.  She sold what became apartment 1B (lot …) to the wife by agreement dated 16 December 2011.  The transfer[34] was signed by the wife’s elder sister as the wife’s attorney.

   [34] Exhibit E9 and Exhibit E16, page 19.

3. Ms AA was asked about the method of the transaction and said that it was undertaken by her father-in-law as her power of attorney.  She said she was clear about what was going on and when pressed said she had seen a copy of the transfer.

4. The transfer in both Country E language and in English was available to produce to her, but it was not sought.  She described the property she was selling as “No. …”.

5. I accept her evidence that she transferred her interest in apartment 1B (lot …) to the wife.  

6. Ms AA was cross-examined extensively about a diamond ring.[35]  She was clear that the wife had asserted that the rings were diamonds and that they cost more than $20,000.

   [35] Photograph Exhibit E24.

7. Ms AA was a breath of fresh air when giving evidence.  She was clear and frank and she made admissions against the husband’s interests (such as that he and the wife were still at least in public appearing to be a couple in 2015).  Her evidence about the wife’s statements to her that the ring was genuine was impressive.  I accept her evidence was reliable.  

Mr EE

1. Mr EE is the documents manager of the housing co-operative of K Building who deals with the paperwork with regard to registration and transfer of interests in property at the complex including the City C apartments.  This witness had worked for the corporation since 2011.

2. This witness lives in Country E and works for the Corporation which runs the building of which the City C apartments comprise part. The documents manager said that title no. … was apartment 1B and the property title no. … was apartment 1A.  His evidence was, and I accept, that the owner of these two City C apartments is the wife’s elder sister. 

3. Exhibit E17 was displayed on the Microsoft TEAMs screens for all participants to observe.  The documents manager confirmed that the transfer documents were those registered at the Complex.  He said that he had personally checked those copies against the originals and that they were the same.

4. Further, the documents manager said that as each of the transfers were done, either he or someone else in the transaction would identify the buyer and the seller, or their power of attorney, and three documents would be signed.  One for the Corporation and one for each of the buyer and the seller.

5. The documents manager said in the case of the transfers referred to in Exhibit E17 they were done by those parties.  Each of the parties, or their attorneys, were identified by their Country E identity card and their original birth certificates and it was confirmed by their finger print on the documents.

6. He said that at one stage, the wife’s elder sister endeavoured to persuade him to say that some of the documents were not signed by her.  His response to her was that this was illegal and improper and he would not do it.

7. Mr EE gave evidence that the original documents were eventually signed by the Managing Director, but that he undertook all of the paperwork.  His evidence was given by audio visual means from City C via Microsoft TEAMS.  In terms of that, he was shown pages 7, 8, 9, 10, 16, 17, 18 and 19 of Exhibit E17 and identified those documents as true copies of the originals.

8. The documents manager was extensively cross-examined by counsel for the wife as to his engagement with the husband and the husband’s brother.  He made it clear that his job was to appropriately deal with these documents and that he had no personal relationship with them.

9. In evidence, he said that eventually the documents would be given to a Government Department, some years into the future, but in the meantime they were maintained by the Corporation in accordance with Country E law.

10. The documents manager said that the husband does not own any apartments in the Complex. 

11. As to those owned by the wife’s elder sister, he said they were completed and had been occupied for some years, but that he did not know whether the occupants were tenants or friends of the wife’s elder sister.

12. The documents manager said he was content to meet with the wife’s elder sister to show her the original documents on Saturday 9 May 2020. 

13. On the first day that the documents manager gave evidence, there was some discussion about the wife’s elder sister wanting to ask questions of him.  I made it clear to counsel for the wife that this was not an opportunity for the witnesses to be cross-examined by other witnesses.  I was concerned about possible intimidation of witnesses given that the wife’s elder sister had not facilitated the valuation of one of the City C apartments and had made formal complaints about the valuer, Mr CC, in respect of his valuation of unit 1A (lot …) of the City C apartments. 

14. The documents manager sent an email to the Court on the morning of Monday 11 May 2020. [36]  It was tendered in evidence by counsel for the husband as gave oral evidence that day and confirmed the email was from him.  The documents manager complained that the wife’s elder sister has come to his place of business and accused him:-[37]

    for [sic] betraying my country, Country E for passing national secret information to a foreign court. It must be mentioned that she has passed on the recorded video of my presence in the Friday to our Corporation authority and all my managers and used them to force and threaten me to cut my cooperation with the court online session of betraying his country. 

    [36] Exhibit E29.

    [37] Ibid, paragraph 2.

15. He went on to say in the email:-

    I will send the video right to you for witnessing every time you have ordered, but it had better [the wife’s elder sister] doesn’t know my presence at online session. Because, if she knows she may start again for threatening me and I am afraid for firing from my job.

16. I did not see or access the video he referred to in his email.  It was clear to me that the expression ‘presence on Friday’ related to the evidence he had given to this Court the preceding Friday.

17. These were serious allegations made by this witness.  The wife’s elder sister was to give evidence following these assertion, but she either made herself unavailable or declined to attend.  As such she had the opportunity to rebut these serious complaints, she did not do so.  I infer that her evidence would not have assisted the wife’s case.

18. I continued to accept that the documents manager was a truthful witness.  His demeanour on the second occasion was of a person who was clearly upset and concerned by the events and the impact upon him of giving evidence to an Australian court.

19. The documents manager was an impressive witness.  He was clear and articulate notwithstanding that he was given evidence by audio visual and through an interpreter.  He confirmed the veracity of the transfer documents relating to the City C apartments.  

20. I treat his evidence as reliable as it supports the documents and the documents support his evidence.

Mr DD

1. Mr DD is an official expert of the Justice Department of Country E who holds a Bachelor’s Degree.[38]  He was employed by the wife to value apartment 1A (lot …) of the City C apartments.  His valuation dated 25 February 2020 was tendered in evidence.[39]

   [38] Exhibit E25, Valuation of unit 1A City C apartments as at 5 March 2020.

   [39] Exhibit E 26.

2. Mr DD was a certified expert to the Judiciary.  He described himself as a professional.  It is convenient to note that both experts seemingly had the same qualifications.  Mr DD valued the apartment 1A (lot …) at …. 

3. Mr DD was to be available for cross-examination on the final day of the hearing.  Whilst the Court said it would accept the cross-examination by telephone if this valuer could not attend by audio visual link, Mr DD did not make himself available to give evidence and no satisfactory explanation was provided for his failure to attend.

4. This valuer’s qualifications as set out in the valuation were not seriously challenged, except that he came from outside City C and was apparently not permitted to value properties in City C.

5. Mr DD’s failure to make himself available for cross-examination undermined the weight that could be attached to his evidence.

Mr CC

1. Mr CC is an official expert of the Justice Department.[40]  He was employed by the husband to value one of City C apartments.  He valued unit 1A (lot …) which is on the fourth floor of the apartment building.  I accept it was not easy to find a valuer.  This valuer’s qualifications as set out in the valuation were not seriously challenged.  The process that he used was brought into challenge, that is that he did not go into the apartment itself and relied on inspection of other apartments.

   [40] Exhibit E25, Valuation of unit 1A City CC apartments as at 5 March 2020.

2. Mr CC valued apartment 1A (lot …) at …. Country E currency

3. His evidence was that each of the apartments had the same floor plans and he inspected the apartments on another floor.  He gave his evidence clearly and to the point.  He conceded that he only had one discussion with the wife’s elder sister and that this was after the valuation had been undertaken.

4. Mr CC was cross-examined as to why he did not telephone the wife’s elder sister even though her telephone number was on the transfer documents.  His answer, which was clearly explicable, was that he had not noticed the telephone number.

5. Given I saw and heard Mr CC give evidence, I regard his evidence as being reliable.

Evidence of Professor F

1. Professor F provided evidence in his affidavit sworn 29 June 2020 and filed 6 July 2020.  He is a Professor at PP University and he has held that position since 2014.  His expert qualifications were set out in his affidavit and were not challenged.

2. Professor F gave evidence as to the different exchange rates in Country E as at 5 June 2020.  There were three exchange rates:-[41]

   a)The official rate.  The exchange rate between the local currency and the Australian dollar as defined by the Central Bank of Country E (the official rate) was the lowest rate against the Australian dollar;

   b)The QQ rate.  This rate was said to be the main exports and less critical imports such as electronics, certain industrial law material, certain manufacturing equipment and some non-basic food items are converted to local currency in the QQ rate.  Professor F said this rate was not available to ordinary citizens in their day to day transactions.  He said the QQ rate was the second highest against the Australian dollar;

   c)The RR rate.  His evidence was that this rate (‘RR rate’) is typically 1per cent to 3per cent below the black market exchange rate.  This rate is used as the bench mark in most private transactions in Country E.  He said that the exchange rate was the highest rate against the Australian dollar.

   [41] Affidavit of Professor F filed 6 July 2020, page 37 of 52.

3. I have considered this evidence in the light of the other evidence on these rates, and I accept and prefer the evidence of Professor F as accurate and relevant.

SOME FINDINGS OF FACT

Witnesses Giving Evidence from Country E

1. There were to be four witnesses giving evidence from Country E; the wife’s elder sister, the real estate valuers (Mr CC and Mr DD) and the documents manager, Mr EE.  Of that group, three Country E witnesses gave evidence by audio visual means from Country E.  None of these witnesses were compellable and their attendance to give evidence was voluntary.

2. On 20 April 2020, in advance of the hearing, I had my associate email the legal practitioners for the parties and the husband, who had directly briefed counsel, relevantly saying:-

   Further, His Honour has asked me to raise with the parties the following, and has asked that these issues be addressed with His Honour at the re-commencement of the hearing on 4 May 2020:-

   1.     Given that it should not be assumed that all foreign governments will agree with their nationals being examined before an Australian judicial officer by means of video link If there is any doubt, the party requesting the video link should make the appropriate enquiries of the Department of Foreign Affairs and Trade, Canberra, to ensure that the particular country raises no objection at diplomatic level to an examination being held.

   2.     Particular countries may have a requirement that any oath or affirmation to be taken by a witness accords with local custom, and not the usual form of oath or affirmation taken in Australia.  It is necessary for this requirements to be addressed in the event that some unforeseen consequences flow from the evidence being adduced from the foreign national (or even an Australian national resident in that country).  Again, the Department of Foreign Affairs and Trade can advise of each country’s requirements, although the parties can also arrange for this information to be obtained directly through an overseas contact, such as a law firm acting on their behalf.

3. This issue was ventilated at the commencement of hearing and no substantive concerns were raised. 

4. Given the concerns raised by the documents manager during the hearing, with the advance approval of the parties and their legal representatives a letter was sent by a Registrar of the Family Court via email to each of the three Country E witnesses who gave evidence, namely, the wife’s elder sister, the documents manager and Mr CC.  That email was in the following terms:-

   I am a Registrar of the Family Court of Australia.

[The wife] and [the husband] are involved in a property proceeding in the Family Court of Australia (No. SYCXXXX/2016) following the breakdown of their marriage.

Both the husband and wife were born in Country E. The distribution of their property in Country E was determined by a decision of the Family Court of City C - judgment number XXXX XXXX XXXX XXXX

Neither of the parties is seeking to interfere with or challenge the decision of the Country E Court. 

You were requested to give evidence in the Australian Family Court proceedings about the value and/or ownership of two apartments in City C, Country E.

The purpose of this evidence was to identify the ownership and value such property to assist the Australian Court in determining the division of the parties’ Australian property. It was not to make orders in respect of property in Country E.

These Australian proceedings are civil proceedings and the only orders that the Family Court has been asked to make relates to the Australian property of [the wife] and the [husband].

1. At the commencement of the hearing I had made it clear to the parties and to counsel that witnesses could not and should not make electronic recordings of the proceedings.

2. The documents manager records the transactions of acquisitions and sales of apartments in the K Building. He had invited the wife’s elder sister to attend his office to inspect the original transfer documents.  I accept his oral and written evidence that when the wife’s elder sister arrived to inspect the transfer documents about the City C apartments, she was not alone and the documents manager was confronted with aggression and that he was detained.  He says he was shown a recording of parts of the audio visual evidence given by him at the hearing the previous Friday.  As I indicated earlier, the wife’s elder sister had asked the documents manager to change his evidence.

3. Given this evidence and the wife’s elder sister not taking the opportunity to give an oral explanation of the events the preceding weekend, I am satisfied that she was endeavouring to intimidate the documents manager from giving evidence about ownership of the City C apartments.

4. I said to the documents manager that I would make enquiries as to what happened in that regard and I had understood that the wife’s elder sister was to give evidence on the afternoon of the last day.  I told counsel that I expected questions to be asked as to the recordings of the hearing.

5. Counsel for the wife sought some form of certificate in relation to the evidence of the wife’s elder sister.  This elder sister lived in Country E and no certificate I could give would likely have any meaningful impact in Country E.  I then asked if the wife’s elder sister was still prepared to give evidence and I was told by counsel for the wife that the wife’s elder sister would not give further evidence.

6. Given that evidence and the evidence of the documents manager the building manager, it seems likely that an endeavour was made to intimidate the documents manager to give evidence different to that which he had given on oath on two separate occasions during the hearing.

7. It significantly impeached the quality and reliability of the evidence of the wife’s elder sister.

8. Shortly before submissions, counsel for the husband asked me to direct or request counsel for the wife to have her inform the Court whether she had made any electronic copies of the audio visual hearing.  Counsel for the wife made it clear that if he were required to respond to such a direction or request, it could undermine his professional relationship with the wife.

9. Given that we had just completed almost six days of hearing, I indicated I would not make such a direction.  I did, however, make a formal order, albeit belatedly, restraining the parties from making electronic recordings of the electronic proceedings.  I formed no adverse view in respect of the wife in respect of that particular circumstance.

10. The wife’s elder sister gave evidence in these proceedings on day five of the hearing.  Part of that evidence was contained in a statement prepared by her and tendered in evidence.[42]  In that statement, the wife’s elder sister asserted she did not have tenants in the apartment.  This evidence contradicted the evidence of Mr CC and Mr EE, which was that the apartment was occupied.  I have preferred the evidence of Mr CC and Mr EE.

    [42] Exhibit E23

11. The wife’s elder sister complained that the husband’s valuer, Mr CC, did not obtain her consent to inspect the premises.  Mr CC conceded that was the case and said that the person occupying the property had declined permission for the valuer to enter that apartment.

12. The wife’s elder sister then made a complaint to the Board which governs certified experts to the judiciary and persisted with that complaint.[43]  The wife’s elder sister said:-

    15.    … I made a complaint to the board which governs certified experts … at the Justice Department about [Mr CC].

    [43] Ibid paragraphs 13 to 17.

13. This circumstance was considered in the light that this Court had recommended that the parties to obtain adversarial valuations in respect of the City C apartments and the Court expected the wife to facilitate inspection by the husband’s valuer.  The wife’s elder sister had acted as the wife’s power of attorney in Country E for many years.  Given the circumstances she ought to have invited and permitted the husband’s valuer to undertake the inspection, rather than undermine or inhibit that process by way of official complaint in Country E.

1. Neither party is seeking to disturb the orders made by the Country E Court in April 2016.

2. The parties’ property in Australia and their superannuation in Australia were not addressed in the Country E Court proceedings.

3. Given that, the issue was not argued. I have examined the material in evidence and having taken account of the competing submissions there is no reason why the Court cannot exercise its powers under s 79 of the Act with regard to the Australian property of these parties.

The Property Application

Generally

1. The approach of the High Court in Stanford & Stanford (2012) 247 CLR 108 is that the Court, having determined the legal and equitable interests of the parties, needs to consider whether there ought to be property orders at all given the parties’ particular circumstances. The High Court said under s 79(2) of the Act:- [108]

   … a court shall not make a property settlement order unless it is satisfied that it is “just and equitable” to do so.

   [108] (2012) 247 CLR 108 at page 112.

2. The High Court said in Stanford:- [109]

   It will be recalled that s 79(2) provides that ‘[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order’. Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.

   [109] Ibid at pages 120 to 121.

3. The High Court then enunciated the three fundamental propositions:- [110]

   First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to common law and equitable principles, the existing legal and equitable interests of the parties in the property. So much follows from the test of s.79(1)(a) itself, which refers to ‘altering the interests of the parties to the marriage in the property’ (emphasis added). The question posed by s.79(2) us thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.

   Secondly, although s.79(2) confers a broad power on a court exercising jurisdiction under the Act to make a property settlement order, it is not a power that is to be exercised according to an unguided judicial discretion.

   …

   Because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is ‘just and equitable’ to make the order is not to be answered by assuming that the parties’ rights to or interests in martial property are or should be different from those that then exist. All the more is that so when it is recognised that s 79 of the Act must be applied keeping in mind that ‘[c]ommunity of ownership arising from marriage has no place in the common law’ [Hepworth v Hepworth [1963] HCA 49]. Questions between husband and wife about the ownership of property that may be then, or may have been in the past, enjoyed in common are to be ‘decided according to the same scheme of legal titles and equitable principles as given the rights of any two persons who are not spouses’ [R v Watson; Ex parte Armstrong [1976] HCA 39]. The question presented by s 79 is whether those rights and interests should be altered.

   Thirdly, whether making a property settlement order is ‘just and equitable’ is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised ‘in accordance with legal principles, including the principles which the Act itself lays down’ [R v Watson; Ex parte Armstrong [1976] HCA 39]. To conclude that making an order is ‘just and equitable’ only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.

   [110] Ibid.

4. I am satisfied that it is appropriate for me to consider an order for the adjustment of property as between these parties, having regard to the comments of the High Court in Stanford & Stanford (supra) and given the circumstances of these parties, their relationship, their contributions as I have addressed them in these reasons, and the way their property, including superannuation, is distributed at the present time.  Given the comments that follow in these Reasons, I am satisfied that it may have been appropriate for the Court to exercise jurisdiction and exercise its power to make an adjustment of property as between the parties, but having regard to the broader principles I am satisfied that it would not be just and equitable to make and property order as sought by the wife or otherwise. 

The assets and liabilities of the husband and wife

1. Much of the value of property was agreed. I have determined the assets and liabilities of the parties as:-

   Pool of assets

Suburb H - agreed	$1,150,000.00
Wife’s business - agreed	$40,000.00
Husband’s land in Town L, Country E - agreed	$5,000.00
Wife’s land in Country E in Town L, Country E - agreed	$10,000.00
Husband’s allegedly held Country E funds from Sydney –determined[111]	$0.00
Husband’s alleged business – determined	$0.00
Suburb W –husband’s half share – agreed	$405,000.00
Wife’s jewellery – determined[112]	$20,000.00
Wife’s household contents[113]	$1,500.00
Contents in Suburb H[114]	$500.00
Husband’s motor vehicle[115]	$0.00
Money of wife in ANZ Bank account ending …32	$1,002.00
Wife’s beneficial interest in City C apartments - determined	$294,753.00
Husband’s Super Fund 3 - determined	$15,614.00
Husband’s Super Fund 4 - determined	$7,121.00
Husband’s self-managed superannuation fund - determined	$46,000.00
Total	$1,996,490.00

[111] I did not accept the wife’s assertion as to these alleged funds.

[112] I have accepted this value because of the wife’s evidence in denying their authenticity, not producing the rings and not enabling them to be valued).

[113] Wife’s amended financial statement filed 11 March 2020 paragraph 42.

[114] The husband and wife provided no evidence as to this and there was no concession in the husband’s recent financial statement 4 February.  His 2016 Financial statement had a value of $500.  I adopted that figure.

[115] There was no evidence of a motor vehicle brought to my attention.

Liabilities

Wife’s income tax outstanding – agreed	$13,611.00
Wife’s business BAS – agreed	$8,888.00
Wife’s credit card - agreed	$5,004.00
Wife’s HELP loan (education) – agreed	$4,771.00
Wife’s business overdraft – agreed	$137,839.00
Wife’s AG Company account – agreed	$30,295.00
AH Pty Ltd – agreed	$5,945.00
CBA Mortgage over Suburb H - agreed	$576,657.00
Advance by husband’s present wife reducing the Suburb H loan – determined	$513,680.00
Mortgage over Suburb W (husband’s half share) – agreed	$354,568.00
Husband’s credit cards[116]	$93,173.00
Total	$1,744,431.00

[116] This was not argued and was set out in detail in the husband’s 4 February 2020 financial statement.

1. The total assets are $1,996,490 and liabilities are $1,744,431.  This provides a nett pool of assets and liabilities of $252,059.

2. The husband’s net assets and liabilities are $91,157.00 made up as follows:-

Suburb H - agreed	$1,150,000.00
Husband’s land in Town L, Country E - agreed	$5,000.00
Husband’s allegedly held Country E funds from Sydney –determined	$0.00
Husband’s alleged business – determined	$0.00
Suburb W –husband’s half share – agreed	$405,000.00
Contents in Suburb H	$500.00
Husband’s motor vehicle	$0.00
Husband’s Super Fund 3 - determined	$15,614.00
Husband’s Super Fund 4 - determined	$7,121.00
Husband’s self-managed superannuation fund -determined	$46,000.00
CBA Mortgage over Suburb H - agreed	($576,657.00)
Advance by husband’s present wife reducing the Suburb H loan – determined	($513,680.00)
Mortgage over Suburb W (husband’s half share) – agreed	($354,568.00)
Husband’s credit cards	($93,173.00)
Total	$91,157.00

1. Wife’s pool of assets and liabilities are $160,902.00 made up as follows:-

Wife’s business - agreed	$40,000.00
Wife’s land in Country E in Town L, Country E - agreed	$10,000.00
Wife’s jewellery – determined	$20,000.00
Wife’s household contents	$1,500.00
Money of wife in ANZ Bank account ending …32	$1,002.00
Wife’s beneficial interest in City C apartments (determined)	$294,753.00
Wife’s income tax outstanding – agreed	($13,611.00)
Wife’s business BAS – agreed	($8,888.00)
Wife’s credit card - agreed	($5,004.00)
Wife’s HELP loan (education) – agreed	($4,771.00)
Wife’s business overdraft – agreed	($137,839.00)
Wife’s AG Company account – agreed	($30,295.00)
AH Pty Ltd – agreed	($5,945.00)
Total	$160,902.00

Superannuation   

1. The husband has superannuation entitlements of about $68,735.  Much of it is in his non-compliant self-managed superannuation fund.  There was no application for splitting orders and as such I have treated them as available funds in a single pool of assets.

   The diamond ring/rings

2. The husband asserted in his affidavit that he and the wife had purchased diamond rings with a value of $20,000 or $25,000.  This evidence was supported by production of the invoice dated 28 August 2013.[117]  The existence of the rings were supported by a photograph of the rings[118]and the evidence of the husband and Ms AA.

   [117] Exhibit E27.

   [118] Exhibit E24.

3. The wife made a number of assertions in relation to these rings, firstly that they were not real diamonds and secondly that she did not know where they were or had lost them.  Her evidence on this point was unconvincing, unreliable and likely fabricated.

4. The husband asserted that the rings were expensive diamond rings.  This evidence was supported by Ms AA.  She gave evidence of having seen at least one of these rings and having examined it and hearing discussions between the wife and Ms AA’s mother as to the clarity and nature of the rings and that they had certificates of authenticity.

5. Given the evidence of the husband and Ms AA, combined with the invoice and photographs, I am satisfied that the wife had diamond rings in her possession at the time of separation and that those rings cost at least $20,000. 

6. I am satisfied that the wife fabricated the evidence that the rings were not diamonds.  Given my concerns about the unreliable nature of the wife’s evidence, I am satisfied, on balance, that the wife has mislead the Court not only as to their value, but as to their existence.  I am satisfied that it is more likely than not that these diamonds are in the possession or control of the wife or that she has disposed of this property without reference to the husband or the Court.

7. The wife has deprived the husband and the Court of knowing their full value.  Given the jurisprudence of this Court and given the wife’s failure to make full and frank disclosure of the whereabouts and nature of the diamond ring or diamond rings, I will simply treat them as the value asserted by the husband and supported by Ms AA.  Accordingly, I will treat the diamond ring/rings as being property in the possession of the wife as having a value of $20,000.

Contributions

1. The parties did not cohabite before they married.  I accept that the wife had an interest from her late father’s estate although the value of that interest is unclear.  The husband had a home unit in City C.  Both the husband and the wife worked in City C.  I accept that the husband likely earned more income than the wife over that period of time.

2. The husband moved to Australia in 2006 and the wife joined him in 2008.  The wife found employment in Australia and worked in modest employment until the business was purchased in 2009. 

3. I accept the husband’s evidence that he paid the $17,000 for the business, however, whilst it came from the sale of shares, it was monies that the parties had accumulated by their joint efforts during their marriage.

4. I accept that the wife borrowed significant funds for the fit out of the second premises and those liabilities remain outstanding.

5. I am satisfied that the husband earned greater income than the wife and I am also satisfied that the wife undertook more of the household chores and household duties than did the husband.

6. The wife asserted that she contributed all the funds provide by the parties towards the acquisition of Suburb H.  The providence of these funds as asserted by the wife, is that the money came from her business and her father’s estate.  That assertion is unreliable.  I am satisfied that the sum of about $111,500 needed to acquire Suburb H was, in one way or another, a result of the joint efforts of the wife and husband.

7. I accept the wife borrowed $40,000 from the ANZ Bank and the remainder of the funds came from savings and monies that she and the husband had accumulated.  

8. The wife asserts in contributions that the husband has had the benefit of the rental in regard to the property at Suburb H, it having been used as an Airbnb property since late 2017.  I was not given any particularised figures in that regard, but it would have been relatively modest having regard to the size of the mortgages, the need to clean, present, and pay water rates, counsel rates and unit levies.  The wife had available the tax returns of the husband, but has not taken me to any particular amounts that had been earnt.

9. The husband had access to that property, but was required to pay the expenses on Suburb H.

10. Tendered in the evidence was a series of transactions of monies sent to Country E by the husband.[119]  The husband provided a summary of the payments of $83,599 between 2010 and 2013.

    [119] Exhibit E21.

11. I listened carefully to the evidence of the wife’s elder sister where she said she did not receive any money.  I do not accept that evidence.  I prefer the evidence of the husband supported by the Austrac documentation that he transferred about $44,921 to her and about $3,628 to the wife.  This is consistent with the husband’s approach in terms of acquiring property in Country E.

12. The husband was cross-examined about the transfers and a particular address where there was some suggestion that there were some improprieties.  The wife’s elder sister acknowledged that when she went to the address it was some sort of money changing organisation which, given the circumstances, is consistent with that of the husband.

13. I refer to earlier findings and on balance, I am satisfied that the husband and wife made equal contributions over the course of their relationship, this is other than the funds provided by the husband’s present wife.

Section 75(2) of the Act factors

(a) The age and state of health of each of the husband and wife;

1. The wife is aged 45 and is in adequate health, and I have discussed her health earlier in these Reasons.  She has the capacity to work, and does so in her business. 

2. The husband is aged 41 and has good paid employment.  The husband has a greater earning capacity than has the wife.

(b) The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;

1. The wife has significant assets in Country E in terms of her beneficial interest in the City C apartments.  She will have difficulty in moving those assets to Australia, given the international rules applicable to Country E.  The wife has a business in Sydney which earns her a good income, at least $900 per week, and which has been operated by her for over ten years. 

2. The husband has a good income, greater than that of the wife.  His capacity to earn income at a high level was a factor to which I had regard.

3. The wife asserted that the husband had enormous assets hidden overseas, including an apartment in City C.  Those assertions were an illusion.

(c)Whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;

1. There are no children of the relationship.

(d)Commitments of each of the parties that are necessary to enable the party to support:

(i)himself or herself; and

(ii)a child or another person that the party has a duty to maintain; and

1. The wife has remarried and her husband has an earning capacity.

2. The husband has remarried and has the responsibility to care for an infant child and, at least for a short to medium term, his present wife.

(e)The responsibilities of either party to support any other person;

1. The husband and the wife have no persons to support other than themselves, their respective spouses and for the husband, his newborn child.

(f)Subsection (3), the eligibility of either party for a pension, allowance or benefit under:

(i)any law of the Commonwealth, of a State or Territory or of another country; or

(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;

and the rate of any such pension, allowance or benefit being paid to either party; and

1. Neither party was in receipt of a pension. 

(g)Where the parties have separated or the marriage has been dissolved, a standard of living that in all the circumstances is reasonable; and

1. This was not the subject of a relevant submission. 

(h)The extent to which the payment of maintenance to the party whose maintenance is under consideration will increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;

1. This was not the subject of a relevant submission.

(ha)The effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and

1. The orders do appear to effect the ability of any creditor to recover debt.

(j)The extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and

1. The wife effectively contended that the acquisition of property was by her and that her contributions were substantial.  I have rejected that contention.

(k)The duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and

1. I had regard to the long duration of the parties’ marriage. 

(l)The need to protect a party who wishes to continue that party’s role as a parent; and

1. This was no a relevant consideration.

(m) If either party is cohabiting with another person – the financial circumstances relating to cohabitation; and

1. I had regard to the financial circumstances of the wife’s present husband and the husband’s present wife.

(n)The terms of any order made or proposed to be made under s 79 in relation to:

(i)the property of the parties; and

(ii)vested bankruptcy property in relation to a bankrupt party; and

1. I had regard to the very limited property orders which I propose to make.

(naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:

(i)a party to the marriage; or

(ii)a person who is a party to a de facto relationship with a party to the marriage; or

(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or

(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and

1. This was not the subject of any submission.

(na)Any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, or is to provide, or might be liable to provide in the future, for a child of the marriage; and

1. This was not the subject of any submission.

(o)Any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and

1. I had considered that the City C apartments were in Country E and not in Australia and could be less accessible to the wife.  If that were the case, an adjustment could be made in favour of the wife, however, I did no adopt that course.

2. I determined the value of the City C apartments is …, and had I adopted the official rate for these apartments their value would have been about $1,079,645 Australian dollars.  However, I adopted the RR rate of exchange of the Australian dollar to the local currency and consequently determined the value of the City C apartments $294,753 Australian dollars.

3. That is their value if the wife decides to sell them and bring the funds to Australia.  Further, despite the issue with the apartments being less accessible, the wife will still end up with the bulk of the assets and therefore it is justified that no adjustment be made to account for the accessibility issue.

(p)The terms of any financial agreement that is binding on the parties to the marriage; and

1. This was not a relevant consideration in these proceedings.

(q)The terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.

1. This was not a relevant consideration in these proceedings.

Just and Equitable

1. The husband and the wife were married and cohabiting for about 15 years.  They have each now re-partnered and each have good employment.  The husband earns considerably more than does the wife.  There were no children of their relationship.  The wife has two apartments in Country E which I am satisfied have a value of $294,573.

2. The husband has an interest in Suburb H, although, it is fairly modest given the mortgage to the bank and the amount outstanding to his present wife.  The husband and his present wife have an interest in their property at Suburb W, which is also a modest amount.

3. The outcome of these proceedings is that the wife will be left with substantially more in assets than would the husband, albeit the bulk of those assets are in Country E.

4. The wife and husband have each worked hard over many years.

5. I discussed the question of exercising the just and equitable powers in Baillieu & Ballieu [2020] FamCA 188 and concluded that I ought not to adjust property in that case. I have considered the same principles in this case in the light of the circumstances of the husband and wife in these proceedings.

6. As I said earlier, the High Court in Stanford (supra) made it clear that no order should be made unless the Court is satisfied that in all of the circumstances, it is just and equitable to make an order.

7. I have under s 79(2) of the Act a broad power to make a property settlement order. It is not a power that is to be exercised according to an unguided judicial discretion. It should be exercised in a principled fashion.

8. It would seem to me to be inequitable and unjust to make property orders in this case which would vest any further of the remaining Australian property into the ownership of the wife.

9. The wife has greater assets than has the husband, albeit that the bulk of those assets are in Country E.  That was her decision, given that this was the effective proceeds of the Country E property determination.

10. Accordingly, and given the circumstances of the husband and the wife I will not make any property orders adjusting property other than a declaration of ownership that, as against each other, the wife and husband each retain the property in their respective possession and control.

11. Accordingly, I shall so order.

Fee for the exchange rate valuer

1. When this proceeding initially concluded in early May 2020 I sought evidence as to Country E exchange rates.  The question of the value of the local currency to the Australian dollar was, in my view, raised late in the proceedings.

2. The only expert evidence eventually provided to me was that of Professor F. 

3. To the credit of the wife’s solicitor, they found this expert and adduced his evidence.  He charged a modest fee of $1,000.  Given the need of this evidence and the need for clarity of the exchange rate to preserve the integrity of the process, it seemed to me that it would be appropriate that each of the parties should contribute equally towards that fee.

4. I raised that with counsel for the husband and solicitor for the wife during the course of the hearing on 8 July 2020 and no objection was taken to that stance.  I will be making an order that the husband pay to the wife the sum of $500 being one half of those fees.

5. This does not in any way derogate from either party making applications for costs.  Those costs can include the claim for refund or payment by one or other party given the circumstances of any such application.  This finding should not be taken to neither encourage nor discourage either party from making applications for costs under the rules, such applications are a matter for each of the parties.

6. Accordingly, I shall make an order in respect of that evidence.

I certify that the preceding four hundred and fifty six (456) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 31 July 2020.

Associate: 

Date:  31 July 2020