FAMILY COURT OF AUSTRALIA
Chtibi & Chtibi (No. 2) [2021] FamCA 243
File number(s): PAC 3587 of 2015 Judgment of: FOSTER J Date of judgment: 29 April 2021 Catchwords: FAMILY LAW – PROPERTY – property adjustment – where discussion of applicable principles – where both parties seek adjusting orders – where evidence of husband as to asserted loan arrangement not accepted – where failure of husband to call relevant witnesses – where Jones & Dunkel inferences made – where full and frank disclosure not provided by the husband – where consideration of relevant contributions and relevant s 75(2) factors – where orders made that pool be divided as to 60 per cent to the wife and 40 per cent to the husband. Legislation: Family Law Act 1975 (Cth) ss 75(2), 79, 79(1), 79(2), 79(4) Cases cited: Bevan & Bevan [2014] FamCAFC 19
Chapman & Chapman [2014] FamCAFC 91
Farmer & Bramley [2000] FamCA 1615; (2000) 93-060
Horrigan & Horrigan [2020] FamCAFC 25
Jones & Dunkel (1959) 101 CLR 298; [1959] HCA 8
Kessey & Kessey (1994) FLC 92-495
RHG Mortgage Ltd v Rosario Ianni [2015] NSWCA 56
Russell & Russell (1999) FLC 92-877
Stanford & Stanford [2012] HCA 52
Teal & Teal [2010] FamCAFC 120
Willis & Willis [2007] FamCA 819
Number of paragraphs: 113 Date of last submission/s: 15 February 2021 Date of hearing: 5 and 6 February 2018, 7 February 2020, 23 October 2020 and 8 December 2020 Place: Parramatta Counsel for the Applicant: Ms Friedlander (23 October 2020 and 8 December 2020) Solicitor for the Applicant: Mr G (5 and 6 February 2018)
A & J Montgomery Legal (8 December 2020Applicant – Self-represented litigant: Ms A Chtibi in person (7 February 2020) Counsel for the Respondent: Mr Hanrahan (5 and 6 February 2018, 7 February 2020 and 8 December 2020)
Ms Kaiti (23 October 2020)Solicitor for the Respondent: Bond Lawyers ORDERS
PAC 3587 of 2015 BETWEEN: MS A CHTIBI
Applicant
AND: MR B CHTIBI
First RespondentAND: H PTY LIMITED
Third Respondent
ORDER MADE BY:
FOSTER J
DATE OF ORDER:
29 APRIL 2021
THE COURT ORDERS THAT:
1.That within three months from this date the husband by way of property adjustment pay to the wife or as she may otherwise direct in writing the sum of $499,200.
Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Chtibi & Chtibi has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
FOSTER J:
The proceedings for determination are proceedings as to property adjustment between the applicant wife and…
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- Chtibi & Chtibi (No. 2) [2021] FamCA 243
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- [2021] FamCA 243
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CaseChat Overview and Summary
This case involved an application for property adjustment between Ms A Chtibi (the applicant wife) and Mr B Chtibi (the first respondent husband), with H Pty Limited as the third respondent. The dispute concerned the division of the parties' assets following their separation. The matter came before Foster J in the Family Court of Australia.
The court was required to determine the applicable principles for property adjustment in this matter, considering the contributions of each party and the factors outlined in section 75(2) of the Family Law Act 1975 (Cth). A key issue was the husband's assertion of a loan arrangement, the evidence for which was not accepted by the court. The court also had to consider the husband's failure to call relevant witnesses and the implications of this failure, as well as the husband's provision of full and frank disclosure.
Foster J applied the principles of property adjustment, noting the wife's role as primary carer and homemaker throughout the marriage, while the husband controlled the family finances. The court found that the husband had not provided full and frank disclosure and did not accept his evidence regarding an asserted loan arrangement. Crucially, the court applied the principles established in *Jones v Dunkel*, drawing inferences adverse to the husband due to his unexplained failure to call his brother and his brother's wife as witnesses, who were directly involved in property dealings asserted by the husband. The court also noted the absence of evidence from another relevant party, Mr V.
The court ordered that the pool of assets be divided 60 per cent in favour of the wife and 40 per cent in favour of the husband. Specifically, the husband was ordered to pay the wife the sum of $499,200 by way of property adjustment within three months of the date of the order.
The court was required to determine the applicable principles for property adjustment in this matter, considering the contributions of each party and the factors outlined in section 75(2) of the Family Law Act 1975 (Cth). A key issue was the husband's assertion of a loan arrangement, the evidence for which was not accepted by the court. The court also had to consider the husband's failure to call relevant witnesses and the implications of this failure, as well as the husband's provision of full and frank disclosure.
Foster J applied the principles of property adjustment, noting the wife's role as primary carer and homemaker throughout the marriage, while the husband controlled the family finances. The court found that the husband had not provided full and frank disclosure and did not accept his evidence regarding an asserted loan arrangement. Crucially, the court applied the principles established in *Jones v Dunkel*, drawing inferences adverse to the husband due to his unexplained failure to call his brother and his brother's wife as witnesses, who were directly involved in property dealings asserted by the husband. The court also noted the absence of evidence from another relevant party, Mr V.
The court ordered that the pool of assets be divided 60 per cent in favour of the wife and 40 per cent in favour of the husband. Specifically, the husband was ordered to pay the wife the sum of $499,200 by way of property adjustment within three months of the date of the order.
Orders
Orders of the court
PAC 3587 of 2015
BETWEEN:
MS A CHTIBI
Applicant
AND:
MR B CHTIBI
First Respondent
AND:
H PTY LIMITED
Third Respondent
ORDER MADE BY:
FOSTER J
DATE OF ORDER:
29 APRIL 2021
THE COURT ORDERS THAT:
1. That within three months from this date the husband by way of property adjustment pay to the wife or as she may otherwise direct in writing the sum of $499,200.
Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
Background
Background to the litigation
Subsequently, during the trial, the husband informed the Court that the affidavits of Mr C Chtibi and Ms D Chtibi would not be relied on and that the deponents would thus not be available for cross examination. This forensic decision is referred to below.Background The wife is presently aged 41 and the husband 53. The husband came to Australia in 1993 when he was 25 years of age. The parties were married in 1998 in Country N. The wife at that time was 18 years of age and the husband was 30 years of age. The wife came to Australia about one month after the marriage at which time cohabitation commenced. There are three children of the parties’ marriage now aged 20, 17 and 15. The husband and wife separated in December 2014 under the one roof with final separation in mid-November 2015. Upon arriving in Australia the wife obtained employment in a factory at Suburb P where the husband was already employed. The husband continued to work in the factory at Suburb P until about 2001 and thereafter commenced to work at the markets for his cousin. In about 2008 the husband commenced to rent his own fruit and vegetable stall at the markets and thereafter that provided the primary source of the family income. The husband commenced work at the markets at about 2.00 am each morning. From time to time the husband remitted monies to Country N. Notwithstanding the husband’s asserted modest taxable income from the markets he was able to remit monies overseas and during the course of cohabitation he says he purchased a quantity of gold and retained accumulated cash that he kept in a safe at the matrimonial home. He asserts that the cash and gold were taken by the wife. The wife worked for about 15 months prior to the birth of their first child in 2000. The wife throughout cohabitation was the primary carer for the parties’ children and primary homemaker within the home. It is common ground that throughout the period of the relationship the husband controlled the family finances and did not engage with the wife in relation to financial matters at all, to such an extent that the husband held the key for the letterbox at home and maintained a post office box at Suburb BB. As a consequence of the husband opening her mail in about 2006 the wife opened for herself a post office box at Suburb X Post Office. The husband throughout cohabitation was critical, belittling and abusive including being physically abusive towards the wife, in particular when she questioned him as to family finances. The husband in his primary evidence is disparaging of the wife in her role in caring for the children and as homemaker within the home. Such evidence has little regard to his absences from the home at the markets from the early hours of the morning. At the commencement of the parties’ cohabitation in Australia they had little by way of assets. The real estate property at S Street, Suburb R was purchased some months after marriage in July 1998 for $246,000 with the title held as tenants-in-common in equal shares with the husband’s brother Mr C Chtibi and his wife Ms D Chtibi. The mortgage advance by the National Australia Bank (Acct: …09) was $250,000. It is the husband’s understanding that his brother provided collateral security to the bank by using his other property. The husband asserts that about $40,000 was expended on improvements to the property after purchase. The property was at all times occupied by the husband and wife as their matrimonial home. At the time of purchase the husband was a factory worker. It may be suggested that the purchase of the home by the husband was assisted by his brother and wife being on title and co borrowers for the mortgage loan. Mortgage payments were paid by the husband.
Evidence
Evidence Before The Court
As at 30 June 2014, about six months before separation the husband was owed $43,508 by his company. As at 30 June 2017 the husband owed to his company $33,248. This evidencing that over this period he has been able to draw from the company in addition to salary and dividends a net sum of about $76,750. A word about the evidence Notwithstanding a case outline proposing to rely on affidavits by his brother and his brother’s wife, during the trial the Court was informed that such affidavits would not be read and that the deponents would not be made available for cross examination. As can be seen from the evidence referred to above, the actions of the husband’s brother and his wife are inextricably mixed into the property dealings as asserted by the husband. Why their evidence was not adduced is not clear. There is no suggestion that they were in some way not available. Similarly, no evidence was adduced from Mr V who through his company acquired the K Street property by purchase, notwithstanding the wife remained in exclusive occupation of the same at the time and thereafter for some three years. There was suggestion that he was not available, indeed, he is a business acquaintance of the husband to whom the husband asserts that he pays rent of $550 per week to continue to occupy the property. The absence of evidence as referred to above is concerning. Such persons clearly were relevant by reason of the husband’s assertions as his actions and the underlying interests of his brother and the brother’s wife in the property. The absence of evidence gives rise to a consideration of the principles arising from Jones v Dunkel as succinctly summarised by McColl JA in RHG Mortgage Ltd v Rosario Ianni [2015] NSWCA 56:The rule in Jones v Dunkel is that the “unexplained failure by a party ... to call witnesses ... may in appropriate circumstances lead to an inference that the uncalled evidence ... would not have assisted that party’s case”: Cross on Evidence (“Cross”), LexisNexis (at [1215]). Any “explanation” such as unavailability or absence of recollection for the failure to call the witness must be established by evidence: West v Government Insurance Office (NSW)[1981] HCA 38; (1981) 148 CLR 62 (at 70) per Murphy J; Rowell v Larter(1986) 6 NSWLR 21 (at 24 – 25) per Young J (as his Honour then was). The “rule cannot be applied to the non-calling of a [non-party] witness unless it would be natural for the party to call the witness, or the party might reasonably be expected to call a witness”: Cross (at [1215]); O’Donnell v Reichard (at 729) per Newton and Norris JJ.The circumstances for drawing a Jones v Dunkel inference are found where the uncalled witness is “a person presumably able to put the true complexion on the facts relied on [by a party] as the ground” for any inference favourable to the plaintiff: Jones v Dunkel (at 308) per Kitto J; Australian Securities and Investments Commission (ASIC) v Hellicar [2012] HCA 17; (2012) 247 CLR 345 (“ASIC v Hellicar”) (at [168]) per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.The Iannis bore the burden of proof on the issue of whether the loan agreement and mortgage were unjust. Accordingly, in deciding whether they had discharged that burden of proof, it was relevant for the primary judge to have regard to their “ability to adduce evidence relevant to the issue and any failure on RHGs] part ... to adduce available evidence in response”: G v H[1994] HCA 48; (1994) 181 CLR 387 at (391 – 392) per Brennan and McHugh JJ.In Payne v Parker[1976] 1 NSWLR 191 (at 201 – 202) Glass JA explained (albeit in a dissenting judgment, but in a passage accepted as correctly stating the relevant principles) when one party rather than the other would be expected to call a missing witness in the following manner:“(6)Whether the [Jones v Dunkel] principle can or should be applied depends upon whether the conditions for its operation exist. These conditions are three in number: (a) the missing witness would be expected to be called by one party rather than the other, (b) his evidence would elucidate a particular matter, (c) his absence is unexplained.(7)The first condition is also described as existing where it would be natural for one party to produce the witness: Wigmore, par. 286, or the witness would be expected to be available to one party rather than the other: O’Donnell v Reichard [1975] VicRp 89; [1975] VR 916, at p. 921, or where the circumstances excuse one party from calling the witness, but require the other party to call him: ibid. [1975] VicRp 89; [1975] VR 916, at p. 920, or where he might be regarded as in the camp of one party, so as to make it unrealistic for the other party to call him: ibid. [1975] VicRp 89; [1975] VR 916, at p. 920, Regina v Burdett(1820) 4 Barn & Ald 95; 106 ER 873, or where the witness’ knowledge may be regarded as the knowledge of one party rather than the other: Earle v Castlemaine District Community Hospital [1974] VicRp 86; [1974] VR 722, at p. 733, or where his absence should be regarded as adverse to the case of one party rather than the other: ibid. [1974] VicRp 86; [1974] VR 722, at p. 734. It has been observed that the higher the missing witness stands in the confidence of one party, the more reason there will be for thinking that his knowledge is available to that party rather than to his adversary: ibid. [1974] VicRp 86; [1974] VR 722, at p. 728. If the witness is equally available to both parties, for example, a police officer, the condition, generally speaking, stands unsatisfied. There is, however, some judicial opinion that this is not necessarily so: ibid. [1974] VicRp 86; [1974] VR 722, at p. 728. Evidence capable of satisfying this condition has been held to exist in relation to a party’s foreman: Cafe v Australian Portland Cement Pty Ltd (1965) 83 WN (Pt 1) (NSW) 280; his safety officer: Earle v Castlemaine District Community Hospital [1974] VicRp 86; [1974] VR 722; his accountant: Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348; his treating doctor: O’Donnell v Reichard [1975] VicRp 89; [1975] VR 916, at p. 921.”If those conditions are satisfied, the tribunal of fact may “infer that that person’s evidence would not have helped that party’s case” and may then use that inference:“(a)in deciding whether to accept any particular evidence, which has in fact been given, either for or against that party, and which relates to a matter with respect to which the person not called as a witness could have spoken; and (b)in deciding whether to draw inferences of fact, which are open ... upon evidence which has been given, again in relation to matters with respect to which the person not called as a witness could have spoken”: O’Donnell v Reichard (at 929).
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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