Dallal & Maroun
[2023] FedCFamC2F 1165
•8 September 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dallal & Maroun [2023] FedCFamC2F 1165
File number(s): CAC 1274 of 2019 Judgment of: JUDGE W J NEVILLE Date of judgment: 8 September 2023 Catchwords: FAMILY LAW – Property – consistent non-disclosure by Husband – Wife and four young children remain living in country New South Wales in crisis accommodation – Husband relies heavily on financial assistance from his family who provide for any and all of his financial needs including regular airfares to visit family and friends in Country B – significant unreliability of Husband’s evidence – multiple witnesses on the Husband’s behalf not called and no explanation given why this was so – on one view of the evidence the property pool now basically comprises debt, while on another view, the dire financial plight of the parties but primarily the Wife is due to the Husband’s apparent dissipation of assets – in accordance with long-standing authority where there is significant lack of financial disclosure wide discretion available to the Court which was exercised in terms to grant the Orders sought by the Wife – significant evidence of Husband’s financial control over the Wife albeit that some part might be considered to be culturally acceptable given that the parties are adherents to the Islamic faith tradition. Legislation: Family Law Act 1975 (Cth), s.75(2)(o) Cases cited: Bevan v Bevan (2013) 279 FLR 1; (2013) 49 Fam LR 387
Black & Kellner (1992) 15 Fam LR 343
Chang v Su (2002) 170 FLR 244; (2002) 29 Fam LR 406
Chapman v Chapman (2015) 51 Fam LR 176
Dickons v Dickons (2014) 50 Fam LR 244
Fields v Smith (2015) FLC 93-638; (2016) 53 Fam LR 1
Fox v Percy (2003) 214 CLR 118
Hall v Hall (2016) 257 CLR 490
Hsiao v Fazarri (2020) 94 ALJR 961; (2020) 383 ALR 446; (2020) 61 Fam LR 465
Jones v Dunkel (1959) 101 CLR 298
AJO & GRO (2005) 33 Fam LR 134
In the Marriage of Pierce (1998) 24 Fam LR 377
In the Marriage of R (2002) 169 FLR 243; 29 Fam LR 230
Stanford v Stanford (2012) 247 CLR 108
White and Tulloch v White (1995) 19 Fam LR 696
Division: Division 2 Family Law Number of paragraphs: 89 Date of last submission/s: 3 May 2023 Date of hearing: 3 – 5 April 2023 Place: Canberra Counsel for the Applicant Ms S Baker-Goldsmith Solicitor for the Applicant KP Carmody Counsel for the First Respondent Ms L M Saw Solicitor for the First Respondent Vozella Lawyers ORDERS
CAC 1274 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS DALLAL
ApplicantAND: MR MAROUN
Respondent
ORDER MADE BY:
JUDGE W J NEVILLE
DATE OF ORDER:
8 SEPTEMBER 2023
ON A FINAL BASIS, THE COURT ORDERS THAT:
1.By way of final property order pursuant to section 79 of the Family Law Act, within 42 days of this Order the Respondent is to pay to the Applicant the sum of $300,000.
2.Pursuant to section 114(3) of the Family Law Act, the Respondent is injuncted from leaving Australia until full payment of the amount in Order 1 is made to the Applicant.
3.The Respondent will indemnify the Applicant and keep her indemnified in respect of any liabilities in his name or associated with any property he will retain pursuant to these Orders including but not limited to the property at C Street, Town D.
4.Absent any Application, within 21 days, being by 29 September 2023, each party is to file and serve Written Submissions of no more than 2 pages in length in relation to costs.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE
Introduction
In par.9 of his trial Affidavit (filed 15th March 2023), the Respondent Husband deposed that he currently lives in a single bedroom apartment in Sydney, and that (according to his Financial Statement, also filed on 15th March 2023), he receives an average weekly income of $400.00. He deposed that he is unemployed.
In the same paragraph, he offered a number of other options regarding accommodation in the event that his four young children (born respectively in 2013, 2015, 2016, and 2018 – thus the children are aged 10, almost 8, almost 7, and 5 years) come to Sydney to spend time with their Father. There is also an option for the children and the Father to spend time together in Town D. For example, acknowledging that a single bedroom apartment is too small to have his four children stay with him, noting too that his girl-friend conveniently lives next door to him in the same apartment complex, the Father said that (a) he could set up a queen-size mattress on the floor of his apartment, plus he has a large couch on which he has slept in the past when the children came to visit him, inferring that the children would also be able to sleep in his bed; (b) his parents (he said) have a six-bedroom residence in Town D, which he could use, and (c) his brother, Mr E, has offered that the Father and the children could stay with the brother and his family in their 4-bedroom house, which is also in Sydney not far from the Father’s current residence.
The children all reside with the Mother in crisis accommodation in Town D in country New South Wales. Final parenting Orders were made by consent on 26th September 2022, with some supplementary Orders made on 3rd April 2023.
To speak somewhat colloquially: (a) at a significant, and very practical level, the current property proceeding is a “lose-lose situation” because the parties can, in many respects, be said to be drowning in debt, and in consequence, there is nothing to divide except debt; (b) it is certainly a “no-win” situation for the Wife and Mother who has been left “holding the baby”, literally, because she has the full-time care of the children in Town D, she has virtually no financial or other support from the Father, and she cannot even access the paternal family’s large, and often vacant, six-bedroom residence in Town D, while continuing to live in crisis accommodation, as earlier recorded; and (c) the Father/Husband is in a “no lose” situation, in the sense that, while the Mother looks after the children very well on a daily basis, and thereby she (or the children) do not interrupt his life in almost any relevant respect, he has ready access to funds from his brother and his family more generally. The “records” of such family financial assistance are, at best, opaque but mostly non-existent. Among a number of different ways this was made clear is that, although his sworn evidence is that he has such a low income of only $400.00 per week, which comes through Centrelink benefits, he is still able regularly to fly to Country B, ostensibly on the good graces and financial support of his brother. Indeed, as deposed to at par.47 of his trial Affidavit, the Husband confirmed that his brother booked his latest flights to Country B to visit his ailing Mother in 2023. Details of this and other largesse, such as they are, are set out below. Without intending to be crass, let alone offensive, the Husband’s life may be characterised as somewhat charmed, in many ways: i.e. there is not much evidence of “care” or responsibility, but the ready, willing and able support of his family seems always to be on hand. To put it rather bluntly: everyone else is doing the “heavy lifting” for the Father, whether it is financial (which comes from his brother and the family more broadly), or the Mother, who looks after the children on her own with little, if any, financial or other assistance from the Father.
To be fair, the Father says that he is injured and cannot work in his chosen trade as a tradesman. There is a reasonable amount of evidence discussed later which suggests that there are some reasonable doubts about such claims. Nonetheless he is indeed fortunate that, while “injured”, he can still fly (on last count, 3 times, in 2019, 2022, and 2023) to visit friends and relatives in Country B.
To add to the significant level of intrigue and opaqueness of the Husband’s financial situation, although his next-door neighbourly girl-friend attended every day of the trial, she filed no evidence, for example, regarding any “support” (financial or “in kind”) for the Husband.
It is important to note one other matter that featured prominently at the trial. It concerns the financial disclosure (or lack of it) on the Husband’s behalf. According to a detailed chronology handed up in Court during the trial by the Wife’s Counsel, there had been 18 requests (dates supplied by the Wife for each request) for financial disclosure from June 2019. The Husband’s response was, perhaps best described as, “modest” as well as denial that there was anything else to find (so to speak) or to disclose.
Applicant’s Orders sought
On the first day of the Final Hearing, Counsel for the Applicant indicated that the Wife was yet to articulate her position given the Respondent’s ongoing lack of complete and ongoing disclosure to date. The Applicant’s Orders sought with respect to property were provided to Chambers by email after the conclusion of the first day of the Final Hearing on 3rd April 2023; they were as follows:
1.By way of final property order pursuant to section 79 of the Family Law Act, within 42 days of this Order the Respondent is to pay to the Applicant the sum of $300,000.
2.Pursuant to section 114(3) of the Family Law Act, the Respondent is injuncted from leaving Australia until full payment of the amount in Order 1 is made to the Applicant.
3.The Respondent will indemnify the Applicant and keep her indemnified in respect of any liabilities in his name or associated with any property he will retain pursuant to these orders including but not limited to the property at [C Street, Town D].
Respondent’s Orders sought
The Respondent’s Orders sought were contained in the Amended Response to the Initiating Application, filed 15th March 2023; they were as follows (emphasis in original):
10.In the event there is any balance of proceeds once the property situated at [C Street, Town D] is sold by the [F Bank] and after the payment of;
a.Agent’s commission and advertising expenses and the legal expenses of the sale;
b.Any money due and owing to the council and other services;
c.The net balance is to be distributed as follows:
iv.$15,000 to be paid to the Respondent in lieu of the [Motor Vehicle 1] possessed by the Applicant;
v.Any money due and owing to Legal Aid NSW in accordance with the charge agreement entered into between the Respondent and Legal Aid NSW;
vi.The remaining amount to be divided 60% to the Applicant and the 40% to the Respondent.
a) That the Applicant is directed to allow access to the Respondent to the matrimonial property at [C Street, Town D] to enable the removal of the items belong to him that have been left at the property.2. (b) that the date and time to access to the property is to be communicated by the parties.11.That unless otherwise specified in these orders and except for the purposes of enforcing the payment of any moneys under these or any subsequent orders:
i.Each party be solely entitled to the exclusion of the other to all property (including choses-in-action) in the possession of such party as the date of these orders;
ii.Any money standing to the credit of the parties in a bank account is to be retained by the party in whose name the account appears;
iii.All insurance policies are to become the sole property of the owner named thereon;
iv.Each party is to be solely liable for and indemnify the other against any liability or debt in that party’s name or encumbering any item of property to which that party is entitled pursuant to these orders.
3.Notation:The Respondent advises that the mortgage [F Bank] notified him [in] October 2020 that the [F Bank] is in the process of acquiring the property at [C Street, Town D] due to the non payment of the mortgage.Respondent Father’s Oral Evidence
The Husband’s oral evidence commenced on the second day of the Final Hearing after some difficulties with the Language B interpreter. Due to the many deficits identified in the Husband’s evidence and trial documents, it was decided that despite being the Respondent in these proceedings, the Husband would be required to give evidence first.
Leave was sought for Counsel for the Husband to seek to adduce oral evidence with respect to an amount of $15,000 the Husband was seeking to “pay back” to his Father. Accordingly, the Husband was first questioned about a Motor Vehicle 1 he had purchased in 2018. It was confirmed by him that he had paid $25,000 cash (the source of this “cash” was not immediately clear) to buy the Motor Vehicle 1. He also transferred a Motor Vehicle 2 to the owner of the Motor Vehicle 1 in payment of the balance. The Husband advised that the balance of the Motor Vehicle 1 now stands at $5,000; clarifying, this meant that the purchase price for the Motor Vehicle 1 has been $30,000.[1]
[1] T 48.
The Husband confirmed that he had borrowed money from his parents and various family members to pay for renovations at the Town D property. The Husband also confirmed that his Father had lent him more than $20,000. In payment of this loan, the Husband said that he had transferred the Motor Vehicle 1 to his Father as part payment, but said that he still owed him $15,000. When asked by his own Counsel how it was determined that $15,000 remained owing to his Father, despite the Husband earlier advising that the Motor Vehicle 1 had been purchased for $30,000, the Husband simply said that his Father had not wanted the Motor Vehicle 1 as payment, but instead wanted the money paid back to him.[2] Unfortunately, this opaque response was typical of the Husband’s evidence, especially when matters involving his family were involved, which in turn meant that there was regularly no documentation to record anything.
[2] T 49.
Rather confusingly, when asked whether the $20,000 loaned by the Husband’s Father referred to the same amount the Husband was now seeking to repay his Father in the sum of $15,000, the Husband confirmed that these were different amounts. The Husband said that the $15,000 currently outstanding related to a “loan” in 2014 when the Husband had sought to buy a new Ute for his job. The Husband further stated that he had received the [further] $20,000 loan after this, and that it was this later “loan” that had “appeared” in his bank account.[3]
[3] T 49 – 50.
The Husband was then asked questions by his Counsel in relation to the Orders he sought in relation to the sale proceeds of the Town D property,[4] and notably for them to be applied first to the loan from F Bank, then for the agent’s commission and advertising expenses. Counsel was asked to confirm that this question was put on the hypothetical basis that there would in fact be a surplus to distribute. It was clarified that the Father seeks that the net proceeds of the sale of the Town D property, should there be any, be used to repay the Husband’s Father the sum of $15,000. When asked why the Husband believed his Father was still owed this amount, the Husband advised that he had not been able to provide the Motor Vehicle 1 to his Father as the Wife had still been using the car. I note that this narrative is contrary to the evidence provided by the Husband earlier where he confirmed that his Father had not wanted the Motor Vehicle 1, but had instead wanted the money as repayment.[5]
[4] According to his trial Affidavit, at pars.150 – 176, the Husband purchased this property in 2016. In late 2022, he said that it was “repossessed” by F Bank. Other details, in a manner of speaking, concerning this property are set out in the body of these reasons.
[5] T 51 – 52.
During the course of his oral evidence, the Husband confirmed that, as a parent, he had a responsibility to look after his children, which included ensuring they were fed and had somewhere to sleep at night. The Husband also confirmed this responsibility continued whether or not he lived with the children. The Husband was then asked to advise of any financial support he had provided to the Wife or children since separation. The Husband simply responded that he supported the children when they were with him. He conceded that his responsibility extended beyond the time the children were in his care, which included when they were with the Wife. When asked again what support the Husband had provided to the Wife and children, the Husband said that he had offered the Wife “a house for free” and offered to care for the children but this had been refused by the Wife. Details were rather lacking for such claims. The Husband clarified that he had provided the bank with financial hardship evidence which (he said) had allowed the Wife to stay in the house in Town D for four years. By any measure, this hardly constitutes, or constituted, “a house for free.” When asked whether this was the same property the Husband had stopped mortgage repayments for, the Husband denied this was the case.[6] However, having denied one factual proposition, he had nothing to offer to explain what the actual situation was regarding the “house for free” proposition, or in relation to which property he had stopped making mortgage payments.
[6] T54 – 55.
The Husband was given a copy of his Statement of Claim served upon him by F Bank in order to repossess the Town D property. This document was annexed to the Father’s trial Affidavit. The Husband confirmed that the document indicated that he had failed to pay money to F Bank from on or about May 2021. Nevertheless, while the Husband acknowledged that he had stopped paying the mortgage, he did not agree that he had stopped paying because of his separation from the Wife. Rather, he said that he ceased paying the mortgage at that time, but the Wife and the children remained living in the property. When asked what the Husband thought might happen to the Wife and children when he failed to pay the mortgage, he simply said that he had not been thinking about anything and that he had requested the bank to allow him extra time to make payment.[7] The plain lack of evidence, or even thought about his Wife and children was (and remains) concerning.
[7] T 58 – 60.
The Husband was then asked whether he had taken any steps to find the Wife and children somewhere else to live once it became clear the bank would be selling the Town D property. He said that he had offered the Wife several options but she had refused. The Husband was asked what accommodation options and financial assistance he had offered. The Husband advised that, because he had been renting at the time, he was unable to pay the mortgage, so, the Husband had offered to live in the garage while the Wife (and the children) continued to live in the house at Town D so that the Father could avoid paying rent and instead pay the mortgage. Unsurprisingly, this “offer” to live in the garage was refused by the Wife.[8] Counsel for the Mother asked if there was an apprehended Violence Order in place at this time. The Father denied this, saying that he had appealed that Order.
[8] T 60.
The Husband also said that he had offered the Wife $60,000 as another alternative; he said that he would have his brother pay the Wife this sum, and in exchange his brother would be transferred the Town D property rather than having F Bank repossess the property. It was difficult to see how any mortgagee would agree to such an arrangement. It was not otherwise explained how this would be “negotiated”, especially with F Bank. Given that there was also no evidence from the brother that he would readily accede to such a payment, the reliability of the Father’s evidence, like much else, must be treated with significant caution. As another alternative, the Husband said that he had offered to provide the Wife $300 every week if the Wife moved out of the Town D property; again, the Husband’s brother would “solve the problem of the house.” As part of this offer, the Wife would have a unit paid for in Sydney by the Husband’s brother, which would be immediately above the Husband’s current unit in Sydney.[9]
[9] T 62.
To state the obvious: the brother as “banker” and all-round “fixer” of the Husband’s financial and other issues, was a constant feature of the Husband’s evidence. Unfortunately, this brother never filed an Affidavit in support of the Husband’s claims, and in turn, he never gave any oral evidence. In his Financial Statement (filed 15th March 2023), at Part F, the Husband deposed that his brother has paid $6060.00 on his behalf for airfares and allied health treatments. No other details are provided.
The Husband was asked how much rent he had been paying for himself at the time he had offered to put the Wife (and the children) into a unit in Sydney. After some back and forth, the Husband confirmed that his rent at the time had been approximately $390, presumably per week. The Husband confirmed that the Wife’s rent would have been more than his own as the unit he had proposed for her was a two-bedroom unit as opposed to his own one-bedroom unit.
The Husband was asked about his residual income from Centrelink following payment of his own rent at $390 per week. He acknowledged that he had “very little” left over following payment of his rent.
Next, and logically, he was asked how he had intended to pay for the Wife’s rent for her unit, noting that he had so little left over after paying his own rent. The Husband said that the offer had been from his brother, meaning the Husband’s brother would pay the Wife’s rent, and his brother would be transferred the Town D property. The Husband clarified that his brother would pay $300 per week towards the Wife’s rent, and the Wife would be expected to pay the balance.[10] It is unsurprising that the Wife declined this less than inviting offer. There were no questions asked, for example, about why the brother could not simply pay the loan for the Town D property rather than have the Mother and children move out into crisis accommodation. Nor were questions asked about how the Father intended (assuming that he did so intend) to repay the brother.
[10] T 64 – 66.
The Husband was next asked what car he uses to drive to Town D to visit the children.[11] The Husband said that he usually borrowed a family member’s car. As always, “family to the rescue.” The Husband was asked about the work Motor Vehicle 3 he had referred to buying in 2014. He said that this car had been “smashed” at the end of 2018 and was a write-off “because of the Mother”. The Husband also said the Motor Vehicle 3 had not been insured. The Husband was asked what vehicle he currently uses for his business. The Husband replied firmly that he does not have a business.[12]
[11] Town D to Sydney is a distance of approximately 500 kms, a drive of some 5 hours or thereabouts.
[12] T 67 – 68.
The Husband was taken to a copy of his Financial Statement, filed 15th March 2023. That document shows (at item 8) that the Husband had indicated that he was self-employed at a business styled as “G Company”. This is also in circumstances where, as noted above, in the same Financial Statement, the Husband said that he was “unemployed.” The Husband then conceded that he did in fact have a business but he was not currently working in it. The Husband clarified that his cousin was running a business under the Husband’s business licence and generally was using the Husband’s business to work.[13] What is, in my view, especially curious is that, annexed to the Wife’s trial Affidavit (Annexure F) is a copy of a newly registered ABN in the Husband’s name. This occurred in early 2023. It rather begs the question: if the Husband is not, and cannot, work, why would he need a new ABN? So many questions, so few answers.
[13] T 69 – 70.
The Husband was asked about his recent travel to Country B in 2022. He confirmed that his eldest brother, Mr E, paid $3,000 to facilitate the Husband traveling to Country B in 2022. The Husband also confirmed that his brother had paid for his most recent trip to Country B this year. The Husband stated he had not disclosed this on his Financial Statement as it was a matter solely between himself and his brother, and was (in his view) unrelated to the property matter. It was also indicated by the Husband that when he has needed money previously he has been able to request such money from his brothers and that they subsequently transfer the Husband the funds sought.[14] This and similar evidence is the basis for my comments thus far about the Husband being regularly “bailed out” by his family and that he has, in fact and reality, no financial worries, and takes no responsibility, for his financial matters, including those that impact his former Wife and the children of the relationship. He can go anywhere, and do anything, without consequence, indeed with a certain impunity, while others (e.g. the Wife and his family, in obviously different ways) make up for any and all “shortfalls” – financial and other. This lack of responsibility on the Husband’s part is fuelled also by an obvious sense of entitlement, even a sense of expectation that, whatever happens, his family will “pick up the tab”, so to speak and that he will, literally, have to pay nothing. He can go on his sweet and merry way, to put it colloquially.
[14] T 72 – 74.
When asked whether the Husband had disclosed all “family transactions” to the Wife in these proceedings, the Husband simply responded that “most” of the transactions had been disclosed to the Wife. The Husband further stated that where he has not disclosed transactions of this nature to the Wife, it was because the Husband had considered it a “family matter”, such as when his Mother had been sick and the Husband had been sent to Country B to check on her.[15] The interesting and convenient “device”, deliberate or otherwise, to categorise various financial transactions as (a) those that come within the purview of the Court for the purposes of the current property proceeding, and (b) those that are “family” related and are, thereby excluded from such scrutiny and consideration, does not conform to any relevant principle that applies to property litigation under the Act. Whether as “property” or as “financial resources”, all financial matters are required to be considered by the Court.
[15] T 75.
It was suggested to the Husband that the Wife’s Father had lent the Wife $40,000 which she had subsequently given the Husband. The Husband denied this. The Husband was asked whether this money was used to purchase the Town D property. The Husband said that he had been lent money from his family, not from the Wife’s family. Details and source documents of the loan referred to by the Husband were not provided. It was also suggested to the Husband that the Wife’s Mother lent the Husband the further sum of $30,000 in 2017. The Husband also denied that this was true.[16]
[16] T 82.
The Husband was asked whether he had paid cash for the purchase of the block at H Street. The Husband said that he had not, and that the purchase had taken place through the bank. The Husband further advised that he had again received a loan from various family members and that the block had been purchased as an investment.[17] Again, unfortunately, source or other documentation about said “family loan” were not provided.
[17] T 82.
The Husband was asked to confirm that he had received a compensation payment of approximately $100,000 following a car accident. He confirmed that the car accident occurred in 2015 and that the money was received by him in 2018. The Husband said that he had paid legal fees totally $55,000, as well as $6,000 to Centrelink. The Husband also advised that he had also paid around $10,000 to Medicare. Nevertheless, the Husband confirmed that he received approximately $30,000.[18]
[18] T83 – 85.
The Husband was asked whether he had told the Wife in July 2022 that, if the Court were to make Orders he did not agree with, he would ignore them. The Husband said that he could not remember if he had said this.
Questions then moved to renovations undertaken by the Husband at the Town D property. He confirmed that he had done some renovations at the property, although they had not been completed. The Husband said that the renovations had been paid for from a loan drawn down from the bank, which totalled approximately $130,000 to $135,000. It was suggested to him that his trial Affidavit indicated the renovation-related loans totalled only $90,000. The Husband responded, saying that he had “missed” certain things in his Affidavit and would instead now say that the correct figure to be closer to $130,000.[19]
[19] T 95.
The Husband was taken to a copy of the Licensed Agent’s valuation of the Town D property. The Agent’s view was that the kitchen was complete, the bathroom was near completion, and only the heating and cooling needed to be done. The Husband said that the doors and garage were also unfinished.[20]
[20] T 97.
The Husband was taken to photos at annexure S of the Wife’s trial Affidavit. He was asked whether the photos reflected the remaining work to be done at the house. The Husband commented that these photos mainly showed the outside of the house, and that the Licensed Agent’s opinion reflected the inside. The Husband noted that two photos showed damage to the skirt of the tiles, which he said would take 15 minutes to finish. The Husband was challenged about the estimated cost of finalising the renovation as being approximately $130,000; he insisted that his estimate was correct.[21]
[21] T 97.
The Husband was taken to paragraph 19 of the Wife’s affidavit, in which the Wife stated that the Husband had not supported the children since April 2019, except on one occasion when he purchased groceries due to her car breaking down. The Husband confirmed that he provided this assistance, which occurred while he was living in Sydney and the Wife was living at her house.[22] Otherwise, his silence on the other matters regarding the support for his children spoke loudly.
[22] T 98.
Questions again returned to the money that the Husband receives from Mr E. The Husband stated that Mr E gives him cash occasionally when he calls him, and sometimes fills up his car with petrol when he travels from Sydney to Town D. When asked how he keeps track of these payments, the Husband simply responded that Mr E relies on his memory. It was further suggested that this “flexible accounting” system, based solely on memory, was because the Husband has paid Mr E large sums of money, which in turn, impacts upon what, if any, funds might be available to pay out the Wife in the current litigation. The Husband denied this to be the case, stating that his payments to Mr E occurred via bank transfer.[23]
[23] T 100.
In answer to questions from the Court, the Husband said that, if the Court Ordered him to make a payment to the Wife, his family would not provide him with funds to pay out the Wife.[24]
[24] T 101 – 102.
In reply, the Husband confirmed that he has paid back his Father the final amount of $10,000 for the loan, which is outlined in exhibit S in the tender bundle for the Father.[25] The source of these funds was not addressed.
[25] T 104.
In addition to what I have already stated, in general terms, I found the Husband to be a very unsatisfactory and unreliable witness. His evidence was heavily coloured by his obvious sense of entitlement, and that he is completely used to obtaining whatever funds he needs (or wants) courtesy of his family, especially his brother, Mr E. In short: when he requires funds, such as for overseas travel, or a loan for any property purchase or the like, the family provides even though there is no documentation available or provided to the Court. In my view, he is largely derelict in the provision of any financial or related material support for his children. He does as he wants, and lives a life largely devoid of responsibility, especially for the children. Absent independent documentation that supports any of his evidence, I cannot and do not rely upon anything he says. His evidence was self-serving in almost every respect. Where there is any dissonance between the evidence of the Wife and the Husband, I readily prefer and accept the account of events as given by the Wife.
The lack of evidence from the Husband’s brother, Mr E, and from his next-door girl-friend, only adds to my disquiet about the Husband’s lack of financial disclosure, particularly in the light of the 18 requests from the Wife’s lawyers for financial disclosure. The dates when such requests were made were set out in an annotated chronology provided by the Wife. That chronology is annexed to these reasons. Copies of each of these letters seeking disclosure from the Husband are included in the Wife’s Tender Bundle.
Applicant Mother’s Oral Evidence
The Wife’s quite brief oral evidence, summarised, was as follows. There were a series of preliminary, clarifying questions “in chief”.
The Wife confirmed that she currently resides in crisis accommodation in Town D, and (for reasons of safety for such establishments) is unable to provide her specific address. She confirmed that there is nothing in her affidavit that she wishes to change. She said that she was unaware of, but concerned about, how long she could remain in her current residence. She was anxious that she might be forced to leave it on very short notice.
The Wife was taken to the bank statements in relation to the loan dated early 2018 provided by her Mother and Father. The Wife confirmed that these documents were given to Centrelink, and signed by her parents. The Wife denied that she had any involvement with the provision of any money from her parents, because the Husband took care of financial matters.[26] This was something of a common refrain from the Wife.
[26] T 109.
Questions then moved to jewellery that the Husband purchased for the Wife at the commencement of their marriage. The Wife explained that in their tradition (both parties confirmed that they follow the Islamic faith tradition), the Husband purchases a piece of the jewellery for the Wife. The Wife stated that when they moved to Australia, the Husband said they needed to change the jewellery as it was ‘rubbish gold,’ so he purchased different gold, which he sent to his father to sell. The Wife stated that she was given a necklace, three bangles and the wedding ring, one of which was ‘rubbish gold.’ The Wife did not know how much the jewellery was worth.[27] At par.142 of the Husband’s trial Affidavit, he deposed that it was worth approximately $7000.00.
[27] T 110.
The Wife was then asked about the conversation between the Wife and the Husband on 5th July 2022, where the Husband told the Wife that he “doesn’t like being told what to do.” When asked what the Husband said would happen if the Court made orders that he did not like, the Wife said that the Husband said he would not follow the Orders, because “it is not the Islamic way”. The Wife confirmed that she rang her solicitors after this conversation to explain what had happened.[28]
[28] T 111.
At the outset of her cross examination, the Wife was asked to confirm that she seeks a payment of $300,000 from the Husband. She confirmed that she did, saying that this figure is based on the value of the Town D property and the car that she previously drove. The Wife confirmed that she understood this property to have been repossessed by the bank, and that the proceeds of the sale would not cover the debts. The Wife stated that she believed the $300,000 would come from the father’s work, alongside other money that she thinks he is not disclosing.[29]
[29] T 113.
The Wife confirmed that she heard the Husband state that he is currently receiving Centrelink payments, which he states are not enough to cover his rent payments and daily expenses. It was then suggested that if this evidence regarding the Husband’s income was accepted, he would not be able to pay her $300,000. The Wife responded, quietly but firmly, that their children are homeless, so they must support them together and that both of them must work to do so.[30]
[30] T 114.
The discussion turned to the “offers” made by the Husband to the Wife. The Wife accepted that offers were made to provide for the children, however she stated that, in her view, they were unreasonable.[31] I accept the Wife’s comments and agree with them for reasons given earlier. The Wife stated that one of these offers included the Husband living in the garage of their home in Town D, where he would still be able to control her and the children.[32] In my view, financial and other “control” of the Wife by the Husband was a feature, often a subtle one, other times less so, in the course of the trial. This was in circumstances where, remarkably, at one point in the Husband’s evidence, he almost implied that the problems and issues between the parties really rested at the Wife’s feet because she was the one who pursued him for their relationship! But for this pursuit, everyone would not be in the predicament they are in today.
[31] T 114.
[32] T 115.
To some extent, but certainly not completely, the Wife did not agree that there were limits to what the Husband could offer her due to his unemployment and Centrelink payments. The Wife was taken to par.12 of her Affidavit, sworn 13th March 2023, which stated that the Husband did not pay the mortgage to F Bank. The Wife confirmed that he stopped paying this loan after separation, although she did not know exactly when. She confirmed that some payments had been made by the Husband prior to separation.[33]
[33] T 117.
Counsel for the Husband took the Wife to par.63 of her Affidavit, outlining some evidence about the sale of the H Street property. The Husband’s relevant bank statement showed a deposit of $73,900 in May 2019, but there was no record of the deposit of $9,500 being received. No explanation was forthcoming from the Husband in his material. The Wife confirmed that, prior to separation, she was not aware of any of the financial information regarding either property, however after separation, she was aware of the information that her solicitor was given.[34]
[34] T 120
The Wife was taken to pars.151 and 152 of the Husband’s Affidavit, filed 14th March 2023, outlining that he borrowed $114,000 from his family for the purchase of the Town D property. The Wife stated she did not know if this was correct; nor did she know how he paid this money back to his family members. This was but one of many queries, which the Court shares, about the complete lack of information regarding the financial dealings of the Husband, including the source of his funds to pay back family members, but nothing for the children and their support. A bank statement here, and another there, with passing but regular references to funds received from his brother, Mr E, and sometimes from his Father, really did not assist to explain, clarify or support the fluctuating evidence of the Husband and his financial dealings, particularly but not only with his family. There was little separate documentation in relation to borrowings or loans that involved the family directly. Further still, the Husband confirmed, for example, at par.157 of his trial Affidavit, that he borrowed funds, against the security of the Town D property, so that he could pay back his family and friends. Put another way: his family and friends clearly get priority over the Husband’s children and the care and support they need.
The Wife restated that the Husband controlled all financial aspects during their relationship, even the money that she received from Centrelink.[35] Although not raised by the Wife, the Husband’s financial treatment of the Wife might reasonably be considered financial control on a significant scale. This said, given the Islamic tradition both parties adhere to, there might be some cultural considerations to which some attention might need to be paid – but only to a quite limited degree.
[35] T 124.
It was suggested to the Wife that her lack of involvement with money during the relationship was why she would not accept the Husband’s explanations about what happened to the money following their separation. The Wife stated that it was because she believed the Husband was working, not taking loans from his family, which ultimately led to her disbelief of the Husband’s accounts regarding financial matters. The Wife said that, notwithstanding the difficulties regarding “trust” between the parties, she confirmed that she would accept a believable explanation for specific events.[36]
[36] T 125
The Court asked the Wife how long she would be able to stay in the crisis accommodation, to which the Wife responded that she does not know, but that she is being pushed out to find a place. The Wife stated that she has no “Plan B”, other than hoping that the Father helps the children find a place. The Wife stated that she would prefer to live in Sydney over Young due to her desire to complete her studies in graphic design, alongside more accessible healthcare and extra-curricular activities for the children. The Wife advised that it would take approximately two years to complete her studies.[37] The Wife also said that she had some family support in Sydney.
[37] T 131.
The Wife was not asked anything about the following matters. In my view, the lack of information provided, and the questions that arise from them, heighten the Court’s concern, indeed doubts, about the completeness of the Husband’s financial circumstances. This is especially so in the absence of any Affidavit or other information from any member of his family, and where they are, on the Husband’s evidence, intimately involved in either providing various and significant financial assistance to the Husband without question, and/or they have lent money to him, with little or no security (or documentation), and with little or no expectation, certainly not any time soon, for it to be repaid. The matters of particular concern are as follows:
(a)The Wife deposed to the Father being in a relationship with Ms Plionis, his girl-friend. By letter to the Husband’s lawyers, dated 17th September 2021, they were asked to ensure that she provided an Affidavit regarding her circumstances, notably in relation to her assistance (or more) regarding the care of the children.[38] Apparently there was no reply, and certainly there has been no Affidavit filed;
(b)After the purchase of the Town D property, the Husband sought a loan from F Bank Bank, using that property as security. The loan Application prepared by the Husband, dated 18th February 2019, declared that he had assets totalling $412,500 and no liabilities. This Application was supported by a letter from his accountant confirming the Husband’s intention to invest $224,000. Nothing was said in this Application regarding the Husband’s intention to repay family loans.[39]
(c)Par.59 and Annexure T to the Wife’s trial Affidavit refer to [barely legible] “statutory declarations”, dated 24th January 2018, from the Husband’s brother and Father (Mr E and Mahmoud), which purport to declare that various loans were provided to the Husband, ostensibly to assist in the purchase of “the property at Young”, but which are stated to be on the basis that the Husband “will pay me back after 10 years.” Another refers to payment in 15 years. To state the obvious, among other things, the terms are so vague as to be largely unenforceable. It is unclear when these documents were provided to the Wife. Questions might also arise regarding (i) whether these “loans” are essentially shams, and (b) whether they are also unenforceable because they were given, on their face, to the purchase of property. Questions regarding stamp duty and registration might also arise that directly affect any other issues of enforceability.
(d)The Husband referred to a vacant block of land at H Street in Young. The Mother deposed (pars.60 – 63) to it being transferred to a Mr Hamzeh for the sum of $95,000 on 7th May 2019. She said that $73,900.74 was to go to the Husband, while $10,000 was to go to the paternal Grandfather. No agent was disclosed on the front of the Contract of Sale. Bank statements annexed to the Husband’s Affidavit, filed 21st January 2019, confirm the Husband receiving his specified sum, but there is no record or accounting of what happened to the deposit, said to be $9500.00. Further still, Mr Hamzeh was joined as a party to the proceeding, and although served, he took no part in the litigation. Likewise, the paternal Grandfather was also joined as a party. After much difficulty, he was not able to be served and he took no part in the proceeding, and filed nothing.
(e)Family loans involving the Husband are traversed in the Wife’s Affidavit at pars.64 – 67. Funds were stated to be provided for the purchase for Mr E Whebe of a BMW vehicle in April 2019 in the sum of $62,851.99. The Wife deposed that bank statements annexed to the Husband’s November 2019 Affidavit (at Annexure A) confirm that between 9th and 12th April 2019, the sum of $219,851.89 was withdrawn by the Husband, part of which included the funds for the BMW just referred to. The Wife commented that she was unable to reconcile the amount withdrawn and the amounts said to be owed, or paid, to members of the Husband’s family.
[38] See par.48 and Annexure G to the Wife’s trial Affidavit.
[39] See par.57 and Annexure R to the Wife’s trial Affidavit.
In my view, the very significant gaps in the Husband’s evidence, entitles, indeed mandates, that, in the exercise of its discretion, the Court draw an inference that the evidence not called by the Husband (e.g. from his brother Mr E, and equally from his Father, and his next-door girl-friend) would not have assisted his case. Such an adverse inference is based on the long-standing principles set out by the High Court in Jones v Dunkel.[40]
[40] Jones v Dunkel (1959) 101 CLR 298.
The Wife is a physically diminutive person, especially when compared to the large physique of the Husband. Notwithstanding her petite stature, her indefatigable spirit and verve, most especially to provide the best life and care for the children, was palpable. Without overstating it, her stylish, brightly and differently coloured hijab each day was a simple exhibition of her enthusiasm not to be daunted by any travails that came her way – and there plainly are caring for the four young children on her own in crisis accommodation. Even in the quite dire and extremely difficult circumstances, not least the living situation for herself and the children, she was undaunted in the face of almost overwhelming odds and the complete lack of support from the Husband. She was a very impressive witness: clear, simple and straight-forward in her answers. Disarmingly, she also lacked any obvious grudge towards the Husband, and only sought to engage him in the care and support of the children. Unlike his not infrequent apparent disinterest in them, unless and until it best suited him, the Wife carried no chip on her shoulder with her life and only sought what was just and best for herself, but above all else, for the children. As already stated, I accept her evidence. The children are very fortunate to have her as their Mother.
Written submissions on behalf of the Applicant
The Applicant’s written submissions were filed on 3rd May 2023; they were as follows (emphasis in original):
Method of Proceeding
1.On 3 April 2023, at the commencement of the final hearing listed in this matter, the Applicant made an application for adjournment or other relief in response to late and inadequate financial disclosure by the First Respondent.
2.Your Honour ordered that the property matter was to be run on a ‘show cause’ basis.
3.Your Honour referred to the Full Court’s decision in Chang v Su [2002] FamCA 156; FLC ¶93–117. It is submitted that the relevant principles of that case, and the line of cases which follow it, that are applicable to this matter are:
a.In circumstances where there has not been full and frank disclosure of financial circumstances by a party, it is open to a Court to find that an indeterminate undisclosed amount is held by one of the parties and to make property orders without reference to an overall pool on the basis of the ‘just and equitable’ imperative: Chang v Su at [71]-[72].
b.A judge is entitled to take a robust view in relation to findings regarding a party’s financial position, including a party’s capacity to meet any proposed order, where that party has failed to make full and frank disclosure of their financial position: Chang v Su at [72] and Graf-Salzmann & Graf [2015] FCWA 68 at [287] per Walters J.
c.While a deliberate and blatant pattern of conduct in not complying with disclosure obligations would make the court’s task more difficult, it also entitles the court to more easily draw inferences that such evidence would not.have assisted the defaulting party’s case: Chang v Su at [70], approving Weir v Weir (1993) FLC 92-338; 16 Fam LR 154 at 79,593.
d.Where the non-disclosure has been deliberate, the Court should not be ‘unduly cautious’ about making findings in favour of the innocent party: Chang v Su at [70].
e.In circumstances where a party has improperly failed to fully disclose their financial affairs, property settlement orders may make more generous provision for the other party: Kingston & Field (No 2) [2020] FamCAFC 235 at 106.
f.Coleman J further clarified in the case of Sand and Sand [2012] FamCAFC 179; FLC ¶93–519 that it would be incorrect to create a pool of assets which included notional assets and add-backs and then proceed to distribute that pool where the property did not in fact exist.
4.In light of the above, the Applicant understands and submits that:
a.In determining these proceedings the Court will take a robust view in relation to the evidence and potential findings, and will not be unduly cautions about making findings in favour of the Applicant; and
b.It will be a matter for the First Respondent to evidence his contributions and explain his withdrawals from the joint property pool which the Applicant says was available and/or wasted by the First Respondent;
and makes the submissions that follow accordingly.
Lack of Disclosure
5.There are long-standing authorities regarding the duty of complete and ongoing financial disclosure in family matters: see Black & Kellner (1992) 15 Fam LR 343, among others. The case law supplements Rules of Court such as Rules 6.01 and 6.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. The duty to disclose is absolute: Weir & Weir (1993) FLC 92-338 at 79,593; Chang v Su (2002) FLC 93-117 at [70]. Such principles apply whether the omissions of disclosure were negligent and/or unintentional, or were wilful and/or deliberate: see for example Leclair & Abel [2018] FCCA 2068 at [46(b)] per Neville J.
6.The Applicant submits that the First Respondent has failed to provide appropriate financial disclosure throughout these proceedings. It is further submitted that these failures were intentional, made after consideration, and the product of specific decisions to withhold information notwithstanding the absolute duty of disclosure. The Applicant relies upon the lengthy history of requests for disclosure as evidenced in its tender bundle, as well as specific admissions by the First Respondent in his oral evidence at Transcript p35 L45-46, p36 L5-7, p38 L16 and L37-38.
Loans from the Applicant’s parents
7.Insofar as the First Respondent might maintain its disclosure argument and objection to the admission into evidence of the statutory declarations of the Applicant’s parents at pages 20 to 23 of the Applicant’s Tender Bundle, these documents have been removed from the Agreed Tender Bundle. However, these documents are still relied upon by the Applicant to prove the existence of these loans and their admission into evidence is sought.
8.Insofar as it might be argued that the documents should not be admitted into evidence because of a failure by the Applicant to disclose the material, or to put the documents to the First Respondent in cross-examination, the Applicant submits:
a.The matter was being run on a ‘show cause’ basis with respect to the First Respondent;
b.As Your Honour noted on day 2 (see Transcript p6 line 5), the documents speak for themselves;
c.The existence and content of the documents was known to the First Respondent, given the Applicant’s evidence was that the documents were prepared to evidence the loans for Centrelink purposes and were so lodged by the First Respondent, (see Transcript p71 L1-p72 L8), corroborated by the statutory declarations similarly prepared for and lodged by the First Respondent in respect of the loans from his family (see Transcript p49 L11-17);
d.The First Respondent made unambiguous denials in cross-examination about the fact of the loans (see for example Transcript p43 line 28-44 & p46 line 8-17), and (at Transcript 43 line 36-38) invited the Applicant to produce any documentation she had about the loans, which was promptly done;
e.The Applicant’s proposed tender bundle including these documents was sent to representatives for the First Respondent prior to the start of Court on day 3 of the hearing (5 April), and they could have:
Sought a short break after cross-examination of the First Respondent completed that morning and sought instructions on the documents, at a time where the interpreter was still available; and/or
Raised any objections to the intended tender in open court at the time of the hearing;
but they did not.
The Property Pool
9.As was effectively conceded by his Counsel during hearing, there are parts of the First Respondent’s Financial Statement which do not correctly reflect his circumstances – for example, the document does not indicate that the First Respondent pays rent for his current accommodation when he does: see for example Transcript p77 L18-20.
10.Further, the First Respondent’s position appears to be that while he was on multiple occasions in receipt of considerable money – such as when he obtained the mortgage over the matrimonial property at 61 Town D St – that money has been entirely dissipated by, among other things:
a. Repayment of family loans;
b. Costs of renovations to the matrimonial home; and
c. Ordinary living expenses.
11.The First Respondent has led no evidence on affidavit from his family members or partner in support of the assertions he makes as to financial matters. Further, he has led no detailed evidence as to the supposed renovations nor living expenses such that Your Honour can be satisfied that moneys were indeed expended on such items. The Applicant suggests that Jones v Dunkel inferences are available and submits they should be made in respect of these matters.
12.The Applicant has collated in an Annexure to these submissions the evidence going to both parties’ assets and liabilities. From this the Applicant submits that the Court should infer that there may have been a property pool available in these proceedings at a minimum of $403k, and possibly as high as $539k.
13.The Annexure causes the Applicant’s submissions to exceed the page limit for this document, and accordingly the Applicant formally and respectfully seeks leave for this document to exceed the specified page limit on the basis that:
a.Counsel for the First Respondent was advised of the above in advance of filing and indicated she would not object to the submissions on this basis;
b.The Applicant would have included the information contained in the Annexure in her Financial Statement to be filed prior to the commencement of the hearing had proper pre-trial disclosure been made by the First Respondent; and
c.The Annexure includes information which was disclosed only for the first time in the Applicant’s oral evidence at hearing.
14.It is the Applicant’s submission that:
a.The First Respondent’s supposed family loans were sham arrangements;
b.The renovations supposedly undertaken on the matrimonial home do not support the amounts allegedly spent on that work; and
c.The amounts of money which otherwise appears to have been dissipated or wasted does not support a conclusion that the money was properly used on ordinarily living expenses.
15.The First Respondent suggests that an amount of $130k was expended on renovations: Applicant’s Tender Bundle, p60; First Respondent’s oral evidence at Transcript p58 L20-34. However, the amounts listed as being expended to that purpose in the First Respondent’s Trial Affidavit at [162]-[168] only add up to $90k. While the Applicant accepts that some renovations were undertaken by the First Respondent, the Applicant relies upon the valuation of the property post-separation by Ms Egerton (at Applicant’s Tender Bundle, p19) as to the true state of the property and submits that on no fair estimate can the work said to have been completed equate to a value of $90k, let alone $130k. This is supported by the First Respondent’s Annexure N to his Trial Affidavit and page 3 of the F Bank bank statement which indicates that $12.5k worth of repairs and maintenance had to be made to the property in January 2023 before it could be sold, as well as the Applicant’s Trial Affidavit at [58] and Annexure S setting out and depicting the condition of the property before her departure.
16.The evidence is clear that the supposed family loans in the statutory declarations in January 2018 were in the first instance sham arrangements intended to present a misleading picture to Centrelink: see the First Respondent’s evidence at Transcript p49 L11-17, as well as the documents’ inconsistencies and lack of veracity.
17.The First Respondent’s evidence in relation to the statutory declarations purportedly evidencing the loans (Annexure T of the Applicant’s Trial Affidavit) contradicts the material put forward by the First Respondent in his Trial Affidavit and his Annexures (specifically Annexure R). in that what the statutory declarations purport to formalise and evidence:
a.The First Respondent’s supposed family loans were sham arrangements;
b.The renovations supposedly undertaken on the matrimonial home do not support the amounts allegedly spent on that work; and
c.The amounts of money which otherwise appears to have been dissipated or wasted does not support a conclusion that the money was properly used on ordinarily living expenses.
18.Further, the Applicant notes that there were other family loans made at or before the making of the declarations which could have been included or referenced in the documents and which are not (such as two separate loans of $15,000 allegedly from the First Respondent’s father, one to buy a work vehicle and another to fund renovations, one of which allegedly still remains outstanding).
19.In submitting that the supposed family loans and/or repayments of these loans were sham arrangements intended to defeat the Applicant’s claim, or at least reckless to this being a potential outcome, the Applicant relies upon the following:
a.Her uncontroverted evidence that this is precisely what the First Respondent’s brother Mr E said (at Transcript p76 L44-47);
b.Both properties were purchased post-marriage and therefore could reasonably have been expected to be split between the parties upon separation;
c.The alleged loans to purchase the properties and for other purposes were made on long-term bases and there were no impending or crystallised deadlines for repayment – see [59] and Annexure T of the Applicant’s Trial Affidavit;
d.The mortgage over 61 Town D St was settled after the separation of the parties;
e.Save for one small loan (referred to in the First Respondent’s Trial Affidavit at [151a]) the family loans were repaid after the separation of the parties;
f.The transfer of the Toyota Landcruiser to the First Respondent’s father, supposedly to repay a loan, was also done immediately after the separation of the parties; and
g.The First Respondent’s evidence was somewhat contradictory about whether the amounts of money Mr E gives him post-separation were gifts or loans to be repaid, but it seems fairly clear that the sums of money being given post separation are not being recorded and there is no expectation by Mr E of payment– see generally Transcript p64 – thus supporting an inference that the First Respondent has ‘banked’ funds with his family outside of the immediate reach of this Court and draws down on them as he needs.
20.That the First Respondent has access to more money that he otherwise suggests is evident from the previous offers he gave evidence about putting to the Applicant post-separation for maintenance and property settlement, including but not limited to his statements at Transcript p17 L36, p23 L21-23, p24 L21-43, p25 L1-3 and L12-14.
The First Respondent’s work
21.Further, the Applicant submits that Your Honour will find, notwithstanding the First Respondent’s denials (see for example his Trial Affidavit at [11]), that the First Respondent has engaged in paid employment post-separation, and he continues to earn income from employment, as a tiler from time to time, even if the extent of the work done or income earned is unclear.
22.The Applicant relies upon the following evidence in support of the proposition that the First Respondent has worked post-separation and continues to work:
a.The First Respondent completed his Financial Statement for the Court in which he stated that he was self-employed for Alextyle;
b.The First Respondent completed his Financial Statement for the Court in which he said that he had $10k of tools and building material on hand– the Applicant submits that these are supplies for future jobs, and such a significant amount of tools and materials being on hand is inconsistent with his alleged cessation of work in March 2019 (see [39] of the First Respondent’s Trial Affidavit);
c.The First Respondent renewed his licence as a wall and floor tiler, issued in his personal name and to his address, on 7 June 2022 for a further period of 3 years: see [54] and Annexure O of the Applicant’s Trial Affidavit;
d.The First Respondent complains in his Trial Affidavit at [166] of post-separation not being able to access his tools and materials at the matrimonial home “which I mean I have not been able to work”, but the separation occurred in April 2019 after the alleged cessation of work in March 2019 (compare [39] of the First Respondent’s Trial Affidavit);
e.The First Respondent further suggests in his Trial Affidavit at [168] that his application to F Bank Bank for financial hardship relief in respect of the mortgage was also founded in part due to lack of access to his tools and materials, which is suggestive of his use of those in employment;
f.The HiPages printouts (Applicant’s Tender Bundle p1-7) show a constant pattern of reviews for completed work throughout the period that the First Respondent was allegedly unable to work – the Applicant submits that it would be complete nonsense that people are leaving reviews for the First Respondent this month for work he did before he was injured in March 2019.
23.The First Respondent’s responses under cross-examination were unconvincing and inconsistent. His evidence changed over time to suit the evidence that was put to him:
a.He said initially that he was unemployed (Transcript p10 L25-29) and that he didn’t have a business (Transcript p31 L28).
b.Then when shown his Financial Statement and his admission of self-employment his evidence was “I do have a business, but I’m not working with it and not using it. Sorry. Again. It’s ongoing, but I’m not working with it.” (at Transcript p32 L39-41).\
c.Then after being shown the HiPages document (Applicant’s Tender Bundle Tender Bundle p1-7) his evidence was “This business now for my cousin. My cousin doesn’t have a licence, and that’s why he’s running his business under my licence, and he’s using my business to work.” (at Transcript p33 L13-15).
d.Then after being asked why the HiPages referred to ‘Alex’ in the context of his cousin’s name being Abdul, his evidence was “He’s using my name because the business name Alex Tile (sic).” (Transcript p33 L30).
24.It is submitted, with respect, that the First Respondent’s answers are inherently incredible and the product of invention in the witness box to suit the evidence put before him. It is noted that there is no evidence on affidavit from the First Respondent to the effect that his business continues on without him working in it.
Proposed Order 1 – lump sum payment of $300,000
25.The Amended Response filed by the First Respondent on 15 March 2023 puts forward only a proposal in respect of property which is predicated upon the matrimonial property being available in the proceedings – which it is not any longer. The First Respondent would have agreed to a 60:40 split of the property pool but says the property pool is negligible. Otherwise the First Respondent puts forward no formal position as to how he will provide for his children or the Applicant.
26.It is submitted that the Applicant is in need of maintenance and/or a significant property settlement by virtue of her own personal circumstances and having the care and control of minor children of the marriage.
27.In light of the case law outlined above, and having regard to the Annexure and the submissions above, the Applicant submits that there is an indeterminate and undisclosed amount of money, but certainly some hundreds of thousands of dollars, which is held by the First Respondent’s family effectively on trust for him and which the First Respondent ‘draws down on’ as he needs. It is on that basis that the Applicant seeks a lump sum payment having regard to the previously known asset pool and lack of good explanation for its dissipation.
28.In terms of the s 75(2) and s 79(4) factors, the Applicant submits:
a.Prior to the marriage, the Applicant was part way through a degree course in Country B, which she ceased due to the First Respondent’s promises that she would be able to complete after the marriage and when in Australia – this promise was never kept.
b.During the marriage the First Respondent worked and received an income from employment.
c.During the marriage the Applicant stayed at home caring for the children of the marriage and maintaining as best she could the matrimonial home. She did not undertake any paid employment.
d.Throughout the marriage the First Respondent exercised control over the Applicant’s daily living. Even the money the Applicant received from Centrelink was taken by the First Respondent, through use of an app and possession of the Applicant’s bank card. (Many of the offers of settlement put forward by the First Respondent, such as his living in the garage, are properly characterized as efforts to regain and maintain control over the Applicant.)
e.Both parties have from time to time received loans and gifts of money from their families. While the First Respondent has allegedly paid back the majority of the money owing to his family members, the money lent by the Applicant’s parents remains outstanding. This money was likely used by the First Respondent as seed money to support the purchase of property.
f.The Applicant and the children reside in Young because this is where the First Respondent moved the family to from Sydney. The reason the First Respondent gave for the move was to align with his family supports and employment prospects.
g.While the First Respondent indicated an intention to renovate the matrimonial home, and some renovation did occur, actually by the point of separation the matrimonial home was significantly damaged and in need of repair.
h.To the extent that the First Respondent alleges that property and other expenses were paid for out of savings, the First Respondent was only able to make those savings by virtue of the Applicant’s care of the children and maintenance of the home.
i.Post-separation the First Respondent has moved back to Sydney and the Applicant has no family or other supports in Young.
j.In leaving the formal matrimonial home and failing to pay the mortgage such that the property was repossessed, the First Respondent's actions has directly led to the homelessness of his children.
k.The First Respondent also took steps to repossess the family car (the Toyota Landcruiser) post-separation. The Applicant initially had to obtain interim orders to regain use of the vehicle; and once that car stopped working, she had to go into personal debt and utilise personal savings to obtain a vehicle to assist in the children’s activities and schooling.
l.At present, the First Respondent refuses to meaningfully financially support his children.
m.It is accepted that the First Respondent did suffer an injury in April 2019 which caused him to have difficulty working for a period of time. However, as per above, it is submitted that the First Respondent has worked post-separation and continues to engage in paid employment, the extent of which is unknown and unascertainable by virtue of the First Respondent’s disclosure failings.
n.The Applicant does not presently work and has no qualifications which might lead her to obtain meaningful work in the future. The Applicant’s future employment prospects in Young in her field are minimal.
o.The Applicant and children presently reside in crisis accommodation in Young. The Applicant would like in future to relocate back to Sydney to align with her extended family and friend support network, but such a course is impossible at present given the First Respondent's refusal to meaningfully financially support his children.
29.For all of the above reasons, the Applicant submits that:
a.Her contributions during the marriage, while not always directly financial (although the First Respondent did directly access her Centrelink payments), were such that it would have been appropriate to commence at an equal distribution of property;
b.Leaving aside issues of non-disclosure, on a pure assessment of contributions and the statutory factors outlined above, in terms of splitting of a fulsome property pool the Applicant would have sought adjustments of:
i.At least an additional 10% for post separation factors; and
ii.At least an additional 10% for statutory factors;
c.However, the making of a property order in the conventional way is not possible in this case given the First Respondent’s conduct and the Court’s inability to identify a determinate property pool; and
d.The making of the order for a lump sum payment in the amount of $300,000 is, in all the circumstances of this case, just and equitable, particularly in light of the First Respondent’s very significant and deliberate non-disclosure in these proceedings.
30.The Applicant notes that the making of an order in this amount would represent, having regard to the Annexure and depending on the figures used, an allocation to the Applicant of between 55% and 74% of the apparent property pool.
31.Given the First Respondent’s apparent impecuniosity and the circumstances listed above, while a regular maintenance payment might well be more beneficial for the Applicant, the Applicant considers that a lump sum payment might well be more convenient for the First Respondent. Further, a lump sum payment would remove any risk of a future cessation of support by the First Respondent, as well as removing a potential source of ongoing conflict for the parties or coercive control.
Proposed Order 2 – restraint on the First Respondent leaving Australia
32.The Full Court acknowledged in the case of Brown & Brown [2007] FamCA 151; (2007) FLC 93-316, and confirmed in the case of Rahman & Rahman [2013] FamCAFC 162 (see [54]), that section 114 of the Family Law Act provides a source of power for an order that restrains freedom of movement of a party in a financial case in order to ensure compliance. The relevant principles were summarised by Bennett J in Fowles and Fowles (No 2) [2019] FamCA 1027 at [13]-[14] and endorsed on appeal by Williams J in Fowles and Fowles (No 2) [2021] FedCFamC1F 209 at [51]. The case of Castles and Pesic [2008] FamCA 1003 is a particularly relevant example of a matter where an injunction was made against a party who was found to have significant undisclosed assets and a history of failing to pay moneys to the other party.
33.There is ample evidence before the Court that the First Respondent, despite his apparent impecuniousness, travels frequently to Country B, and has family there.
34.The Applicant holds concerns, in the light of statements made by the First Respondent to her during the marriage (see for example the Applicant’s Trial Affidavit at [38]), that the First Respondent may attempt to depart from Australia as a way of avoiding enforcement of any money order.
35.Further, while the First Respondent denied it (see Transcript p58 L4-18), the Applicant gave evidence (see Transcript p74), supported by a contemporaneous file note made by the Applicant’s lawyer (see Applicant’s Tender Bundle p16), that the First Respondent had said words to the effect to her that:
a.He does not like being told what to do; and
b.If the Court makes orders he does not like, he will ignore them.
36.It is submitted that, in a ‘show cause’ situation arising from the First Respondent’s lack of frankness in these proceedings, as well as the First Respondent’s efforts to hide or dissipate assets that would otherwise be available to satisfy a Court order, the Court should find that there is a real and not insignificant risk that the First Respondent will take steps up to and including leaving Australia to avoid having to meet a property order.
37.The Applicant accepts that it is no small thing for an order to be made restricting the First Respondent’s travel. Nevertheless the Applicant submits that considerations in relation to the impact upon the First Respondent’s liberty must be balanced against a competing principle relating to the likelihood that the Applicant will be denied a remedy if the First Respondent’s freedom to leave the jurisdiction is not restrained.
38.The Applicant submits that the making of the injunction against the First Respondent until full payment of any moneys ordered by way of property settlement is, in all the circumstances of this case, just and convenient.
Proposed Order 3 – indemnification of the Applicant
39.Given the significant financial non-disclosure by the First Respondent in this case, the Applicant seeks the protection of an indemnification order to ensure that:
a.No further claims can be made against her in respect of her former marriage to the Respondent; and
b.To the extent that the Respondent has other, non-disclosed, liabilities unknown to the Applicant, those will be matters solely for the Respondent to deal with.
40.Insofar as the First Respondent allegedly owes his father $15,000 for the Toyota Landcruiser, it is submitted that it is appropriate that the Applicant be indemnified in respect of this alleged loan given the original purpose of the loan was to buy tools and insurance for the First Respondent’s business; further, it is not listed in the First Respondent’s Financial Statement as a current liability.
Annexure
Current Assets (as per Financial Statements)
Wife / Applicant Husband / First Respondent Nature $E500 $65 CBA account – separately held $E500 CBA account $E8000 Car – self funded the acquisition of the car post-separation with loan $E1000 $E15,000 Contents – separate houses $E7000 Jewelry $-1,105 Westpac Account $E10,000 Tools of trade ?? Husband’s car – see Note 1 ?? Husband’s money held on trust by Mr E – see Note 2 Post Separation Assets
Date Wife/ Applicant Husband/ First Respondent Nature 2015/2016 $40k Loan from Wife’s father February 2017 $30k Loan from Wife’s mother 2018 $30k Remainder of compensation payment – see Note 3 February 2016
March 2023$205k (purchase)
$310k (sale)61 Town D paid for in case – see Note 4 September 2017
7/5/19$83k (purchase)
$95k (sale)7 H Street paid for in cash – see Note 5 2018
April 2019$34k (purchase)
$15k (transfer)Toyota Landcruiser – see note 6 Current Liabilities
Date of Event Wife/ Applicant Husband/ First Respondent Nature 2015/2016 $40k Loan from Wife’s father February 2017 $30k Loan from Wife’s mother $36 Afterpay $800 Loan from Salwa Dunia to buy car Note 1 – Husband’s car
Evidence about whether the Husband currently owned a car was contradictory
- He said initially when asked what car he used to travel to Young: “Sometimes I used to borrow my mother, my father, my brother, my sister car, anyone of them, but at the end of the last time, I was driving my brother’s car which belonged to his work, which is used HiLux.” at Transcript p31 L1-3
- He later gave about Mr E ‘s assistance to him as follows: “Sometimes when I go, you know, to Young from Sydney, he fills ..... my car with petrol and – without my asking.” at Transcript p63 L23-34; and at Transcript p64 L5 “as I said, when he put petrol in my car”
Note 2 – Husband’s money held on trust
Husband has access to what appears to be unlimited funds from his family and specifically his brother Mr E
- Admits in his Financial Statement to Mr E having paid $3000 for hydrotherapy (although never discussed in Trial Affidavit)
- Admits in his Financial Statement to Mr E having paid $3000 for overseas travel in April-May 2022 (although never discussed in Trial Affidavit) – see also Transcript p35 L37-40
- Gives oral evidence that Mr E also paid for other overseas travel (specifically in February 2023 – see 4.4.23 p35 L42-46 – although there was also a trip in September-October 2019) although this is never discussed in the Husband’s Trial Affidavit nor his Financial Statement
- Gives oral evidence that he calls Mr E and Mr E will give him cash
Note 3 – Husband’s compensation payment
Husband injured himself in 2015 in a car accident and allegedly ceased work thereafter - received a compensation payment of $90k in 2018 for that car accident – allegedly expended according to his lawyer’s letter of 22/1/21 (Applicant’s Tender Bundle, doc 26, p43-44):
- $55k in legal fees
- $6k to Centrelink
- $30k to the Husband - he says “that’s why I decided at that time to make a reservation for the house” at Transcript p46 L38-39 which, given the timing, could not have been the purchases of either 61 Town D St or 7 Henry Pl
Note 4 – 61 Town D
Bought by Husband in his name in February 2016 for $205,000 – paid in cash
- Allegedly $91k in savings
·probably includes the Jan 2016 refund of $62k ($45k into the bank and $17k in cash) originally accumulated to buy a unit through Allnour Mosque - see [152d] of Husband’s Trial Affidavit
·additional $29k in cash already on hand
- Allegedly $114k in family loans
·Father
i.$22k on 22/1/16 - Repaid in May 2016 in cash
ii.$10k on 20/9/16 (after the house purchase) - repaid in April 2019 from mortgage settlement
iii.Total $32k - but this doesn’t match the amount of $30k in the statutory declaration of Mahmoud Wehbe dated 24 January 2018 – see Wife’s Trial Affidavit, Annexure T and Father’s oral evidence at Transcript p49 generally
· Plus at the time of signing the statutory declaration, most ($22k) of this money had in fact been repaid
·Mr E
i.$32k on 22/1/16 bank transfer
ii.$20k from business on 3/12/15
iii.$10k on 11/12/15
iv.Total $52k - but this doesn’t match the amount of $60k in the statutory declaration of 24 January 2018 signed by Mr E Wehbe dated 24 January 2018 – see Wife’s Trial Affidavit, Annexure T and Father’s oral evidence at Transcript p48 L40-41
· It also doesn’t match the BMW payment made on Mr E’s behalf of $63k on 11/4/2023 – about $11k more than was said to be owed
·Amran - $30k in cash in December 2015 – Repaid in April 2019 after the mortgage settlement
Prior to relocation of family to Young, the property was rented out
Husband applies for a mortgage over property in November 2018, allegedly to repay family loans - Mortgage settles in April 2019 for $224k at a time when
- Mere days before formal-separation, although the parties were already in dispute by this time
- Post Husband’s injury that (he says) means he can no longer work
- Allegedly loans paid back to family
61 Town D St sold March 2023 as mortgagee in default for $310k
Note 5 – 7 H Street
Bought by Husband in his name in September 2017 for $83k – paid in cash
- Evidence is unclear but perhaps the $13k was a deposit to get into the auction and was at least partially borrowed from the Husband’s father – see Transcript p46 and Transcript p66-67 generally
- Allegedly $70k in family loans
·Mr E
i.$30k on 22-23/8/17 bank transfer
ii.$10k on 30/8/17 bank transfer
iii.$2k cash around this time
iv.$8k on 11/9/17 bank transfer
v.Total $50k - But this doesn’t match either of the amount of $40k or $48k in the statutory declarations of 24 January 2018 signed by Mr E Wehbe dated 24 January 2018 and said by the Husband to be in respect of the purchase of the land–see Wife’s Trial Affidavit, Annexure T and Husband’s oral evidence at Transcript p48 L40-41 and p49 L44-p50 L3
· And if the Husband’s oral evidence is correct that both of these statutory declarations relate to the purchase of the land, then that would be a loan of $88k which also does not match
· Annexure R of the Husband’s Trial Affidavit attaches a note from Mr E dated 17 June 2019 stating he loaned the Husband $50k but this doesn’t match up with the statutory declarations, nor does the note (when it says the money was transferred in $5k and $10k increments) match up with the actual transfers of money made to the Husband
· Repaid on 10/5/19– see Husband’s re-examination at Transcript p66 L22-26 and Annexure R of the Husband’s Trial Affidavit
·Cousin Najla El Badawi - $20k on 15/9/17 -Repaid on 10/5/19:see Husband’s re-examination at Transcript p66 L22-26 and Annexure R of the Husband’s Trial Affidavit
Sold by Husband post-separation 7/5/19 for $95k
- $10k to Husband’s father, perhaps a repayment of the deposit – see Transcript p46 and Transcript p66-67 generally
- $74k paid directly to Husband
The purchaser’s $9.5k deposit paid to the Husband (see Husband’s Trial Affidavit, Annexure S, p2 ‘Settlement Statement’) has never been accounted for by the Husband
Note 6 – The 2018 Motor Vehicle 1
Husband says he bought the Toyota Landcruiser in 2018 and paid $25k cash and traded in a 2002 Honda CRV purchased in 2012 for $9000 – see [179], [143] of Husband’s Trial Affidavit
- Husband transfers registration to his father in April 2019, post-separation, allegedly as part payment for money owed to father
·Wife had to go to Court to get court orders to let her keep using the car
- Notwithstanding suggestions by his Counsel about the car being written off and sold for a nominal sum, [182] of the Husband’s Trial Affidavit makes it clear it was transferred to his father for value
- The car is not “written off” until after the transfer takes place
·Necessitates wife borrowing money to obtain alternative transport
Written submissions on behalf of the Respondent
The Respondent’s quite narrowly focussed written submissions were also filed on 3rd May 2023; they were as follows (emphasis in original; footnotes omitted):
A. BACKGROUND AND NATURE OF THE PROCEEDINGS
1.The proceedings were originally listed for final hearing before His Honour Judge Neville on Monday 3 April to Wednesday 5 April 2023 in respect of parenting and property matters. On Monday 3 April 2023 the parents and the Independent Children’s Lawyer were able to resolve the majority of the parenting issues by consent with limited aspects proceeding on a contested basis by way of oral submissions. The Independent Children’s Lawyer was then discharged and property aspects between the applicant wife and respondent husband proceeded to hearing on Tuesday 4 April and Wednesday 5 April 2023.
2.The applicant wife seeks that the husband pay her the sum of $300 000. The husband’s case is that he has provided adequate disclosure in respect of financial matters between the parties including by way of disclosure between the parties’ solicitors. The husband’s case is that there is only outstanding debt between the parties and that he is not in a position to pay the wife any sum of money. The husband is prepared to individually assume liability for outstanding debts, to allow the wife to remain debt free. Relevant to the husband’s case is the fact that the property at 61 Town D Young (Town D property) was repossessed by F Bank Bank in November 2022. The advice from F Bank Bank that on settlement of the recent sale of the Town D property on or about the Easter Long Weekend on 6 April 2023 or 11 April 2023, it is expected that there will be a shortfall, entails that there is only outstanding debt between the parties.
3.Cross examination of the husband took place with the assistance of an Arabic interpreter who attended via Microsoft Teams on Tuesday 4 April 2023 and the morning of Wednesday 5 April 2023. Cross examination of the wife took place on Wednesday 5 April 2023 and commenced immediately following cross examination of the husband. A proposed tender bundle on behalf of the wife was received by email at 9:43am on the morning of Wednesday 5 April 2023 while the husband was still under cross examination, with the hearing and cross examination of the husband continuing at 10:00am on Wednesday 5 April 2023. Some documents intended to be included in the proposed tender bundle of the wife were emailed by the counsel for the wife to the counsel and solicitor for the husband at 9:24pm on the night of Tuesday 4 April 2023 while the husband was under cross examination.
4.Included in the proposed tender bundle for the wife emailed at 9:43am on the morning of Wednesday 5 April 2023 but not included in the documents emailed at 9:24pm on the night of Tuesday 4 April 2023, were copies of two statements dated Tuesday 16 January 2018 which purport to be signed by the wife’s parents Zakaria Abdulrazzak Al Massri and Noha Mohamad Kheir Al Dine Al Massri. The statements had not previously been disclosed by the wife to the husband and were effectively disclosed to the husband for the first time during examination in chief of the wife on Wednesday 5 April 2023 under circumstances where the husband did not have access to an interpreter in court given the interpreter was at the time allocated to support and assist the wife via Microsoft Teams. The original statements appear to be in Arabic and obtained in Country B. While copies of statutory declarations of the husband’s father Mahmoud Wehbe and brother Mr E Wehbe dated 24 January 2018 which had been prepared for provision to Centrelink were annexed at Annexure T to the wife’s trial affidavit sworn 13 March 2023, the statements of the wife’s parents were not annexed to this affidavit.
5.At the close of evidence on Wednesday 5 April 2023, Judge Neville directed that the parties agree on a joint tender bundle of documents and that this be filed with the Court. The wife subsequently pressed for the statements of her parents dated 16 January 2018 to be included in the joint tender bundle. The husband objects to the statements from the wife’s parents being received as evidence.
6.On Monday 17 April 2023, after conferring with the solicitors for the wife, the solicitors for the husband requested by email to Judge Neville’s Associate that the matter be urgently relisted before His Honour to allow the husband’s objection in respect of the statements from the wife’s parents dated 16 January 2018 to be dealt with. On Tuesday 18 April 2023, Judge Neville’s Associate emailed the solicitors and counsel for the parties, noting the advice from His Honour that the parties prepare an agreed tender bundle by consent and limited individual tender bundles which were to include any documents that are not agreed. His Honour advised that any issues arising from documents provided and how much weight is to be given to these documents may be addressed in written submissions.
7.These submissions on behalf of the husband are further to the Case Outline of the husband filed on 27 March 2023. The husband continues to rely on the written submissions provided in the Case Outline dated 27 March 2023 in relation to relevant factors under section 79(4) and section 75(2) of the Family Act 1975 (Cth) in respect of contributions and future needs.
B. STATEMENTS OF THE WIFE’S PARENTS DATED 16 JANUARY 2018
8.The statements of the wife’s parents were not put to the husband in cross examination of the husband. There was clearly opportunity for this to occur given the proposed tender bundle of the wife was emailed at 9:43am on the morning of Wednesday 5 April 2023 and cross examination of the husband continued shortly after this on the morning of Wednesday 5 April 2023 at 10:00am.
9.The hearing that proceeded on 4 and 5 April 2023 was in respect of property aspects only, and accordingly the rules of evidence and provisions of the Evidence Act 1995 (Cth) (Evidence Act) apply. It is submitted that the Court should exercise its discretion under section 135(a) and (b) of the Evidence Act to exclude the statements from the wife’s parents from being admitted into evidence. In the circumstances of the present proceedings, the probative value of the statements of the wife’s parents is substantially outweighed by the danger that the statements would be unfairly prejudicial to the husband. The probative value of the statements from the wife’s parents is additionally substantially outweighed by the danger that the statements might be misleading or confusing. The statements raise a considerable issue as to the credibility of the wife’s evidence. Admission of the statements into evidence would require the husband to account for a total of $70 000 on the basis of documents which the husband was never cross examined about. The husband’s evidence has always been that the wife has not adequately disclosed about the alleged loans from her parents. Accordingly, at paragraphs 146-147 of the husband’s trial affidavit affirmed 24 March 2023, the husband states:
I understand the Applicant is alleging that her father gave me a loan of $40,000. I deny this. In any event, the Applicant has not substantiated such alleged loan given to me by her father.
I understand the Applicant is alleging that she obtained a loan of $30,0000 from her mother. I deny receiving any money from her Mother at the commencement or during the relationship.
10.An objection had also been made on the husband’s behalf on Tuesday 4 April 2023 about the alleged loans from the wife’s parents not being supported by evidence.
11.In examination in chief of the wife by her counsel, it was the wife’s evidence that the statements of the wife’s parents dated 16 January 2018 were prepared for submission to Centrelink along with the statutory declarations of the husband’s father and brother dated 24 January 2018. No where is this mentioned in the wife’s affidavit evidence. No where was it mentioned through the course of documentary disclosure and correspondence between the husband’s solicitors and the wife’s solicitors. It was additionally the wife’s evidence in examination in chief that the wife had no knowledge of either of the loans during the relationship between the husband and the wife, as the loans were discussed between the wife’s parents and the husband only, and only the husband received any money from the wife’s parents. This contradicts the notion of the alleged loan of $30 000 from the wife’s mother being “obtained” by the wife from her mother. It also contradicts the wording of the statement from the wife’s father translated as “I sent batches of money with my relatives and friends to my daughter resident in Australia.”
12.The husband’s objection needs to be considered in the context of the significance of credibility issues in respect of the husband and wife in the proceedings. Relevant to this is the “show cause” procedure under which it is proposed issues in contest in the property proceedings be dealt with. In particular, central to the proceedings are issues of financial disclosure and credibility of the husband in respect of matters for which he says he has made adequate disclosure. Further, the Court is clearly concerned about providing financially for the four children of the marriage for who the wife will be the primary carer and in circumstances where the wife and children are living in emergency housing and reliant on Centrelink for financial support. Admissibility of the statements of the wife’s parents into evidence would lead to a considerable danger that significance will be given to the alleged loans from the wife’s parents in the context of the relevant issues in the proceedings. Within the scope of possible outcomes arising from admission of the statements of the wife’s parents into evidence would be a finding by the Court that the husband should not be believed about the alleged loans from the wife’s parents.
C. SHOW CAUSE APPROACH AND DISCLOSURE BY THE HUSBAND
13.The husband objects to the proceedings being dealt with by way of a “show cause approach” requiring the husband to address why the orders sought by the wife should not be made.9 It is understood that this approach was raised by the Court on the grounds of the line of decisions in Chang v Su [2002] FamCA 156; Mezzacappa v Mezzacappa (1987) 11 Fam LR 957; Stein v Stein (1986) 11 Fam LR 353 and Weir v Weir (1993) 16 Fam LR 154. The husband’s position is that both this line of authority and a “show cause” approach does not apply given his case is that he has made full and frank disclosure, and that the relevant facts and circumstances in the present proceedings are accordingly not the kind of facts and circumstances for which the principles in Chang v Su and other cases were intended to apply.
14.The wife’s evidence under cross examination was that the justification for the $300 000 payment she seeks from the husband is the value of the Town D property. As the Town D property is the primary asset in the asset pool, even if the significant outstanding mortgage to F Bank Bank in the amount of $283 899.74 at 3 March 2023 is ignored, this would in effect amount to the wife being allocated nearly the entire value of the asset pool, which could not amount to a fair and equitable split of the pool of assets.
15.The husband’s evidence and financial disclosure in relation to the Town D property is as summarised in the chronology below.
Date Event Evidence In or around December 2015 Husband receives a total of $30 000 from his brother Amram Wehbe
Paragraph 151e, Trial Affidavit of Husband affirmed 14 March 2023 3 December 2015 Husband receives a transfer of $20 000 from his brother Mr E (Sam’s Concrete) Paragraph 151d and Exhibit J, Trial Affidavit of Husband affirmed 14 March 2023 11 December 2015 Husband receives a transfer of $10 000 from his brother Mr E (Sam’s Concrete) Paragraph 151d and Exhibit J, Trial Affidavit of Husband affirmed 14 March 2023 22 January 2016 Husband received $22 000 cash from his father. Husband deposits $22 000 from his father and $32 000 from his brother Mr E (a total of $54 000) in his ANZ bank account on 22 January 2016 Paragraphs 151a, 151b, 152b, and Exhibit K, Trial Affidavit of Husband affirmed 14 March 2023 February 2016 61 Town D Young purchased for $205 000 using:
§ $114 000 received from the husband’s brothers and father from about December 2015 to 22 January 2016; and
$91 000 of the husband’s savings accumulated through work
Paragraphs 150 and 152, Trial Affidavit of Husband affirmed 14 March 2023 May 2016 Husband pays $22 000 back to his father in full for the $22 000 received from his father on 22 January 2022. This leaves $30 000 to the husband’s brother Amram and $62 000 to the husband’s brother Mr E outstanding of the $114 000 borrowed from family members to purchase 61 Town D Young Paragraph 151a, Trial Affidavit of Husband affirmed 14 March 2023 20 September 2016 Husband borrows $10 000 from his father for renovations to 61 Town D Young Paragraphs 151c and 163 b, and Exhibit L Trial Affidavit of Husband affirmed 14 March 2023 November 2018 to 9 April 2019 Husband takes a mortgage in the amount of $223 502.97 against 61 Town D Young to repay his family members for the personal loans given to buy 61 Town D Young and for renovations to 61 Town D Young Paragraphs 157-159 and Exhibit L, Trial Affidavit of Husband affirmed 14 March 2023 9 April 2019 Husband pays $1 500 for mortgage broker Paragraphs 157-159 and 161 Exhibit L, Trial Affidavit of Husband affirmed 14 March 2023 10 April 2019 Husband pays
§ $30 000 to concreter
§ $24 000 for kitchen renovations
§ $4 000 for plumbing
Paragraphs 157-159 and 162 and Exhibit L, Trial Affidavit of Husband affirmed 14 March 2023 11 April 2019 Husband pays:
§ $20 000 for renovations
§ $2 000 for renovations
§ $10 000 to husband’s father in repayment of the $10 000 borrowed on 20 September 2016
§ $62 851.89 to BMW at request of the husband’s brother Mr E and in repayment of the total $62 000 received from Mr E for the purchase of 61 Town D Young
Paragraphs 157-159 and 163 and Exhibit L, Trial Affidavit of Husband affirmed 14 March 2023 12 April 2019 Husband pays:
§ $10 000 to Napa for renovations
§ $30 000 to husband
Paragraphs 157-159 and 164 and Exhibit L, Trial Affidavit of Husband affirmed 14 March 2023
Section 4(1)(a) of the Act defines ‘property’ as “any property to which the parties to a marriage, or either of them, is or are entitled to, whether in possession or reversion.”[47] The funds accessed by the Father, certainly in relation to the three trips overseas (noted earlier in these reasons), together with the other funds referred to by the Husband in his Affidavit, should at least be considered a “financial resource” for the purposes of s.75(2)(o), which more broadly covers all financial advantages that either are, or likely to be, enjoyed by either party.
[47] Family Law Act 1975 (Cth) s 4(1)(a).
Again by reference to Chang v Su, I note the following comments, at [69] and [70] (internal citations to other authorities omitted; emphasis added):[48]
… However if, as here, one party fails to fulfil that obligation, is it open to that party then to rely on the absence of satisfactory evidence to prevent the making of an order against him or her which otherwise justice and equity would require? It would be simple, if that were the case, to evade the jurisdiction of this court, not by outright refusal which would attract sanctions but by obfuscation and evasion.’
It seems to us that once it has been established that there has been a deliberate non-disclosure, which follows from his Honour's findings in this case, then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature.
[48] Chang v Su (2002) 170 FLR 244.
In my view, there was much obfuscation, and quite some evasion, in the Husband’s evidence. I did not take him to be deliberately misleading. Rather, not only does he have a disposition of entitlement but also that his family have “traditionally”, and otherwise regularly, bailed him out of any and all of his financial misadventures. This expectation of (a) financial assistance (usually undocumented) and (b) that such matters are, as it were, kept inside the family, adds to his expectation of financial support but with little or no responsibility. The fact that his petrol is paid for by his brother, who keeps some “mental record” of the purchases, highlights a very laissez-faire approach to both record keeping and to finances generally within the family. This is also attested to by the extremely vague statutory declarations provided by the Husband’s family, which provide for substantial “loans” to be repaid on some unspecified dates, after 10 and 15 years respectively.
One final, procedural matter should be noted. In view of the Court’s clear view regarding the Husband’s significant financial non-disclosure, at the outset of the trial I indicated that I would need convincing evidence why the matter should not run on a “show cause” basis, namely, why the Court should not make Orders as sought by the Wife. I confirm that this was an “indication” of the Court’s proposed course. However, in the result, as these reasons confirm, in my view it is more important that the matter proceed to judgment on the usual basis, in the light of all the evidence (such as it is), namely the “four-step process” outlined above from Omacini, which deals with determination of the property pool, the contributions of the parties, s.75(2) factors (including the care of the children), and ultimately to determine what is just and equitable in all of the circumstances. In the light of what has been said already, these steps also must relevantly take into account the principles and consequences regarding non-disclosure.
Consideration and Disposition
The Husband’s case is essentially that there is now only debt to apportion and no tangible or other assets available for distribution. Such a contention takes no account of what, if any, responsibility the Husband has for any dissipation of funds (or assets) that would otherwise be available for distribution. In any event, according to the Case Outline filed on his behalf (on 27th March 2023), the asset pool asserted by the Husband is as follows:
Property interests, superannuation and financial resources
Description
Ownership
Applicant’s value
Respondent’s value
ASSETS
1.
61 Town D, Young
H
$
$310,000
2.
2006 Toyota Tarago Station Wagon BTO65W
W
$
$E8,000
3.
Commonwealth Bank 062630 10241304
W
$
$E500
4.
Commonwealth Bank 01533683 01533683
W
$
$500
5.
Commonwealth Bank 10608235
H
$
$65
6.
Furniture and contents (including husband work tools)
J
$
$E5,000
7.
Building materials
J
$
$E10,000
8.
Tools
J
$
$5,000
Assets subtotal
$
$339,065
LIABILITIES
9.
F Bank Bank
H
$
$E283,899.74 as of 3 March 2023
10.
Westpac 732 070 564 630
H
$
$1,105
11.
Legal Aid NSW charge
H
$
$18,927.08
12.
Loan from Husband’s father
H
$15,000
13.
Counsel rates
H
$E10,000
Liabilities subtotal
$
$328,931.82
SUPERANNUATION
Name of Fund
Type of interest
Member
Applicant’s value
Respondent’s value
$
Superannuation subtotal
$
$
TOTAL (assets – liabilities)
$
$10,133.18
TOTAL (assets-liabilities + superannuation)
$
$10,133.18
The Wife asserts that the pool is rather different, based upon assessments made in the light of (a) various loans and transfer of funds and assets during and after the relationship, (b) the Husband’s evidence (documentary and oral), and (c) the various omissions in the Husband’s evidence, noted earlier, such as the lack of evidence from his Father, brother, and girl-friend. As well, the Husband’s cousin, who allegedly uses the Husband’s business name to trade, also was not called.
Having regard to: (a) the multiple omissions, deficiencies and lack of financial disclosure in the Husband’s evidence, (b) the authorities mentioned above (e.g. Chang v Su), and (c) the noted omissions and non-disclosure that give rise to certain inferences according to the principles in Jones v Dunkel, “the Court should not be unduly cautious about making findings in favour of the innocent party”, and that where, as here, “there has not been full and frank disclosure of financial circumstances by a party, it is open to a court to find that an indeterminate undisclosed amount is held by one of the parties and to make property Orders without reference to an overall pool.”[49] I take the approach here sanctioned by the Full Court in Chang v Su and the long-standing authorities mentioned in it.
[49] Both of these quotes are, as noted earlier, from Chang v Su, at 407 (Headnote) and at [70].
The asset pool asserted by the Wife is as follows. It needs to be read with the detailed notes prepared by her Counsel which give Affidavit and Transcript references in support of the pool. Those “explanatory notes” are also provided. For the reasons already given, and in the light of the detailed “explanatory notes”, I accept the Wife’s submissions regarding the asset pool.[50] That pool is as follows:
[50] I deal with the “contributions”, being funds provided by the Wife’s parents, in the next section.
Current Assets (as per Financial Statements)
Wife/ Applicant
Husband/ First Respondent
Nature
$E500
$65
CBA account – separately held
$E500
CBA account
$E8000
Car – self-funded the acquisition of the car post-separation with loan
$E1000
$E15,000
Contents – separate houses
$E7000
Jewellery
$-1,105
Westpac Account
$E10,000
Tools of trade
??
Husband’s car – see Note 1
??
Husband’s money held on trust by Mr E – see Note 2
Post-Separation Assets
Date
Wife/ Applicant
Husband/ First Respondent
Nature
2015/2016
$40k
Loan from Wife’s father
February 2017
$30k
Loan from Wife’s mother
2018
$30k
Remainder of compensation payment – see Note 3
February 2016 March 2023
$205k (purchase)
$310k (sale)
61 Town D paid for in cash – see Note 4
September 2017 7/5/19
$83k (purchase)
$95k (sale)
7 H Street paid for in cash – see Note 5
2018
April 2019
$34k (purchase)
$15k (transfer)
Toyota Landcruiser – see note 6
Current Liabilities
Date of Event
Wife/ Applicant
Husband/ First Respondent
Nature
2015/2016
$40k
Loan from Wife’s father
February 2017
$30k
Loan from Wife’s mother
$36
Afterpay
$800
Loan from Salwa Dunia to buy car
Note 1 – Husband’s car
Evidence about whether the Husband currently owned a car was contradictory
- He said initially when asked what car he used to travel to Young: “Sometimes I used to borrow my mother, my father, my brother, my sister car, anyone of them, but at the end of the last time, I was driving my brother’s car which belonged to his work, which is used HiLux.” at Transcript p31 L1-3
- He later gave about Mr E‘s assistance to him as follows: “Sometimes when I go, you know, to Young from Sydney, he fills ..... my car with petrol and – without my asking.” at Transcript p63 L23-34; and at Transcript p64 L5 “as I said, when he put petrol in my car”
Note 2 – Husband’s money held on trust
Husband has access to what appears to be unlimited funds from his family and specifically his brother Mr E
- Admits in his Financial Statement to Mr E having paid $3000 for hydrotherapy (although never discussed in Trial Affidavit)
- Admits in his Financial Statement to Mr E having paid $3000 for overseas travel in April-May 2022 (although never discussed in Trial Affidavit) – see also Transcript p35 L37-40
- Gives oral evidence that Mr E also paid for other overseas travel (specifically in February 2023 – see 4.4.23 p35 L42-46 – although there was also a trip in September-October 2019) although this is never discussed in the Husband’s Trial Affidavit nor his Financial Statement
- Gives oral evidence that he calls Mr E and Mr E will give him cash
- Note 3 – Husband’s compensation payment
Husband injured himself in 2015 in a car accident and allegedly ceased work thereafter - received a compensation payment of $90k in 2018 for that car accident – allegedly expended according to his lawyer’s letter of 22/1/21 (Applicant’s Tender Bundle, doc 26, p43-44):
- $55k in legal fees
- $6k to Centrelink
- $30k to the Husband - he says “that’s why I decided at that time to make a reservation for the house” at Transcript p46 L38-39 which, given the timing, could not have been the purchases of either 61 Town D St or 7 Henry Pl
Note 4 – 61 Town D
Bough by Husband in his name in February 2016 for $205,000 – paid in cash
- Allegedly $91k in savings
oprobably includes the Jan 2016 refund of $62k ($45k into the bank and $17k in cash) originally accumulated to buy a unit through Allnour Mosque - see [152d] of Husband’s Trial Affidavit
oadditional $29k in cash already on hand
- Allegedly $114k in family loans
oFather
i.$22k on 22/1/16 – Repaid in May 2016 in cash
ii.$10k on 20/9/16 (after the house purchase) – repaid in April 2019 from mortgage settlement
iii.Total $32k – but this doesn’t match the amount of $30k in the statutory declaration of Mahmoud Wehbe dated 24 January 2018 – see Wife’s Trial Affidavit, Annexure T and Father’s oral evidence at Transcript p49 generally
·Plus at the time of signing the statutory declaration, most ($22k) of this money had in fact been repaid
oMr E
i.$32k on 22/1/16 bank transfer
ii.$20k from business on 3/12/15
iii.$10k on 11/12/15
iv.Total $52k – but this doesn’t match the amount of $60k in the statutory declaration of 24 January 2018 signed by Mr E Wehbe dated 24 January 2018 – see Wife’s Trial Affidavit, Annexure T and Father’s oral evidence at Transcript p48 L40-41
·It also doesn’t match the BMW payment made on Mr E’s behalf of $63k on 11/4/2023 – about $11k more than was said to be owed
oAmran - $30k in cash in December 2015 – Repaid in April 2019 after the mortgage settlement
Prior to relocation of family to Young, the property was rented out
Husband applies for a mortgage over property in November 2018, allegedly to repay family loans – Mortgage settles in April 2019 for $224k at a time when
- Mere days before formal-separation, although the parties were already in dispute by this time
- Post Husband’s injury that (he says) means he can no longer work
- Allegedly loans paid back to family
61 Town D St sold March 2023 as mortgage in default for $310k
Note 5 – 7 H Street
Bought by Husband in his name in September 2017 for $83k – paid in cash
- Evidence is unclear but perhaps the $13k was a deposit to get into the auction and was at least partially borrowed from the Husband’s father – see Transcript p46 and Transcript p66 -67 generally
- Allegedly $70k in family loans
oMr E
i.$30k on 22-23/8/17 bank transfer
ii.$10k on 30/8/17 bank transfer
iii.$2k cash around this time
iv.$8k on 11/9/17 bank transfer
v.Total $50k - But this doesn’t match either of the amount of $40k or $48k in the statutory declarations of 24 January 2018 signed by Mr E Wehbe dated 24 January 2018 and said by the Husband to be in respect of the purchase of the land–see Wife’s Trial Affidavit, Annexure T and Husband’s oral evidence at Transcript p48 L40-41 and p49 L44-p50 L3
·And if the Husband’s oral evidence is correct that both of these statutory declarations relate to the purchase of the land, then that would be a loan of
·$88k which also does not match
·Annexure R of the Husband’s Trial Affidavit attaches a note from Mr E dated 17 June 2019 stating he loaned the Husband $50k but this doesn’t match up with the statutory declarations, nor does the note (when it says the money was transferred in $5k and $10k increments) match up with the actual transfers of money made to the Husband
·Repaid on 10/5/19– see Husband’s re-examination at Transcript p66 L22-26 and Annexure R of the Husband’s Trial Affidavit
- Cousin Najla El Badawi - $20k on 15/9/17 -Repaid on 10/5/19:see Husband’s re-examination at Transcript p66 L22-26 and Annexure R of the Husband’s Trial Affidavit
Sold by Husband post-separation 7/5/19 for $95k
- $10k to Husband’s father, perhaps a repayment of the deposit – see Transcript p46 and Transcript p66-67 generally
- $74k paid directly to Husband
The purchaser’s $9.5k deposit paid to the Husband (see Husband’s Trial Affidavit, Annexure S, p2 ‘Settlement Statement’) has never been accounted for by the Husband
Note 6 – The 2018 Motor Vehicle 1
Husband says he bought the Toyota Landcruiser in 2018 and paid $25k cash and traded in a 2002 Honda CRV purchased in 2012 for $9000 – see [179], [143] of Husband’s Trial Affidavit
- Husband transfers registration to his father in April 2019, post-separation, allegedly as part payment for money owed to father
oWife had to go to Court to get court orders to let her keep using the car
- Notwithstanding suggestions by his Counsel about the car being written off and sold for a nominal sum, [182] of the Husband’s Trial Affidavit makes it clear it was transferred to his father for value
- The car is not “written off” until after the transfer takes place
oNecessitates wife borrowing money to obtain alternative transport
Regarding “contributions”, again the multiple deficiencies in the Husband’s evidence make this consideration rather more problematic than it should be. I should note one matter in particular. It concerns the Husband’s reliance upon vaguely worded statutory declarations to evidence various long-term loans from his family, and admittedly very late-breaking similar declarations from the Wife’s parents regarding loans they had provided to the parties. The Husband denied that any such loans had occurred, while his submissions go to significant length to highlight the procedural unfairness of the Court relying upon this information. In this regard, the Wife acknowledged that information from her parents was “late”, arriving on the last day of the trial. She also noted in submissions that there was no Application to adjourn by the Husband to seek instructions or otherwise. The sum involved is somewhat modest, namely $70,000 (comprised of two loans of $40,000 and $30,000).
Accepting that the information was late arriving, again having regard to the overall defaults by the Husband and the principles from Chang v Su, I will allow these amounts to stand. This is also in circumstances where the “loan” from the Husband’s Father is included in the pool, without documentation. Moreover, having regard to all the other difficulties in the matter, the “loans” from the maternal Grandparents is very unlikely to make much if any difference to the overall result.
Otherwise, it is sufficient to note that, in terms of contributions, (a) the Wife was the traditional, stay at home Mother who cared for the children and looked after the house, and (b) either actually working (as the Father did as a tiler), or via the beneficence of his family, the Husband provided the financial support for the family, plus later assistance at least to him via Centrelink. Other members of both families, to the degree that it is possible to be remotely certain of the evidence (or lack of it), assisted when they could. In this regard, I note that there was a large house in Young, which the Husband said belonged to his parents, and which could (perhaps) be available to the family. However, the Wife’s evidence was that this residence remained unable to be used by her and the children – hence their residence in crisis accommodation.
Regarding “future needs” and related matters under s.75(2), I note the following to the degree relevant in the current circumstances.
Both parties are relatively young; both parties are in their early 30s, generally speaking. The Wife remains the primary carer of the four young children of the relationship, with little or no support, of any relevant kind, from the Husband. The Husband contends that he has some work-related injuries, with some documentation in his material from a chiropractor and other health care providers. In my view, there are a range of issues here but I need not address them in any detail because of the current circumstances. This also includes the conflicting evidence from the Husband about his business, of him not working but having the business operated by his cousin (who was not called to give any evidence), and the Husband recently, and very curiously, obtaining a [new] ABN. In my view, the Husband’s way of living and “operating” (at every level) is characterised by a certain stealth and intrigue, with no one, least of all the Wife, knowing anything about anything financial, which was her evidence regarding her situation during the marriage and after separation. While not necessarily put exactly this way: everything was essentially “family business”, which “outsiders” (including the Wife and the Court) did not need to know. Otherwise, there are no health issues to speak of. The marriage was of modest length (2011 – 2019). The Wife has access to very limited financial support, but plans to continue with such studies as she can, while the Husband apparently continues to receive Centrelink benefits and any other financial support he seeks from his family. On these bases alone, they all weigh heavily in the Wife’s favour.
Lest it not be clear, however, I regard the Wife’s and children’s living situation in crisis accommodation to be reprehensible and an abrogation of the Husband’s responsibilities. He seemed either unconcerned, and/or sometimes almost contemptibly dismissive of their situation. On his own evidence, he can (a) pay back various loans to members of his family, (b) fly to Country B, for family and other reasons, on multiple occasions, but (c) his own children remain literally impoverished and at the bottom of the pile for their Father’s attention, care and support. Such matters, in my view, are properly dealt with under s.75(2), and perhaps most especially s.75(2)(o).
Further, the evidentiary deficiencies in the Husband’s case outlined in these reasons are of such a magnitude that, in addition to the reasons set out above, the Court has no other option than to agree with the submissions on behalf of the Wife. It necessarily follows that the only just and equitable Orders that are proper in the very troubling circumstances of this matter are to make the Orders sought by the Wife. The Court makes the Orders she sought.
Any matters relating to costs will be dealt with by way of brief written submissions of no more than 2 pages, to be filed within 21 days. Absent any Application within that time, matters relating to costs will be dealt with on the basis of these reasons and the submissions now ordered to be filed.
I certify that the preceding eighty-nine (89) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville. Associate:
Dated: 8 September 2023
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