Fazil & Fazil
[2023] FedCFamC1F 1015
•29 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Fazil & Fazil [2023] FedCFamC1F 1015
File number PAC 917 of 2019 Judgment of WILSON J Date of judgment 29 November 2023 Catchwords FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – two pools sought – one pool involving land in Country B the other involving property situated in Australia – “financial resource” – review of authorities – held, one pool approach adopted. Legislation Family Law Act 1975 (Cth) ss 75, 79
Federal Circuit and Family Court of Australia (Family Law) Rules 2021
Cases cited Bacall & Zagar [2020] FamCA 350
Black v Kellnar (1992) 15 Fam LR 343
British South Africa Co v Companhia de Mocambique [1893] AC 602
Fazil & Fazil [2021] FamCA 16
Galea v Galea (1990) 19 NSWLR 263
Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 55
Hall v Hall (2016) 257 CLR 490
Hurst & Weber [2009] FamCAFC 137
In the Marriage of Bonnici (1991) 15 Fam LR 138
In the Marriage of Kelly (No 2) [1981] FamCA 78
In the Marriage of Pierce (1998) 24 Fam LR 377
In the Marriage of Pittman [2010] FamCAFC 30
In the Marriage of Reynolds [1984] FamCA 67
In the Marriage of Zappacosta (1976) 2 Fam LR 11,214
In the Marriage of Zyk (1995) 19 Fam LR 797
Jabour v Jabour (2019) 59 Fam LR 475
Kannis v Kannis (2002) 30 Fam LR 406
Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361
Lloyd v Guibert (1865) LR 1 QB 115
Luxton v Vines (1952) 85 CLR 352
National Mutual Holdings Pty Ltd v Sentry Corporation (1989) 222 FCR 209
Neilson v Overseas Projects Corporation of Victoria (2005) 223 CLR 331
Richard Evans & Co v Astley [1911] AC 674
Paviello & Paviello [2022] FedCFamC1F 592
Stanford v Stanford (2012) 247 CLR 108
The Duchess Di Sora v Phillips (1863) 11 ER 1168
White and Tulloch v White (1995) 19 Fam LR 696
Zaruba & Zaruba [2017] FamCAFC 91
Division Division 1 First Instance Number of paragraphs 182 Date of last submissions 2 November 2023 Date of hearing 3, 4 and 5 April 2023 Place Parramatta Counsel for the applicant Mr D. Maddox Solicitor for the applicant Hammond Nguyen Turnbull Counsel for the respondent Mr A. Givney Solicitor for the respondent John & Co Lawyers ORDERS
PAC 917 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN MR FAZIL
Applicant
AND MS FAZIL
Respondent
ORDER MADE BY
WILSON J
DATE OF ORDER
29 NOVEMBER 2023
THE COURT ORDERS THAT –
Superannuation Split
1.In relation to the husband’s superannuation interest in Superannuation Fund 1 –
(a)there be an allocation for the purposes of s 90XT(4) of the Family Law Act 1975 a base amount of $53,328 to the wife from the husband’s interest in the Superannuation Fund 1 Fund;
(b)pursuant to s 90XT(1)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable in respect of the husband’s entitlements in the Superannuation Fund 1 fund, the wife will be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount specified in paragraph 1(a) and there will a corresponding reduction to the entitlement the husband would have had in the Superannuation Fund 1 fund but for this order;
(c)paragraph 1(b) will take effect from the operative time bring four business days after the day a sealed copy of this order is served upon the trustee of the Superannuation Fund 1;
(d)having been afforded procedural fairness the trustee of Superannuation Fund 1 will be bound to observe the provision in paragraph 1 and the requirements pursuant to the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001; and
(e)there be liberty to apply to each party and the trustee of Superannuation Fund 1 in relation to the implementation of the orders affecting the superannuation interest.
2.In relation to the husband’s superannuation interest in Superannuation Fund 2 –
(a)there be an allocation for the purposes of s 90XT(4) of the Family Law Act 1975 a base amount of $61,420 to the wife from the husband’s interest in his Superannuation Fund 2;
(b)pursuant to s 90XT(1)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable in respect of the husband’s entitlements in his Superannuation Fund 2, the wife will be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount specified in paragraph 2(a) and there will a corresponding reduction to the entitlement the husband would have had in his Superannuation Fund 2 but for this order;
(c)paragraph 2(b) will take effect from the operative time bring four business days after the day a sealed copy of this order is served upon the trustee of the Superannuation Fund 2;
(d)having been afforded procedural fairness the trustee of Superannuation Fund 2 will be bound to observe the provision in paragraph 2 and the requirements pursuant to the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001; and
(e)there be liberty to apply to each party and the trustee of Superannuation Fund 2 in relation to the implementation of the orders affecting the superannuation interest.
3.In relation to the husband’s superannuation interest in Superannuation Fund 3 –
(a)there be an allocation for the purposes of s 90XT(4) of the Family Law Act 1975 a base amount of $31,344 to the wife from the husband’s interest in his Superannuation Fund 3;
(b)pursuant to s 90XT(1)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable in respect of the husband’s entitlements in his Superannuation Fund 3, the wife will be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount specified in paragraph 3(a) and there will a corresponding reduction to the entitlement the husband would have had in his Superannuation Fund 3 but for this order;
(c)paragraph 3(b) will take effect from the operative time bring four business days after the day a sealed copy of this order is served upon the trustee of the Superannuation Fund 3;
(d)having been afforded procedural fairness the trustee of Superannuation Fund 3 will be bound to observe the provision in paragraph 3 and the requirements pursuant to the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001; and
(e)there be liberty to apply to each party and the trustee of Superannuation Fund 3 in relation to the implementation of the orders affecting the superannuation interest.
Sale of former matrimonial home
4.By no later than Friday 24 May the parties shall do all acts and things and execute all documents necessary to effect a sale of the property situate J Street, Suburb K, New South Wales (“the Suburb K Property”) and so as to give effect to this paragraph, the following shall occur –
(a)the parties agree to appoint L Agent, City M (“the agent”) to sell the Suburb K Property;
(b)the parties agree to appoint N Lawyers, as the solicitors to act in relation to the conveyance of the Suburb K Property and their fees shall be born equally by the parties;
(c)the wife and husband must do all things to list the Suburb K Property for public auction or private treaty in the first instance, whichever may be recommended by the agent.
(d)in default of agreement, the wife and husband must accept the reserve price recommended by the agent;
(e)in the event the bidding at auction does not reach the reserve price, the wife and husband may jointly negotiate with the highest bidders or any other interested person and effect a sale of the Suburb K Property at a price which is not more than 10% below the reserve price or any other price as agreed between the wife and husband in writing; and
(f)in the event that any offers at private treaty do not reach the reserve price after a period of 6 months, the wife and husband may jointly negotiate with the highest bidders or any other interested person and effect a sale of the Suburb K Property at a price which is not less than 10% below the reserve price or any other price as agreed between the wife and husband in writing.
5.The wife and husband cooperate in every way with the agent (including without limiting the generality of the foregoing) –
(a)making the key available to the agent;
(b)allowing inspection of the property at all reasonable times requested by the agent;
(c)doing or saying nothing to hinder or prevent a sale being affected;
(d)doing all acts and things necessary to have a contract for sale prepared by N Lawyers; and
(e)doing all acts and things as required by the agent, except as provided for in these orders.
6.The husband shall ensure that the Suburb K Property is in a neat and clean condition at any time of inspection by the agent and prospective purchasers and provide vacant occupancy on settlement of the sale.
7.The husband shall be responsible to the exclusion of the wife, for payment of all outgoings and utilities for the Suburb K Property up until and including the date of settlement.
8.If the Suburb K Property is not sold within three months from the date of listing, the wife and husband shall within a further three months do all acts and things necessary to list the property for sale a second time by way of private treaty or private auction , whichever may be recommended by the agent appointed in the first sale (or a substitute agent agreed by the parties) , with the reserve price to be determined in the manner adopted in the first attempted sale.
9.Upon completion of the sale of the Suburb K Property in accordance with these orders, the proceeds of the sale shall be distributed as follows –
(a)in payment of an amount sufficient to discharge the mortgage over the Suburb K Property;
(b)to pay all costs and disbursements incurred in respect of the sale of the Suburb K Property including but not limited to agency fees, legal fees and valuers’ fees;
(c)in full payment of the council and water rates up to and including the date when the Suburb K Property is sold; and
(d)the total remaining amount of the proceeds of sale shall be transferred by way of payment to the wife’s solicitor’s trust account as follows –
O Bank
Hammond Nguyen Turnbull
BSB …
Account ….
10.In the event that either party refuses or neglects to execute any deed or instrument, a registrar of this court is appointed pursuant to s 106A of the Family Law Act 1975, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation of the deed or instrument.
Sale of the C Street property, Country B
11.By no later than 28 June 2024 the wife shall do all acts and things and execute all documents necessary to effect a sale of the property situate at C Street, City F, Country B by appointing an agent, or listing the property for public auction (or the Country B equivalent).
12.The net proceeds of the sale shall be divided in the following manner –
(a)The wife shall retain 60% from the net proceeds of sale; and
(b)The husband shall retain 40% from the net proceeds of sale.
Sale of the D Street Property Street, Country B
13.By no later than 28 June 2024 the wife shall do all acts and things and execute all documents necessary to effect a sale of the property situate at, D Street, City F, Country B by appointing an agent, or listing the property for public auction (or the Country B equivalent).
14.The net proceeds of sale shall be divided in the following manner –
(a)The husband shall retain 40% from the proceeds of sale; and
(b)The wife shall retain 60% from the net proceeds of sale.
Sale of the real properties generally
15.For the avoidance of doubt, the wife shall pay 60% and the husband shall pay 40% of any fees and taxes including any capital gains taxes associated with the disposal of the real properties referred to in paragraphs 4 to 14 of these orders.
Division of remaining assets
16.The wife shall otherwise retain, to the exclusion of the husband, all her right, title and interest in the following assets –
(a)all funds in all of her bank accounts including but not limited to –
(i)Commonwealth Bank account ending …74;
(ii)Commonwealth Bank account ending …14
(b)all shares held in the wife’s name including but not limited to the P Shares;
(c)the Motor Vehicle 1 Registration number …;
(d)her superannuation entitlements; and
(e)all furniture, effects and personal belongings in her possession.
17.On or before 4pm Wednesday 7 February 2024 the husband shall do all acts and things to execute the transfer of the following sums to the wife into the wife’s solicitor’s trust account as nominated in paragraph 11(d) –
(a)$657 from the husband’s ANZ account ending …86;
(b)$33,356 from the husband’s ANZ account ending …37;
(c)$91,278 from the husband’s ANZ account ending …86;
(d)$86,461 from the husband’s Commonwealth Bank offset account ending …90;
(e)$76,000 from the husband’s Commonwealth bank offset account ending …11; and
(f)$500 from the husband’s ANZ account ending …03.
18.The parties shall do all acts and things required to ensure the husband retains full effective control of the company Q Pty Ltd and that the wife be discharged of any liability of Q Pty Ltd.
19.The husband shall otherwise retain, to the exclusion of the wife, all his right, title and interest in the following assets –
(a)all bank accounts in his name, subject to paragraph 17 above;
(b)his superannuation entitlements, subject to paragraphs 1 to 3 above;
(c)all furniture, effects and personal belongings in his possession; and
(d)his 25% share in the property situate R Street, City F.
20.Save as otherwise provided in these orders, the parties shall each pay, be liable for and forever indemnify the other against all liabilities, whether past, present or future and however arising in their sole names including but not limited to credit card and tax liabilities.
21.Unless otherwise specified in these orders and except for the purposes of enforcing compliance with the terms of theses orders –
(a)each party shall be solely entitled to the exclusion of the other to all property (including choses-in-action) and financial resources in the possession of such party as the date of these orders;
(b)each party hereby foregoes any claim they may have to any superannuation benefits or other employment related benefit belonging to or earned by the other;
(c)all insurance policies shall become the sole property of the owner named in the policy;
(d)each party shall be solely liable for and indemnify the other against any liability encumbering an item of property to which that party is entitled pursuant to these orders; and
(e)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
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 Fazil & Fazil has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILSON J
INTRODUCTION
The trial of this proceeding, in the Major Complex Financial Proceedings List, raised an important legal issue about the proper treatment of real estate located overseas said to represent the majority in value of the parties’ assets. Under principles well known in Australian jurisprudence, an Australian court has no power to make orders against real property situated in a foreign jurisdiction, as was held in reference to an English court by the House of Lords in British South Africa Co v Companhia de Mocambique.[1] Power exists to make in personam orders, however.
[1] [1893] AC 602.
As these reasons reveal, in my judgment it is just and equitable for orders to be made on a one pool basis and in relation to the net pool of assets, for those assets to be divided as to 60% to the wife and 40% to the husband.
ONE POOL OR TWO?
After the trial concluded and judgment was reserved, the husband’s legal representatives indicated that the husband wanted to apply to reopen the case with a view to adducing further evidence. The legal representatives for the wife indicated that any such application would be contested so I ordered a timetable pursuant to which affidavit evidence in support of and in opposition to the reopening application would be adduced and for submissions. On 7 July 2023 the husband’s solicitors informed me that the husband no longer persisted in his reopening application and that the proceeding should be determined on the evidence adduced at trial.
Before addressing the factual issues that fell for determination in this case, it is necessary to address a proposition at the apex of the submissions of Mr Maddox, counsel for the wife. He argued that a two pool approach should be adopted in this case, the first pool being made up of assets in the Commonwealth of Australia and the second pool being made up of assets in Country B. In support of his contentions for the adoption of the two pool approach, Mr Maddox relied on the decision in Zaruba & Zaruba.[2] That was a fact-specific decision yet it is commonly called in aid as being authoritatively demonstrative of the validity of a two pool approach. The relevant passages are as follows –
38.In the vast majority of cases, it will be appropriate to address the s 79(2) question by ascertaining the legal and equitable interests in property without making distinctions between individual assets. That is because the “express and implicit assumptions that underpinned the existing property arrangements” can be seen to apply (to the extent and degree to which they do apply) to all of the property of the parties or either of them, including property in which the legal interests vary.
39.However, the position is likely to be different in circumstances where, as here, the characteristics of the property and the circumstances of its acquisition, improvement and the like can be seen to differ significantly and where, as here, the parties’ relationship had taken on quite different characteristics during the period to which the s 79 inquiry is directed.
[2] [2017] FamCAFC 91.
The subsequent decision in Jabour v Jabour[3] did not mention Zaruba & Zaruba nor did the court in Jabour address the two pool approach addressed in Zaruba. It seems to me that the statements of principle from Jabour may be condensed into the following –
(a)applying the principles from In the Marriage of Pierce,[4] the weight to be attached to initial contributions must be assessed against the rubric of all of the financial contributions made by the parties over the relationship;
(b)where a sudden increase in the value of an asset is evident, yet that increase is unrelated to the efforts of the parties (say, rezoning of land), the authorities show that such an increase is referrable to the contributions of both parties, citing In the Marriage of Zappacosta[5] and In the Marriage of Zyk;[6] and
(c)the myriad of contributions made by the parties must be weighed against all other contributions.[7]
[3] (2019) 59 Fam LR 475.
[4] (1998) 24 Fam LR 377.
[5] (1976) 2 Fam LR 11,214.
[6] (1995) 19 Fam LR 797.
[7] Jabour v Jabour (2019) 59 Fam LR 475 (at [73]).
Since Jabour, first instance judges of this court have been instructed to take a holistic approach towards the assessment of contributions. In assessing the myriad of contributions of the parties in this case, it is incorrect to treat the Country B properties differently to real property in Australia. The factual narrative canvassed below discloses that –
(a)each of the applicant and the respondent acquired her and his interest in the Country B properties by way of gift or inheritance;
(b)the respondent did not contribute in any way to the applicant’s Country B properties and the applicant did not contribute in any way to the respondent’s Country B property;
(c)each owned his and her legal interests in the Country B properties prior to his and her marriage;
(d)the Country B properties of each have not materially changed in character since the parties’ marriage and subsequent separation; and
(e)on the evidence, the wife’s ownership of property in Country B is of a significantly higher value than the husband’s ownership of property in Country B.
THE RELEVANT FACTUAL SETTING
At the date of the trial of this proceeding, the husband was 64 years of age and the wife 62. They married in 1986 and separated on a final basis in early 2015. Each was born in Country B. They have two adult children. Over the life of the marriage the husband spent substantial periods of time overseas while the wife and children remained elsewhere, although not necessarily in Australia. The husband’s and wife’s marriage lasted 28 years or thereabouts.[8]
[8] T 4 L 6.
Several parcels of real estate were relevant in this litigation. They were –
(a)the former matrimonial home at J Street, Suburb K, New South Wales, the uncontested value of which was $1,300,000;[9]
(b)R Street, City F, Country B the uncontested value of which was $2,399,538 in relation to the husband’s quarter share;[10]
(c)C Street, City F, Country B;[11]
(d)D Street, City F, Country B;[12] and
(e)1, 2 and 3 S Street, Suburb T, City F, Country B.[13]
[9] This was item 1 on the parties’ joint balance sheet.
[10] This was item 7 on the parties’ joint balance sheet.
[11] This was item 16 on the parties’ joint balance sheet.
[12] This was item 17 on the parties’ joint balance sheet.
[13] This was item 18 on the parties’ joint balance sheet.
In respect of items 16, 17 and 18 on the parties’ joint balance sheet, the wife attributed no value to those properties whereas the husband asserted that their overall value aggregated almost $8,000,000.
The wife contended that the properties at C Street, City F and at D Street, City F were to be treated as financial resources. She attributed no value to them. She indicated that the joint valuation report revealed that the value of C Street was USD $4,862,000 and that the joint valuation report revealed that the value of D Street, City F was USD $465,000.
Counsel for the wife took me to no authority on point when contending that various parcels of land were to be treated as being financial resources. However, the wife made it plain in her evidence and in her counsel’s submissions that Country B was unstable at present, that it was dangerous for a woman to travel there, that it was very dangerous for a woman in the wife’s shoes to seek to sell property in Country B and that it was more dangerous still for a person in the wife’s shoes to attempt to remove or deal with the proceeds of sale of any parcel of land she owned in Country B. The husband disputed her assertions in that regard.
The factual narrative in relation to each parcel of real property in Country B was different. How each came to be owned in the manner asserted by the parties was factually specific and called for close examination. To that I now turn.
THE PROPERTY AT C STREET
The evidence about the property at C Street, also described by the parties as “the C Street Property”, was imprecise. In these reasons I have referred to that parcel of land as “the C Street Property”.
In her trial affidavit made 30 January 2023, the wife addressed the C Street Property from paragraph 35. Relevantly paraphrased, the wife deposed to the following in relation to the C Street Property –
(a)the wife’s mother’s aunt, a person called Ms U, transferred the C Street Property to the wife when the wife was three years old because Ms U did not have children of her own;
(b)in 1969 improvements made previously to the C Street Property were demolished and rebuilt, such works being paid for by the wife’s mother’s aunt, Ms U;
(c)throughout her childhood the wife lived at the C Street Property together with the wife’s immediate family and Ms U, all of whom treated the five bedroom home at the C Street Property as the wife’s family home;
(d)upon their marriage in 1986 the wife and husband lived with the husband’s parents at the husband’s parents’ home until 1990;
(e)in late 1990 the wife moved back to the C Street Property with the husband so as to comfort the wife’s mother whose son (the wife’s brother) and other daughter (the wife’s sister) had left Country B for overseas;
(f)the wife and the husband stayed at the C Street Property for three months until early 1991;
(g)the wife’s mother continued to live at the C Street Property until mid-1993 when the wife’s mother departed to live in the United States of America;
(h)in 1998 or thereabouts, the wife’s uncle and his family moved into the C Street Property while renovations to their home were undertaken staying at the C Street Property for about five years;
(i)the C Street Property is a residential parcel of land measuring over 1,000 square metres which has been vacant for many years by reason of its uninhabitable condition; and
(j)for years the wife has paid a security guard to protect the C Street Property and the security guard lives at the house at the property.
In this litigation, evidence of land ownership in Country B, whether by a system of registration of title to land, was not developed. Evidence of foreign law is a question of fact as was held in The Duchess Di Sora v Phillips,[14] National Mutual Holdings Pty Ltd v Sentry Corporation,[15] Lloyd v Guibert,[16] Neilson v Overseas Projects Corporation of Victoria[17] and my own decision in Sun & Yeng.[18] The issue assumed importance at a directions hearing before Riethmuller J on 20 June 2022 when his Honour ordered the wife to obtain title details of the C Street Property in response to which the wife ascertained that the C Street Property was recorded on two titles, exhibited by the wife as exhibit “HF 2-5”. The wife deposed to believing that the C Street Property was on one title only prior to being informed by her Country B solicitor that the C Street Property was in fact on two titles. Precisely how that made any difference to the fact of the wife owning the C Street Property (whether registered on one or two titles) went unexplained.
[14] (1863) 11 ER 1168.
[15] (1989) 222 FCR 209
[16] (1865) LR 1 QB 115, 122.
[17] (2005) 223 CLR 331.
[18] [2023] FedCFamC1F, 565.
In her trial affidavit at paragraph 56 the wife stated that despite the C Street Property having been vacant for many years, the current affairs in Country B make it extremely difficult for her to sell that parcel of land. She deposed to receiving no regular rental in respect of the C Street Property and that since 2016 she has received less than $6,450 AUD from it. By way of amplification of the difficulties she said she would encounter if she attempted to sell the C Street Property or any other parcel of land owned by her in Country B, she deposed to the following –
(a)she would be required to personally travel to Country B or give someone in Country B power under attorney to deal with the property;
(b)she or her attorney under power would be required to obtain title details of the relevant parcel of land from the Department of the Registrar-General in City F;
(c)according to a publication from an Australian website called “smart traveller” published in early 2023,[19] a travel ban applies to Australians seeking to travel from Australia to Country B unless the traveller holds an exemption; and
(d)the travel ban in that document cited as reasons for the ban on travel to Country B health risks due to COVID-19 but more importantly “the volatile security situation and very high risk of violence, armed conflict, kidnapping and terrorist attack”.
[19] The wife exhibited that document to her trial affidavit as exhibit “[HF] 25-42”.
The travel website provided six bullet points in relation to safety. It is utile to repeat them here as follows –
•The security situation is unstable. It could worsen with little warning. Leave as soon as possible. If you decide to travel to or stay in [Country B] despite our advice, get professional security advice. In the current environment, if you travel to [Country B] or stay in [Country B] despite our advice, it may not be possible to return to Australia when you want to.
•There’s a very high, severe and ongoing risk of kidnapping. Terrorists and criminal gangs may kidnap expats working in [Country B]. Academics, journalists and aid workers are at particular risk.
•Large, coordinated attacks by armed groups have killed and injured 1000s of people. Terrorist attacks occur often and without warning. Avoid possible targets. If you must visit them, always have an exit plan.
•Political rallies and protests often happen in [City F] and other regions of [Country B]. These grow quickly and can turn violent. Avoid large public gatherings. If you’re caught in an affected area, stay indoors. Follow the advice of local authorities or your security provider.
•Violent crimes and corruption are common. Crime includes kidnapping, murder and robbery. Organised criminal gangs, militia and tribal groups are significant threats. If you decide to travel to or stay in [Country B] despite our advice, travel with your vehicle doors locked and windows up. Secure your accommodation against intruders.
•Be alert to scams. Scammers may claim to represent the Australian or [Country B] governments, or say they’re [Country B] importers. Tell the Australian Embassy in [City F] if you’re contacted by people or websites claiming to represent the Australian Government. Contact the [Country B] Embassy in Canberra before making any payments to people claiming to be from the [Country B] Government. Get legal advice if an [Country B] importer contacts you or your company.
The wife said that the unmistakable import of that website document was that travel to Country B was very unwise and a traveller, while in Country B, faced an ever present risk of physical harm, of capture or worse.
In a separate document obtained from the World Health Organisation and exhibited to the wife’s trial affidavit as “[HF] 45-61”, the wife focused on the alarming death rate in Country B over a relatively short period from COVID-19.
As has already been recorded, personal attendance in Country B may not have been needed to sell real property located in Country B if any such sale was affected by an attorney under power. The wife deposed to having no one in Country B who she trusted to sell real estate in Country B. She deposed to having previously suffered a bad experience at the hands of her half-brother who she said sold land in which she had an interest without her consent. She also deposed to her brother having sold “The [BB Property] Property” at Region NN in the mid 2000s without her consent and without accounting to her for her share of the proceeds.
The husband disputed the validity of the difficulties recorded by the wife in her selling her real property in Country B. He said no such complications existed.
On behalf of the husband, Mr Givney of counsel cross-examined the wife on a number of issues in relation to the C Street Property. The more important matters that emerged from Mr Givney’s cross-examination about the C Street Property included the following –
(a)the wife’s sister Ms CC lived at the C Street Property for about five years after the husband and wife married;
(b)the house on the C Street Property straddles the two titles to that property;
(c)one of the lots comprising the C Street Property is over 500 square metres and the other is over 600 square metres;
(d)she requested a solicitor in Country B to investigate her title to the ownership of the C Street Property;
(e)the wife seeks orders that have the effect of dividing Australian assets but that there should be no orders in relation to Country B properties;
(f)she corrected the cross-examiner to state that she cannot travel to Country B to sell real property or to get money from Country B;
(g)she said it is unsafe to give an authority to a person to deal in money in Country B;
(h)the husband commenced two court cases in City F claiming the C Street Property was his;
(i)she has never heard of a proposition put to her by Mr Givney that the Country B Government intends to construct a metro and that the government is likely to compulsorily acquire the C Street Property because it is in the pathway of the metro;
(j)she disagreed a property boom was underway in the area in which the C Street Property was located;
(k)a security guard is depicted in photographs guarding the DD Institute which is located very close to the C Street Property; and
(l)in 1993 the wife lived in the United Kingdom after which she emigrated to Australia in 1995 and in 1998 she and the husband moved to Country EE after the husband found work there.
It was not put to the wife that the husband made any contribution of any description towards the C Street Property. It seemed to me that in respect of the C Street Property, the following findings of fact were appropriately made –
(a)the wife owned the C Street Property;
(b)the C Street Property may have been spread over two titles although, ultimately the point was not material;
(c)the C Street Property is presently vacant;
(d)a modest sum of rent since 2015 has been derived from the C Street Property;
(e)no expert evidence was led to support a finding that a property boom in City F had affected real property prices of the land where the C Street Property was located; and
(f)the husband did not assert any legal or equitable interest in the C Street Property.
THE PROPERTY AT D STREET
The property at D Street was described by the parties as “the D Street Property”. I shall do likewise. The wife deposed in paragraphs 61 and following of her trial affidavit that she was granted a one eighth interest in the D Street Property by her aunt when the wife was eight or nine years of age. The wife deposed that the D Street Property is a partly commercial and partly residential building owned as to the other seven eighths by members of the wife’s family. The wife deposed to the rent generated from the D Street Property being appropriated by the wife’s aunt who used those funds for living expenses, Country B having no social security system. The wife deposed to receiving less than $1,000 AUD between 2016 and 2021 by way of rent.
The wife did not give any evidence about the husband having any interest in the D Street Property.
Mr Givney’s cross-examination of the wife revealed the following –
(a)when she and the husband left Country B in 1991 occupation of the C Street Property ceased;
(b)in 1986 the wife and husband lived in his property at City H;
(c)the husband paid for motor vehicle repairs because he was interested in that but she was unable to recall whether he paid for any other things; and
(d)the husband maybe once mowed lawns at the former matrimonial home in New South Wales.
No challenge was made to the wife’s ownership of a one eighth interest in the D Street Property. In those circumstances I accept her evidence that she still owns a one eighth interest in the D Street Property. The valuation of the D Street Property was given by the expert Mr V as the wife’s one eighth interest in the property being USD $465,000. The husband deposed at paragraph 89 of his trial affidavit that the wife owned a one eighth interest in the D Street Property.
Only one witness was called in respect of the wife’s case, namely the wife. In his opening for the wife, Mr Maddox of counsel referred to the interim judgment[20] of Foster J handed down on 28 January 2021 in which Foster J held that it was unnecessary for the properties in Country B to be valued because Foster J regarded those properties as a financial resource. Mr Maddox submitted that some form of issue estoppel arose from that observation made by Foster J or that a res judicata arose. Mr Maddox did not develop the point. One wonders how either doctrine applied in circumstances where Foster J heard an interim application in the knowledge that a trial of the proceeding would later be conducted.
[20] Fazil & Fazil [2021] FamCA 16.
The wife’s very limited evidence about her contributions to the acquisition, maintenance, or improvements to the former matrimonial home was between paragraphs 22 and 27 of her trial affidavit. Relevantly paraphrased, she stated as follows –
(a)in 2006, two weeks prior to the husband’s return to Australia, the husband and wife purchased a house and land package at J Street, Suburb K;
(b)the purchase sum of $560,000 was provided by mortgage finance from the Commonwealth Bank;
(c)the deposit of $140,000 was paid from existing joint funds;
(d)the wife oversaw construction works that involved dealing with tilers, landscapers, concreters, electricians and other trades, liaising with representatives of the construction company, arranging delivery times, attending inspections at every phase of the construction activity, selecting finishes; and
(e)she said the husband did not assist with any aspect of those activities.
The wife gave evidence that following the husband’s return to Australia in 2008 he spent two weeks in Australia then departed again for England where he lived continuously until 2010. The wife said she continued to work at Commonwealth Bank in the period 2006 to 2010 when she altered her shift from 8:00am to 5:00pm. The wife said that in 2010 the husband returned from the UK to live at the Suburb K property.
The wife stated in paragraph 26 that she undertook the overwhelming majority of unpaid work during the marriage. She catalogued that in the following manner, details of which were taken from her trial affidavit –
i.cooking and preparing breakfasts, lunches and dinners for my children and [Ms Fazil] (when he was in Australia);
ii.doing the dishes after almost all meals, including washing of plates, pots and cutlery and putting them away in cupboards;
iii.I dusted and washed all of the windows of the [Suburb K] property regularly;
iv.I mowed the front and back lawns (approximately 200 square metres) and weeded and watered the gardens;
v.cleaning the home, including the vacuuming, mopping and sweeping;
vi.doing the laundry for the children and [Ms Fazil], including washing, drying, folding and putting away the clothes;
vii.attending to grocery shopping and planning meals;
viii.on a weekly basis, I washed and dried the bedding and linen, including bed sheets, blankets, pillow cases and towels;
ix.on a weekly basis, I washed and scrubbed both bathrooms, including scrubbing floor and wall tiles and the toilets;
x.on a regular basis, I wiped down and dusted the walls and shelving of the home; and
xi.in or around 2012, I hired a cleaner named [Ms FF], who helped with general cleaning of the house once per week. She helped me vacuum, mop and clean the bathrooms.
The wife said that she undertook the overwhelming majority of parenting activities. She listed them as follows –
i.cooking and cleaning for the children;
ii.doing homework with the children, including reading, mathematics and other projects for school;
iii.collection and drop offs at daycare, pre-school, school and extra-curricular activities throughout the years;
iv.encouraging the children to read widely and also attend tutoring to assist them in school; and
v.spending time with the children by having conversations about their day at school and speaking with them about their day. Throughout the years as the children grew up, I was present with the children as much as I could to see them happy and cared for.
The wife left the former matrimonial home. The husband presently lives there.
THE HUSBAND’S EVIDENCE ABOUT PROPERTIES IN COUNTRY B
The husband is also known under another name.[21] His trial affidavit was made on 30 January 2023. He deposed to what he said were the wife’s property interests in Country B prior to his marriage to the wife, namely –
(a)the C Street Property;
(b)the D Street Property;
(c)3 S Street, Suburb T;
(d)2 S Street, Suburb T; and
(e)1 S Street, Suburb T.
[21] CB 352, 354 and 356.
Before going any further with the narrative, it is important to point out that the wife was cross‑examined only faintly about her alleged ownership of land in Suburb T. The husband relied on a translated document that became exhibit “C” to his trial affidavit. The husband exhibited that document as being the certificates of title for the whole of the land at 3, 2 and 1 S Street, Suburb T. In other words, the husband relied on the document which was exhibit “C” to demonstrate that the wife had an interest in the land known as 3, 2 and 1 S Street, Suburb T. Even the most cursory reading of that document reveals that the wife appears to have no connection with the land described in exhibit “C”. Her name is not used at all. Nor are the property addresses used. Mr Givney cross-examined the wife about land in Suburb T. His question related to paragraph 45 of the husband’s trial affidavit which read as follows –
When we lived in [Country B] between 1986 until 1991 I repaired the hot water boiler system, repaired the lighting system, oversaw the installation of air conditioning units, installed a backup power generator, and secured the water tank cluster during the […] War. I attended to these tasks on a weekly basis. In particular, I also attended to carrying out maintenance works across all three lots of the [S Street], [Suburb T] farmland property. This included performance and maintenance of the tractor, attendance to the water pumps and other machinery, maintenance and repair of the irrigation system, service of the trucks on the property, service of the air-conditioning unit and backup power generators, ploughing of the land, and spraying of pesticides on the crops. I attended to the maintenance of the [3], [2] and [1 S Street] proprieties on a weekly basis.
The wife was cross-examined on that passage. She denied the husband’s version. The exchange was as follows –
MR GIVNEY – All right. He talks about in paragraph 45 of his affidavit, which is the period between 1986 and ’91. He said that he carried out maintenance works across three lots, which are – which was a farming property at [Suburb T]. Do you remember that happening?
[MS FAZIL] – Never happened.
MR GIVNEY – So he has just made that up; is that right?
[MS FAZIL] – Yes, I do.
MR GIVNEY – All right. Okay. So he goes on to say he carried out various works, but you say that never happened?
[MS FAZIL] – My brother used to live in that property, and we - - - [22]
[22] T 93 L 4 – 12.
The wife’s version of events, that the husband simply made up his evidence in relation to three parcels of land in Suburb T, may have been explicable having regard to her evidence of her reason for saying as much, namely, that her brother lived on that property at the time.
The combined effect of the plain reading of exhibit “C” which contains no reference to the wife as well as her denial that the husband did as he asserted in paragraph 45 of his trial affidavit fortified me in the conclusion that the husband was, on the balance of probabilities, wrong in asserting that the wife owned 3, 2 and 1 S Street, Suburb T. The wife’s brother did not give evidence, however.
Mr Maddox cross-examined the husband about the document marked as exhibit “C”. The husband’s evidence was extremely difficult to follow. It was put to the husband that at one time the property at 3 S Street was owned by the wife. The husband answered to the effect that the wife still owned that property. In the face of the husband asserting and the wife denying, there being no reliable corroborative documentary evidence to support the husband’s assertion that the wife currently owns those three properties, I am unable to hold that she does own property 3 S Street at present.
The husband stated that 3, 2 and 1 S Street, Suburb T was farming land and that a house was built for the husband and wife in which they could reside. However, he said that with the commencement of the War they lived in Country G.
The husband deposed to owning a quarter interest in R Street, City F prior to his marriage to the wife. No dispute existed that the husband owned R Street, City F prior to the parties’ marriage. The expert valuer Mr V attributed a value of USD $6,400,000 to R Street. A one quarter share of an overall value of USD $6,400,000 is USD $1,600,000.
RESOLVING CONFLICTING EVIDENCE
On various factual matters the evidence given by the wife was in direct contradiction to the evidence on the same point as given by the husband. Where that conflict in the evidence occurred it was necessary for me to resolve it so as to make factual findings of importance in this case.
Where a version of events as given by the husband differed to the version of events on the same issue as given by the wife, I generally sought independent corroboration in respect of each party’s version of events. That independent corroboration sometimes took the form of documents. Where a party’s viva voce evidence was not corroborated by other viva voce evidence or by a contemporaneous document, I generally examined the likelihood of the event having occurred in the manner asserted by one or the other of the parties. In undertaking that course, I have assessed the consistency of the version given by either husband or wife on a particular point with other evidence in the case and whether, on the balance of probabilities, the version of events as given by one witness was more likely to have occurred in the manner asserted by that witness than in the manner asserted by the other party. In the end, I have been concerned to identify the evidence having been proved on the balance of probabilities.
Where on a particular point the viva voce evidence of a party was diametrically opposed by the viva voce evidence of the other party, and no external corroboration of the issue existed, I have applied other criteria in my assessment of the likelihood of one version of the evidence being preferred over the other. Those criteria have included –
(a)the responsiveness of the answer to the question put;
(b)whether the witness, when answering the relevant question put, did so in an obdurate or prevaricative manner;
(c)whether the witness answered directly and exhaustively, consistent with each witness’s duty to tell the truth, the whole truth and nothing but the truth;[23]
(d)whether the witness was argumentative with the questioning barrister, discursive in her or his answers and whether the witness used the opportunity when giving evidence to make a speech most advantageous to her or his own cause; and
(e)whether the witness conceded issues that were properly to be conceded.
[23] Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361.
As trial judge I enjoyed the benefits of which Kirby ACJ spoke in Galea v Galea.[24] Those included the following –
(a)hearing the evidence in its entirety;
(b)hearing and seeing all evidence in context, chronologically and logically advanced;
(c)having time during adjournments and during the running of the case to reflect upon the evidence and to weigh it against all other evidence while fresh;
(d)hearing and seeing interruptions, hesitations and delays in the giving of testimony; and
(e)observing body language, sometimes important for interpreting communication.
[24] (1990) 19 NSWLR 263.
Both husband and wife were cross-examined in considerable detail, often on searching issues that called for precision by way of response. The wife impressed me as a witness who genuinely desired to give her evidence on a warts-and-all basis, that is to say, honestly, logically, and stripped of padding, elaboration or flourish. When asked if she agreed with a single proposition put to her in cross-examination, she usually responded in a single word of affirmation or denial. If part only of the question being asked was correct, she answered affirmatively about only the portion of the question with which she agreed. The wife impressed me as a precise witness who thought carefully before answering questions put to her. For example, when asked to examine the dimensions in respect of a particular parcel of land in Country B the wife admitted her error, unprompted, conceding the dimensions were different[25] as put to her. The wife’s command of English was very good. She has worked for many years in a responsible position with a major company.
[25] T73 L3.
The husband was cross-examined by Mr Maddox. The husband gave his occupation as a contractor and that when he did not work, he was not paid.[26] Mr Maddox asked the husband when the husband considered he could return to work. Then followed an unstructured unresponsive answer in the following terms[27] –
Do you have any expectation of when you will be able to resume work?---I am suffering a [medical condition]. To my belief, I wouldn’t be able to go back to work in any visible time.
Now, there’s no medical evidence from the medical documents you’ve provided about that, is there?---I provided all the documents that show I am attending treatment for my [medical condition] where I cannot type on PCs freely as I used to, as well as I provided the available documents that show that I’ve gone the tests for my leg and my leg is now having problems with the blood supply which makes me unable to move them freely.
[Mr Fazil], if you just listen to my question and just answer the question, I’m sure that it will shorten the matter. My question is: there’s nothing in those medical documents saying that you won’t be able to work for the foreseeable future, is there?---Medical documents usually coming from labs are not in position to say that. If a certain recommendation or advice or opinion from a specialist or an authority in health is approached to provide such then that will be the one that I think you are after.
I ask you the question a third time, there is nothing in the medical documents you’ve provided that say that you are not expected to be able to work for the foreseeable future; that’s right, isn’t it?---Yes. In this plain English, no, but the tests, if one sees it, shows that the flow of the blood in one of the legs is no more than 36 per cent of the normal flow, and doctors are finding this as fine to communicate the case of the patient.
[26] T101 L28.
[27] T101 L38 to T102 L14.
The husband adopted a similarly garrulous approach towards a collection of questions put to him by Mr Maddox. Then followed another illustration provoking comment by me[28] –
All right. Now, you’ve gone to a lot of trouble, haven’t you, and so has [Ms Fazil] – gone to a lot of trouble to establish just what she owns at property [C]. All right. And you know that there’s a dispute about whether she owns any more property in [Country B] apart from the [C Street] properties and the [D Street] property, you know there’s a dispute about that?---I’ve read in her affidavit about a document that her agent or lawyer has presented to the registrar in [Country B] to identify the ownership of a lot. He needed to put in that inquiry to the registrar that he is after lot [3 S Street], however, he failed to do that, and he put in his inquiry a number that is not relevant to the – to our case. In my assessment, he has deliberately done that, targeting a property that he knows very well. It has been sold long time ago.
HIS HONOUR: Mr Maddox, it’s a matter for you to control the witness, but this doesn’t help me.
[28] T103 L36 to T104 L2.
The husband maintained that the wife partly owned three parcels of land when the husband and the wife married, those being 1, 2 and 3 S Street, Suburb T, called “the [BB Property]” and that as at the date of the trial the wife still owned 1, 2 and 3 S Street, Suburb T.[29] The wife had earlier disagreed with that proposition when she was cross-examined. It fell to the husband to establish, on the balance of probabilities, that the real property known and described as 1, 2 and 3 S Street, Suburb T was and continued to be owned by the wife. In the face of the wife’s denial on point, the best evidence of the ownership of 1, 2 and 3 S Street, Suburb T went beyond the husband’s assertion and the wife’s denial. The husband contended that those properties were owned by the wife. It fell to him to prove that contention. He failed to do so.
[29] T105 L41.
The husband exhibited as exhibit C to his 30 January 2023 affidavit a document that he deposed to being the certificates of title relevant to the land known as 1, 2 and 3 S Street, Suburb T.[30]
[30] T 109 L 29.
The document that was exhibit C purported to be a document translated by an accredited professional NAATI translator, the document itself in its original form being described as “special form for registrations”. The registration date recorded on it was a date in 1989. The document did not purport to state (although the spelling appeared differently to other portions of the husband’s affidavit) that another named person was recorded as being the owner of any particular parcel of land. Equally, the document did not describe the relevant parcel of land by reference to the particulars nor even to a street address recorded on the special form. Two persons, described as Country B citizens were named, namely Mr LL and Mr MM. A block number of an area number was stated. Beyond that, the document being exhibit C was difficult to interpret. No evidence was adduced on how to read and understand the document.
In cross-examination, the husband stated that the names on exhibit C (the special form for registrations) were those of the wife’s father and of her older brother. The husband disagreed that the whole of the BB Property had been transferred previously.[31]
[31] T 134 L3.
At no stage did counsel for the husband put to the wife that she was and remained the registered proprietor of the three parcels of land making up the BB Property.
Further, the husband asserted that when he was in Sydney, he paid bills such as sums dues for utilities including electricity. His evidence on point was extremely vague and not verified by documentation. I was not persuaded on the balance of probabilities that the wife owned 1, 2 and 3 S Street, Suburb T.
VALUE OF COUNTRY B PROPERTIES
A Country B witness, appointed as a joint expert gave evidence of the value of the real property in Country B about which the wife and husband gave evidence. He provided a report dated 24 October 2022 which was translated on 13 February 2023. Based on Mr V’s report, the relevant values of the parties’ interest by way of ownership of real property in Country B was as follows –
(a)the C Street Property – USD $4,862,000 in favour of the wife;
(b)the D Street Property – USD $465,000 in favour of the wife; and
(c)the R Street Property – USD $1,600,000 in favour of the husband.
On that analysis, while the wife asserts that she is unable to convert the real property she owns in Country B to cash, the value of the property owned by her in Country B exceeds the value of the property owned by the husband in Country B.
FINDINGS OF FACT ABOUT THE PARTIES’ REAL PROPERTY INTERESTS IN COUNTRY B
Having regard to the evidence given by the wife, I find as a fact that at the time of the commencement of the parties’ relationship, the wife owned in the following real property situated in Country B –
(a)the C Street Property; and
(b)the D Street Property as to a one-eighth interest.
I am not persuaded on the balance of probabilities that at the commencement of their relationship the wife owned 3, 2 and 1 S Street, Suburb T, Country B.
So far as the husband’s interests in property in Country B at the commencement of the relationship was concerned, I am persuaded on the balance of probabilities that prior to the parties’ marriage the husband owned a quarter share in R Street, City F and that he presently retains that interest.
The husband exhibited what he said was the certificate of title for the C Street Property as exhibit D to his trial affidavit. Exhibit D was translated from another language into the English language. The English version of the certificate of title for the C Street Property included the following details:
“Owner or the authorised and descendants:
Total: […]
[Division of total between five parties]
[Mr Fazil]”
No evidence was given to construe the entries. Precisely what the numbers represented or the persons named (other than Ms Fazil) were not identified. Be that as it may, the type of registration depicted in that exhibit was described as “unconditional gift” and the type of right was described as “ownership”. The price was described as “gift”.
Returning to paragraph 8 of his trial affidavit, the husband asserted that the certificate of title, exhibit D, in relation to the C Street Property verified that at the commencement of the parties’ marriage (late 1986) he owned a one quarter share in the C Street Property. Exhibit D to the husband’s trial affidavit recorded the date 9 December 2012, not a date proximate to the date of the parties’ marriage, namely late 1986.
The wife was questioned by Mr Givney of counsel on an array of issues concerning the C Street Property. The wife admitted that the husband owned a share in that property[32] and that between 1986 and 1990 the husband and wife lived at the C Street Property.[33] No challenge was advanced by the wife that the husband did not own some interest in the C Street Property. That much seemed to be accepted. In paragraph 12 of her trial affidavit, the wife deposed to the husband owning a 25% interest in property R Street.
[32] T 79L 25.
[33] T 8D L1.
The husband deposed to having received the proceeds of sale of some property at the commencement of the relationship. He said the property had been owned by his family and was sold prior to the parties’ marriage. The husband did not quantify the amount involved. It seemed to me that the evidence just narrated was so vague as to be near meaningless.
TREATMENT OF THE ASSERTED VALUES OF THE COUNTRY B PROPERTIES
The husband contended that various properties situated in Country B were owned by the wife and had a particular value. Those appeared on the balance sheet that was incorporated into the husband’s case outline sealed 31 March 2023. They were as follows –
(a)item 16 - the C Street Property AUD $7,010,000
(b)item 17 - the D Street Property AUD $665,000
(c)item 18 - 3 S Street, Suburb T AUD $178,000
In respect of other property in Country B the husband contended that two balance sheet items were to be treated as financial resources. The two items were –
(a)item 30 – the C Street Property in respect of which the husband attributed no value to it; and
(b)item 31 – the D Street Property in respect of which the husband attributed no value to it.
It will be readily apparent that the husband included several properties twice albeit differently on each occasion.
For example, item 16 on the husband’s balance sheet (the C Street Property) was the same as item 30. Yet for item 16 the husband attributed an amount of $7,010,000 while for item 30 (the same item, differently described as a financial resource) the husband attributed a zero dollar amount. He offered no explanation for adopting two very different approaches in relation to the same item of property.
Likewise, for the D Street Property, at item 17 of the balance sheet the husband attributed a value of $665,000 whereas for the same parcel of real estate, at item 31 of the balance sheet, the husband attributed a zero dollar amount on the basis that the parcel of real estate was a financial resource. He offered no explanation for the fundamentally different approach in respect of the same parcel of land. He did not even say on which approach he relied, that is to say, attributing a value to certain Country B property or to treating that property as a financial resource.
So far as the property at R Street, City F was concerned, the parties both attributed a value to the husband’s one quarter share of AUD $2,399,539. Whatever may have been the arithmetic adopted in the parties’ case outlines in relation to various parcels of land in Country B, the best evidence of these values is that given by Mr V, whose numbers I have set out above. However, for the purpose of calculating the net value of the asset pool, I adopt the husband’s AUD values used in his sealed outline of case.
As against the values asserted by the husband in respect of real property owned by the parties in Country B, the wife advanced the proposition that her real property in Country B should be treated as a financial resource, rather than as an asset. That proposition arose by reason of the contention that on her own evidence she would encounter very considerable if not insurmountable obstacles selling that real estate or mortgaging any of it. It was submitted by the wife that even if I were against her by holding that her Country B properties were not to be treated as a financial resource, then I should adopt a two pool approach, one pool relating to the properties in Country B and the other pool relating to the assets in Australia. Mr Maddox put the wife’s case in the following terms in her case outline –
That is, it is submitted that the hearing should be dealt with in two separate pools:
(a)The parties’ [Country B] properties, to which each has made a nil or, at most, minimal contribution;
(b)The parties’ assets and liabilities in Australia.
It is submitted further that the conclusion drawn by the court, if the [Country B] assets and Australian assets are dealt with separately, would be:
(a)the parties have made 100% contributions to each of the [Country B] properties in their respective names; and
(b)the judge’s discretion should therefore sever the [Country B] properties from any consideration of percentage splits between the parties;
(c)it is only the parties’ Australian assets and liabilities which need to be divided; and
(d)In considering the [Country B] properties, they would be treated as a financial resource and an adjustment made (to the Australian assets) pursuant to s75(2)(o).
FINANCIAL RESOURCE
While a little out of chronological sequence, it is necessary to presently make certain observations about statements of principle in relation to “financial resource’ as that phrase appears in s 75(2) of the Family Law Act. That subsection was the subject of an enormous amount of judicial consideration at single judge and intermediate appellate level prior to the 2016 High Court decision of Hall v Hall.[34] The High Court made a collection of important observations about “financial resource” under s 75(2)(b), including the following –
(a)“consistent with authority, the financial resources of each of the other parties are not confined to the present legal entitlements of the parties and extends to include a source of financial support which a party can reasonably expect will be available to him or her to supply a financial need or deficiency”; and
(b)whether a potential source of financial support amounts to a financial resource of a party turns in most cases on a factual enquiry as to whether or not support from that source could reasonably be expected to be forthcoming were the party to call on it.
[34](2016) 257 CLR 490.
Financial resource is ordinarily referable to a financial advantage other than property, as was held In the Marriage of Kelly (No. 2),[35] In the Marriage of Reynolds,[36] and In the Marriage ofBonnici.[37]
[35] [1981] FamCA 78.
[36] [1984] FamCA 67.
[37] (1991) 15 Fam LR 138.
It has been held that a financial resource connotes “some degree of entitlement to, control over, or relative certainty of receipt of property” (White & Tulloch v White).[38]
[38] (1995) 19 Fam LR 696.
However, the word “property”, a word construed extensively under family law, is separate from the phrase “financial resource”, leading to the construction that “financial resource” relates to a financial advantage other than property.[39]
[39] In the Marriage ofBonnici (1991) 15 Fam LR 138.
In this case, the wife pointed to a collection of parcels of real estate in Country B and submitted that those parcels of land amounted to “financial resources”. The mainstay of her evidence in relation to those parcels of real estate was that she would have considerable difficulty in disposing of those parcels of real estate. No evidence was adduced about those parcels of land being income producing at the present time.
It has been held that sometimes it can be difficult to distinguish between property and a financial resource,[40] yet the difference is important because an order under s 79 is made in respect of an asset properly characterised as “property”.[41]
[40] Hurst & Weber [2009] FamCAFC 137.
[41] In the Marriage of Pittman [2010] FamCAFC 30.
In this case, the real estate in Country B is property. I do not agree it is properly characterised as a financial resource.
Importantly, the provisions of the Family Law Act differentiate between property for which express provisions are made in s 79 and a financial resource, not being property, to which s 75(2)(b) is directed. Irrespective of the degree of difficulty that may be encountered in selling, pledging or mortgaging real property – even if situated in Country B – that real property does not lose its character as being real property nor does any such difficulty of sale or in mortgaging that real property convert that real property into a “financial resource”. It is true that “financial resource” has not been defined in the Family Law Act. It is also true that a collection of Full Court decisions has purported to create definitions of that phrase. Yet the High Court in Hall v Hall[42] observed that “property” is a term expressly used in s 79 rendering it critical for a judge in my shoes to identify the legal and equitable interests in “property.” [43] Although for the purposes of s 75(2)(b), the word “financial resource’ is not defined, it must be taken into account in any application for the alteration of property interests under s 79.
[42] (2016) 257 CLR 490.
[43] Stanford v Stanford (2012) 247 CLR 108.
THE FACTUAL EVENTS UPON THE PARTIES’ ARRIVAL IN AUSTRALIA
It was common ground that the husband and wife, with their daughters, migrated to Australia in 1995. The husband and wife had married in late 1986 and for a brief period the husband, the wife and their daughters lived in Country G then in the United Kingdom. The evidence revealed that the parties did not acquire property of any relevance in the period 1986 to 1995.
Evidence of the parties’ accommodation details was scant, the wife deposing to very little information in her 30 January 2023 affidavit.
Conversely, the husband provided certain details, even if brief. The following is a précis of those details –
(a)the husband, the wife and their children lived in rented accommodation in Suburb HH between 1995 and 2001;
(b)between 2001 and 2006 the husband and wife separated during which period the husband lived and worked overseas and the wife and children continued to reside at the rental accommodation in Suburb HH;
(c)in 2006 the husband and wife reconciled;
(d)between 2006 and 2009 the husband, wife and the children lived in rented accommodation; and
(e)the husband and wife acquired the land at J Street, Suburb K in the state of New South Wales on which they constructed a dwelling where the family lived until 2015 when the wife moved out and the husband has lived there to this day.
The husband deposed to “consistently” (his word) sending money to his daughters in the period 2001 to 2006 although he did not say with what frequency he sent that money, how much or to whom he allegedly sent the money, whether he sent money in cash, in what currency, or whether by electronic funds transfer and if so to whom, recognising that the children were young at the time.
The husband did not exhibit any documentation to his affidavit to substantiate his assertion that he consistently sent money to the children.
The husband deposed to visiting Australia twice between 2002 and 2006. He said he travelled to Australia to visit the children. He did not say when he visited, for how long he stayed, where he lived while visiting, how frequently he saw the children during each of those visits, nor did he descend to the detail of each such visit, especially by providing information about the warmth or otherwise with which he was received by the children during each such visit. Yet he deposed to drawing cash amounts from automated teller machines.
The husband purported to place a dollar value on the sums he said he had given his daughters in the period between 2002 and 2006. In paragraph 27 of his trial affidavit he purported to narrate a telephone conversation he had on an unspecified date with an unidentified person at the Child Support Agency. He deposed to telling the relevant child support officer that he (the husband) had given his children thousands of dollars in each withdrawal from an automated teller machine. No amount was specified. The husband did not produce any document that an automated teller machine may have generated to verify the date and amount of sums said to have been withdrawn. No verification was given that the husband, in fact, provided the funds he said he paid to his daughters.
At the time, they were young – 13 and 8 years of age – and one would be entitled to wonder what the husband expected the two children to do with the thousands of dollars he said he gave them. The husband was not cross-examined by Mr Maddox about the assertion that the husband gave his children thousands of dollars allegedly withdrawn from an automated teller machine.[44] He said that he gave the children that money in addition to child support but not in substitution for it. He admitted to there being a child support debt when he and the wife reconciled in 2006.[45]
[44] T 117.
[45] T 118.
Similarly, the husband gave evidence about the sums he said he regularly transferred while he was overseas, as set out in paragraph 32 of the husband’s trial affidavit. His assertion that he regularly transferred money for the children told me nothing of the frequency or the amounts involved or the sums transferred or for that matter whether any such amount was in fact transferred as asserted.
The husband said he paid the deposit for the property at J Street, Suburb K. He said he had $60,000 by way of savings which, he said, he applied towards the deposit.
However, beyond making that assertion, he did not put into evidence bank statements (as is usually done) by which it could be seen that from an account in the husband’s name (or from an account in the joint names of each mortgagor) a specific monthly sum was applied in progressive reduction of the outstanding mortgage debt. In this case the husband stated in paragraph 37 of his trial affidavit that he paid the mortgage instalments for the Suburb K property from 2006 to 2010. He said he was working overseas at the time and that he “forwarded cash transfers” (his words) to the wife.
Evidence of the funding of the acquisition of the Suburb K property was difficult to follow. The wife asserted that in 2006 the parties purchased land at J Street, Suburb K for about $700,000 of which about $560,000 was a CBA mortgage (her words). The wife did not exhibit to her trial affidavit the contract of sale pursuant to which the Suburb K property was purchased. No document was exhibited to either party’s trial affidavit recording the payment of the deposit or the settlement amount and the amount provided by the mortgagee, CBA. The wife asserted in her case outline that the purchase price was “about $700,000”. That was a very imprecise amount. She said nothing about the deposit yet she said the mortgagee provided about $560,000. Simple arithmetic suggested that the deposit and amounts provided by the mortgagor (or mortgagors, if both) was $140,000. Neither party gave evidence to that effect, however. In the balance sheet embedded in the husband’s case outline was part D in which the husband asserted that he and the wife were jointly liable pursuant to a home loan from CBA (account ending …04) for $75,000[46] as the wife said or $72,876 as the husband said and that the two were also jointly liable pursuant to a different home loan from CBA (account ending …03) for $85,000 as the wife said and $81,931.58 as the husband said. In approximate terms, that seemed to represent a statement that as at the date of the trial, the parties were jointly indebted to CBA under the mortgage secured by the Suburb K property for an amount in the sum of $154,718 or thereabouts. That suggested, although neither party said as much in terms, that the original indebtedness of approximately $560,000 to NAB had been reduced to $154,718 meaning that in broad terms principal and interest due to CBA of $405,282 had been paid in the period from 2006 to 2013.
[46] This was item 21 on the balance sheet.
Whether the business loan account recorded on the balance sheet as item 24 of $27,000 was secured in any way was not the subject of evidence. The lender was ANZ and no evidence was adduced of the existence of a mortgage in favour of ANZ. The husband in his case outline made two important concessions. First, he submitted that the court would approach the question of contributions holistically taking into account the length of cohabitation and the respective roles of the parties. He submitted that the period of cohabitation was 15 years and 9 years, aggregating 24 years, albeit that periods of separation interrupted. He also submitted that he did not propose to identify each and every contribution. The husband postulated a division of assets as to 43% to the husband and 57% to the wife. The husband conceded that the wife’s contribution as homemaker exceeded his own.
OTHER EVIDENCE OF THE HUSBAND’S CONTRIBUTIONS
Scattered throughout the husband’s trial affidavit were his observations about contributions (direct and indirect, financial and non-financial) that he asserted he made during the course of the marriage. Those may be synthesised in the manner set out below –
(a)between 1984 and 1991 the husband undertook defence forces service although he did not say whether he derived any income from that endeavour and if so, what he did with the money he may have earned;
(b)between 1984 and 1991 the husband undertook part-time work with a Country B organisation, although he did not say whether he derived any income from that endeavour;
(c)between 1991 and 1993 the husband worked in Country G although he did not depose to what he did nor did he say how much he earned and how any funds so derived were applied;
(d)between 1998 and 2000 the husband worked on a temporary basis for less than 18 months in IT with a Country EE company in Region JJ although again, he did not say how much he earned nor how he applied the income he received;
(e)in the period 2001 to 2006 when the husband and wife were separated, the husband worked in the United Kingdom and in Country KK during which period he deposed to but did not verify by documentation allegedly sending his daughters thousands of dollars.
(f)he deposed to accumulating $60,000 in savings in the period 2002 to 2006 which he said (but did not verify by documentation) he applied (or some of it) towards the purchase of J Street, Suburb K;
(g)he asserted (but did not verify by documentation) purchasing a motor vehicle for the eldest daughter for $15,000 yet the vehicle was not identified;
(h)the husband asserted that he paid the mortgage instalments for J Street, Suburb K from 2006 to 2010 (although he produced no documentary verification to support that assertion); and
(i)he said he and the wife both contributed to the costs of the improvements to the property yet again he did not say what each did and if the contribution was in monetary terms, he did not say how much each contributed nor did he verify any such sum by documentation.
The husband deposed to separating on a final basis on 4 February 2015 when the wife vacated the Suburb K property.
The husband deposed to a collection of activities he inferred supported his contentions concerning his making of non-financial contributions. He was not particular in the activities to which he deposed, merely stating (but giving no details of dates, duration or tasks undertaken) that he attended to household maintenance, repair of appliances and technological devices, maintenance of motor vehicles, maintenance of the lawn, backyard and gardens at the Suburb K property.
He said that he personally procured spare parts and fixed appliances such as televisions, the refrigerator, light fixtures, washing machines and drying machines. He said that once or twice each month (when he was in Australia, I infer) he prepared meals and cleaned the house. He said he attended to the barbeque when guests visited on weekends and that he and the wife jointly undertook grocery shopping.
He denied being violent towards the wife. That was an observation diametrically opposed to the wife’s evidence who deposed to having suffered family violence at the husband’s hands.
He deposed to shopping with the children when they were in Australia.
He deposed to guiding the two children with their studies and in the tertiary courses each selected to study.
He deposed to overseeing and arranging inspections and repair work in relation to contracts associated with construction warranties.
He deposed to the wife having withdrawn over $40,000 from the parties’ joint mortgage account. In deposing to that information, the husband inspected the parties’ CBA home loan bank statements, narrating dates and precise amounts between July 2014 and February 2015. Why he was unable to depose to the same detail when purporting to depose to his provision of thousands of dollars to the children for example went unsaid.
The husband deposed to the wife’s departure from the Suburb K property after which the husband said he paid all mortgage instalments and outgoings in relation to the former matrimonial home.
THE HUSBAND’S ASSERTED S 75(2) FACTORS
In 2019 the husband said he was in the care of a health professional. He said he experienced conditions limiting his ability to use his fingers. He said that in early 2023 he was diagnosed with a medical condition. No specialist evidence was adduced. In the absence of specialist medical evidence to support the husband’s assertions about any disabling medical conditions of a specialist nature from which he said he suffered, I am unable to place any particular reliance upon the husband’s assertions in that regard. It was simple enough for the husband to have adduced evidence from his health professional. No such evidence was adduced.
Q PTY LTD
As is readily apparent from the positions adopted by each party, the properties in Country B are relevant to the determination of the justice and equity in this case. Mr Givney submitted that the valuation of the real property in Country B supported the notion that land is in fact selling in Country B, even at high prices. He submitted the travel warning on which the wife relied to demonstrate the practical obstacles of a foreign owner selling land situated in Country B was two years old, not current, and no other evidence had been adduced to demonstrate the actual difficulties a foreign resident who owned real property in Country B might encounter when attempting to make money from that sale of that real estate.
THE HUSBAND’S PROPOSAL
In his final address, Mr Givney of counsel for the husband put forward the husband’s proposal. It was as follows –
[…]
[J Street], [Suburb K] NSW1.That as and from the date of these orders, the Applicant Wife (‘the wife’) and the Respondent Husband (‘the Husband’) shall do all acts and things necessary to distribute the nett non-superannuation pool of the matrimonial assets as follows:
1.1 fifty per cent (50%) to the wife; and
1.2 fifty per cent (50%) to the husband.
2.For the purposes of the immediately preceding order, the following shall apply:
2.1 Within sixty (60) days from the date of these orders, the husband and the wife must do all acts and thing and sign all documents necessary to transfer to the husband,
at the expense of the husband, all of the wife’s right, title and interest in the property situated at [J Street], [Suburb K] in the State of New South Wales and more particularly described in certificate of title folio identifier […] (‘the [Suburb K] property’).2.2 Simultaneously with the immediately preceding sub-order:
2.2.1The parties do all such acts and things and sign all necessary documents so as to discharge the mortgage(s) secured over the [Suburb K] property by Commonwealth Bank of Australia (‘CBA’) and replace it with a mortgage to the Husband acquiring the property alone.
2.2.2The wife shall give the husband a cash payment of
four hundred and fifty thousand dollars ($450.000)two million two hundred thousand dollars ($2,200,000.00).the amount of which is to be determined after the parties have complied with full and frank disclosure and the value of the wife's shares in the two (2) properties situated in [D Street], [City F] in [Country B] and [C Street], [City F] in [Country B] have been respectively determined.Default sale –[J Street], [Suburb K]Default sale – [C Street], [City F], [Country B]
3.In the event the wife fails or neglects to comply with Order 2.2.2, then the wife shall forthwith do all acts and things necessary to sell the property known as [C Street], [City F], [Country B] ("the [City F] property"). and upon sale, shall pay to the Husband the sum of
four hundred and fifty thousand dollars ($450,000)two million two hundred thousand dollars ($2,200,000.00)., plus interest at the rate of 9 .10% p.a. pursuant to Rule 10.1 7 of the Family Law Rules commencing from the due date until the date of payment.4.To give effect to order 3, the following shall apply:
4.1the wife shall place the [City F] property in the hands of a sales agent in [City F] as appointed by the Husband.
4.2The Wife shall direct the sales agent to provide the marketing proposal of the [City F] property to the Husband.
4.3The Wife shall direct the sales agent to provide to the parties a range of possible sale prices of the [City F] property.
4.4Upon receipt of the advice as to the range of possible sale prices of the [City F] property, the wife shall direct the sales agent to place the [City F] property on the market for sale.
4.5The Wife shall direct the sales agent to advise the parties as to each and every offer made by any prospective purchaser.
4.6After four (4) weeks of marketing. the Wife shall do all acts and things necessary to sell the [City F] property to the purchaser offering the highest price.
5.That the parties be granted liberty to apply to the Arbitrator for any such machinery orders to bring about the sale of the [City F] property at a reasonable price.
[…]
Further Property Orders
6.That unless otherwise provided for in these orders:
6.1The wife shall be declared to be the sole legal and beneficial owner of her right, title and interest in and to:
[…]
6.1.1 The wife’s shares in any properties in [Country B]. […]
6.1.2 All cash at banks and monies invested in the wife’s sole name.
6.1.3 All furniture and personal effects in the wife’s possession.
6.1.4All superannuation entitlements received by the wife and invested by or on her behalf.
6.2The husband shall be declared to be the sole legal and beneficial of his right, title and interest in and to:
6.2.1the business [Q Pty Ltd] ACN […];
6.2.2 the husband’s share in the property situated at [R Street], [City F], [Country B];
6.2.3All cash at banks and monies invested in the husband’s sole name;
6.2.4All furniture and personal effects in the husband’s possession; and
6.2.5All superannuation entitlements received by the husband and invested by or on his behalf.
[…]
6.3 The wife shall be responsible for:
6.3.1 All loans, debts, leases, hire purchase and other liabilities standing in her sole name;
6.3.2 All credit cards in her sole name;
6.3.3 Any and all taxation liabilities in her sole name; and
6.3.4The wife shall indemnify and keep indemnified the husband in respect of any and all such liabilities.
6.4 the husband shall, subject to the above Orders, be responsible for:
6.4.1All loans, debts, leases, hire purchase and other liabilities standing in his sole name;
6.4.2 All credit cards in his sole name;
6.4.3 Any and all taxation liabilities in his sole name;
6.4.4The husband shall indemnify and keep indemnified the wife in respect of any and all such liabilities.
6.5Each party shall forthwith be declared entitled to retain and shall relinquish in favour of the other party any claim to any right title or interest in all items of property presently in possession or custody of the other party including but not limited to real property, monies held in any bank, building society or credit union, shares, superannuation or life entitlements, motor vehicles, chattels, furniture, furnishings and personal effects.
6.6The parties hereby declare that they are not aware of any liability to which either of them has either a joint or several liability with the other, including but without limiting the generality of the foregoing, any bank, credit or charge accounts, guarantees and any liability resulting from any of the parties previous business (if any) and any other dealings.
6.7That other than as otherwise set out in this agreement, the parties have the sole right, title and interest in any other property which is at the date hereof in their possession, title or name and they shall be solely liable for and indemnify the other against any personal liabilities.
6.8In the event that any party refuses or neglects to comply with any provision of these orders:
6.8.1A Registrar of the Family Court of Australia is hereby appointed pursuant to section 106A of the Family Law Act to execute all deeds and documents in the name of the party in default and do all things and acts necessary to give validity and operation to these orders.
6.8.2The defaulting party pay all reasonable costs incurred by the other party for the purpose of exercising this order.
6.9The husband and wife must do all acts and things and give all consents and execute all documents and writings necessary to give effect to the orders made herein.
7. The wife pay the husband’s costs of and incidental to these proceedings.
THE WIFE’S PROPOSAL
In his final address, Mr Maddox proposed final orders taken from the wife’s second amended application filed 30 January 2023. Those orders were as follows –
1.
That on a date agreed between the parties and failing agreement,within 42 days, the husband pay the sum ofSEVEN HUNDRED THOUSAND DOLLARS (700,000.00)NINE HUNDRED AND THREE THOUSAND DOLLARS ($903,000.00) (“settlement sum”) to the Wife, by way of payment to the Wife’s Solicitor’s Trust Account as follows pursuant to Section 79 of the Act:[O Bank]
Hammond Nguyen Turnbull
BSB […]
Account […]
2. That contemporaneously upon payment of the whole of the settlement sum to the Wife in accordance with Order 1 of these Orders:
a. The Wife transfer all of her right, title and interest in the property known as and situate at [J Street], [Suburb K] (LOT […] in DP […]) ("[Suburb K] Property") to the Husband;
b. The parties do all things and sign all documents necessary to discharge the mortgage registered by the Commonwealth Bank of Australia from the joint names of the parties into the sole name of the Husband, with the discharge of mortgage to be paid by the Husband;
andc. That the Respondent pays for the Appellant’s costs in relation to the transfer of the property.3.That in the event that the
Respondent has not paid the settlement sum within 42 days from the date of these Orders, Husband has not complied with Orders 1 and 2, The parties do all acts and things and execute all documents necessary to effect a sale of the [Suburb K] Property and to give effect to this Order, the following shall occur:a.The parties agree to appoint [L Real Estate], [City M] (the Agent) to sell the [Suburb K] Property;
b. The parties agree to appoint [N Lawyers], as the Solicitors to act on the Conveyance of the [Suburb K] Property and that their fees shall be borne equally by the parties.
c. The Wife and Husband do all things to list the [Suburb K] Property for public auction or private treaty in the first instance, whichever may be recommended by the Agent.
d. The
Applicant and Respondent agree on reserve price for sale of the Property in the first instance and failing agreement, shall accept the reserve or listing price recommended by the AgentWife and Husband, in default of any agreement, accept the reserve price recommended by the Agent.e. In the event the bidding at auction does not reach the reserve price, the Wife and Husband may jointly negotiate with the highest bidders or any other interested person and effect a sale of the [Suburb K] Property at a price which is not less than 10% below the reserve price or any other price as agreed between the Wife and Husband in writing.
f. In the event that any offers at private treaty do not reach the reserve price after a period of 6 months, the Wife and Husband may jointly negotiate with the highest bidders or any other interested person and effect a sale of the [Suburb K] Property at a price which is not less than 10% below the reserve price or any other price as agreed between the Wife and Husband in writing.
g.
That any remediation or repair works recommended by the Agent for the property be carried out and the costs of any such remediation works carried out shall be borne equally by the parties.4. That the wife and Husband cooperate in every way with the Agent (including without limiting the generality of the foregoing):
A. Making the key available to the Agent;
B. Allowing inspection of the property at all reasonable times requested by the Agent;
C. Doing or saying nothing to hinder or prevent a sale being affected;
D. Doing all acts and things necessary to have a contract for sale prepared by [N Lawyers]
E. Doing all acts and things as required by the Agent, except as provided for in these Orders;
5. That the Husband ensure that the [Suburb K] Property is in neat and clean condition at the time of inspection by the Agent and prospective purchasers and provide vacant occupancy on settlement of the sale.
6. That the Husband be responsible at the exclusion of the Wife for payment of all outgoings and utilities for the [Suburb K] Property up until and including the date of settlement.
7. That
for the purposes of this Order, the Wife be entitled upon 7 days written notice to the Husband to enter and view the state of repair of the [Suburb K] Property once per fortnight up until the date of the sale.8. In the event that the [Suburb K] Property is not sold within 3 months from the date of listing, the Wife and Husband shall, within a further 3 months , do all acts and things necessary to list the property for sale a second time by way of private treaty or private auction , whichever may be recommended by the Agent appointed in the first sale (or a substitute agent agreed by the parties) , with the reserve price to be determined in the manner adopted in the first attempted sale.
9. That upon completion of the sale of the [Suburb K] Property in accordance with these Orders, the proceeds of sale shall be distributed as follows:
A. In payment of an amount sufficient to discharge the mortgage over the [Suburb K] Property;
B. To pay all costs, disbursements as incurred by the sale of the [Suburb K] Property, including but not limited to agency fees, legal fees and valuers' fee;
C. In full payment of the Council and water rates, up to and including the date in which the [Suburb K] Property is sold;
D. The amount of
$700,000.00$903,000.00 to the Wife's Solicitors Trust Account as nominated in Order 1 above; andE. The Balance to the Husband, or as directed by him in writing.
10. That the parties shall do all things and acts necessary and give all consents and execute these Orders.
11. That in the event that either party refuses or neglects to execute any deed or instrument, the registrar of court be appointed pursuant to Section 106A of the Family Law Act 1975, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation of the deed or instrument.
12. That unless otherwise specified in these orders and except for the purposes of enforcing the payment of any monies due under these or subsequent orders each party be entitled to retain all assets in their respective names and possessions, including but not limited to:
[…]
and be liable for all debts in their respective names.
In both proposals, the wife is to transfer to the husband her legal and beneficial interest in the former matrimonial home. She vacated that property.
The husband may, if he so chooses, thereafter sell that asset. It must not be overlooked that while the husband was overseas over significant periods of time throughout the marriage, I have found that he made little by way of payments to meet the monthly instalments due to the mortgagee. His disclosure of sums paid by him to his mortgagee was defective.[67] As has already been addressed above, I do not accept the husband’s evidence that he regularly paid sums due under the mortgage, nor that he paid those amounts with the frequency he asserted. I also do not accept his assertions that he gave thousands of dollars to his children from funds drawn from automated teller machines.
[67] Becall & Zagar [2020] FamCA 350; Paviello & Paviello (op cit).
On the balance of probabilities, unless the wife paid all sums due to the mortgagee in periods when the husband was overseas, it is likely that the mortgagee would have taken steps to enforce its rights as mortgagee including obtaining orders for the sale of the former matrimonial home. That did not happen. The mortgage was continuously serviced. The husband produced no disclosure to reveal that the mortgage was regularly and diligently serviced using funds contributed by him. In those circumstances, I infer[68] that the wife met those mortgage payments or at least serviced the majority of those regular monthly sums due to the mortgagee.
[68] Luxton v Vines (1952) 85 CLR 352; Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 55; Richard Evans & Co v Astley [1911] 674, 687 (Lord Robson).
The parties agreed (in approximate terms, although not in precise dollar amounts) as to the sum presently due to the mortgagee. It is in the vicinity of $155,000.
In order to give effect to the proposal for the husband to receive a transfer of the whole of the wife’s legal and beneficial interest in the former matrimonial home, the mortgagee must be paid out.
Expressed arithmetically, the husband wishes to obtain a transfer in his favour of an asset worth $1.3m for which he must be responsible for a debt of $155,000 or thereabouts.
As these reasons later reveal, the proposal for the husband to receive a transfer into his name of the former matrimonial home is not just and equitable as –
(a)it will give effect to a transfer of the major valuable Australian asset;
(b)provide the wife with no funds from that transfer; and
(c)leave the wife to do what she says she is unable to do, namely, sell real property in Country B in order to derive any funds which she will need to acquire alternate accommodation.
IMPLEMENTING THIS DIVISION
Having regard to my findings about the desirability of a one pool approach, it is my view that a one pool approach must be adopted in this case. In reaching that determination, I recognise that the parties continue to own interests in property in Country B, albeit that the property concerned is located in Country B where the wife says she will encounter significant obstacles in any attempt to realise that property. That does not mean the land in Country B cannot be sold, however. Accordingly, the assets realisable in Australia and in Country B capable of adjustment in this s 79 application include the value of the former matrimonial home,[69] the parties’ superannuation and the assets totalling $341,601, plus the land in Country B deriving in total the sum of $11,867,100. In other words, the sum of $11,867,100 is the net value of the asset pool as found.
[69] See paragraph 134 above for details of the way that sum is computed.
Howsoever the assets may be divided, the husband wants Q Pty Ltd (valued at $75,000) in specie. He also wants the house and the wife is agreeable to that course. The wife has suggested that she be paid a sum certain for her transfer of her title to the former matrimonial home into the sole name of the husband. I do not consider that an order in those terms achieves an outcome that is just and equitable.
On a two pool approach the wife submitted that she should be paid 80% of the value of Australian assets. The husband submitted that the percentage division should be nearer a 60% division in the wife’s favour. A two pool approach is not appropriate because the Country B land can be realised. I take the view that an 80/20 division of net assets in the wife’s favour is not just and equitable. She owns real property in Country B the value of which exceeds the value of the real property owned in Country B by the husband. This was a long marriage. I accept that the wife’s non-financial contributions exceeded those of the husband’s. By reason of his defective disclosure, it has been extremely difficult for me to assess in meaningful terms precisely what direct and indirect financial contributions the husband made over the life of the marriage. The husband will received an in specie allocation of the business Q Pty Ltd.
A major difficulty I encountered when endeavouring to meaningfully assess the husband’s direct and indirect financial contributions was the absence of documentation from him to support his version of events. He was under a duty to comply with his disclosure obligations.[70] He failed to comply with his duty in respect of those obligations. I was thereby denied the ability of reliably quantifying the assertions he made, especially in relation to his assertions that he paid –
(a)amounts due under the mortgage of J Street Suburb K; and
(b)amounts given in cash to the children.
[70] Paviello & Paviello [2022] FedCFamC1F 592 and see Part 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021.
Plus, the husband spent very considerable periods of time overseas when the wife was in Australia maintaining her family and meeting domestic outgoings. In my view the wife’s financial and non-financial contributions, whether direct or indirect, substantially exceeded those of the husband’s. The husband’s deficiencies of disclosure prevented or impaired me in the task of accurately determining the extent of his direct and indirect financial contributions. He failed in his duty of disclosure. That failure has seriously impinged on the precise ascertainment of his contributions. His assertions that, for example, he provided the children on occasion with thousands of dollars was little more than unverifiable assertion.
How the court can deal with a party whose disclosure is defective has been examined in cases such as Black v Kellnar,[71] Kannis v Kannis,[72] as well as in my own decision in Bacall & Zagar.[73] At one extreme, defective disclosure enables the court to make robust orders when ordering the alteration of property interests. At the same extreme, a court is entitled to order the whole of the property to be allocated in favour of the party who is not in default of disclosure obligations.
[71] (1992) 15 Fam LR 343.
[72] (2002) 30 Fam LR 406.
[73] [2020] FamCA 350.
In this case, the husband submitted that it was just and equitable to order a division as to 57.3% in her favour. The wife submitted that it was just and equitable to order a division of 80% in her favour. In my view 57.3% in favour of the wife is not an adequate recognition of the undisputed evidence that the wife undertook the overwhelming majority of direct and indirect financial and non-financial contributions of all description over the life of the marriage, especially during prolonged epochs when the husband was absent from Australia when the wife maintained the children, their home environment, their stability and education, to say nothing of meeting the expenses associated with the former matrimonial home. I am of the view that a just and equitable division of all net assets whether in Australia or Country B is 60% in favour of the wife and 40% in favour of the husband.
The overall value of the net assets are 11,867,100. To my mind a 60/40 division is within the range of outcomes that represents a just and equitable order for the purposes of s 79 of the Family Law Act.
An amount equating to 60% of the sum of $11,867,100 is $7,120,260. An amount equivalent to 40% of $11,867,100 derives for the husband the sum of $4,746,840.
The parties agreed that title to the former matrimonial home is to be transferred to the sole name of the husband. I do not find that it is just and equitable to do so and in it regard I will order that the parties sell the former matrimonial home with the entirety of the proceeds of sale being transferred to the wife to made up part of her 60% property settlement.
As has already been recorded, 60% of the net value of the parties’ assets of $11,867,100 is $7,120,260 and 40% of the net value of the parties’ assets of $11,867,100 is $4,746,840.
The position is best understood when expressed arithmetically. The following will suffice –
(a) Total net assets available for division $11,867,100 (b) 60% of the total net assets available for division, ie 60% of $11,867,100 to go to the wife $7,120,260 (c) 40% of the total net assets available for division, ie 40% of $11,867,100 to go to the husband $4,746,840
The business Q Pty Ltd is valued at $75,000. It has no value to the wife and the husband derives income from it. The value of Q Pty Ltd should go to making up the 40% payable to the husband.
A JUST AND EQUITABLE ADJUSTMENT OF THE PROPERTY INTERESTS OF THE PARTIES
There was a superficial simplicity in the adoption of Mr Maddox’s suggestion of a two pool approach. However, once it was recognised that the Country B properties were not a financial resource and that they are realisable, even though the wife had a personal objection to such a course, it seemed to me that in personam orders for the sale of the Country B properties could be ordered even if the Mozambique principals prevented orders in rem being made in respect of Country B real property.
Further, once the suggestion was made that the parties should retain their interests in the Country B properties each owned, it became important, in any assessment of the justice and the equity of making orders altering the parties’ interests in property, to know how much each party was to receive including the amount to be derived from realising the Country B properties.
I have concluded that the two pool approach suggested by Mr Maddox failed to adequately recognise the value of the parties’ interests in real estate in Country B and it failed to address the practical consequences of giving effect to a proposal for the former matrimonial home to be transferred into the sole name of the husband. If I were to accede to the suggestion of transferring to the husband for his full legal and beneficial ownership the title to the former matrimonial home then that would leave the wife bereft of certain assets in Australia, even though for a time she may have a finite earning capacity. Conversely, the husband expressed no reservation about the possibility of realising Country B assets, concluding that the wife was in error when she said so vocally that it was extremely difficult for her (as a foreign female) to sell land she owned in Country B.
When assessing contributions I have concluded that they should be assessed at 60% in favour of the wife and 40 % in favour of the husband. The wife’s direct and indirect non-financial contributions exceeded those of the husband. Her direct and indirect financial contributions were at least equal to those of the husband and, having regard to the deficiencies in the disclosure given by the husband generally in this case, I was unable to be satisfied that the husband’s direct and indirect financial contributions were equivalent to those of the wife.
That said, the marriage was long. As Full Court authority provides, whatever disparity in initial contributions existed, the significance of that disparity abates over a lengthy marriage, of which this was an example.
The wife’s future needs were considerable. Her working life is reaching a conclusion. The husband’s future needs are not as poor because this company, Q Pty Ltd, is likely to generate income for him into the future.
In my view a just and equitable assessment of contributions is 60% in favour of the wife and 40% in favour of the husband.
The net asset pool against which a 60/40 apportionment must be applied is $11,867,100. It is made up of the value of the Country B properties, in part, as well as the Australian assets. At the risk of repetition, the financial position in relation to the real property located in Australia and in Country B may be expressed in the following manner, with dollar amounts being in Australian dollars –
Former matrimonial home Value $1,300,000 Less mortgage $72,786[74] Mortgage $81, 932[75] $155,000 Total value $1,145,000 Country B properties R Street $2,399,539 C Street Property $7,000,000 D Street Property (1/8th interest) $665,000 Total value $10,064,539 Superannuation total value $240,960 Shares, cash and motor vehicle $341,601 Q Pty Ltd $75,000 TOTAL NET ASSETS $11,867,100 Proportions 60% of $11,867,100 $7,120,260 40% of $11,867,100 $4,746,840 [74] This figure has been rounded up.
[75] This figure has been rounded up.
ACHIEVING THAT 60% DIVISION GENERATES $7,120,260
In my view, the former matrimonial home must be sold. It is not just and equitable to effect the transfer to the husband in the manner proposed. The wife should receive the whole of the proceeds of sale, ie $1,145,000.
On figures currently available, in order to partially satisfy the percentage of a 60% division in the wife’s favour of $7,120,260, she must receive the whole of the net sale proceeds of $1,145,000 or thereabouts.
To that must be added the whole of the superannuation of $240,960.
Similarly, to that further added the total of miscellaneous assets in the form of cash, shares and motor vehicle totalling $341,601.
Those amounts add up to $1,727,561. The wife’s entitlement to 60% of the net assets’ value is $7,120,260. Even when she receives the net proceeds of sale of the former matrimonial home, ($1,145,000), superannuation ($240,960) and the miscellaneous assets ($341,601) a discrepancy of $5,392,868 is thereby presented. Selling the Country B properties is the most immediate source of funds to generate the requisite sums. The wife has expressed her reluctance to be involved in that process. That is not to say that an agent cannot be appointed to sell the C Street Property and the D Street Property for the best price reasonably available which, as Mr V’s valuation has revealed, is approximately AUD $7,000,000 and $665,000 respectively. Upon a sale of the C Street Property at the price of $7,000,000 being achieved, the wife would be paid from the proceeds of sale the sum of $5,012,880, leaving the amount of $1,987,020 for application to the husband. Upon a sale of the D Street Property at the price of $665,000 being achieved, the wife would be paid $379,719 of the net proceeds of sale and the husband would retain $285,281.
Expressed arithmetically, the figuring is as follows –
60% division of $11,867,100 $7,120,260
That sum of $7,120,429 is made up of –
(a)the net sale proceeds of the former matrimonial home $1,145,000
(b)superannuation of $240,960
(c)miscellaneous assets of cash, shares, motor vehicle $341,601
(d)part sale proceeds of the C Street Property namely $5,012,880
(e)Remaining funds from the D Street Property $379,719
Totalling $7,120,260
ACHIEVING THAT 40% DIVISION GENERATES $4,746,840
The husband should receive the balance between the net value upon sale of the C Street Property ($7,000,000) less the sum paid to the wife ($5,012,880) namely $1,987,020.
To that must be added the value of the husband’s share in R Street which he retains, its valuation being $2,399,539.
The total of those items is $4,386,671. That is less than the total value of his 40% share of $4,746,952.
The husband keeps Q Pty Ltd the agreed value of which is $75,000, thereby enhancing the value of assets he receives to $4,461,559, still less than the amount required to achieve the sum representing 40% of net assets, namely $4,746,840.
The last item of real property in Country B from which the balance may be sought is the D Street Property, valued at $665,000. Transferring the title to the whole of that property to the husband would confer a windfall gain on him for part of its value. In my view, the D Street Property must be sold (generating $665,000), with $285,281 of the proceeds to be retained by the husband to achieve the total 40% of net assets being $4,746,840 and the reaming proceeds of sale (approximately $379,719) being transferred to the wife.
Expressed arithmetically, the figuring is as follows –
40% division of $11,867,100 $4,746,840
That sum of $4,746,840 is made up of –
(a)the balance of the sale price of the C Street Property namely $1,987,020
(b)the husband’s share in R Street $2,399,539
(c)Q Pty Ltd $75,000
(d)Part proceedings of the sale of the D Street Property $285,281
Totalling $4,746,840
Although the arithmetic above is cent perfect in reality the amounts set out above may generate figures of lesser value and a degree of flexibility is involved.
ORDERS
Orders appearing in the earlier pages of these reasons give effect to the mechanics of sale so as to realise the above division.
I certify that the preceding one hundred and eighty-two (182) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wilson. Associate:
Dated: 29 November 2023
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