In the Marriage of Mehmet

[1986] FamCA 24

In the marriage of MEHMET, H.M and MEHMET, F. (No. 2)

(1987) FLC ¶91-801

Full Court of the Family Court of Australia at Sydney.

Judgment delivered 9 October 1986.

Before: Strauss, Nygh and Kay JJ.

Strauss J.: In my opinion the orders made by his Honour were an appropriate exercise of his Honour's discretion for the reasons given by Nygh J. and accordingly, apart from the adjustment required by reason of the fact that the money has not been paid over yet, I would dismiss the appeal. The point of general importance which does not affect the outcome of this case is the view of the trial Judge concerning the construction of sec. 79(4)(c) of the Act. I do not agree with the view expressed by the trial Judge but I express full agreement with the views expressed by Nygh J. The addition of the words ``constituted by the parties to the marriage'' does not widen the class of persons comprehended in the expression ``family''.

In my view the section does not include relatives or other members of the household. It refers only to the parties to the marriage and the children of the marriage. The words ``constituted by the parties to the marriage and any children of the marriage'' are descriptive and definitive of the members of the family to which the paragraph refers. As I said, I would dismiss the appeal.

Nygh J.: This is an appeal from his Honour Rourke J., sitting in the Parramatta Registry, from certain orders which he made on 6 May 1986 following a hearing before him which took place on 29 April.

The facts in this case are somewhat unusual, but not, except for one matter, seriously in dispute. Both of the parties are Turkish Cypriots and were born on that island, the husband on 4 November 1916, which makes his present age almost 70, and the wife was born on 15 April 1929, which makes her age now 57.

The parties were married in Cyprus on 4 March 1945. Two children were born of the marriage, both daughters: S who was born on 7 June 1947 and A who was born on 29 October 1951. The husband left Cyprus to migrate to Australia in December 1951. The wife and the children remained in Cyprus. It would seem that the husband did ask the wife to join him in Australia but she declined to do so.

From 1951 to 1955 it is common ground that the husband on a regular basis transmitted funds to Cyprus for the support of the children. However, when by 1955 it was clear that the wife was not going to travel to Australia and the husband was not going to return to Cyprus, a breach occurred in the matrimonial relationship of the parties which is exemplified by a letter from the wife to the husband on 12 February 1956, a translation of which was in evidence before his Honour. Thereafter the regular support by the husband for the two children of the marriage decreased appreciably and indeed his Honour found that gifts and payments were made only spasmodically.

His Honour further found that during the period until the girls reached the age of 18 and/or were married, and whilst they were residing in Cyprus the overwhelming burden of supporting the children fell upon the wife, who underwent a considerable amount of hardship in struggling to make ends meet, including the obligation to undertake burdensome employment.

However, his Honour also found that from 1958 until 1963 the wife lived in a de facto relationship with a Mr Hussein, who was a nephew of the husband, in Cyprus, and that during that period she received some support for herself and the children from Mr Hussein. However, that relationship ceased in November 1963 when the wife was pregnant with a child by Mr Hussein, who was born on 15 May 1964, and was a boy known as M.

Following that, Mr Hussein disappeared from the scene and it would appear that any support by him also ceased.

In May 1960 the husband undertook what his Honour described as a heavy financial commitment for him, namely the purchase of [a property at Summer Hill], which was bought in the sole name of the husband, originally financed through two mortgages. Both mortgages were paid off by the husband by November 1968.

In 1969 the younger child, A, who was then aged 17, married. She and her husband travelled to Australia at the husband's expense and resided for approximately three years with him rent free in the Summer Hill property. The next year the older child, S, followed with her fiancé. She was then 22 and again both she and her fiancé travelled at the husband's expense to Australia and resided for five to six months with him at Summer Hill rent free.

By that time the wife had completed her care for the two children, which she had pursued up to tertiary level, so that both girls came to Australia with a diploma in dressmaking. In 1972 the wife herself came to Australia and lived initially with one of her daughters. However, as his Honour found, in approximately 1975 she came to reside in the Summer Hill residence of the husband. It seemed that she entered the premises uninvited, but that once she was there the parties resumed the cohabitation that had ceased in 1951 and they remained together, joined by the wife's ex-nuptial son M, who was then aged about 11 years.

His Honour found also that the wife returned to Cyprus on two occasions. The first occasion in 1977 was financed by the husband, and the second occasion in 1978 was financed indirectly through savings of the wife.

The parties finally separated in February 1981 when the wife left what had then become the matrimonial home. Decree nisi was pronounced on 13 June 1985, and no doubt became absolute in the statutory month thereafter.

His Honour found that during the parties' cohabitation at Summer Hill between early 1975 and February 1981 the wife was the party primarily responsible for attending to the various household chores, including cooking, cleaning and washing. She also entertained her husband's friends when they visited the home. The wife did, to a limited extent, engage in remunerative employment outside the house, but his Honour found that the money generated or earned by this employment did not accrue in any way to the benefit of the husband or the household.

His Honour also found that during that period the wife was largely supported by the husband, as was her son M. His Honour also took into account the fact that on 22 August 1980, whilst the husband was in hospital, the wife withdrew a sum of $1,000 from the husband's account at the Bank of New South Wales, Summer Hill, and, in the absence of any adequate explanation by the wife as to how that money had been expended, his Honour, rightly in my view, inferred that she had applied it to her own purposes.

At the time of the hearing the only assets as between the parties were two items, both standing in the sole name of the husband. The first item was the [property at Summer Hill] which his Honour found to have a value of $55,000 and was unencumbered. The second item was a sum of $22,000 being the balance of the proceeds of a common law claim received by the husband in October 1985. So far as the wife was concerned, his Honour found that she had no assets standing in her name. Both parties at the time of the hearing were in receipt of a pension. The husband's income consisted of the Dust Diseases Board pension, together with a correspondingly reduced old age pension, the total income from both sources amounting to approximately $178 per week.

The wife's only income consists of an old age pension amounting to $195.80 per fortnight and she resides in Housing Commission accommodation for which she pays a modest rental of $49.20 per fortnight. His Honour found that the husband's health was poor, that he had one leg amputated and has a continuing problem with his lungs.

Although the wife alleged that she was suffering from high blood pressure, rheumatism, severe headaches and nervousness, his Honour found that she was younger than her husband and on any view of the matter in far better health than he is. He found it to be overwhelmingly likely that she would survive him.

In reviewing the respective contributions made by the parties under the various headings set out in sec. 79(4), his Honour stressed on the one hand the overwhelming direct financial contribution made by the husband to the matrimonial home and the fact that the $22,000 represents the balance of a common law claim to which the wife, as far as contribution was concerned, had absolutely no entitlement.

On the wife's side stood her assumption of the major financial responsibility for the support and education of the two children of the marriage between early 1955 and 1970. His Honour also took into account the contribution which the husband had made to the support and maintenance of the wife and the ex-nuptial child of the wife during the period of cohabitation and the generosity which the husband had shown from time to time towards his daughters once they came to Australia and towards the husbands of the daughters.

Taking all these matters into account, his Honour came to the conclusion that a proper division as between the parties in pursuance of sec. 79 would be one which gave each of the parties in effect an equal share of the former matrimonial home. That is to say, on the basis that that home was presently worth $55,000, the wife should receive $27,000. However, his Honour also took into account the age of the husband, his poor health, his lack of financial resources other than the proceeds of the common law claim, and found that an order which would force the immediate sale of the premises in which he was currently residing would in his words render the husband destitute and homeless without any corresponding advantage to the wife.

So far as the wife's present position is concerned, he pointed out that for the time being she is in a situation as secure as this country's social welfare system can make her. She is in receipt of a pension and occupies inexpensive Housing Commission accommodation.

For those reasons, therefore, his Honour devised orders whereby the wife was to receive out of the lump sum which the husband had available an immediate part payment of $15,000 and postponed the payment of the balance of $12,500 for a period of five years to become payable on or before 1 January 1991, to carry interest in the meantime at a rate of 12½% p.a. with effect from the date of his order. The payment of the sum so decreed to be paid was to be a first charge on [the property at Summer Hill]. I should add that upon my reading of the orders which were made by his Honour, the interest chargeable on the sum of $12,500 is not payable until such time as the capital is due to be paid out. That is to say it accumulates, but not as I see it on a compounded basis.

His Honour also made certain other orders to secure the payment of the $15,000 which was due to be paid on or before 9 June 1986. However, those orders are of academic interest only since, as I understand, the sum of $15,000 has been paid from the amount which was standing to the husband's credit into a joint trust account in the names of the solicitors of the parties pending the determination of this appeal. Therefore, if the appeal is dismissed, that amount will be presumably paid out at once to the wife, together with such interest as may have accrued thereon, in accordance with the orders made by his Honour.

The husband appealed from the orders made by his Honour. In the grounds of appeal a large number of specific grounds are set out, adding up to some 40 grounds. However, when the husband's counsel presented the case before us this morning he in effect did not proceed in any detail with any of these grounds. He conceded in effect that it was not possible to point in his Honour's judgment to any specific error of fact or of law, but relied upon the concluding passage of the well-known statement of the High Court in House v. The King (1936) 55 C.L.R. 499 at pp. 504 and 505. Their Honours, after pointing out the grounds upon which a discretionary judgment can be successfully appealed from, concluded with the words:

``It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.''

It is argued that the conclusion which his Honour reached upon the facts and circumstances of this case came within the spirit and intention of that passage.

So far as the absence of errors of fact and errors of law are concerned, in my opinion there is in fact one error in the judgment of his Honour, and one error of law. So far as the error of fact is concerned, his Honour, despite the fact that in her opening address counsel for the respondent correctly stated the current ages of the parties, proceeded in the opening passages of his judgment to say, and I quote:

``The husband and wife are now aged 71 years and 66 years respectively.''

That this was not a mere slip of the tongue indicated later in the judgment at p. 26 when again, after referring to the relative health circumstances of each of the parties, his Honour states:

``However, she is five years younger than her husband and on any view of the matter is in far better health than he is.''

He concluded, and in my view rightly:

``I find it to be overwhelmingly likely that she will survive him.''

In my view this was an error, but of course it was an error which in any event strengthened the conclusion which his Honour reached, namely that it was overwhelmingly likely that the wife would survive the husband. I cannot therefore consider it an error of any substance in the conclusion which his Honour reached.

So far as the other mistake is concerned, the error of law, it is an error of law which if anything would operate to the disadvantage of the wife rather than the husband. His Honour, as I have pointed out earlier, took account of the husband's generosity not only to his daughters after they had reached the age of 18 and indeed had married, but also to the daughters' husbands, or the persons who afterwards became their husbands, and to the wife's ex-nuptial son M.

His Honour took the view that he could take account of the financial support given by the husband to those persons under sec. 79(4)(c) as a contribution made by him to the welfare of the family constituted by the parties to the marriage.

Section 79(4)(c) reads:

``The contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent.''

His Honour, as appears from his judgment at pp. 31 and 32, seems to have read the passage ``constituted by the parties to the marriage and any children of the marriage'' as if a comma appeared after the word ``marriage''. That is to say, he read the qualification initiated by the word ``constituted'' as extending only to the words ``constituted by the parties to the marriage'' and treating the reference to ``and any children of the marriage'' as a separate category.

His Honour then came to the conclusion that since children would in any event be included in the description of family, the word ``family'' should be given a wider meaning than what is nowadays referred to as the nuclear family. Relying on 19th century decisions such as Re Terry's Will (1854) 19 Beav. 580, and Bigs v. Clarke (1876) 3 Ch.D. 672, his Honour came to the conclusion that the word ``family'' referred to the extended family, including any servants who may be part of the extended family household.

On that basis he felt that he could include in the contribution to the welfare of the family any contribution made to the welfare of the husband or fiancé of the daughters as adults and of the ex-nuptial son M.

With great respect to his Honour, I cannot accept that interpretation. In the first place, it is in my view wrong to split the subsentence which commences with the word ``constituted'' into two parts. In my view it is one whole, that is to say the description of the word ``family'' consists of the words ``constituted by the parties to the marriage, and any children of the marriage''. I find support for that interpretation in the judgment of Fogarty J. sitting in the Full Court in Williams and Williams (1984) FLC ¶91-541 in which his Honour said at p. 79,387:

``And the following words, namely the words `constituted by the parties to the marriage and any children of the marriage', are not really descriptive of the word `family' and are not intended, I am sure, to be a qualification to the otherwise clear wording of that section.''

Now, it must be remembered that in that case the Full Court was dealing with the argument that a contribution under para. (c) could only be made as long as the family unit was intact, that is as long as there were present in the household the father, mother and children. The High Court in Williams v. Williams (1985) FLC ¶91-628; (1985) 10 Fam. L.R. 355, upheld the Full Court on that point in pointing out that the words ``constituted'' etc. should not be read in any restrictive sense. The family is a unit which at one stage was constituted by the parties to the marriage and any children of the marriage even though at the date of the hearing it may no longer be so constituted.

But the words can certainly not, in my opinion, be read as either being split into two sub-groups or as being merely an example of the type of people who might be included within the meaning of the word ``family''. The interpretation of the word ``family'' must be seen in the context of the legislation as a whole. It must be seen particularly within the context of the words which follow in para. (c), namely ``including any contribution made in the capacity of homemaker or parent'', that is to say, the contribution made by a spouse to another spouse or the contribution made by a mother or father towards his or her children. It must also be seen in the light of the principles set out in sec. 43 and in particular sec. 43(b) which speaks of the need to give the widest possible protection and assistance to the family as the natural and fundamental group unit of society, particularly while it is responsible for the care and education of dependent children. In my view this is clearly a reference to what has been described as the nuclear family. In my view, therefore, the words which commence with the word ``constituted'' are both descriptive and definitive of the meaning of the word ``family'' even though as was held in Williams and Williams, it does not have to remain so constituted up to the date of the hearing, indeed it cannot be.

However, in the circumstances of the present case, if it led his Honour to make any error then it was an error which disadvantaged the wife, not the husband, and there was no appeal from that determination on the part of the wife. At the same time, as was conceded by counsel for the wife, and rightly so in my opinion, the contributions which were made by the husband to the various persons referred to in his Honour's judgment at p. 31, were matters which his Honour was fully entitled to take into account under sec. 75(2)(o), and also conceivably in so far as there might be seen to be any moral obligation on the part of the husband in pursuance of sec. 75(2)(e). So whatever his Honour did, his Honour was, in my view, entitled to take those matters into account even if he did so, in my view, under the wrong rubric.

However, since his Honour's judgment in this regard has been reported, I feel it incumbent to correct any impression which may at some future stage lead other judges into a material error.

Coming back to the essential argument presented on behalf of the husband that the conclusion reached by his Honour, although no specific material error could be demonstrated, was in fact unreasonable or plainly unjust; in my view that cannot be sustained. The High Court in its latest pronouncement on the matter in Norbis v. Norbis (1986) FLC ¶91-712; (1986) 10 Fam. L.R. 819 through Mason and Deane JJ. at FLC p. 75,165; Fam. L.R. p. 821, made it very clear that the trial Judge has a very wide discretion. The mere fact that there may be differences of opinion as to what are, within a given range, legitimate and reasonable answers to the questions posed, would make it wrong to allow a court of appeal to set aside a judgment of first instance merely because there exists such a difference of opinion between the judges on appeal and the judge at first instance.

In the circumstances of this case, while on the one hand there was a very substantial financial contribution on the part of the husband, on the other hand there was what might be described as an extraordinary contribution by the wife over a substantial period of the children's childhood as a homemaker and parent and also as regards the financial support of these children. The conclusion which his Honour reached having regard to all of those factors that the one asset acquired during the marriage of the parties, namely the former matrimonial home, should be equally divided is, in my view, within the legitimate and reasonable range open to his Honour and I would not wish to interfere with that conclusion.

The only other matter which gave me some cause for concern was the manner in which his Honour made the orders whereby the payment of the $12,500 was postponed for a period of five years. His Honour took this course and it was quite open to him in order to give the husband the opportunity to remain in that home since it was not possible for him to obtain any alternative accommodation.

It would have equally been open to his Honour to make an order whereby he would in effect have given the husband life tenure of the premises subject to certain conditions. In my view this was, within the terms used by their Honours in Norbis v. Norbis, a reasonable and legitimate answer to the particular problem with which his Honour was faced. Each possible solution pressed on us has its advantages and disadvantages. I personally am not prepared to interfere with the particular method chosen by his Honour, even though if I had been the trial Judge I might have chosen a different course.

For those reasons I am of the view that the appeal by the husband should be dismissed.

Kay J.: I would allow the appeal in part. That would relate to the basis upon which the future payment of the $12,500 is to be made. If I may first, however, return to the point canvassed by the learned trial Judge at p. 22 of his judgment. The learned trial Judge had indicated that in his view the words ``constituted by the parties to the marriage'' in sec. 79(4)(c) were words which widened the class of persons ordinarily comprehended in the expression ``family''. In my view they are not words that are intended to widen the meaning of ``family'' but are words read together with ``the children of the marriage'' to narrow the meaning of the word ``family''.

On the facts of this particular case, however, the provision of board, lodgings and air fares to the husband of the children would in my view have amounted to a contribution to the children of the family within the meaning of sec. 79(4)(c). It was, of course, further open to the learned trial Judge to take into account those sorts of contributions under sec. 75(2)(o) as matters which were relevant to the exercise of his discretion.

In my view the error as to the age of the parties is an error of fact that is one of substance and that it is appropriate once an error of fact that may have some substantial bearing on the final outcome of the case becomes apparent that this Court should substitute its own discretion to that of the trial Judge. I refer to Mahon and Mahon (1982) FLC ¶91-242 and the reference there to a decision of Gibbs J. (as he then was) in De Winter and De Winter (1979) FLC ¶90-605.

His Honour was, in my view, most anxious to ensure that at no stage in the husband's life, so long as he had need for the house, was he to be forced to sell the house. His Honour indicated at three different places in his judgment that such a result would not be just and equitable. He indicated firstly that a forced sale of the matrimonial home would be disastrous for the husband with little practical benefit for the wife. He went on subsequently to indicate that whilst in normal circumstances he may have had no hesitation in ordering a sale, there were circumstances in this case which, to quote his Honour.

``... must militate against such a course.''

In those circumstances he then indicated because of the husband's age and state of health, the probability that he would not survive the wife, and that he had no capacity for gainful employment, that a sale of the house would not achieve anything worthwhile for either party. He went on to conclude before pronouncing the orders:

``that any immediate sale of the house would render the husband destitute and homeless without any corresponding advantage to the wife.''

The current order leaves the matter very much in limbo. If the husband were to pass away prior to 1991, at the moment the wife would not, as the order currently stands, be entitled to receive any portion of the $12,500 unless those managing the husband's estate thought it appropriate to pay her the money. As the order presently stands, if the husband was still alive in 1991 and in similar circumstances to today, namely in desperate need of accommodation, the order executes itself subject only to any discretion there might be in a judge to refuse to enforce the order. That is very much a moot point.

In my view such a result is not appropriate and there should be substituted for the orders relating to the delayed payment of the moneys an interest in the property by the wife equivalent to 5/22 of the property and that there be a delayed realisation of that interest during the lifetime of the husband or until the husband permanently vacates the premises. Any such delayed realisation would, of course, require the husband to keep the house insured and to be liable for the outgoings in the interim.

I am also not satisfied that it is clear from his Honour's order as to when the interest payable on the $12,500 is to be actually paid. The order is silent as to whether it was to be paid weekly, monthly, quarterly or annually, and in my view it is speculating to suggest that the proper interpretation is that it should be paid at the conclusion of the period, that is 1991. The effect of such an order, of course, the interest being a flat rate, in deferring the payment for up to four and a half years, is that the effective rate of interest when it is received would be a lot lower than 12½% in those circumstances.

For those reasons I would allow the appeal in part and vary so much of the orders as relates to the manner in which the delayed part of the claim is to be met. Otherwise I agree with the reasons already given.

Strauss J.: In view of the fact that there has been a stay of the execution and operation of the orders made, the stay was granted on 4 July 1986, it is necessary to make some amendments to the orders made. The amendments which I would propose are that para. (1) should read: the husband is to pay or to cause to be paid to the wife the sum of $27,500 as follows, (a) as to the sum of $15,000 on or before 17 October 1986 out of the account established pursuant to the order of 4 July 1986. I would leave (b) intact and, as to 2(a), I would substitute for what is in that paragraph, all the interest accrued in or in respect of the account established pursuant to the said order of 4 July 1986 and otherwise I would, save those alterations, say the appeal should be dismissed. We make no order as to costs.