Kadam & Anor and Patel
[2010] FamCAFC 104
•15 June 2010
FAMILY COURT OF AUSTRALIA
| KADAM AND ANOR & PATEL | [2010] FamCAFC 104 |
| FAMILY LAW - APPEAL – PROPERTY – where the husband and the husband’s mother have both appealed the trial judge’s orders – whether the trial judge erred in finding that the husband had a beneficial interest in a property registered in the joint names of the husband and his mother – where the husband’s mother asserts she is the sole beneficial owner of the property – where the husband asserts he holds his interest on trust for his mother – where the evidence does not establish the husband made no contribution to the repayment of the mortgage or outgoings on the property – where the trial judge rejected the evidence of the husband’s mother and other family members and made adverse credit findings – where the evidence does not establish that the husband holds his interest on trust for his mother – no merit in the complaint that the trial judge erred in finding the husband had a one half interest in the property. FAMILY LAW - APPEAL – appeal by the husband – whether the trial judge erred in respect of his finding as to the level of child support paid by the husband – whether the trial judge was biased and pre-judged the matter – whether the trial judge failed to give the respondents sufficient time to present their case at trial – where the husband complains of comments made by the trial judge during the hearing – whether the trial judge erred in finding the husband had prepared the affidavits of his family members – whether the trial judge erred in failing to find the wife was in a de facto relationship – no merit in the husband’s complaints – appeal dismissed. FAMILY LAW - APPEAL – appeal by the husband’s mother – where the husband’s mother complains the trial judge did not try to understand her situation or clarify matters – where the husband’s mother complains of comments made by the trial judge with respect to her ability to accumulate savings – no merit in the complaints of the husband’s mother – appeal dismissed. FAMILY LAW - APPEAL – APPLICATION IN AN APPEAL – applications by the husband and the husband’s mother seeking to in effect adduce further evidence in the appeals – applications dismissed. FAMILY LAW - COSTS – where both appeals were unsuccessful – order for the husband and the husband’s mother to each pay one half of the wife’s costs of and incidental to the appeal and the application for expedition. |
| Family Law Act 1975 (Cth) ss 4, 75(2), 79, & 93A(2) Child Support (Assessment) Act 1989 (Cth) Evidence Act 1995 (Cth) s 42 |
| CDJ v VAJ (1998) 197 CLR 172 |
| APPELLANT: | MR KADAM |
| SECOND APPELLANT: | MRS KADAM |
| RESPONDENT: | MS PATEL |
| FILE NUMBER: | PAF | 4938 | of | 2002 |
| APPEAL NUMBER: | EA | 142 | of | 2008 |
| APPEAL NUMBER: | EA | 143 | of | 2008 |
| DATE DELIVERED: | 15 June 2010 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Finn & Strickland JJ |
| HEARING DATE: | 2 June 2009 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 19 November 2008 |
| LOWER COURT MNC: | [2008] FamCA 990 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | In person |
| COUNSEL FOR THE SECOND APPELLANT: | In person |
| COUNSEL FOR THE RESPONDENT: | Mr Battley |
| SOLICITOR FOR THE RESPONDENT: | McDonnell Schroder |
Orders
The appeals are dismissed.
The applications to adduce further evidence are dismissed.
The husband and Mrs Kadam each pay one half of the wife’s costs of and incidental to the appeal and to the application for expedition as agreed and in default of agreement as assessed.
IT IS NOTED that publication of this judgment under the pseudonym Kadam and Anor & Patel is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 142 of 2008
Appeal Number: EA 143 of 2008
File Number: PAF 4938 of 2002
| MR KADAM |
Appellant
And
| MRS KADAM |
Second Appellant
And
| MS PATEL |
Respondent
REASONS FOR JUDGMENT
Introduction
This judgment relates to two appeals, one by Mr Kadam (“the husband”) and the other by Mrs Kadam, the husband’s mother (“Mrs Kadam”), against property settlement orders made by Coleman J on 19 November 2008 in proceedings primarily between the husband and Ms Patel (“the wife”).
The principal issues for determination before the trial Judge were whether there was “property” of the husband pursuant to s 4 of the Family Law Act 1975 (Cth) (“the Act”) and if there was, what orders, if any, were to be made in favour of the wife by way of property settlement. With respect to the property of the husband, the trial Judge was required to determine whether the husband had a beneficial interest in a property at L (“the property”) of which the husband and his mother are the registered proprietors as tenants in common in equal shares. The husband claimed to have no beneficial interest in the property.
A number of the husband’s family members had previously lodged caveats over the title to the property. They were the husband’s mother Mrs Kadam, his sister Ms W, his brother Mr R, his father Mr G and his sister Ms S, and they were all given leave to intervene in the proceedings before the trial Judge (as the second to sixth respondents respectively).
On 19 November 2008 Coleman J made the following orders:
(1) That by way of settlement of property the husband pay to the wife the sum of $20 000 within 60 days of the date of these orders.
(2) That, upon receipt by the wife of the said sum of $20 000, the wife indemnify the husband with respect to any present or future assessments of child support against the husband in excess of the minimum level of child support from time to time assessed by the Child Support Agency pursuant to the provisions of the Child Support (Assessment) Act 1989.
(3) That payment of the said sum of $20 000, together with interest accrued thereon pursuant to the Rules, in the event of the husband failing to pay the said sum within 60 days of these orders, be and remain a charge upon the interest of the husband in the property known as [L property] and being the property comprised in Lot […] in DP […].
(4) That within 7 days of these orders the second, third, fourth, fifth and sixth respondents respectively execute and deliver up to the wife’s solicitors a Withdrawal of Caveat in registrable form with respect to Caveat number […]J (the second respondent), Caveat number […]H (the third respondent), Caveat number […]D (the fourth respondent), Caveat number […]G (the fifth respondent) and Caveat number […]Y (the sixth respondent) in order to permit the solicitors for the wife to lodge a Caveat against the husband’s interest in the said property in support of the charge created in her favour by these orders.
(5) That in the event of any of the respondents referred to in Order 4 hereof failing to sign a Withdrawal of Caveat in a form approved by the Registrar General of New South Wales within 7 days of such Withdrawal of Caveat being submitted to him, her or them, the Registrar of this Court be appointed to sign same on behalf of such respondent(s) pursuant to s106A(1) of the Family Law Act.
(6) That costs be reserved.
By an Amended Notice of Appeal filed on 27 January 2009 the husband appeals against orders 1, 2, 3 and 6 of those orders. By a Notice of Appeal filed on 15 December 2008 Mrs Kadam appeals against orders 3, 4 and 6. However, at the hearing of the appeals the husband indicated that he was no longer appealing against order 6 because the wife’s application for costs had been subsequently dismissed. Mrs Kadam did not address this issue but clearly an appeal against that order cannot be pursued.
The wife seeks that both appeals be dismissed.
Only the husband, the wife and Mrs Kadam are parties to these appeals. Neither the husband nor Mrs Kadam were represented. An interpreter was sworn in and was available to the parties and we allowed Ms C, Mrs Kadam’s granddaughter to speak on her behalf.
Background
At the time of trial the husband was aged 42 years and the wife was aged 34 years.
The property had been purchased in 1995 and registered in the names of Mrs Kadam and the husband’s brother Mr R. The unchallenged evidence is that Mrs Kadam (and/or her husband, Mr G) contributed approximately $30,000 towards the purchase price and the costs of purchase of the property, and a loan of $157,000 was obtained to complete the purchase, with this loan being secured by way of a mortgage registered on the title to the property.
On 10 June 1997 the husband and Mrs Kadam became the registered proprietors as tenants in common in equal shares of the property subject to the existing mortgage. The unchallenged evidence is that this was achieved by a transfer of the interest of the husband’s brother to the husband for no consideration. However, Mrs Kadam asserts that she paid all costs and expenses required for this purpose and totalling approximately $28,000.
On 4 July 1997 the husband and Mrs Kadam executed a mortgage in favour of Advance Bank Australia Limited as collateral security for borrowings by the husband, the husband’s brother Mr R and a Mr A to purchase a block of flats at N (“N property”). After being strata titled the husband received three units in the building, Mr R four units and Mr A received one unit. The husband asserts that Mrs Kadam advanced funds to him to enable him to acquire his interest in the units.
The parties were married in a civil ceremony in Australia in January 2000. The marriage was arranged. The wife returned to Fiji the day after the wedding.
The wife again came to Australia in May 2000.
In June 2000 the parties were married in a Hindu service at L and thereafter commenced cohabitation at the property.
The parties initially separated in February 2001, but resumed cohabitation briefly in April 2001. The parties finally separated in May 2001. The husband remained living in the property.
In January 2002 the only child of the marriage, E was born and was aged 6 years at the time of trial.
Proceedings for property settlement were commenced by the wife in October 2002.
By 2005 all monies invested in N property by the husband were lost, with a judgment being entered against the husband for approximately $18,000 by a mortgage insurer.
On 12 April 2005 final parenting orders were made in the Federal Magistrates Court providing for the child to live with the wife.
On 29 November 2005 the husband’s brother Mr R lodged a caveat on the title of the property claiming an interest in the property arising from an oral “instrument” created on 17 July 1997. It was claimed there was an agreement that the caveator would be granted a life interest in the property by the registered proprietors, the husband and Mrs Kadam.
On 30 November 2005, following a four day trial, final property settlement orders were made in the Federal Magistrates Court. These orders were appealed by both the husband and Mrs Kadam.
On 30 November 2005 the husband’s father Mr G lodged a caveat on the title of the property in identical terms to that lodged by Mr R, save that it was claimed the interest arose from an oral “instrument” created on 25 June 1997.
On 4 July 2006 the husband’s sisters Ms S and Ms W each caused caveats to be lodged on the title of the property. Both caveats were also in the same terms as the caveats lodged by the other family members, save that it was asserted only that the interest arose from an oral “instrument” in 1997.
On 29 September 2006 Boland J made orders allowing the appeal against the orders of the Federal Magistrate made on 30 November 2005, setting aside the orders and remitting the matter to the Federal Magistrates Court for rehearing. The matter was thereafter transferred to the Family Court.
On 8 November 2007 Mrs Kadam lodged a caveat on the title asserting an interest as “joint tenant and half share” in the property pursuant to a “registered mortgage oral” allegedly dated 1 January 1998 made between the husband and Mrs Kadam. It was asserted that there was an agreement that the husband had no interest in the property.
On 22 January 2009 Coleman J made orders staying his orders of 19 November 2008 on the condition that the husband file an application for expedition of the appeal.
On 12 February 2009 Boland J made orders expediting the hearing of both appeals. The costs of and incidental to that hearing were reserved to the Full Court.
On 25 February 2009 orders were made consolidating the appeals.
On 8 April 2009 Mrs Kadam filed an Application in an Appeal in effect seeking to adduce further evidence.
On 14 April 2009 the husband also filed an Application in an Appeal in effect seeking to adduce further evidence.
Reasons for Judgment of the trial Judge
The trial Judge commenced his reasons for judgment by outlining the orders sought by both parties. Counsel for the wife had quantified that the wife was seeking the sum of $60,000, payment of which was sought by sale of the property.
His Honour outlined that leave to intervene had been granted to a number of members of the husband’s family, however, none of the family members had ever filed any document outlining the nature of the interest asserted by them in the property. His Honour noted that the Court was only able to gain some appreciation for the interests asserted by the family members in the property due to the tender by the wife of a number of caveats lodged over the title to the property.
His Honour identified that there were two broad issues for determination:
5. … The first issue is whether there is “property” of the husband, which is a pre-requisite to there being a matrimonial cause within Section 4 of the Family Law Act 1975 (Cth) (“the Act”) and thus jurisdiction to enliven the power to make any order pursuant to Part VIII of the Act. If there is no property, there is no matrimonial cause, and can be no order for settlement of property.
It was recorded that it was not in doubt that the husband had a legal estate or interest in the property, however, the husband maintained that he had no beneficial interest in the property.
His Honour identified that if there was property, the next step was to consider the relevant provisions of Part VIII of the Act to determine what order, if any, should be made in favour of the wife.
His Honour recorded that the latter issue (namely any order to be made in favour of the wife) was “narrower than a reading of the material at trial might suggest”, and that:
8.… [u]ltimately, if there is property of the husband with respect to which an order could potentially be made, the basis upon which that order could be made is limited to the wife’s financial and non-financial contributions to the child of the parties in the post separation period. That period covers the whole of the child’s life given that the child of the marriage was born after the parties separated.
After providing the above introduction, his Honour firstly recorded his observations with respect to the credit of the parties. His Honour was critical of the evidence of the wife:
9. The wife was an unimpressive witness who clearly and repeatedly said whatever seemed to her most potentially advantageous at the time. Were the wife’s entitlement to be dependent upon the acceptance of any controversial evidence given by her, it would fail. The transcript of the wife’s evidence would reveal the many and varied ways in which her evidence was unreliable.
His Honour concluded though that the wife’s entitlement “falls to be determined by reference to evidence which is not in contest and falls within a narrow compass”.
His Honour then proceeded to record the facts upon which counsel for the wife sought to base the wife’s entitlement, noting that the child of the marriage was born after the parties separated and that it was asserted by the husband that he has seen the child for a total of 20 hours since her birth. His Honour concluded the husband has no, and apparently desires no, relationship with the child, and that the wife was therefore in the “perhaps unusual position” of having made 100 per cent of the parenting contribution with respect to the child since her birth. His Honour found that the evidence did not suggest this situation would change in the future and his Honour considered this to be a significant ongoing contribution by the wife.
His Honour then turned to consider the financial support, or, as his Honour thought perhaps more accurately reflected the situation, the “non support”, provided by the husband to the child of the marriage. His Honour recorded it was common ground that the husband paid $5 per week child support. With regard to this, his Honour commented, and as was apparently acknowledged by the husband, that $5 per week for six and a half years (or not more than $1600) goes “no way towards the real costs of maintaining the child since her birth.”
His Honour found that while the wife could have sought redress regarding the husband’s financial support pursuant to the Child Support (Assessment) Act 1989 (Cth), “the combination of the complexity of that legislation and the determination and deviousness of the husband provides little cause for confidence that so doing would have been likely to succeed”. His Honour found that given the history of this matter, any steps taken by the wife with respect to child support “would have been resisted by the husband until the last avenue of appellate challenge was exhausted” and concluded:
14. Thus, to the extent that it could be suggested that 6½ years of token child support ought not be a potential basis for the wife’s claim, such a contention is not, in the circumstances of this case, one which should succeed.
His Honour also had regard to the future aspects of child support, before concluding that:
15. … nothing advanced by the husband, or emerging from the evidence, provides a rational basis for accepting that the husband will ever willingly pay proper child support to a mother for whom he has contempt for the support of a child in whom he has no demonstrated interest.
His Honour did not consider it necessary to refer further to the unsatisfactory evidence of the wife or the “less than convincing” evidence of Mr U as to the nature of his relationship with the wife, commenting that “[i]t is unnecessary and unproductive to record the Court’s conclusions or suspicions about those matters”.
Turning to further issues of credit, his Honour found the husband was also not a credible witness and that the transcript reveals that “he too said whatever seemed most likely to assist his cause.” His Honour concluded that “the Court would not accept the evidence of the husband with respect to controversial matters where that evidence was not supported by reliable independent evidence.” [At paragraph 18]
His Honour stated that similar observations could be made about other members of the husband’s family who gave evidence, commenting that “[i]t is quite apparent that the members of the husband’s family have colluded to seek to defeat the wife’s claim by whatever means they can.”
His Honour then referred in more detail to the reasons for his conclusion that neither the husband nor any of his family members were credible witnesses.
Concluding his comments on credit, his Honour said this:
23. Ultimately, albeit for different reasons to those applicable to the wife, the lack of credibility of the husband and his family members has limited impact given that, on any view of it, the wife’s contribution based entitlement is limited to the uncontroversial matters to which reference has been made.
His Honour then outlined the material facts with respect to the parties’ relationship and the history of the property, as set out above.
With respect to the property, his Honour recorded that the husband had lived in the property at all times since his acquisition of an interest in 1997. His Honour recorded that the evidence was unclear as to which other members of the family had lived at the property, or for what periods they lived in the property, but it seemed clear that the husband’s mother and father have resided there for much, if not all, of the period since acquisition.
Turning to consider the purchase of the block of flats at N, his Honour found that the husband’s evidence was less than clear as to funds alleged to have been advanced to him by Mrs Kadam to acquire his interest in the property. It was noted that no documents had been produced to establish that these funds were provided.
His Honour recorded that it was the husband’s case that he had never had a beneficial interest in the property, notwithstanding that it was used as collateral security for borrowings by him.
His Honour recorded the child has at all material times lived with the wife since birth and that, save to the extent of the husband’s financial contribution of no more than $1600, the husband has made no direct or indirect financial or non-financial contribution to the welfare of the child whom the husband asserts he has seen for a total of 20 hours in her lifetime.
With respect to the history of these proceedings, his Honour considered it sufficient to note that proceedings had been on foot for four and a half years and that the husband had at all times asserted he has no beneficial interest in the property. His Honour recorded that the husband had the benefit of a “lengthy trial” before a Federal Magistrate and an appeal from that decision. His Honour considered that the inadequacies of the evidence presented by the husband and his family needed to be seen in the context of that time frame.
Next, his Honour turned to consider the property of the parties.
His Honour found that the only significant property of the parties was the husband’s one half interest as a tenant in common with Mrs Kadam in the property, which had an agreed value of $470,000. After taking into account a mortgage over the property, his Honour concluded that the husband’s legal interest in the property was worth approximately $190,000.
After again recording the husband’s assertion that he has no beneficial interest in the property, his Honour outlined that there was no admissible evidence before the court that provided a basis for concluding or even suspecting that the husband is not the beneficial owner of a half interest in the property.
His Honour concluded that there was little doubt that the husband and his family had “colluded to assert that the husband had no beneficial interest in [L]” and found that “no consistent or rational basis for that assertion has emerged.” [At paragraph 41]
The trial Judge recorded it was the husband’s case that, despite having lived in the property since 1997, he had paid nothing with respect to the property, and that it was asserted by the husband and his family members that he was a “front” for other members of the family at the time the property was acquired.
His Honour inferred that given both the husband’s mother and father were reliant on social security since coming to Australia, it was unlikely they would have been able to secure the substantial borrowings required to purchase the property. His Honour commented that it seemed to be suggested that the husband was held out as having a beneficial interest to obtain a mortgage. His Honour considered that this assertion ignored the circumstances of the purchase of the property in 1995, at which time the mortgage was obtained.
His Honour found that the husband had failed to discharge the onus upon him to establish that he had no beneficial interest in the property on the balance of probabilities. His Honour also concluded that the members of the husband’s family involved in the proceedings had also failed to establish that they have any beneficial interest, entitlement or claim to the property which should be recognised by the Court.
His Honour next turned to consider the documentation advanced by the respondents in support of their claims. His Honour outlined the nature of the caveats which had been placed over the title to the property by two of the husband’s sisters, the husband’s father, the husband’s brother and Mrs Kadam between November 2005 and November 2007. His Honour found with respect to each of these caveats that the “inescapable inference” was that they were all prepared after the wife brought her claim and in response to the perceived need to “bolster” the husband’s case. His Honour concluded that no circumstantial or other evidence adduced on behalf of the husband or any member of his family militated against the conclusions reached with respect to the caveats.
It was concluded that there was no admissible evidence before the Court to establish the facts asserted in each of the caveats to give rise to the interest claimed, and that the caveats could therefore not advance the contentions of the husband or any member of his family.
His Honour then had regard to the documentation provided with respect to the husband’s claims that he had no interest in the property, and the asserted “arrangements” made in 1997 with respect to the property between various members of the family.
His Honour concluded that none of the documentation (consisting of bank statements from two accounts, including one in the name of the husband’s brother Mr R, and bank passbooks) provided to the Court by the husband or any member of his family advanced their contentions regarding the beneficial ownership of the property. His Honour accepted, as evidenced by the passbooks, that Mrs Kadam had accumulated savings of $91,000 over the period of the last decade, and that these funds belonged to her.
His Honour then considered whether the contributions of any of the family members should result in the husband’s interest in the property being regarded as less than his legal interest. His Honour ultimately found there was no credible evidence to establish any basis upon which the husband’s legal interest differs from or is less than his legal estate in the property.
His Honour recorded that the mortgage over the property had reduced from $116,000 in June 2004 to approximately $90,000 at the time of trial, and that the wife had made no contribution to this reduction. Taking into account an alleged debt owed to the husband’s mother of $42,000 and a judgment debt of $18,000, his Honour concluded it was reasonable to notionally regard the husband’s interest in the property as approximately $117,000, noting if this were further reduced to take into account another debt with respect to the N development, equity of $89,000 would result.
There were no other assets or liabilities with a demonstrated nexus to the marital relationship.
Having determined the property of the husband, his Honour turned to consider the contributions of the parties.
His Honour recorded that the wife’s case was not based on direct or indirect financial contributions to the acquisition, conservation or improvements of the husband’s interest in the property. In this respect, his Honour said:
85. The cohabitation of the parties was so brief, and their non financial contributions (other than indirectly to the conservation of [L]) being so long ago and unquantified, that to regard the husband as other than having made the overwhelming, if not total contribution to the acquisition, conservation and improvement of [L] would be unfair.
His Honour found that the only basis on which the wife could establish an entitlement pursuant to Part VIII of the Act was the wife’s total responsibility for the care of the parties’ child. His Honour concluded that the wife had received, and could expect to recover in the future, no more than “token” child support from the husband, and that consequently all the wife could expect to receive by way of provision for the child was what she was awarded in these proceedings.
His Honour did not accept that the husband would make any attempt to pay more than $5 per week child support, stating:
88. … it would be naive not to imagine that the husband would take whatever steps he deemed necessary to resist any attempts by the wife to oblige him to provide more than token financial support for his daughter in the future. As noted earlier, the lengths to which the husband has gone to defeat the wife’s claims before this Court leave little room for doubting that he would have been similarly industrious in his resistance of any child support proceedings which the wife might previously have taken.
His Honour found that the wife had established an indirect, non-financial contribution based entitlement with respect to property, however he acknowledged that the husband had made the contribution of that property before their marriage and that there had been no real contribution based entitlement of the wife prior to the birth of the child.
Ultimately his Honour assessed the wife’s contribution based entitlement at $20,000, explaining that to express the wife’s entitlement in percentage terms would have “little real meaning” and that the mathematical result rather than the sum resulting from some percentage determination was more appropriate given the circumstances of this case.
Finally, his Honour concluded that no further adjustment was required on account of s 75(2) factors, as to do so would be to count the same considerations twice.
His Honour was satisfied that it was just and equitable for the wife to receive $20,000 by way of property settlement where she has had, and will continue to have, the overwhelming financial and non-financial burden of providing for the child of the marriage. His Honour acknowledged that the sum could be said to undervalue the wife’s contributions with respect to the child, however, it was only due to the contributions of the husband that there was any property at all.
His Honour finally briefly considered the wife’s relationship with Mr U. His Honour considered it appropriate to refer to this relationship to “give balance to the award to be made in favour of the wife.” His Honour concluded the nature of their relationship had not been fully or accurately disclosed to the Court, and that it appeared there is a “long and established and enduring relationship of mutual support” between the two whether it be financial or not. Consequently, the wife had not solely shouldered the non-financial and possibly financial burden of caring for the child.
In conclusion, his Honour discussed how the order for payment of the sum was to be framed. His Honour found that the husband and his family members would seek to resist enforcement of the order against the interest in the property by reliance on caveats lodged against the property. His Honour concluded the wife would be successful in an application to have the caveats removed and that she should not be put to the expense of doing so. His Honour therefore proposed to order that the caveators cause the caveats lodged by them to be discharged to permit an instrument of charge in favour of the wife to be registered against the husband’s interest in the property, if not, a registrar would be appointed to do so on their behalf.
His Honour considered that an order for the sale of the property would be disproportionate to the interests of the wife with respect to the property and would be unfair to the other legal and beneficial owners of the property.
Grounds of Appeal and Orders sought by the husband
The grounds of appeal relied upon by the husband are difficult to discern from the husband’s Amended Notice of Appeal filed on 27 January 2009. The Amended Notice of Appeal consists of a mixture of asserted grounds of appeal and submissions with respect to these grounds. Submissions are also made with respect to the proceedings generally. The husband outlines the basis for his appeal by reference to various findings made by the trial Judge and paragraphs of the judgment, as well as parts of the transcript and other evidence.
Principally, the thrust of the husband’s appeal is that he objects to the trial Judge’s finding that he has a beneficial interest in the property, as well as to his Honour’s findings with respect to the child support paid by the husband, which he asserts was based on the wife’s false evidence.
The husband’s grounds of appeal can be broadly summarised as follows:
81.1That his Honour failed to give “fair and adequate attention” to whether the husband held any legal or beneficial interest in the property.
81.2That his Honour ignored the documents contained in Exhibits R2 and R3 which “reveal and unveil that Mrs [Kadam] is the sole contributor and the real owner” of the property.
81.3That the trial Judge erred in finding that the husband had a beneficial interest in the property.
81.4That his Honour erred in addressing “children’s issues” at the hearing, for which the husband was not prepared.
81.5That his Honour erred in finding that the husband only paid child support of $5 per week, totalling $1600 over six and a half years, and that this finding affected his Honour’s decision.
81.6That the trial Judge was biased and misjudged the husband’s character.
81.7That his Honour failed to “allow[…] the respondents to cross examine [semble, examine] the respondents”.
81.8That his Honour “applied the wrong law”, “made error in findings of the facts”, and “exercised his discretion wrongly and coming [sic] to a wrong judgment”.
81.9That his Honour was “very rude and has ego approach” and made “fun” of the husband.
81.10That his Honour erred in finding that the “husband’s family have colluded to seek to defeat the wife’s claim by whatever means they can”, and specifically by the husband preparing all the affidavits for the members of his family.
81.11That his Honour erred in “assuming” that the husband kept his mother’s bank accounts and was aware of his mother’s “entire banking affairs”.
81.12That his Honour erred in not allowing the husband “to cross examine the other Respondents and clarify any misunderstandings created by Counsel and regain perspective – who the real owner/s [sic] are?”
81.13That his Honour erred in not finding that the wife was in a de facto relationship and that therefore she was not “impoverished as Mr Battley stated, and can settle her own legal bills.”
81.14That his Honour erred in reserving the question of costs.
The husband outlines that he seeks the following orders:
1. Injunction Order by the Family Law Courts to be dismissed.
2. All legal costs to be paid by [the wife].
3. All matters to come to close [sic].
In his summary of argument the husband contends that this is a “Child Support Agency matter” and requests that “this Appeals Court [sic] to acknowledge this and make a New Order that this matter be dealt [sic] by the Child Support Agency and not the Family Law Courts.”
The husband also seeks that the “[a]ppeals Court to [sic] make a New Order [sic] and bring this fictitious legal proceedings [sic] to close [sic] and not a Retrial.”
Grounds of Appeal and Orders sought by the second appellant, Mrs Kadam
As with the husband’s Amended Notice of Appeal, the grounds of appeal relied upon by Mrs Kadam are difficult to discern from her Notice of Appeal, which is also in the form of submissions. The Notice of Appeal was drafted by Ms C, who translated Mrs Kadam’s statements into English from Mrs Kadam’s Fijian Hindi dialect.
The thrust of Mrs Kadam’s appeal is also that the trial Judge erred in finding the husband has any interest in the property. Mrs Kadam maintains that she has a 100 per cent interest in the property.
Again, doing the best we can to discern the grounds of appeal, Mrs Kadam’s complaints can be broadly summarised as follows:
87.1The trial Judge erred in finding that the husband has a beneficial interest in the property.
87.2That the trial Judge ignored the evidence of her bank books showing mortgage repayments by her.
87.3The trial Judge relied on “wrong law” in making orders against her property.
87.4That the trial Judge “didn’t talk to me much and try to understand my situation”.
87.5That the trial Judge did not ask questions or clarify matters with respect to the property.
The husband’s mother also complains about the trial Judge’s comments with respect to how she was able to accumulate savings of $91,000 on a pension.
Mrs Kadam seeks the following orders:
1. Injunction Order by the Family Law Courts to be dismissed.
2. Any legal costs against me to be dismissed.
3. Amended application by [the wife] dated 23 April 2008 to [sic] dismissed.
4. [The wife] indemnify me and my property of any future legal proceedings.
In the course of Mrs Kadam’s submission in her Notice of Appeal she sought that orders 3 and 4 be “removed” as well as the “injunction order” so that she can “take full ownership” of the home [At Appeal Book 45].
In her summary of argument Mrs Kadam also seeks that it “be acknowledged that 100% of the property is mine [the husband’s mother] and this the [sic] injunction order to be dismissed.”
Applications in the Appeals
Both the husband and the second appellant Mrs Kadam have brought applications in effect to adduce further evidence in these appeals.
Section 93A(2) of the Act provides that in an appeal the Full Court can, in its discretion, receive further evidence upon questions of fact. In CDJ v VAJ (1998) 197 CLR 172; (1998) FLC 92-828, the High Court discussed the circumstances in which an appellate court may exercise its discretion to admit further evidence. At paragraph 109 McHugh, Gummow and Callinan JJ said:
109.One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.
Their Honours then said:
111.… Nor can the availability of further evidence relevant to the issues in the appeal be treated as equivalent to a ground of appeal, proof of which prima facie entitles the appellant to a new trial. The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
And finally their Honours said:
116.The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section.
The wife opposes both applications to adduce further evidence.
Application in an Appeal filed by the husband on 14 April 2009
The husband seeks the following orders in his application:
1. Injunction Order to be dismissed.
2. Wife Respondent [sic] to pay all costs.
3. This is [sic] Child Support matter and be referred to be dealt by the CSA. [sic]
However, to repeat, we have treated this as an application to adduce further evidence.
The husband filed an affidavit in support of this application and he attached to his affidavit the evidence he wishes to adduce. This evidence consists of a letter dated 19 February 2008 from the wife’s solicitors, the first page of a Child Support Transaction Statement for the period from 31 January 2002 to 21 November 2008, and numerous letters purportedly detailing the husband’s attempts to have contact with his daughter.
With respect to the letter from the wife’s solicitors, the husband contends that this letter led him to believe that this was not a “child related matter” and, along with directions given by the trial Judge on 9 April 2008, resulted in the husband not being prepared for the “child matters”. However, this demonstrates a complete misunderstanding of how it was that his Honour came to address issues such as child support and which party took responsibility for the care of and the support of the child. These were issues that the trial Judge was required to address in considering the property settlement proceedings before him. The trial Judge was obliged to take into account the past, the present and the future child support payments made and to be made by the husband (see s 79(4)(g) of the Act). Likewise, it was relevant in assessing the respective contributions of the parties to know the past, present and future arrangements for and circumstances of the child (see s 79(4)(c) of the Act). The fact that the husband did not appreciate that these issues needed to be addressed does not render the orders under appeal erroneous. Thus there is no basis for admitting the letter as further evidence.
With the one page child support document, that only covers the period from 31 January 2002 to 6 January 2003, and we do not have the balance of the pages covering the period from 6 January 2003 to 21 November 2008. From this one page document the detail for the period from 21 January 2002 to 6 January 2003 is consistent with the trial Judge’s findings that the husband paid $5 per week by way of child support, but presumably the husband seeks to rely on what is described as a “Summary” which appears at the top of the page. That records “total debits” of “$10,437.42” and “total credits” of “$10,175.07”. However, this document does not establish that the husband paid $10,000 instead of $1600 as found by the trial Judge on the husband’s own evidence. Thus, this document cannot effect the trial Judge’s decision and we would not admit it.
The correspondence in relation to the issue of contact also should not be admitted. If accepted, that evidence would not have impacted at all on the findings of the trial Judge as to the respective contributions of the parties pursuant to s 79(4)(c) of the Act. Thus, again the husband has not demonstrated a basis for this correspondence to be admitted as further evidence.
In these circumstances we propose to dismiss the husband’s application.
Application in an Appeal filed by Mrs Kadam on 8 April 2009
Mrs Kadam seeks the following orders in her application:
1. Injunction Order against my property by the Family Law Courts to be dismissed.
2. All costs against me to be dismissed.
3. Requesting for New Orders [sic] to bring this matter to close [sic] and not a Retrial [sic].
Again, we have treated this as an application to adduce further evidence.
Mrs Kadam filed an affidavit in support of this application and the evidence which she sought to adduce in the appeal was attached to her affidavit. It comprised the following:
102.1A copy of a St George Bank record evidencing a term deposit of $28,000 for 12 months commencing on 27 December 1996.
102.2A letter from St George Bank advising records were not kept after 7 years.
102.3A photocopy of a Bank West bank record in the name of Mrs Kadam evidencing a withdrawal of $10,000 on 2 October 2008.
102.4A photocopy of a Bank West bank record in the name of Mrs Kadam evidencing a withdrawal of $7337.29 on 2 October 2008.
102.5Photocopies of bank statements for a St George Bank account in the name of Mrs Kadam’s husband.
102.6A statutory declaration by Mr A, one of Mrs Kadam’s grandsons as to money provided by him to Mrs Kadam.
102.7A statutory declaration by Ms M, a granddaughter of Mrs Kadam as to money provided to Mrs Kadam.
102.8A statutory declaration by Mr P as to money paid to Mrs Kadam for board.
102.9A statutory declaration by Ms S, the daughter of Mrs Kadam as to money provided to Mrs Kadam.
102.10A photocopy of a page from a bank account in the name of Mrs Kadam evidencing a credit balance of $89,686.51 as at 23 February 2009.
102.11A statutory declaration by Mr R the husband’s brother primarily in relation to the purchase of the N property and annexing various bank statements and a loan agreement.
In relation to the statutory declarations of Ms S and Mr R, they were in fact the sixth and fourth respondents in the proceedings before the trial Judge, and they had each filed affidavits and given evidence.
In the statutory declaration of Ms S she says that she gave her mother $21,500 between 24 June 2005 and 20 November 2008. However, it has not been demonstrated to us how, if that evidence was accepted, that the trial Judge erred in any way. Further, there is no doubt that this evidence, if relevant, could have been included in Ms S’s affidavit and/or her oral evidence before the trial Judge. In fact we note that it was included in the affidavit filed by the third respondent, Ms W on 10 June 2008. Thus there is no basis for admitting this statutory declaration on the appeal.
The statutory declaration of Mr R and the annexed documents relate solely to the purchase of the N property and the loan obtained to assist in that purchase. That is not a topic about which there was any contention before the trial Judge, and it has no direct relevance to the findings of his Honour. Accordingly, apart from the fact again that this evidence, if relevant, could have been included in Mr R’s affidavits and/or the subject of oral evidence before the trial Judge, it has not been demonstrated how the acceptance of this evidence would indicate error on the part of the trial Judge. Accordingly, we find that this statutory declaration and the annexed documents should not be admitted on the appeal.
In relation to the statutory declarations of Mr A, Ms M, and Mr P, they all comprised details by each of them of money allegedly provided to Mrs Kadam at various times when they lived in the property. However, we observe that this information was before the trial Judge in the form of the said affidavit filed by the third respondent, Ms W on 10 June 2008. Thus, again it has not been demonstrated how acceptance of this evidence indicates error on the part of the trial Judge, and no basis has been established for exercising our discretion to admit this evidence.
In relation to the statements for the bank account in the name of Mrs Kadam’s husband, Mr G, we note that he was the fifth respondent in the proceedings before the trial Judge, and he had filed two affidavits in those proceedings. In any event, not only has it not been demonstrated to us that admitting this evidence would indicate error on the part of the trial Judge, it has not been demonstrated to us the relevance of these documents, and of course they were available at the time of the hearing. Thus, we find that these statements should not be admitted on the appeal.
In relation to the photocopy of the page from the passbook for the account held by Mrs Kadam at St George Bank, that is a continuation of a passbook that was tendered as an exhibit before the trial Judge. Specifically it indicates that although there was a credit balance of $91,130 as at the date of the hearing before the trial Judge, there was a credit balance of $89,686.51 as at 23 February 2009. However, there was no issue before the trial Judge as to the balance in this account. Accordingly, it has not been demonstrated how receiving this into evidence reveals error on the part of the trial Judge and we find that it should not be admitted on the appeal.
In relation to the photocopies of the Bank West statements evidencing withdrawals from an account of Mrs Kadam in October 2008 of $10,000 and $7,337.29 respectively, the relevance of these documents has not been demonstrated to us. It was not in contention before the trial Judge that Mrs Kadam had accumulated savings of $91,130 from various sources as at the date of the hearing before the trial Judge. It is said that these amounts from Bank West comprise part of that $91,130. In the circumstances a basis for admitting this evidence has not been established.
Finally, in relation to the photocopy of the statement from the St George Bank recording a term deposit of $28,000 as at 27 December 1996, that is said to represent the amount of money used by Mrs Kadam in June 1997 to meet the costs and expenses associated with the transfer of Mr R’s interest in the property to the husband. However, that is not what the document indicates. It indicates that as at 27 December 1996 there was a term deposit of $28,000 and the term of the investment was 12 months, expiring on 27 December 1997. In any event, it was not in contention before the trial Judge that Mrs Kadam had paid all of the costs and expenses associated with this transfer. Thus, it has not been demonstrated that this document would reveal error on the part of the trial Judge and we find this document should not be admitted on the appeal.
Thus, we propose to dismiss the Application in an Appeal filed by Mrs Kadam on 8 April 2009.
Discussion
The primary issue raised by the purported grounds of appeal relied on by both appellants is whether his Honour erred in finding that the husband has a beneficial interest in the property.
It is said that the evidence which establishes that the husband does not have a beneficial interest in the property and that he holds his interest on trust for his mother, Mrs Kadam, was before the trial Judge but his Honour failed to have regard to it.
There is no doubt that the evidence referred to was not evidence that the husband presented, save and except his denial that he contributed anything to the purchase of the property, but was rather evidence presented by the second appellant, Mrs Kadam.
That evidence is contained in her affidavits filed respectively on 18 February 2008, 13 June 2008 and 10 October 2008, and in Exhibit R2 which comprised a bundle of bank passbooks for accounts maintained by Mrs Kadam. Mrs Kadam also provided the documents contained in Exhibits R3 and R4, but they relate to the purchase of and the repayment of the mortgage in relation to the N property, and are not directly relevant to the issue under discussion.
The important aspects of her affidavit evidence would appear to be as follows:
116.1In her affidavit filed 10 October 2008 Mrs Kadam states that she is “the real owner and the contributor” of the property [Appeal Book 532], that “[Kadam] is simply a name being used as help to hold the mortgage loan” [Appeal Book 532] and that Kadam “did not contribute one single dollar” towards the property [Appeal Book 533]. Mrs Kadam also asserts that the loan repayments (varying from $960 to $1072 per month over the period since the property was purchased) have been paid by her, with the money coming out of her St George Bank accounts [Appeal Book 533].
116.2At paragraph 8 of Mrs Kadam’s affidavit filed 18 February 2008, Mrs Kadam describes the circumstances of the husband taking over the mortgage from Mr R, Mrs Kadam’s oldest son:
8. … Furthermore [the husband] was assured by [Mr R] and family that he [the husband] does not have to provide any monies [sic] towards the mortgage repayments, council rates, water rates, insurance, facilities bills, transfer, legal, stamp duty or any other bills in relation to the real property [L]. [The husband] based on this agreed to help and act as a trustee so to help us the family [sic] with the loan and mortgage issue. [Appeal Book 654]
116.3This was reiterated in Mrs Kadam’s affidavit of 13 June 2008 when she said that:
12.… At the time of the purchase of this property and at the time of transfer [the husband] did not contribute one single dollar.
13.Since May 1996 to current time 2008 I have been paying my pension money into this property. Even though [the husband’s] names [sic] appears on the mortgage [as] 50% joint tenant, that I agree, yes its true, but the question remains is his contributions. [The husband] has not contributed a single dollar…
14.If [the husband] has paid any money to me this was in respect of that [the husband] was illegal in Australia from 1987-1994 and without employment… [Appeal Book 647]
116.4At paragraph 17 of her affidavit of 10 October 2008, Mrs Kadam says that “[her] husband [Mr G], son [Mr R] and daughters [Ms S] and [Ms W] paid for the mortgage and utilities bills”, though Mrs Kadam does not provide any more detail about this financial assistance [Appeal Book 538-9].
116.5At paragraph 132 of her affidavit of 10 October 2008, Mrs Kadam states that “$41,000.00 was needed by [the husband] to pay for the … deposit, stamp duty to purchase [N] … Since [the husband] did not have any monies [sic] I gave [him] this money as [a] loan to pay for the deposit … and this money is being paid to me over these years and still on going” [Appeal Book 641].
116.6Mrs Kadam again confirms that the husband “was paying money that he owed to us while we supported him” in her affidavit filed 18 February 2008, paragraph 9, though this paragraph suggests that the husband was repaying money loaned by Mrs Kadam before he had purchased the property at N [Appeal Book 655].
116.7The details of the repayments from the husband to Mrs Kadam appear to be set out in Mrs Kadam’s affidavit of 13 June 2008, entitled “[the husband] paid money owed since 1989” [Appeal Book 648]. These payments were varied and are set out below:
1996-1997: $3,600.00
1997-1998: $6,900.00 (12/12/97- 01/06/98)
1998-1999: $6,500.00
1999-2000: $3,900.00
2000-2001: $4,850.00
2001-2002: $4,800.00
2002-2003: $4,450.00
2003-2004: $1,100.00
2004-2005: $1,100.00
2005-2006: $3,200.00
2006-2007: $1,800.002007-2008: $1,500.00
116.8Mrs Kadam also sets out the personal expenses incurred by the husband since the purchase of the property, including travel costs of $70,000, loans for other properties totalling over $1 million and other debts and costs, asserting that the husband “did not have any monies left to contribute into my family home” [Appeal Book 537].
We pause to note that there was no direct challenge to any of this evidence from Mrs Kadam. The issue that was raised though was a general claim that all of the affidavits of the members of the husband’s family were prepared by him, and thus no weight should be attached to any of them. Mrs Kadam was cross examined about this by counsel for the wife and the relevant exchange is as follows [Appeal Book 873-874]:
MR BATTLEY: I ask the question again. Do you have a good memory of what is contained in the affidavit that you made on 7 October 2008?
INTERPRETER: As I told you again, as I told you before, I’m telling you again, yes that affidavit has been prepared by my granddaughter with my full knowledge but at present I don’t know what you are going to be ask. [sic]
HIS HONOUR: Sorry, the affidavit was prepared by her granddaughter?
INTERPRETER: She’s outside.
HIS HONOUR: We know that. Did she prepare the affidavit, or not, is the question?
INTERPRETER: I told my granddaughter and she did it for me.
HIS HONOUR: Your son didn’t help at all?
INTERPRETER: No, my son did not help me.
The amount owing on the mortgage as at the date of the hearing was approximately $90,000. The evidence of Mrs Kadam was that she had $91,130 in a bank account to pay out that mortgage. She asserted that this money was saved by her but contributed to by members of her family other than the husband.
Mrs Kadam incorporated in her affidavit filed on 10 October 2008 photocopies of bank documents relating to the payment by her of the mortgage over the property, and the amount of $91,130 being held in her account to pay out that mortgage. She also incorporated a number of other documents including her Centrelink payment summaries evidencing the amount of pension that she received.
Mrs Kadam also produced, and the husband tendered, the originals of her passbooks from 1999 to 2008. They were marked Exhibit R2 by the trial Judge. It is apparent that these passbooks were tendered because the trial Judge made it clear during the course of the hearing that unless a disputed fact was corroborated by original documents or independent evidence he would not accept that evidence. For example, his Honour said this [at Appeal Book 845]:
HIS HONOUR: And we’ll also proceed on the basis that unless – and this cuts across – this is true across the board – unless a controversial issue of fact is corroborated by independent documentation I’m unlikely to make a finding in the terms of that disputed issue of fact.
And then during cross examination of the husband the trial Judge, referring to the photocopied page of Mrs Kadam’s bank account indicating a credit balance of $91,130 incorporated in her affidavit, said this [Appeal Book 855]:
HIS HONOUR: Mr Battley, you can proceed on the basis that unless I see the originals of these accounts, if they’re controversial I won’t …
MR BATTLEY: Thank you, your Honour.
HIS HONOUR: I mean, that could have been doctored so easily. It’s got another document from somewhere, doesn’t need to even be the same account.
We observe that there was no challenge to the original documents being produced but Mrs Kadam was cross examined in relation to the $91,130. That cross examination was brief and proceeded as follows [Appeal Book 874]:
HIS HONOUR: Has your son contributed any part of the $91,000 in your bank account, madam?
INTERPRETER: No he did not help me financially.
HIS HONOUR: All your other children have but he hasn’t?
INTERPRETER: At the time when I bought the property I asked him are you going to contribute in the property, to get your share in the property, so he denied.
His Honour’s approach to the evidence of Mrs Kadam was to make the same criticisms of her as his Honour made of the husband and the other members of the husband’s family. His Honour said this:
18. Having regard to the circumstantial evidence and the husband’s evidence in cross-examination and his demeanour throughout the litigation, the Court would not accept the evidence of the husband with respect to controversial matters where that evidence was not supported by reliable independent evidence.
19. Similar observations apply to the other members of the husband’s family who gave evidence. It is quite apparent that the members of the husband’s family have colluded to seek to defeat the wife’s claim by whatever means they can.
20.It is unnecessary to refer in detail to the reasons why the Court does not find the husband or any of his family members to be credible witnesses. It is appropriate to refer to one matter which highlights the inescapable conclusion that the husband orchestrated the evidence of his family. Notwithstanding that, save for the husband and his brother Mr [R], none of the members of the husband’s family could give evidence without an interpreter, each and every one of those family members maintained that the affidavit he or she had sworn had been prepared without any assistance or input from the husband. Each and every one of the family members was adamant on that score. So was the husband.
21. It is clear beyond doubt from a reading of the affidavits that they were prepared by the husband. His failure to remove paragraphs from the affidavits of other family members which could only relate to him puts the issue beyond doubt. The absolutely identical wording of all the affidavits, the identical insertion of copies of passbooks, albeit details of them appear to have been altered, leave no room for doubt that the one person prepared all of the affidavits. Only the husband could have done so.
22. Notwithstanding the inescapable reality, the husband and members of his family were unable to be truthful about that. When witnesses are incapable of conceding something so demonstrably obvious, it is difficult to accept anything those witnesses say where what is said is controversial. Moreover, as learned Counsel for the wife astutely recognised, amongst the plethora of affidavit material relied upon by the husband and his family members, there was no admissible evidence capable of establishing the husband’s assertion that he had no beneficial interest in [L].
We consider that it was clearly open on the evidence before the trial Judge to make adverse credit findings against the husband, and it was also open to the trial Judge to find that the other members of his family were not credible witnesses, but the complaint in the two appeals before us is in effect that there was “admissible evidence capable of establishing the husband’s assertion that he had no beneficial interest in [L]”, namely the photocopied bank documents in the affidavit of Mrs Kadam and the original passbooks that Mrs Kadam provided to the husband and which he then tendered as an exhibit.
At this point it is helpful to analyse that documentary evidence.
The original passbooks covered the period from 1999 to 2008, but the photocopied statements of the mortgage account were only for the period from August 2007 until August 2008 (excluding one four-week period around January 2008).
For the period 1999 to 2007 there are regular passbook withdrawal entries labelled “loan payment”. There are also regular pension payments received and sporadic “cash deposits” received.
For the period August 2007 to August 2008 the payments from Mrs Kadam’s account accord with payments into the mortgage account in terms of dates and amounts.
However, in August and September 2007 there were also six deposits into the mortgage account of $300 each (in bold below) which did not come from Mrs Kadam’s account for which passbooks were provided. There is no explanation given in Mrs Kadam’s evidence for the source of these payments.
To assist in understanding the detail of what these documents revealed we have constructed the following table from the documents incorporated in Mrs Kadam’s affidavit, bearing in mind that they included photocopies of the pages from the original passbooks:
Date Account paid from Amount paid out Source Amount paid into mortgage Source Nov 1999 to July 2007 “Loan payments” coming out of husband’s mother’s account, but no mortgage account statement to cross-reference against.
Regular pension payments and sporadic “cash deposits” coming into husband’s mother’s account.10/8/07 …469 248 Appeal Book 557 248 Appeal Book 548 15/8/07 300 AB548 17/8/07 …469 248 AB556 248 AB548 24/8/08 300 AB548 24/8/07 …469 248 AB556 248 AB548 31/8/07 300 AB548 31/8/07 …469 248 AB556 248 AB548 6/9/07 300 AB548 7/9/07 …469 248 AB556 248 AB548 14/9/07 300 AB548 14/9/07 …469 248 AB556 248 AB548 21/9/07 300 AB548 21/9/07 …469 illegible AB556 248 AB548 28/9/07 …469 248 AB556 248 AB548 5/10/07 …469 248 AB555 248 AB548 12/10/07 …469 252 AB555 252 AB548 19/10/07 …469 252 AB555 252 AB548 26/10/07 …469 252 AB555 252 AB548 2/11/07 …469 252 AB555 252 AB548 9/11/07 …469 252 AB555 252 AB548 16/11/07 …469 252 AB554 252 AB548 23/11/07 …469 252 AB554 252 AB548 30/11/07 …469 252 AB554 252 AB548 7/12/07 …469 252 AB554 252 AB548 14/12/07 …469 252 AB554 252 AB548 21/12/07 …469 252 AB554 252 AB548 28/12/07 …469 252 AB553 252 AB548 4/01/08 …469 252 AB553 252 AB548 11/1/08 …469 255 AB553 18/1/08 …469 255 AB553 25/1/08 …469 255 AB553 1/2/08 …469 255 AB553 8/2/08 …469 255 AB552 255 AB546 15/2/08 …469 255 AB552 255 AB546 22/2/08 …469 255 AB552 255 AB546 29/2/08 …469 255 AB552 255 AB546 7/3/08 …469 258 AB551 258 AB546 14/3/08 …469 258 AB551 258 AB546 21/3/08 258 AB546 22/3/08 …469 258 AB551 28/3/08 …469 258 AB551 258 AB546 4/4/08 …469 258 AB551 258 AB546 11/4/08 …469 2628 AB551 262 AB544 18/4/08 …469 262 AB550 262 AB544 25/4/08 262 AB544 26/4/08 …469 262 AB550 2/5/08 …469 262 AB550 262 AB544 9/5/08 …469 266 AB550 266 AB544 16/5/08 …469 266 AB550 266 AB544 23/5/08 …469 266 AB550 266 AB544 30/5/08 …469 266 AB549 266 AB544 6/06/08 …469 266 AB549 266 AB544 13/6/08 …469 268 AB549 268 AB544 20/6/08 …469 268 AB549 268 AB544 27/6/08 …469 268 AB549 268 AB544 4/7/08 …469 268 AB549 268 AB544 11/7/08 …469 268 AB542 268 AB544 18/7/08 …469 268 AB542 268 AB544 25/7/08 …469 268 AB542 268 AB544 1/08/08 …469 268 AB542 268 AB544 8/08/08 …469 268 AB542 268 AB544 15/08/08 …469 268 AB542 268 AB544 22/8/08 268 AB544 29/8/08 268 AB544
Thus, although not complete, there is corroboration from these documents of the evidence of Mrs Kadam that she paid the mortgage from her pension payments.
The trial Judge referred to the documents in Exhibit R2 in his reasons for judgment as follows:
70. The husband produced a bundle of St George Bank passbooks. These were not arranged in any chronological or other sequence. Not without some difficulty, the Court has put the passbooks in sequence and examined their contents. The accounts referred to by the passbooks are in every instance in the name of the husband’s mother. The earliest time covered by the books is 1999. They continue to the present time. There are some curious, and unusual changes made to the books. The books do not cover the period 1997. They provide no support for the interests asserted in the caveats to which reference has been made.
71. To the extent that the books might be suggested thereafter to provide support for what appears to be the husband’s assertion that he paid nothing with respect to [L] after 1997, and other family members paid everything in reliance upon the alleged agreement that the husband would have no beneficial interest in the property, the passbooks do not support that inference.
72. It is clear, as the husband’s mother and all members of his family were obsessed with asserting, that the husband’s mother has accumulated in bank accounts in her name some $91 000 over the past decade.
73. The husband’s evidence is that the mother’s only source of income since she came to this country in 1989 has been social security payments. With the possible exception of the husband’s brother Mr [R], the evidence does not suggest that either the husband or any member of his family has during the past decade been in receipt of income or other means of support independent of the Australian Social Security system. No tax returns for the husband or his family have ever been tendered to establish earnings other than pension payments.
74. The savings accumulated by the husband’s mother over the past decade represent an accumulation of approximately $10 000 per annum. The evidence does not establish how that could have occurred other than by virtue of the husband’s mother being able to retain and save a substantial portion of the pension payments made to her.
75. The passbooks establish that the funds in them belong to the husband’s mother. The husband and members of his family have resisted the wife’s claim in the misplaced belief that, in some unstated way, the wife was seeking to share in her husband’s mother’s accumulated funds. The Bank accounts however do not advance the assertions of the husband, or any member of his family, as to the husband’s absence of a beneficial interest in [L].
76. No other documentation put to the Court by the husband or any member of his family advances their contentions as to the beneficial ownership of [L].
77. It remains to consider whether, notwithstanding the inevitable conclusions with respect to the beneficial ownership of [L], the contributions of any members of the husband’s family should result in the husband’s interest in the property being regarded as less than his legal interest.
78. It is possible, although the evidence does not establish it, that there is a pooling of funds within the husband’s family. It seems likely that, in pursuance of his assertion that he has no beneficial interest in [L], the husband chooses to pay board or the like to his mother who then makes the actual mortgage payments. There is no clear evidence about that, and even if there were, given the level of savings which the husband’s mother has accumulated, the fiction sought to be advanced would be transparently unsustainable.
79. It is unnecessary to speculate about these matters however given the absence of credible evidence to establish any basis upon which the husband’s legal interest in [L] differs from or is less than his legal estate in the property.
We can find no error in the trial Judge’s approach to determining this issue. As his Honour said quite properly on more than one occasion during the course of the hearing, the onus is on the husband (and Mrs Kadam) to establish that he has no beneficial interest in the property, and his Honour found that that onus was not satisfied. In his reasons for judgment his Honour said this:
47. Objectively, the husband bears the onus of establishing that he has no beneficial interest in [L]. He has failed to discharge that onus on the balance of probabilities.
48. To the extent that other members of the husband’s family assert that they have a beneficial interest in or entitlement to [L] or otherwise have “claims” which the Court should recognise, they bear the onus of establishing those matters on the balance of probabilities. The members of the husband’s family have failed to establish any of those matters.
49. None of the evidence or documentation advanced by the husband or members of his family assists the cause of any of them.
Although the documentary evidence demonstrates that physically Mrs Kadam made loan repayments from accounts into which her pension was paid, that does not establish that the husband made no contribution to the repayment of the loan, or indeed to the rates and taxes or other outgoings payable in relation to the property. For a start the bank books are not complete, secondly there are unexplained deposits of cash into the account used by Mrs Kadam, and thirdly there is Mrs Kadam’s own evidence that the husband made payments to her between 2000 and 2008 and in respect of which there is no evidence as to what this money was used for. Although Mrs Kadam is at pains in her affidavits to assert that the husband made no financial contribution to the property, it was clearly open to the trial Judge to reject her evidence in the same way that he rejected the evidence of the other respondents. His Honour had the benefit of seeing and hearing Mrs Kadam and the other respondents when they gave evidence, and it is well established that this circumstance provides a trial Judge with a considerable advantage in determining issues of credibility.
As referred to above, a principal reason for rejecting the evidence of Mrs Kadam and the other members of the husband’s family was his Honour’s finding that their affidavits were all prepared by the husband. Mrs Kadam denied this, but it is quite apparent from paragraph 11 of Mrs Kadam’s affidavit filed on 10 October 2008 that that affidavit, like the affidavits of each of the other respondents, was prepared by one person, namely the husband. In that paragraph Mrs Kadam says this:
… I am the financial contributor of this family property in relation of mortgage and utilities and in the Affidavit of my mother Mrs [Kadam] we provide evidence of our contributions.
The reference to “the Affidavit of my mother Mrs [Kadam]” in Mrs Kadam’s own affidavit is clear evidence that the affidavit was prepared by someone else.
We also observe that despite Mrs Kadam asserting on appeal that she is the sole owner of the property and holds the entire beneficial interest, the evidence she presented to the trial Judge was that the other members of her family, apart from the husband, all contributed financially to the property and hold interests in it. For example, in paragraph 24 of her affidavit filed on 18 February 2008 Mrs Kadam said that:
The real owners and share holders of my house are my husband [Mr G], daughters [Ms W] and [Ms S], son [Mr R] and myself.
And in paragraph 10 of her affidavit filed on 10 October 2008 she said that:
The financial contributors and real owners here are the caveators…
And further in paragraph 13 of the same affidavit Mrs Kadam said that:
Our caveat here is not protecting [the husband], as their [sic] is no need to do so, but what its protecting is our life interest, our money that we paid by this St George bank account. Every week since the purchase in 1996 of this family home my husband [Mr G], daughters [Ms S] […] and [Ms W] and son [Mr R] helps me pay for mortgage and utilities bills and for the name [Kadam]. [The husband] has not contributed one single dollar and neither is able to provide any evidence to support the contributions.
That was also the tenor of the evidence of the other respondents who gave evidence, with, for example, Mr R asserting that he had a life interest in the property.
Thus there is a clear conflict between the evidence presented at trial and the submissions made on appeal as to who owns the property.
Finally, on this issue of the credit of Mrs Kadam, there is the existence of the caveats placed on the title to the property by Mrs Kadam herself and the other respondents. His Honour had little difficulty in discounting these caveats and attaching no weight to them. His Honour said this in his reasons for judgment:
58. Given the timing of the caveats, their contents, and the absence of any admissible evidence establishing the facts in reliance upon which the interests claimed by them were asserted to be based, the caveats cannot advance the contentions of the husband or any member of his family.
And further, specifically in relation to the caveat lodged by Mrs Kadam his Honour said:
55. … As with the other caveats to which reference has been made, the evidence leads inevitably to the inference that this caveat too was created in response to the husband’s perceived need to bolster his case in this Court.
It is also instructive to look closely at the submission that the husband holds his interest in the property on “trust” for Mrs Kadam. In our view, the evidence before the trial Judge does not establish a trust. There is no evidence of an express trust, and given the nature of the transaction on 10 June 1997 when the husband became a registered proprietor of the property jointly with Mrs Kadam it is not open to find that a resulting trust was created. It is possible that a resulting trust was created between Mrs Kadam and her son Mr R when the property was purchased initially in their names in 1995, but there was insufficient evidence of that transaction before the trial Judge to enable such a finding to be made. Indeed, it is equally as open to find that there was a presumption of advancement in favour of Mr R as a result of that transaction. The only other possibility is that a constructive trust has been created between the husband and Mrs Kadam since 1997. However, the difficulty there is that, as we have observed, the evidence is insufficient to establish that, for example, Mrs Kadam paid all the mortgage repayments and the outgoings in relation to the property and that it would therefore be unconscionable for the husband to assert a beneficial interest in those circumstances.
Thus, we find that there is no merit in the appeals of the husband and Mrs Kadam in so far as they complain that the trial Judge erred in finding that the husband has an asset in the form of a one half interest in the property.
Turning to the balance of the purported grounds of appeal of the husband, we find that there is no merit in the complaint that the trial Judge erred in finding that the husband only paid child support of $5 per week, totalling $1600 over six and a half years. Firstly, there is this exchange between the trial Judge and the husband [Appeal Book 817]:
HIS HONOUR: Sure. Yes, we understand all that. Financially the only moneys that you provide directly or indirectly for that child is the $5 a week that is extracted from your social security payment.
MR [KADAM]: Yes.
HIS HONOUR: Correct? And that has – the position you’ve just indicated has been the position since the time the child was born.
MR [KADAM]: That’s correct.
HIS HONOUR: Correct? So in round figures, in the life of this child you would have provided in total about 15, 16 hundred dollars for the child’s support.
MR [KADAM]: Yes, your Honour.
HIS HONOUR: Correct? Okay. Now, is there anything else you wanted to ask?
MR [KADAM]: No, your Honour.
However, that is to be contrasted with what the husband said to the trial Judge during his final address [Appeal Book 887]:
HIS HONOUR: Anything else you want to say about the level of child support you’ve paid in the past?
MR [KADAM]: When I was properly employed I was paying $450 a month, but when I got divorced through stress I have lost my employment so I’m paying $5. So, as soon as I recover my health I’m going back to work.
There is a clear inconsistency here, but given his Honour’s findings as to the credit of the husband, we consider that it was open to the trial Judge to find in accordance with the husband’s initial statements. Thus, there is no error by his Honour here.
Next there is the complaint that the trial Judge was biased and pre-judged the matter. In support of this complaint the husband made the broad allegation in his Notice of Appeal that [Appeal Book 13]:
… I believe and think his Honor [sic] is wrong and bias [sic] in misjudging my character as his mind was made and set on paying and favoring [sic] the Counsel/[the wife] and his legal bills.
However, we were not taken to any part of the transcript or any part of his Honour’s reasons for judgment which demonstrated any of these complaints. Thus, we find there is no merit in this challenge.
It was then suggested that his Honour did not give the respondents, namely the members of the husband’s family, sufficient time to present their cases. We also reject this claim. At the commencement of the hearing the trial Judge spoke to each of the members of the husband’s family who were respondents and they each indicated that they were content for the husband to be their spokesperson, but on the basis that if at the end of the case any respondent wished to say something that was not in their affidavit then they could do so. Further, their affidavits were before his Honour and, apart from Mr G, they were each called to give evidence and cross examined.
In these circumstances we find no error in his Honour’s approach to each respondent being able to present their case.
We were then taken to isolated comments made by his Honour which the husband submitted demonstrated that the trial Judge was “very rude” and “has ego approach”, and that he was making “fun” of the husband. However, we also reject this complaint. We find that the comments made by the trial Judge were all appropriate in the circumstances of this case and in the context in which they were expressed.
The husband next submitted that the trial Judge was wrong in finding that he had prepared the affidavits of the members of his family and that he (the husband) is not wanting to pay the wife any money, and that he (the husband) wishes to defeat her. Taking these in reverse order, the husband’s case was precisely that he should not have to pay the wife any money at all, and he opposed her application. In relation to the affidavits of the members of the husband’s family, we have already referred to that and we consider that it was certainly open to the trial Judge to find as he did. The similarity of the content of their affidavits was quite apparent. Thus, again we find no merit in these complaints.
The husband also complains that he was not permitted to cross examine the members of his family. However, this complaint cannot succeed because the husband did not seek to cross examine them at the time. We also observe that the trial Judge has a discretion to disallow any cross examination on the basis that the witness has an interest consistent with the interest of the husband and/or the witness is sympathetic to the husband (for example, see s 42 of the Evidence Act 1995 (Cth)). The trial Judge though did not need to apply this principle here.
Further, there is the complaint that the trial Judge failed to find that the wife and Mr U were in a de facto relationship. As explained in his Notice of Appeal the husband sought such a finding to establish that the wife was not “impoverished” and could meet “her own legal bills”. Again, we find there is no merit in this complaint. His Honour said this when addressing the relevant s 75(2) factors:
96. It is also relevant in this context to refer briefly to the wife’s relationship with Mr [U]. As noted earlier, the wife’s evidence with respect to her relationship with Mr [U] was unconvincing. Technically, there probably is no de facto relationship between the wife and Mr [U]. It is not hard to imagine why that might be so.
97. The evidence of the wife and Mr [U] was inconsistent as to the details of their relationship. The nature and extent of the photographic evidence of the involvement of Mr [U] in the life of the wife and the child of the marriage, and their involvement in his life, which cannot be successfully denied, suggests that, whatever its true nature, there is a long established and enduring relationship of mutual support, whether it be financial or not, between the wife and Mr [U]. In short, the wife and Mr [U] have not fully and accurately disclosed their relationship to the Court.
98. To give balance to the award to be made in favour of the wife, it is appropriate to refer to those matters, lest it be thought that the wife alone has shouldered and will continue to shoulder the non-financial and possibly financial burdens, of caring for the child of the marriage.
We find no error in his Honour’s approach to this issue.
Turning to the balance of the purported grounds of appeal of Mrs Kadam, she complains in effect that the trial Judge did not try to understand her situation and he did not ask her questions or clarify matters with respect to the property. There is no substance in these complaints. Mrs Kadam was joined as a party, she filed a number of affidavits in support of the husband’s case as well as her own, and she gave evidence under cross examination. His Honour did ask some questions of her himself and we are satisfied that he gave her every opportunity to present her case. Thus, it has not been demonstrated to us how his Honour erred in this regard.
Next and finally, Mrs Kadam complains about the comments made by the trial Judge with respect to how she was able to accumulate savings of $91,000 on a pension. Again, there is no merit in this complaint. In the end result the evidence was that in saving that money Mrs Kadam was assisted by members of her family, and that was precisely the point that his Honour was attempting to make. In other words, it was not possible for Mrs Kadam to have saved all of that money from her pension and pay the mortgage and the other outgoings in relation to the property.
Conclusion
In the circumstances we find no merit in either appeal and we propose to dismiss both of them.
Costs
In the event the appeals were unsuccessful the wife’s counsel sought that the husband and Mrs Kadam pay the wife’s costs equally.
The husband submitted that he could not afford to pay any costs and indicated that he had a $25,000 debt which he still had to meet.
Mrs Kadam opposed any order for costs on the basis that she did not institute the proceedings. However, she did choose to intervene at first instance and then determined to appeal.
Both of these appeals were unsuccessful and there should be an order for costs in favour of the wife. That order should also include the costs of and incidental to the applications for expedition brought by the husband and Mrs Kadam respectively on 27 January 2009. In making the orders for expedition on 12 February 2009 Boland J reserved the question of those costs to the Full Court.
I certify that the preceding one hundred and fifty seven (157) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.
Associate:
Date: 15 June 2010
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