Kanan & Mirza - [2022] FedCFamC2F 130

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Kanan & Mirza [2022] FedCFamC2F 130

File number(s): PAC 6036 of 2016

Judgment of: JUDGE FORBES

Date of judgment: 16 February 2022

Catchwords: FAMILY LAW – Property - Establishing asset pool - Third party claim of equitable interest in matrimonial home - Third party paid deposit and some mortgage payments - Consideration of nature of equitable interest - Whether facts evidence existence of trust - Whether express trust, resulting trust or constructive trust - Third party’s initial contributions preserved when property transferred to husband - Just and equitable distribution of property excluding third party interest - Consideration of parties’ financial and non-financial contributions - Consideration of future needs.

Legislation:

Family Law Act 1975 (Cth), ss 79, 79(4)

Evidence Act 1995 (Cth), s 140(1)

Conveyancing Act 1919 (NSW), s 23

Cases cited:

Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143

Bevan & Bevan [2013] FamCAFC 116

Stanford v Stanford (2012) 247 CLR 108

Skye v Saidel [2020] FamCA 18

Abrath v North Eastern Railway Co (1883) 11 QBD 440

Briginshaw v Briginshaw (1938) 60 CLR 36

In the matter of James v James [2016] FCA 332

In the matter of Hillsea Ltd [2019] NSWSC 1152

Giunti & Giunti[1986] FamCA 15; (1986) FLC 91-759

Hall v Hall (2016) 257 CLR 490

Weir & Weir(1993) FLC 92-338

Black & Kellner (1992) FLC 92-287

Cierpiatka v Cierpiatka [1999] FamCA 1286

Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843

Calverley v Green (1984) 155 CLR 242

Black Uhlan Inc v New South Wales Crime Commission and Ors [2002] NSWSC 1060

Sivritas v Sivritas [2008] VSC 374

Noack v Noack [1959] VR 137

Muschinski v Dodds (1985) 160 CLR 583

Baumgartner v Baumgartner (1987) 164 CLR 137

Mallet v Mallet (1984) 156 CLR 605

JEL v DDF (2000) FLC 93-075

Dickons & Dickons (2012) 50 Fam LR 244

Wallis & Manning [2017] FamCAFC 14

Han & Ngo [2021] FamCAFC 97

Samper & Samper [2021] FamCAFC 140

Bulleen & Bulleen (2010) 43 Fam LR 489

Division: Division 2 Family Law

Number of paragraphs: 230

Date of last submission/s: 14 October 2021

Date of hearing: 12, 13 and 14 October 2021

Place: Melbourne

Counsel for the Applicant: Mr Maddox

Solicitors for the Applicant: Parramatta City Legal

Counsel for the Respondent: Ms Spain

Solicitors for the Respondent: Johnsons Solicitors and Attorneys

Counsel for the Intervenor/Second Respondent: Mr Cairns

Solicitors for the Intervenor/Second Respondent: Harb Lawyers
ORDERS

PAC 6036 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR KANAN
Applicant

AND:
MS MIRZA
Respondent

MR RADI

Intervenor

ORDER MADE BY:

JUDGE FORBES

DATE OF ORDER:

16 FEBRUARY 2022

ORDERS
THE COURT DECLARES THAT:
1.
The intervenor has an equitable interest in the real property situated at and known as

B Street, Suburb C, NSW being the whole of the land comprised in the Certificate of Title Folio Identifier … (“the Real Property”).
2.The said equitable interest referred to in paragraph 1 is valued at $30,709 and that interest is held for the benefit of the intervenor on trust by the applicant (husband), being the registered proprietor of the Real Property
3.In the event the Real Property is sold pursuant to orders of the Court or otherwise, the husband shall forthwith be liable to pay the intervenor the sum of $30,709 from the net proceeds of sale.

THE COURT ORDERS THAT:
1.Within 90 days of the date of these orders, the husband pay to the wife the sum of $324,419.65 (Cash Adjustment).
2.Upon and at the same time as the payment of the Cash Adjustment, the wife do all such acts and things and sign all such documents as may be required to transfer to the husband at the expense of the husband all her right, title and interest in and to the Real Property.
3.Upon the transfer the husband indemnify the wife against all payments and liabilities pursuant to the mortgage registered to Westpac Bank, any other loans secured by the Real Property and all rates, taxes and outgoings of or with respect to the Real Property.
4.In default of order 1 herein, the husband shall immediately do all acts and things and sign all documents as may be necessary to cause the sale of the Real Property at the earliest reasonable time and for the best price reasonably obtainable and for that purpose the following directions shall apply:
(a)The Real Property shall be listed for sale by private treaty with such real estate agent as is agreed between the parties and failing agreement is nominated by the President of the Real Estate Institute of New South Wales;
(b)The parties shall appoint such solicitor or conveyancer to act on the sale of the Real Property as is agreed between the parties and failing agreement as recommended by the real estate agent;
(c)the list price of the Real Property shall be such amount as is agreed between the parties and failing agreement the list price would be as nominated by the real estate agent;
(d)The sale price of the Real Property shall be such amount as is agreed between the parties and failing agreement any offer to buy the property that is at least 90% of the list price shall be accepted by the parties as the sale price;
(e)The parties are to co-operate in every way with the real estate agent in relation to the marketing of the Real Property for sale including making the key readily available, allowing inspection of the Real Property at all times reasonably requested by the agent and ensuring that the said property is clean, neat and in good order at the time of inspection by any prospective buyer;
(f)The parties shall each pay to the real estate agent one half of any sums requested for advertising or auction expense and if one of the parties pays all of the expense, that party shall be reimbursed from the proceeds of sale in respect of one half of such payments before any division between the parties;
(g)That upon agreement being reached for sale of the Real Property the husband shall execute a contract for sale and all other documents as may be necessary to complete the sale of the said property including all transfer documentation forthwith upon its submission to him by the agent or solicitor;
(h)The contract of sale shall provide full completion for a time period is agreed by the parties or failing agreement within 42 days;
(i)In the event the property is not sold within three (3) months from the date it is listed for sale, then the parties shall do all things and sign all documents necessary to list the Real Property for sale by public auction, upon the following terms:
(i)The auctioneer shall be the real estate agent appointed pursuant to order 4(a) or their nominee;
(ii)The auction shall take place four (4) weeks from the date the property is first listed for auction;
(iii)The reserve price shall be such amount as is agreed between the parties and failing agreement the reserve price will be as nominated by the auctioneer;
(iv)If the reserve price is not reached at the auction then the parties must negotiate with the highest bidder in earnest and accept any price which is at least 90% of the reserve price.

5.In the event the Real Property is sold pursuant to order 4 herein the parties shall do all acts and things and sign all documents as may be necessary to cause the proceeds of sale to be distributed in the following order and priority:
(a)Payment of all selling costs associated with the sale;
(b)Payment of all legal costs associated with the sale;
(c)Payment necessary to discharge any mortgage secured against the property;
(d)Reimbursement to any party of any monies which have been advanced to the estate agent on behalf of another party in respect of advertising or auction expenses;
(e)The sum of $30,709 to the intervenor;
(f)The sum of $324,419.65 to the wife;
(g)The balance remaining thereafter to the husband.

6.The husband indemnify the wife against any claim Mr Radi shall make in relation to his alleged contributions to the acquisition, conservation and improvement of the Real Property or any other equitable interest, whatsoever description, asserted by Mr Radi in respect of the Real Property.
7.Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)Each party shall retain to the exclusion of the other to all other property and financial resources of any nature and kind (including choses-in-action) in the possession of such party as at the date of these orders (the furniture, personal possessions and like chattels in the Real Property being deemed to be in the possession of the husband);
(b)Money standing to the credit of the parties in any joint bank account are to become the property of the husband;
(c)Each party shall forgo any claims they may have to superannuation benefits belonging to or earned by the other;
(d)Insurance policies shall remain the sole property of the owner/beneficiary named therein;
(e)Each party be solely liable for and indemnify the other against any personal liabilities and any liability encumbering any item of property to which that party is entitled pursuant to these orders;
(f)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

8.In the event that any party refuses or neglects to execute any deed, document or instrument pursuant to these orders, the Registrar of the Court be appointed pursuant to s 106A of the Family Law Act 1975 (Cth), to execute such deed, document or instrument in the name of such defaulting party and do all acts and things necessary to give validation to the operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
9.There shall be liberty to apply in respect of the implementation of these orders.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Kanan & Mirza has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE FORBES
INTRODUCTION

These reasons for judgment explain the property orders that are to be made to effect a final adjustment of property interests following a relationship of 21 years.
In deciding whether it is just and equitable that an order should be made adjusting property interests, the Court must first identify the parties’ existing property interests.
In this matter the composition of the asset pool and for the most part the valuation of those assets is not disputed and is reflected in an agreed balance sheet which was tendered at the commencement of the Final Hearing. The principal asset in the pool is a property at B Street, Suburb C comprising land, the matrimonial home and a tenanted “granny flat”. The title is currently registered to the applicant husband (Mr Kanan) as sole proprietor and the property has an agreed value of $1,070,000.
A central issue to be determined in this proceeding is whether the Second Respondent/Intervenor (Mr Radi) has an equitable interest in the B Street, Suburb C property. Mr Radi is the applicant’s brother-in-law. Between the date of purchase in 1992 and 1998 the property was owned by the brothers-in-law as tenants in common. The property was transferred to the sole proprietorship of Mr Kanan in 1998. The brothers-in-law each contend that Mr Radi has been a “silent partner” since 1998 and that he has a 50% equitable interest in the property which is held on trust for him by the husband. The intervenor seeks a declaration of his 50% equitable interest in the B Street, Suburb C property.
The applicant husband seeks orders for the just and equitable adjustment of the remaining assets between him and the wife after the declaration of Mr Radi’s interest. Specifically, the husband seeks a final order that he pay to the wife an amount equal to 30% of net assets after accounting for Mr Radi’s interest in the property. He also seeks an order that the wife transfer her interest in the B Street, Suburb C property to him, in consideration of which he will indemnify the wife regarding any mortgage liability and any claim by Mr Radi.
The respondent wife (Ms Mirza), on the other hand, concedes a 5% equitable interest in the property in favour of Mr Radi[1], but otherwise contends that orders should be made dividing the asset pool as to 70% in her favour and 30% in favour of the husband. Furthermore, the wife argues that the B Street, Suburb C property should be sold in order to effect a cash adjustment in her favour.
[1] At all material times during these proceedings the wife denied that the intervenor had any equitable interest in the property, but that position changed shortly before the Final hearing.
For the reasons set out below, I find that Mr Radi does have an equitable interest in the property, held on trust by Mr Kanan, albeit not the 50% interest contended for by the brothers-in-law nor the 5% interest contended for by the wife.
I have concluded that Mr Radi’s equitable interest comprises his contribution to the purchase price of the property in 1992 (deposit of $12,100) and 50% of the increased equity in the property between 1992 (when it was purchased by the brothers-in-law as tenants in common) and 1998 (when it was transferred to the husband). I find that upon the transfer of the property to the sole proprietorship of Mr Kanan in 1998, the applicant thereafter held Mr Radi’s interest on constructive trust.
In light of this determination, Mr Radi’s beneficial interest in the B Street, Suburb C property which I value at $30,709 will not form part of the asset pool available for distribution between the husband and wife.
In this decision I also consider the just and equitable adjustment of property interests as between Mr Kanan and the wife in accordance with the statutory scheme and established principles.
Having carefully considered the evidence and parties’ submissions regarding financial and non-financial contributions to their lengthy relationship and their respective future needs, including the wife’s parenting responsibilities, I have determined that the property of the marriage should be adjusted as to 55 percent in favour of the wife and 45 percent in favour of the husband.

I will order that this adjustment be affected by way of a cash payment from the husband to the wife, in default of which the B Street, Suburb C property is to be sold.
PROCEDURAL HISTORY
This matter has a long and complicated background involving both parenting and property claims. The parties have incurred very substantial legal costs fighting on both fronts. While the hearing before me concerned only the property aspects of this dispute, it may assist to put those claims in context of the proceeding as a whole.
The applicant and respondent married in Country D in 1994 and commenced cohabitation. After the wife moved to Australia she and the husband moved into the B Street, Suburb C property, which the husband had purchased with Mr Radi in 1992. Details of the purchase of the property and subsequent dealings in relation to the property are dealt with later in these reasons.
During their relationship, the parties had four children, W born in 1996, X born in 1997, Y born in 2005 and Z born in 2006.
The husband and wife continued to live on the property until their separation in January 2015. By the time they separated there were two houses on the property, the original dwelling which was renovated and tenanted (the “granny flat”) and a second newer home which had been built on the property in 2000 and into which the family moved.
Post-separation, the two adolescent children, Y and Z, now live with the wife and her family in Victoria. The husband continues to reside at the B Street, Suburb C address with one of his adult sons.
These proceedings commenced on 21 December 2016, when the applicant husband filed an initiating application in the Parramatta registry of this Court seeking final parenting orders which principally concerned the two adolescent children. Interim orders were also sought, including an Airport Watch List order and an order restraining the wife from removing the children from the Commonwealth for a period of two years.
Around this time the Intervenor, Mr Radi, caused a caveat to be filed against the B Street, Suburb C property, asserting an “equitable interest on the land pursuant to monies paid toward the purchase of the property”[2]. This issue is explored later in these reasons.
[2] Caveat at pp59-60 of the Intervenor’s court book.
In her response dated 14 March 2017, the respondent wife sought both final parenting and property orders. By way of property orders, she sought to effect a sale of the former matrimonial home and orders that the assets of the marriage be divided 70% to herself and 30% to the husband, to be distributed from the sale proceeds of the property. As to parenting orders, the wife sought shared parental responsibility, for the children to live with her and spend time with the father, with the husband’s time to increase on a gradual basis.
On 17 May 2017, the husband filed an amended application. Substantively, the husband sought final orders that he pay the wife 30% of their joint net assets and upon doing so, for the wife transfer to him her rights, title and interest in the B Street, Suburb C property. The husband also proposed that he indemnify the wife against any claim the intervenor shall make in relation to his share in the property.
On 11 August 2017 the wife filed an amended response in which she sought that the husband pay her 70% of the parties’ joint assets, including superannuation, and upon doing so, she would transfer to the husband her right, title and interest in the property. Alternatively, the wife sought for the property to be placed on the market and the proceeds of sale to be respectively distributed.
On 19 October 2017 the wife filed an application seeking an order that Mr Radi (the intervenor) be joined as a second respondent in this proceeding. The wife sought a declaration that Mr Radi has no right, title or interest in the B Street, Suburb C property and an order that he withdraw the caveat he had registered against the property in late 2016.
On 19 December 2017, orders were made by consent for Mr Radi to be joined as the second respondent to the proceedings. The intervenor seeks a declaration of a 50% equitable interest in the B Street, Suburb C property, prior to any distribution to the parties. The parties were ordered to attend a conciliation conference and the matter was adjourned for mention to be heard on 6 April 2018.
On 15 January 2018 the husband amended his Application and sought orders on a final basis that the intervenor be declared to have an equitable beneficial interest in the property and for the husband and wife to pay the intervenor “occupation rent” plus interest. Further, the husband sought orders that the property be placed on the market, and after all commissions and expenses are paid, the sale proceeds be disbursed as follows:
(i)50% to the intervenor plus interest;
(ii)Occupation Rent to the intervenor plus interest as ordered by the Court; and
(iii)The balance to be divided between the husband and wife as ordered by the Court.
The husband also sought that the caveat lodged by the intervenor on the B Street, Suburb C property remain in force.

Orders were made by Judge Newbrun on 6 April 2018 in relation to the parenting issues and the matter was adjourned to 8 February 2019, following the release of a family report.
On 4 May 2018, the husband filed a second amended initiating application, seeking both parenting and property orders. In regards to the property aspect of the case, the husband sought the same substantive orders as outlined in his application on 17 May 2017.
On 24 May 2018 the wife filed a second amended response which in essence sought the same property orders as stated in her application filed 11 August 2017, namely that she be paid a sum of 70% from the balance of the sale proceeds of the property, the remaining balance to be paid to the husband.
On 25 February 2019, the wife filed an application in a case seeking to transfer the matter from the Parramatta Registry to the Melbourne Registry. She also sought an order for the appointment of an Independent Children’s Lawyer.
On 5 June 2019, orders were made dismissing the wife’s application that proceedings be transferred to the Melbourne Registry. An order was made to appoint an Independent Children’s Lawyer and the matter was adjourned for an interim hearing on 18 October 2019.
On 18 October 2019 consent orders were made discharging all previous parenting orders and ordering the children to live with the mother and spend time with the father as agreed in writing or as otherwise as outlined in the parties’ consent minute.
On 12 December 2019, orders were made listing the matter for a three day final hearing commencing on 10 June 2020. However, on 29 May 2020, that final hearing was vacated and subsequently adjourned to 3 September 2020.
On 27 August 2020 a Notice of Intervention by Persons Entitled to Intervene was filed by Byles Anjos Lawyers, who sought to intervene in the proceeding on the ground that they were a creditor of the wife and thereby had an interest that may be affected as a result of this proceeding. On 3 September 2020, that Notice of Intervention was dismissed and the proceeding was otherwise adjourned for mention on 11 November 2020.
On 11 November 2020 procedural orders were made preparing the matter for trial and the matter was listed for a compliance check and call over to be heard on 23 July 2021.
On 10 August 2021, Judge Riethmuller ordered that the parties attend a confidential Family Dispute Resolution Conference to make a genuine attempt to resolve their parenting dispute. The matter was otherwise adjourned to 11 October 2021 for a three day final hearing, and docketed to my judicial calendar to be heard before me. Notation A in the order dated 10 August 2021 stated that the hearing was concerned with property matters only, hereby dividing the property issues from the parenting issues. The parenting aspect of the case was to remain listed for a later Compliance Hearing on 12 November 2021.
By his Further Amended Case Outline dated 12 October 2021, the husband now seeks a division of the property pool as to 60% in his favour and 40% to the respondent wife, after deducting the intervenor’s 50% equitable interest in the B Street, Suburb C property.
At the commencement of the final hearing, the wife acknowledged for the first time that the brother-in-law paid the deposit for the B Street, Suburb C property and that a 5% equitable interest should be excluded from the property pool. The wife otherwise seeks an overall division of the pool, 70% to herself and 30% to the husband, after excluding the intervenor’s interest in the B Street, Suburb C property.
For completeness, I understand that, after I heard this matter, final consent orders with respect to parenting were made on 3 November 2021, ordering the children to live with the wife and spend time with the husband in accordance with their wishes.
EVIDENCE RELIED ON AT TRIAL
The property aspects of this application came before the Court on 12 October 2021 for a three day final hearing.
Husband
The husband filed an Amended Case Outline on the morning of trial. In that outline the husband indicated that he relied upon the following documents:
(a)his Second Amended Initiating Application filed on 4 May 2018;
(b)husband’s affidavit filed on 20 August 2021;
(c)affidavit of Shaher Dahlan (the husband’s solicitor) filed on 20 September 2021; and
(d)affidavit of Mr E (valuer) - but only if a dispute arose in relation to the value of the B Street, Suburb C property.
Respondent wife
The wife filed an Outline of Case document on 7 October 2021. In that outline the wife stated that she relied upon the following documents:
(a)her Second Amended Response filed on 24 May 2018;
(b)wife’s affidavit filed on 22 July 2021; and
(c)Financial Statement prepared by the wife and filed on 22 July 2021.
Second Respondent/Intervenor
The intervenor filed an Outline of Case document on 9 October 2021. In that outline the intervenor indicated that he relied upon the following documents in support of his case:
(a)the intervenor’s 139 page court book filed on 22 September 2021;
(b)his Amended Statement of Legal Contention filed on 22 September 2021;
(c)Expert Report of Mr F (handwriting expert) filed on 21 September 2021;
(d)affidavit of the intervenor, Mr Radi, filed 22 January 2018 (including all annexures);
(e)affidavit and annexures of Ms G (the intervenor’s wife) filed on 15 January 2018.
A number of matters were the subject of agreement or appropriate concession, which removed them as contested issues in the proceeding. On the morning of trial the applicant husband tendered a balance sheet which had been agreed by the parties [Exhibit A1]. The value of all assets and liabilities in the pool were agreed. The intervenor also indicated that he did not dispute the valuation of the B Street, Suburb C property or the current mortgage balance.
There is an undisputed market value for the B Street, Suburb C Property of $1,070,000, which comprises the largest asset in the husband and wife’s pool. The mortgage as at 12 October 2021 was agreed at $441,484. The parties’ remaining assets are not controversial in this proceeding.
The respondent wife also conceded that where the name “Mr Kanan” appeared on various loan documents and correspondence, it was in fact a reference to the intervenor “Mr Radi”. The wife’s concession obviated the need for the intervenor to call a handwriting expert to give evidence.
The applicant, Mr Kanan was called to give evidence. He adopted his affidavit dated 20 August 2021 as his evidence-in-chief in the proceedings. There were no objections to his affidavit and it was received into evidence. The applicant husband was cross-examined by counsel for the wife and counsel for the intervenor.
The affidavit of Mr Shaher Dahlan, the applicant father’s solicitor, dated 20 September 2021 was admitted into evidence without objection. In that affidavit Mr Dahlan annexed an email received from Revenue NSW dated 17 September 2021 which advised that according to its calculations, the full duty on the 1998 valuation amount of $145,000 was $3,565.
The respondent wife was called to give evidence. She adopted her affidavit dated 22 July 2021 as her evidence-in-chief in the proceedings. There were no objections to the affidavit and it was received into evidence. The wife was cross-examined by counsel for the husband and counsel for the intervenor.
Mr Radi was called to give evidence. Mr Radi was affirmed and adopted his affidavit dated 12 January 2018 and its annexures as his evidence-in-chief. The affidavit was received into evidence without objection. The intervenor was cross-examined by the husband and the wife.
Each of the parties in this proceeding forwarded to the Court either before the commencement of trial or during the hearing “tender bundles” of documents which they sought to be received into evidence. The documents contained in the bundles are primarily in the nature of business records, bank statements, correspondence and the like.
The parties’ counsel took the sensible position of not objecting to the admission of documents in each other’s tender bundles and it was agreed that the documents would be received into evidence. Each bundle was marked as an exhibit and I have taken those materials into consideration.
I have read and considered all the affidavits and other materials upon which the parties seek to rely. The material is extensive. The background which follows has been derived from the parties’ affidavits, filed documents and the parties’ oral and documentary evidence at trial, including their responses under cross-examination. Where necessary, I have made findings of fact where accounts of key events are contested and where I consider it appropriate, I have made observations regarding the credit of the witnesses and their evidence.
BACKGROUND
The husband is presently 56 years of age. He suffered an episode of Bell’s Palsy in 2020, and asserts various other medical conditions as set out on page 23 of his court book. He resides at the B Street, Suburb C property in Suburb C and deposes to being employed as an office worker, although it emerged at trial that he currently receives workers compensation and also performs work as a transport worker.
The wife is presently 49 years of age and is in good health. She lives in Victoria and is employed as an finance professional.
The husband migrated to Australia from Country D in 1985.
In 1992, the husband and his brother-in-law Mr Radi purchased the B Street, Suburb C property for $121,000 as tenants in common, each with a 50% interest in the property. At this time, there was a single dwelling on the property.
The husband and brother-in-law gave evidence that prior to purchasing the B Street, Suburb C property, they agreed that Mr Radi would pay the deposit of $12,100, the balance of the purchase price would be funded by a $110,000 mortgage on the property and the husband would reside in the property and service the loan. Both the husband and brother-in-law gave evidence that their intention at the time of purchase was to build a second dwelling on the B Street, Suburb C property for the purposes of an investment.
Bank statements which relate to the original mortgage account for the B Street, Suburb C property record the names Mr Kanan and “Mr Radi” as the listed account holders. Mr Radi gave evidence that despite providing Bank J with his Australian Passport and NSW driver’s license, the bank had incorrectly entered his name on the account as “Mr Radi” instead of Mr Radi. As mentioned, this discrepancy is now not contentious, and the wife accepts that where there is reference to “Mr Radi” on loan documents, it is in fact a reference to the brother-in-law.
Following the purchase, the husband moved into the single dwelling on the B Street, Suburb C property as planned.
The husband and wife married in Country D and commenced cohabitation in 1994. The wife gave evidence that at the time of the marriage, the husband claimed to be the owner of a home in Australia. This was contested by the husband who gave oral evidence that he had informed the wife about owning a property in Australia with his brother-in-law. I am inclined to accept the wife’s evidence on this point – although for the purposes of determining whether Mr Radi has a beneficial interest in the property, this contest need not be resolved.
Four months after the marriage, the wife migrated to Australia and the parties commenced living together in the dwelling on the B Street, Suburb C property.
The husband contends that he brought to the marriage his 50% share in the B Street, Suburb C property, a motor vehicle, his superannuation and some personal effects. It is common ground that the wife had no notable assets or liabilities.
When the parties married in 1994 Mr Kanan worked at Employer K as a factory worker, earning approximately $1,020 per week. He had worked there from 1988. He continued to be employed at Employer K until 2003 although he suffered a back injury at work in 1998 and was on workers compensation for approximately 5 years thereafter, until he received a settlement and commenced on a disability pension.
The respondent wife, Ms Mirza, commenced work shortly after her migration to Australia in 1994. For a period of approximately two years until the birth of her first child in 1996, she was employed as an office worker and thereafter became a full-time homemaker. Ms Mirza says that while she worked her finances contributed towards the mortgage repayments on B Street, Suburb C, groceries, bills, her car, fuel and other expenses such as insurance and utilities. She gave evidence that she gave cash to her husband on a regular basis and was told by him that the money would be used for the mortgage. She said that he would regularly remind her that the mortgage had to be paid when he asked for cash from her.
After the birth of their first child in 1996, the wife received Centrelink benefits and gave evidence that she would use these payments to continue to contribute towards the household expenses, including the mortgage. In oral evidence, she said she was uninformed as to what the husband actually did with the money as there was no discussion with him about financial matters.
The husband contests the wife’s evidence and denies ever receiving cash from her for outgoings on the mortgage or any other household items. He claims to have been the sole financial contributor. For reasons I explain later, I do not accept the husband’s evidence on this issue.
Mr Radi gave evidence that immediately following the purchase of the B Street, Suburb C property in 1992, Mr Kanan was unable to service the loan and that he (Mr Radi) paid all loan repayments until 1994. Mr Radi also says that following Mr Kanan’s marriage to Ms Mirza, and notwithstanding the prior arrangement that Mr Kanan would service the loan, he continued to make all loan repayments in relation to the property up until the year 2000 by way of “lump sum cash payments”.
No records of such cash payments were kept by Mr Radi, nor were any receipts issued by the husband to Mr Radi in respect of these cash payments. There is a complete lack of evidence from the husband and brother-in-law regarding the mortgage repayments and the source of funds used to make those repayments. Furthermore, this evidence is directly at odds with aspects of Mr Kanan’s sworn evidence where he says, in one paragraph of his affidavit, that he paid the mortgage but received cash payments from Mr Radi which roughly equated to half the monthly repayments[3] and, in another paragraph, says that Mr Radi made all the home loan repayments[4]. Moreover, this evidence is contested by the wife who says that at all material times, the husband, and at times, she herself, paid the mortgage without any assistance from Mr Radi.
[3] Kanan affidavit at [25] and [41]
[4] Kanan affidavit at [18]
I found the evidence of both Mr Kanan and Mr Radi in relation to this issue to be extremely vague, inconsistent and it shifted during cross-examination. It was not persuasive and was quite fairly criticised by the wife’s counsel in her final address.
I find it improbable that the brother-in-law was paying the whole or at least half the mortgage for the period between 1994 and 2000. During most of this period the husband and wife were employed or the wife was in receipt of Centrelink benefits. The parties lived on the B Street, Suburb C property and were not paying any rent. There is no evidence which leads me to the conclusion that the husband and wife were entirely incapable of servicing the mortgage themselves. In the absence of evidence which, for example, demonstrates how the parties were disbursing their incomes, or why they could not manage to repay the mortgage, I am inclined to take the view that they were capable of servicing the loan from 1994 to 2000 and that they did so from pooled funds, albeit with some assistance from Mr Radi.
In his evidence-in-chief Mr Kanan deposed that “sometime in 2000”, his brother-in-law sought to remove his name from the mortgage documents and Title Deed of the B Street, Suburb C property so he could secure a separate loan and purchase a property in Suburb L. The husband’s evidence is that the brother-in-law said words to the effect “I still want to go ahead with the development of the property, but I have to get my name out of the loan so that I can borrow other monies”[5]. In his affidavit Mr Kanan then goes on to depose that he refinanced the home loan with Westpac in his sole name in 2000[6] - but he otherwise gives no further evidence and does not even mention a transfer of land to him as sole registered proprietor.
[5] Kanan affidavit at [18]
[6] Kanan affidavit at [19]
In his affidavit dated 12 January 2018, Mr Radi deposes that “in the middle of 1998” he said to the husband “I will transfer the house into your name only but the house still belongs to both of us 50/50 ok?” to which the husband responds “Yes, ok…”. In line with this verbal agreement, the brothers-in-law contend that Mr Radi was to remain as a “silent partner” with his 50% share being held on trust, hereby establishing an express trust.
A Certificate of Transfer document is annexed to the brother-in-law’s affidavit dated 12 January 2018[7]. This document verifies that the B Street, Suburb C property was transferred to the husband as sole proprietor in 1998. It also records that consideration for the transfer was $1.00 AUD, and that stamp duty on the transaction was $1,158.75. The brother-in-law’s wife, Ms Radi, bore witness to the signing of the transfer document and filed an affidavit deposing to this. Ms Radi was not required for cross-examination as the wife now accepts the legitimacy of the transfer.
[7] Intervenor’s Court Book p.58
As a result of the wife’s concession with respect to the authenticity of the Transfer and other documents, Mr M, a handwriting expert who had prepared two reports which certify the genuineness of the brother-in-law’s signature on the land transfer documents, was not required to give evidence.
Mr Radi’s affidavit also annexes a property valuation report for the B Street, Suburb C property which was prepared days prior to the 1998 transfer. That report, prepared by a registered valuer, Mr N, valued the property at $145,000. This point-in-time valuation is not contested.
A necessary inference from the above evidence is that if there was a conversation between the brothers-in-law about their respective interests in the B Street, Suburb C property the conversation must have occurred prior to 1998, not in 2000 as deposed by the applicant husband. This significant discrepancy in the evidence of the brothers-in-law causes me to have serious reservations about their actual recall of events surrounding this transaction including the words allegedly spoken between them.
Mr Kanan gave evidence that in 2000 he refinanced the home loan for the B Street, Suburb C property with Westpac and that he was the sole mortgagor. He deposes that he and Mr Radi agreed to build a second house on the property. He says that at the time of the refinance he and Mr Radi agreed to increase the loan against the property from about $100,000 to $350,000

to allow them to build another house on the property.
I observe at this point that there were no documents tendered in evidence regarding the refinancing of the property or to support the existence of any agreement between the brothers-in-law about its redevelopment. There was no loan application, no loan approval and no other objective evidence from which the court can deduce when the home was refinanced or the basis upon which it was refinanced.
Mr Kanan deposes that while the second house was built by O Homes, “Mr Radi and I completed construction of the house” by carrying out certain works including painting inside and out, flooring, concrete driveway front and back, installation of retaining walls and fences and complete landscaping works[8].
[8] Kanan affidavit at [20]

Mr Kanan also says that during 2000, as the second house was being built, “Mr Radi and I borrowed further money to spend on the two homes”. He says that he took out two further loans from Westpac in 2002 for $50,000 and $40,000 respectively, which funds were applied to renovation of the older home, interior fittings for the new house and furniture for both houses[9].
[9] Kanan affidavit at [22]
It is common ground that Mr Kanan, the respondent wife and their children moved into the new home in or about the year 2000 and sometime thereafter the renovated original home, known as the “granny flat”, was placed on the rental market.
Mr Radi dedicates just a single paragraph of his trial affidavit to his involvement with the B Street, Suburb C property subsequent to its transfer to Mr Kanan in 1998. At paragraph 14 of his affidavit he says that during the construction of the second building on the B Street, Suburb C property he and Mr Kanan were in contact with each other and kept each other updated as to the development of the second house. He goes on to say that it was never their intention to sell it, but says it was their intention to further develop the property with the hope of subdividing it.
Mr Radi does not corroborate Mr Kanan’s evidence regarding his involvement in the redevelopment of the property. When cross-examined by the wife’s counsel, Mr Radi conceded that he had not done any manual work on the new house or the old house. He did not plant trees or do any of the paving. Mr Radi said that he only gave some financial help to Mr Kanan, often in circumstances where Mr Kanan came to him or his wife asking for cash.
Mr Kanan’s evidence was also shaken when he conceded in cross-examination he decided to build a new home on the property and made no mention of Mr Radi’s involvement in that decision. He said that he and his wife looked at display homes together on at least a couple of occasions. He said that he and his wife chose the home, but ultimately had to get a custom design in order to fit the block. He also conceded that his wife had assisted him with paving and had assisted him with painting. When it was put to him that his wife had also assisted with landscaping, he reluctantly accepted that “she planted some trees”. The husband’s affidavit did not reveal that the wife assisted in any of those things and I find it difficult to cast aside his lack of candour.
Ms Mirza was also asked some questions about the development of the second house on the property. She said that her husband never discussed with her that he had borrowed money at the time although she accepted that the funds for the redevelopment had to come from somewhere. She accepted that the funds were probably coming from a bank, but maintained that Mr Kanan never discussed this with her. She also said that the development of the second house was never discussed with Mr Radi. As far as the development was concerned, Mr Radi was “not even in the picture.”
The husband gave evidence that once renovations on the old home (“granny flat”) were completed in about 2002, that dwelling had thereafter been continuously leased out to tenants. The husband’s evidence is that the brother-in-law has never received any of the rent from this property, nor had he ever requested a share of his profit. According to the husband, payments which were received by way of rent would go towards the interest payments on the various loans against the B Street, Suburb C property. Since separation in 2015, the husband says that he has continued to receive all of the rental income from the granny flat of $430 per week. This evidence is not in debate.
In the 23 years since the transfer of the property was effected in 1998, the brother-in-law claims to have paid between $20,000 and $30,000 towards the B Street, Suburb C property by way of cash payments. No evidence has been produced to the Court which verifies these payments or which would objectively support this proposition. Mr Radi also conceded that he did not keep any records of the payments made.
When questioned by the wife’s counsel about these payments, Mr Radi initially stated that he did not make any contributions to the property. He said he was aware that the husband had refinanced the property but he never enquired about that loan, or whether Mr Kanan had managed to pay it off. Notwithstanding this evidence, the brother-in-law did say that he has continuously assisted the husband financially since the year 2000.
Ms Mirza first separated from her husband in 2012 and moved to Melbourne, but she returned in 2013. The husband and wife separated finally in January 2015.
Both the husband and wife tendered into evidence child support transaction statements which outline the husband’s payments to the wife since separation. At paragraph 77 of the husband’s affidavit dated 20 August 2021, he says that he pays child support at $562 per fortnight. However, when it was put to the husband in cross-examination that he did not make child support payments from 15 April 2018 to 13 January 2019, he conceded that paragraph 77 of his affidavit was incorrect.
Conversely, paragraph 48 of the wife’s affidavit dated 22 July 2021 deposes that she was not paid any child support by the husband between 2015 and 2019 and that she was covering all of the children’s expenses. During cross-examination, the wife accepted that payments were made during that period by the husband, but she said they were small and irregular. She agreed that the longest period where she did not receive any child support was about 10 or 11 months, and conceded that paragraph 48 of her affidavit was thereby incorrect.
OBSERVATIONS REGARDING CREDIT
In this case the husband supports the equitable claim made by his brother-in-law. Their positions in relation to that issue are aligned.
The consequence of the Court making a finding in favour of Mr Radi having an equitable interest is that the wife would receive a substantially reduced adjustment of the parties’ property in her favour. Conversely, a finding that dismisses the brother-in-law’s claim of an equitable interest will increase the prospect that the wife will receive an adjustment of substance.
Credit loomed large as an issue in these proceedings and it was raised squarely by the respondent wife in submissions made by her counsel in final address.
The wife’s counsel, Ms Spain, pointed to a number of instances where she contended that

Mr Kanan had given inconsistent, misleading, false or incomplete evidence. She submitted that his credibility was thus undermined in relation to all of his evidence.
By way of example, Ms Spain pointed to numerous inconsistencies in Mr Kanan’s evidence regarding Mr Radi’s alleged contributions to the mortgage both before and after 2000. She said there were inconsistencies in Mr Kanan’s affidavit (which I have referred to above) and that there was a conflict between his evidence and that of the intervenor (which is completely silent regarding post-2000 contributions) and between his evidence and that of the wife.
It was submitted that Mr Kanan had given false evidence when he said that he had continued to pay the mortgage post-separation, only to later concede under cross-examination that he had not made payments for approximately 12 months.
Ms Spain also submitted that Mr Kanan had given untruthful evidence in relation to child support payments. In his affidavit he deposes to having paid $562.34 per fortnight since separation. It was submitted that that was untruthful because Mr Kanan had in fact accumulated a substantial child support debt which had only recently been reduced, and even then only because of direct action by the tax department.
The applicant wife also points to Mr Kanan’s failure to properly disclose a bank account ending in 0433. His explanation that this was an account opened for his children was not persuasive.
It was also submitted that the husband gave false or misleading evidence regarding Mr Radi’s involvement in the development of the second house on the property. Mr Kanan’s evidence that he and Mr Radi had together engaged in various physical tasks to complete construction of the house completely fell apart under cross-examination. It was submitted that Mr Kanan had deliberately sought to overstate Mr Radi’s involvement in the property and to diminish the wife’s contributions.
To a significant extent I accept the thrust of these criticisms of Mr Kanan. Although I do not consider him to have been a deliberately untruthful witness, his evidence was given in such broad terms and was so lacking in detail that I have grave reservations regarding its accuracy. Mr Kanan’s evidence invited more questions than it answered and in the absence of documents to corroborate his evidence regarding, for example, mortgage payments and financial arrangements with his brother-in-law, I found his evidence generally to be vague, imprecise and often the product of guesswork.
The husband was cross-examined by his brother-in-law in a manner which might be aptly described as “friendly fire”. He readily conceded the correctness of various propositions that were put to him, which tended to serve the interests of the brother-in-law or their mutual interests. I do not suggest collusion between the brothers-in-law, rather in his answers

Mr Kanan’s displayed a tendency to shape answers to best suit his case.
I found Mr Radi to be a more reliable, albeit guarded witness. His evidence as a whole was similarly vague and imprecise but Mr Radi was more inclined to make concessions and he readily acknowledged that there was very little documentary evidence to corroborate his narrative. Nonetheless, I was not persuaded that his detailed evidence about the conversations with Mr Kanan in 1998 represents a genuine accurate recollection.
The evidence of the husband and his brother-in-law was not assisted by the paucity of documentary evidence or objective corroboration of their narrative. The brother-in-laws’ evidence that they were “family” and trusted one another does not adequately explain the absence of documents to evidence important financial transactions between them and with banks. Indeed, so “silent” was Mr Radi’s alleged interest that one is left to wonder whether he had an interest at all.
It should not be thought that I have no criticism of Ms Mirza’s evidence or concerns about her credit. My concerns about her evidence are of a lower order, but I do not accept her evidence uncritically. I felt that the respondent wife displayed a tendency to exaggerate and shape her responses to best suit her narrative and the outcome she is seeking.
For example, my impression was that Ms Mirza deliberately sought to diminish Mr Kanan’s non-financial contributions, in the same way that he sought to diminish her financial contributions. The respondent wife sought to paint a picture of her husband as a lazy non-contributor who spent his time with friends and added almost nothing to domestic life. This did not come across as a balanced view.
I was also not persuaded by a theme of Ms Mirza’s evidence that, save for handing over cash to her husband on a regular basis over the course of a long marriage, she had no insight into the family’s financial affairs, money flows, her husband’s incoming mail or any inkling that

Mr Radi had some involvement in the purchase or early funding of the B Street, Suburb C property. My impression is that Ms Mirza is more astute than she was prepared to give away and I did not find her ignorance of family financial affairs to be entirely genuine.
When cross-examined Ms Mirza was asked whether she had read the intervenor’s court book. She said that she had simply “skimmed” the documents in that court book, an answer I found to be surprising given the centrality of the equitable claim in this proceeding and the fact that Ms Mirza is obviously a woman of above-average intelligence with an acumen for financial and accounting matters.
I accept the wife’s evidence that during her marriage Mr Kanan never told her that Ms Radi had an interest in the property after he became sole proprietor in 1998. I also accept her evidence that Mr Radi had no visibility in relation to the mortgage or the redevelopment or maintenance of the property after 1998. I generally accept the wife’s evidence that she had no real idea about Mr Radi’s asserted equitable interest in B Street, Suburb C property until she became aware shortly after the commencement of family court proceedings that he had filed a caveat on the property. That said, she did concede in cross-examination, that when she returned to her husband after their first separation in 2013 that “she found out all about this” – a comment I was not able to reconcile.
Nonetheless, on the whole, I consider her evidence more credible than that of the applicant husband and where a factual context must be resolved I am inclined to prefer her evidence over his.
In final submissions there was criticism of the wife for having subjected the applicant husband and intervenor to the cost of having to prove the authenticity of the 1992 purchase and the 1998 land transfer, including the cost of engaging an independent handwriting expert to review and opine on various documents. I accept that concessions made by the respondent wife at trial obviated the need for that evidence and that her concessions could and probably should have been made earlier.
On the other hand, it is entirely unsurprising, upon seeing documents which identified an individual described as “Mr Radi” and on learning that Mr Radi asserted an interest in the property, that the wife suspected that a fraud had been perpetrated to deprive her of an interest in what she would have regarded as the principal matrimonial asset. I consider that Ms Mirza had every reason to be suspicious and to at least question the authenticity of transactions regarding the property in circumstances where there was no transparency about the alleged “silent partnership” between her husband and brother-in-law.
APPROACH TO PROPERTY MATTERS
The Full Court in Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 at [39] identified a preferred four-step process in property matters under the Family Law Act 1975 (Cth), namely
(a)to identify the pool of assets and liabilities generally, and usually at the time of hearing;
(b)to assess the relative contributions of both the financial, non-financial, direct and indirect nature as specified by s 79(4) of the Act;
(c)to consider the factors as are relevant contained in s 75(2) of the Act; and
(d)to determine whether the order the court proposes to make is just and equitable to both parties.
This approach was approved in Bevan & Bevan [2013] FamCAFC 116, where the Full Court of the Family Court of Australia considered the High Court’s decision in Stanford v Stanford (2012) 247 CLR 108.
It is well established that the Court cannot determine property settlement proceedings pursuant to s 79 of the Act without having first identified and determined the legal and beneficial interests of the husband and wife in any property: Bevan at [73] per Bryant CJ and Thackray J; Skye v Saidel [2020] FamCA 18 at [22] per MacMillan and the cases cited therein. In Skye, MacMillan J observed that those principles were equally applicable where, as here, a justiciable controversy which included a third party falls to be determined.
Mr Radi’s contribution to the purchase and mortgage repayments in relation to what was to become the matrimonial home has complicated the question of property adjustment as between the applicant husband and the respondent wife. Determination of the issue of the brother-in-law’s interest in the property is a necessary first step to ascertaining the pool available for distribution between the husband and wife.
The husband is the sole registered proprietor of the land in question. The central question to be determined, before consideration of an adjustment of property interests between husband and wife, is whether the husband holds any part of his right, title and interest in the property on trust for his brother-in-law and, if so, the nature and extent of the brother-in-law’s beneficial interest.
The onus of proof rests with the applicant husband and his brother-in-law who each assert that the brother-in-law has a 50% beneficial interest in the property. Where a person asserts affirmatively as part of their case that a certain state of facts is present or absent, that is a positive averment and must be proved positively. (see Abrath v North Eastern Railway Co (1883) 11 QBD 440 at [457] per Bowen LJ). A party who chooses to advance a case is obliged to satisfy the court of the proof of that case on the balance of probabilities: Evidence Act 1995 (Cth), s 140(1). As in other civil proceedings, any fact which has to be proved must be proved “to the reasonable satisfaction of the tribunal”: Briginshaw v Briginshaw (1938) 60 CLR 336, [362]. Such reasonable satisfaction “is not achieved unless the relevant tribunal feels ‘an actual persuasion of its occurrence or existence’. A ‘mere mechanical comparison of probabilities [independent] of any belief in its reality’ will not suffice”: ANZ Banking Group Ltd, In the matter of James v James [2016] FCA 332, [83]; see also In the matter of Hillsea Ltd [2019] NSWSC 1152, [21] and case cited, (Black J).
RELEVANCE OF ANY NON-DISCLOSURE
A party who is required to file a financial statement is obliged to make full and frank disclosure of their financial position: Federal Circuit Court Rules 2001, r 24.03. Further, since s 79 requires consideration of the parties’ entire property interests, they remain obliged to make full and frank disclosure, a duty which is continuing: Hickey & Hickey; the Attorney General for the Commonwealth of Australia[2003] FamCA 395; (2003) FLC 93-143, [40] (Nicholson CJ, Ellis and O’Ryan JJ).
The respondent wife contends that the husband has failed to make proper financial disclosure. She cites, by way of example, his failure to provide mortgage statements since separation, notwithstanding requests from her solicitors that he do so, and the absence of historic mortgage statements relating to loans taken in 1998. She also cites the example of the husband’s bank account ending on …43, the existence of which was only conceded at trial. She says that this non-disclosure only leaves one wondering what else he might not have disclosed in this proceeding.
It is a statement of the obvious that the primary task of identifying the parties’ interests in their property is made problematic where a party does not properly make financial disclosure. In such a case, the applicant and the Court must confront how to identify and value the parties’ assets and liabilities: Giunti & Giunti[1986] FamCA 15; (1986) FLC 91-759.
It is well-established that evidentiary findings can be made notwithstanding a party’s failure to comply with their obligations of disclosure in family law financial and property proceedings. The Full Court of the Family Court has found that the failure by a party to disclose relevant financial information may lead the court to draw adverse inferences against that party provided there is material upon which such an inference based (see e.g. Hall v Hall (2016) 257 CLR 490 at [505]).
Where it is found that a party has deliberately failed to comply with an order to make financial disclosure, the court may then be less cautious in its approach in making findings favourable to the opposing party: Weir & Weir(1993) FLC 92-338 (Nicholson CJ, Strauss and Nygh JJ). A party’s design of obfuscation and evasion is not an insuperable barrier to the determination of what orders are just and equitable in the adjustment of property interests: Giunti (1986) FLC 91-759, 75,555; Black & Kellner (1992) FLC 92-287.
In my opinion there is something to be said for the wife’s contention that the husband has been less than forthcoming in relation to financial disclosure. For that reason, in determining the parties’ property interests the Court is entitled draw adverse inferences against a party who could have made proper disclosure. Furthermore, the Court is entitled to adopt a more robust approach in the exercise of any discretion under s 79.
DOES MR RADI HAVE AN EQUITABLE INTEREST IN THE B STREET, SUBURB C PROPERTY?
Express trust

In this matter, the applicant husband and his brother-in-law assert the existence of an express trust in favour of the brother-in-law. As mentioned, the applicant and the intervenor bear the onus of proof in relation to this matter.
The requirements for the establishment of an express trust are well-established and were the subject of consideration by the Full Court in Cierpiatka v Cierpiatka [1999] FamCA 1286. Those requirements are that there must be language or conduct which shows a clear intention to forthwith create a trust and there must be certainty as to the subject matter. Both the purpose of the trust and the extent of the benefit must be clear.
In Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843, Ward CJ at [39] summarised the relevant principles in relation to the formation of an express trust in the following terms:
As to the intention necessary to establish an express trust, what is required is a sufficiently certain manifestation of an intention to create a trust. The question of intention is to be determined objectively; some private, subjective, intention being insufficient (see Byrnes v Kendle (2011) 243 CLR 253 at 277 per Gummow and Hayne JJ and at 290 per Heydon and Crennan JJ)
In order for an express trust to be created, is not necessary to prove that the parties specifically turned their minds to the fact that a trust was being created. At common law, no special or technical language needs to be used. However, the parties’ intention must be clear from the language used as objectively understood in the relevant circumstances of the case, including the relationship of the parties. That said, the precision that might be expected in an arms-length commercial transaction is not to be expected in private family dealings. (see Nguyen v Phan (No.2) [2015] VSC 634 per Elliott J at [237]).
The nature and extent of the beneficial interests of the respective parties are to be ascertained by evidence of the acts and declarations of the relevant parties before, at the time of purchase and also immediately after it as to constitute part of the transaction: Calverley v Green (1984) 155 CLR 242 at [262].
Furthermore, for there to be a trust over land in New South Wales, it must be manifest in writing. Relevantly, s 23 of the Conveyancing Act 1919 (NSW) provides:
(1)Subject to the provisions of this Act with respect to the creation of interests in land by parol -
(a)     no interest in land can be created or disposed of except by writing signed by the person creating or conveying the same, or by the person’s agent thereunto lawfully authorised in writing, or by will, or by operation of law
(b)     a declaration of trust respecting any land or any interest therein must be manifested and approved by some writing signed by some person who is able to declare such trust or by the person’s will
(c)     a disposition of an equitable interest or trust subsisting at the time of the disposition, must be in writing signed by the person disposing of the same or by the person’s will, or by the person’s agent thereunto lawfully authorised in writing
(2)This section does not affect the creation or operation of resulting, implied or constructive trusts.
There is in this case no written evidence of a trust recognising that Mr Radi retained a beneficial interest in the B Street, Suburb C property after its transfer to the sole proprietorship of Mr Kanan in 1998.
Rather, the agreement upon which the husband and brother-in-law seek to rely, and which they say evinces a common intention to create an express trust, was entirely verbal. This ‘pact’ allegedly took place in 1998, prior to the severance of their tenancy in common and the subsequent transfer of the B Street, Suburb C property into the husband’s sole name. The conversation which instituted the agreement is deposed in Mr Radi’s affidavit dated 12 January 2018, and he recalls it as follows:
Brother-in-law:    Brother I am interested in another property but because of my income I will not qualify for another loan, so I need to have my name removed from the current loan so that I can make another loan application.
Husband:           Ok, that is fine, we can do that. So how do you want to do it?
Brother-in-law:   I will transfer the house into your name only but the house still belongs to both of us 50/50 ok?
Husband:           Yes ok, so we need to speak to a real estate agent and the bank?
Brother-in-law:    Look, you are my brother-in-law, we are close, I am married to your sister, and I trust you, but you need to understand that you are going to hold my share on trust ok?
Husband:           What do you mean? I am not going to do anything.
Brother-in-law:    I know, but I want to hear it.
Husband:           Yes I will hold your 50% share on trust, but do you still want to be involved in the house?
Brother-in-law:    Don’t be silly of course, nothing changes, except that only your name will be on the title, we continue as before.
Husband:           Ok, no problem, let’s do that.
As to whether that exchange is sufficient to establish an express trust is a matter to which I will return later in these reasons.
Resulting trust
An argument for a resulting trust was also raised on behalf of the husband, in the event that the Court does not accept, in all the circumstances, that the requirement for an express trust can be satisfied.
The initial presumption arising from sole registered ownership, as is the case here, is that the registered owner has full ownership and there is no beneficial interest in favour of someone else: Black Uhlan Inc v New South Wales Crime Commission and Ors [2002] NSWSC 1060 at [128].
While one begins with the presumption that the equitable title to property remains at home with the legal title, that presumption, like all evidentiary presumptions, can give way to facts showing the contrary.
In Minassian v Minassian [2010] NSWSC 708 Ball J at [71] stated:
“A resulting trust arises where, among other circumstances, a person makes a contribution to the purchase price of property the legal title to which is held in the name of another: Charles Marshall Pty Ltd v Grimsley (1956) 95 CLR 353; Calverley v Green (1984) 155 CLR 242 . The property is held in trust for those who contributed to its acquisition in shares proportionate to their contributions…”
A person’s beneficial interest under a resulting trust is determined by the person’s direct financial contribution to the purchase price at the time the property is purchased and the trust created (see Calverley v Green at [252] per Gibbs CJ, Sivritas v Sivritas [2008] VSC 374 at [124] per Kyrou J).
A beneficial interest arising by way of a resulting trust will not be established by contributions other than contributions to the purchase price. Money subsequently expended on outgoings or improvements will not alter the beneficial interest of contributors under a resulting trust that is already in existence (Sivritas v Sivritas at [127] per Kyrou J).
The presumption of a resulting trust may be rebutted by showing that there is a relationship between the parties giving rise to the so-called “presumption of advancement” so that the party who has contributed less or nothing to the acquisition cost is nevertheless to have an interest in accordance with the legal title.
Here no such presumption of advancement arises. Just as no presumption of benefit arises between siblings (Noack v Noack [1959] VR 137), there is no presumption of advancement in a transaction between brothers-in-law.
Constructive trust
Again in the alternative, the applicant husband and his brother-in-law contend that in the absence of an express trust or resulting trust, the Court should find that Mr Kanan holds a 50% interest in the B Street, Suburb C property on constructive trust for the benefit of Mr Radi.
It is a general principle of equity that a person is entitled to have restored to him contributions which he has made to a joint venture which fails or is not completed when the contributions have been made in circumstances in which it was not intended that the other party should enjoy them. The content of the principle is that when the substratum of a joint relationship or endeavour is removed without attributable blame and where the benefit of money or other property contributed by one party on the basis and for the purposes of the relationship or endeavour would otherwise be enjoyed by the other party in circumstances in which it was not specifically intended or specifically provided that the other party should enjoy it, equity will not permit that other party to assert or retain the benefit of the relevant property to the extent that it would be unconscionable for him to do so (see Muschinski v Dodds (1985) 160 CLR 583 at [620] per Deane J).
A constructive trust may arise by operation of law, irrespective of the parties’ intentions, to prevent the legal owner of property from acting unconscionably toward a person who has been promised or is otherwise entitled to an interest in the property. A constructive trust arises whenever the circumstances are such that it would be unconscionable to allow the legal owner of property to enjoy sole beneficial ownership of that property.
A common intention constructive trust arises after the purchase of property when parties have a common intention that one will receive a beneficial interest in the property. There are three elements:
(e)there must be an actual common intention that the claimant was to have a beneficial interest in the property. Such an intention may be inferred from words or conduct but cannot be imputed.
(f)the claimant must have acted to his or her detriment in reliance on the common intention.
(g)it would be unconscionable in the circumstance for the legal owner to deny the oral agreement and defeat the beneficial interest that was promised.
A windfall constructive trust may be imposed where one party has made contributions to property and it would be unconscionable for the registered proprietor to retain the benefit of those contributions (see Baumgartner v Baumgartner (1987) 164 CLR 137 at [148]).
Before such a trust will be found, it is necessary that
(a)the parties were involved in a joint relationship or endeavour;
(b)there was a pooling of resources or expenditure of the purposes of the joint relationship or endeavour. This might include consideration of non-financial contributions made by the parties;
(c)the joint relationship or endeavour must have come to an end or have been prematurely terminated “without attributable blame”; and
(d)it would be unconscionable in circumstances for the landowner to retain the benefit of the other’s contributions.
Equity serves to protect those contributions made by one party to the joint endeavour from any unconscionable retention of those contributions by the other party when the joint venture is abandoned or fails to materialise. If one party seek to rely upon his legal title to deny the other contributor to any interest in the property, equity will intervene to protect the other party’s contributions to the joint enterprise.
In the current circumstances, there is no evidence after the transfer of the property to

Mr Kanan in 1998, that he and his brother-in-law continued to jointly build up the asset or that each continued to contribute to a common pool on the basis that the asset would be used for their ongoing common benefit.
FINDING REGARDING CLAIM OF EQUITABLE INTEREST
It is an agreed fact that Mr Radi paid the $12,100 deposit on the property and I infer, without that payment, the property would never have come into the joint ownership of the brothers-in-law. Furthermore, I am inclined to accept the evidence of both Mr Radi and Mr Kanan that, at least initially, the arrangement between them was that Mr Kanan would service the mortgage for which they were otherwise both responsible and that they both hoped to gain from some future redevelopment of the property.
There is no evidence regarding the establishment of the mortgage, but the mortgagors were

Mr Kanan and Mr Radi. As has been mentioned, at trial it was conceded by the wife that the name “Mr Radi” where it appeared in respect of the mortgage was in fact a reference to

Mr Radi.
Mr Radi gave evidence that he paid the mortgage between 1992 and 1994 when the applicant husband married the respondent. He said that he did this because Mr Kanan ran into financial difficulties. However, there is no documentary evidence which assists me to establish who in fact paid the mortgage during that period of time. I accept that it is quite possible Mr Radi did so and that, having made an investment in the property by paying the initial deposit, being a tenant in common and sharing responsibility as a joint mortgagor, it was consistent with him maintaining his interest in the investment opportunity at that time.
Mr Radi and Mr Kanan each gave evidence about the payment of the mortgage on the property from 1994 to the time it was transferred and refinanced in 1998 (or 2000 on Mr Kanan’s version). Their evidence did not cohere and I did not find it convincing.
I accept the wife’s evidence that during this period she made significant and regular cash payments to her husband and that she did so on the clear understanding that some or all of those payments would be directed to the mortgage. There is no evidence which establishes exactly who made the mortgage repayments and whose funds were used. By reason of the mixing of the husband’s and wife’s funds into a family pool, it cannot be determined on the evidence as to who paid what. However, I consider it most likely that funds from the family pool were channelled toward mortgage repayments.
That said, I also accept that from 1992 Mr Radi did from time-to-time give cash to Mr Kanan and that at least some of those cash payments were directed to paying the mortgage. None of these payments are recorded and they cannot be verified, but I accept that up until the property was transferred to Mr Kanan in 1998, payments by the intervenor to Mr Kanan were consistent with the premise that he was seeking to maintain an interest in the property and in the expectation that he and Mr Kanan might share a future gain from a joint endeavour.
I am certainly not persuaded that the intervenor paid 100% of the mortgage in the 1994 – 1998 period and consider it unlikely that he contributed any more than 50%.
In 1998 the property was transferred to the sole ownership of Mr Kanan. As mentioned, the authenticity of the transfer documents was ultimately conceded by the respondent wife at trial.
The timing of the transfer was explained by Mr Radi. He said that he wanted to enhance his prospects of obtaining finance for another property investment opportunity by removing himself from the title and mortgage documents associated with the B Street, Suburb C property.
I accept the evidence that the transfer of the B Street, Suburb C property to Mr Kanan did coincide with Mr Radi’s purchase of another property and I accept that it was a plausible reason for the transaction.
The effect of the transfer was that 100% legal ownership of the property passed to Mr Kanan. The question is whether Mr Radi maintained an equitable interest in the property which was thereafter held on trust for him by his brother-in-law.
At the outset of final addresses, counsel for the husband submitted that when the parties used the word “trust” in their 1998 conversation, they were not using it in a legal sense, and I accept that the expression was used in an “I trust you, you trust me” familial context. I accept that in the conversation upon which the parties rely, the word trust was not used in a legal sense. Nonetheless the brothers-in-law contend that a legal trust was created by their words and their conduct.
Having heard all the evidence, the 1998 transfer of ownership from Mr Radi to Mr Kanan as tenants-in-common to Mr Kanan as sole proprietor, and the coinciding purchase by Mr Radi of a property in Suburb L, lends itself to two possible scenarios.
First is the explanation given by the brothers-in-law, namely that Mr Radi wanted to distance himself from the B Street, Suburb C investment by removing himself from the title and the mortgage, thereby better positioning himself to secure finance for the Suburb L purchase. The intervenor contends that he retained his 50% equitable interest in the B Street, Suburb C property and thereafter, as Mr Kanan would describe it, he remained as a “silent partner”.
However, the 1998 transaction supports another more likely possibility. By 1998 the joint owners had not acted upon their aspirational plan to develop B Street, Suburb C and there was no evidence of any agreement between them to do so. By that time the property had only grown in value by $24,000 since it was purchased in 1992. There is every possibility that Mr Radi simply had a change of mind about the short term investment potential of the B Street, Suburb C property and considered that the Suburb L property was a better investment bet. But, having contributed the $12,100 deposit for B Street, Suburb C and having made perhaps 50% of the mortgage payments during their six years of joint ownership, Mr Radi would have a reasonable expectation that the deposit and his share in the capital gain to date should be preserved.
Although the later development of the property involving the building of the second home on the land might appear to be consistent with the objective that Mr Radi and Mr Kanan had in mind when the property was originally purchased, in my view after the 1998 transfer that development was not the product of any ongoing joint enterprise in relation to which Mr Radi was a 50% silent partner. Objectively, that joint endeavour had ceased to exist and there was no evidence of it thereafter.
From 1998 Mr Kanan continued to occupy the property with his wife and it was to all intents and purposes the family home. Mr Kanan was the sole registered proprietor of the property. He was the sole mortgagor of the property and he was personally liable for all debt on the property. Mr Kanan borrowed against the property for the development of the second house. Mr Kanan also borrowed against the equity in the property with two other substantial loans which funds were used substantially for family expenses including the purchase of a car and travel. There is no evidence that Mr Kanan ever sought or was required to seek Mr Radi’s approval or consent to develop the property, to borrow against the property or to use funds secured by the property for any purpose, including personal and family expenditure. There is no evidence of the intervenor’s alleged interest in the property being disclosed to the mortgagee or being recorded in insurance documents as an interested party. Indeed, Mr Radi conceded that Mr Kanan was free to access the equity in the property.
The overwhelming evidence is that Mr Kanan developed the property with the assistance of his wife and that Mr Radi had no discernible involvement. There is no evidence that at the time of transfer Mr Kanan and Mr Radi had any firm concept or plan as to how the property would be redeveloped and, if it was to be redeveloped, how their investment would be realised and any income or capital gain shared. Their asserted “50/50” arrangement, in so far as it was to exist beyond 1998, is so uncertain and devoid of content that it cannot support a finding of an express trust.
I accept the wife’s evidence that insofar as the development of the property was concerned,
Mr Radi was never really in the picture. I accept her evidence that Mr Radi had no visibility in relation to the payment of the mortgage or the redevelopment of the property. There is no evidence that Mr Radi had any tangible involvement and when cross-examined he conceded that he did no work on the property and has not been involved in its maintenance – a concession which contradicted and undermined much of the husband’s evidence. I accept her evidence that she had no idea about Mr Radi’s asserted 50% beneficial interest in the property until she separated from her husband.

Furthermore, Mr Kanan retained all the rental income from the second house and has applied it to mortgage payments, maintenance and other unknown purposes. There has been no sharing of that income with Mr Radi and I find this somewhat undermines the premise that the property was jointly purchased for the purposes of developing the property and reaping the benefits of the investment. Especially so, when the total rental income for the granny flat since 2002 is a significant figure of $112,418.
There is no documentary evidence that Mr Radi has made any contribution to the mortgage on the property, directly or indirectly, after it was transferred to Mr Kanan. Mr Radi said nothing in his affidavit about having done so. It was only when he gave evidence that he claimed to have provided Mr Kanan with cash payments of about $30,000 over the past 20 years for mortgage payments, a figure which coincided with an amount disclosed by Mr Kanan for the first time when he gave evidence the previous day.
I am inclined to accept that Mr Radi has provided cash to his brother-in-law from time-to-time over the past 20 years, but there are no records of these payments, there is nothing to document the payment amounts or the receipt of them and there is no record of the terms on which the payments were made. I consider it more likely these payments have been in the nature of assistance as between family members, not a loan or advance which has been secured against Mr Radi’s asserted equitable interest in the property. I do not accept that these payments, if made, evidence the existence of the trust arrangement asserted by the brothers-in-law.
Upon my consideration of the evidence above, the husband and intervenor have failed to satisfy the burden of establishing, or indeed leave the Court with any sense of actual persuasion, of an arrangement of the kind for which they contend.
I do not accept that at or about the time of the transfer of the property to the sole ownership of Mr Kanan in 1998, an express trust was established which conferred upon Mr Radi a 50% beneficial interest in the property. For there to be a trust over land in New South Wales, it must be manifest in writing as required by s 23 of the Conveyancing Act 1919 (NSW). There is no written evidence and I reject the submission that the affidavits filed in these proceedings by
Mr Kanan and Mr Radi can stand as the written manifestation of the alleged express trust.
I am more inclined to the view that the circumstances of this matter support the establishment of a constructive trust in favour of Mr Radi, whereby his investment in what was a joint endeavour up until 1998 was thereafter preserved and held on trust by Mr Kanan, to be returned to him in the event the property was realised at some time in the future.
When Mr Radi was cross-examined by the husband’s counsel he said that he understood
Mr Kanan never wanted to sell the property but he expected Mr Kanan to “keep him in mind” if ever the property was sold. I anticipate that what Mr Radi expected Mr Kanan to keep in mind was the fact that he had paid the initial deposit and made some of the mortgage payments while they were tenants in common between 1992 and 1998.
If the property had been sold in 1998, rather than having been transferred to Mr Kanan’s sole ownership, it would have been reasonable for Mr Radi to have expected the proceeds to have been applied to repayment of his $12,100 deposit and he would have reasonably expected 50% of the net capital gain (after discharging the mortgage).
However, the property was not sold and in my opinion it would be unconscionable for
Mr Kanan to retain for himself the benefit of Mr Radi’s initial contributions. In my view, the circumstances of this case speak to the creation of a constructive trust where Mr Radi’s deposit and 50% share in the notional 1998 net capital gain continues to be held for his benefit by
Mr Kanan.
In final submissions the wife contended that during the period 1992 to 1998 the mortgage debt on the B Street, Suburb C property was reduced by about $12,000, from $110,000 to say $98,000. The house was valued in 1998 at $145,000, up from the purchase price of $121,000. Accordingly the brother-in-laws’ net equity in the property was $47,000.
I consider that of the $47,000 net equity in the property in 1998, equity would entitle Mr Radi to the return of his $12,100 deposit and a 50% share of the remaining equity, being $17,450[10]. I also consider equity would entitle Mr Radi to the stamp duty paid on the transfer, being $1,159. Accordingly, I consider and will declare that Mr Radi’s equitable interest in the property at 1998 was $30,709 and that interest is held on constructive trust by Mr Kanan.
[10] Net equity $47,000 less $12,100 deposit = $34,900 divided by 2 = $17,450.
Mr Radi’s equitable interest is to be excluded from the asset pool of the marriage and in determining the adjustment (if any) of the property interests between the husband and wife, the balance sheet will be amended accordingly. I conclude that the non-superannuation asset pool is as follows:

ASSETS

Description

Owner

Value ($)

B Street, Suburb C

H

1,039,291.00

Motor Vehicle 1

H

78,000.00

Motor Vehicle 2

H

30,000.00

Household contents

H

3,000.00

Westpac Choice Savings Act

H

1,539.35

Bank P retirement access plus

H

476.60

Motor Vehicle 3

W

1,300.00

Household contents

W

2,000.00

Jewellery/personal property

W

3,000.00

Westpac savings

W

3,000.00

$1,161,607.00[11]

[11] rounded

LIABILITIES

Westpac loan accounts (B Street, Suburb C)

H

$441,484.11

Q Motor vehicle finance – Motor Vehicle 1

H

78,297.60

R Finance – Motor Vehicle 2

H

35,062.52

ATO – HECS

W

36,000.00

$554,844

TOTAL NET ASSETS

$606,763.00

CLAIM FOR OCCUPATIONAL RENT

The intervenor contended that during the time Mr Kanan and Ms Mirza were married and residing at B Street, Suburb C, they received a benefit for which they were liable to pay “occupational rent” to Mr Radi. In his “Amended Statement of Legal Contention” the intervenor concedes that “occupational rent” was not a term of the agreement between Mr Kanan and Mr Radi, but he says that such money plus interest should nonetheless be paid to him should the B Street, Suburb C property be ordered to be sold.
The premise for the claim rested largely on the proposition that Mr Kanan and his wife had the benefit of rent-free accommodation while Mr Radi was paying the mortgage. In fairness to counsel for the intervenor, he conceded in final submissions that the claim for “occupational rent” would be optimistic if the Court was to find that Mr Kanan had been making contributions to the mortgage.
Having regard to my findings in relation to the trust issue, I find no basis, equitable or otherwise, to support the intervenor’s claim that the husband and wife are liable for payment of occupational rent. There is no evidence of any such payment ever having been sought by Mr Radi either prior to 1998 (when he was a tenant in common with Mr Kanan) or after 1998 (when Mr Radi had a small beneficial interest which was held on constructive trust by

Mr Kanan).
I do not accept that Mr Radi’s equitable interest in the property entitles him to anything other than preservation of his deposit and his share of the capital growth between 1992 and 1998. I reject the intervenor’s claim for occupational rent.
ADJUSTMENT OF INTERESTS
I am satisfied that it is just and equitable in all the circumstances for orders to be made pursuant to s 79 of the Act. Such an adjustment is just and equitable because one or both of the parties have chosen that they should no longer continue to live together in their relationship. For that reason, the parties no longer have the common use of their property, toward which they have each made contributions over the period of their relationship. As a result, the express or implicit assumptions which underpinned their relationship, including that they would be able to consensually adjust their interests in such property, are at an end: Stanford, [41]-[42].
It is then necessary to address the matters in s 79(4) of the Act and s 75(2), insofar as the latter provisions are of relevance to the instant case.
In considering what order (if any) should be made in property settlement proceedings, the Court shall take into account such contributions, direct and indirect, made by or on behalf of a party to the marriage, including toward the acquisition, conservation or improvement of the parties’ property. The contributions made to a relationship include those brought to, made during and those made post-separation. Non-financial contributions are neither less valuable nor less important than financial contributions.
SUBMISSIONS AS TO CONTRIBUTIONS
Husband
I accept that at the commencement of cohabitation the husband contributed a motor vehicle valued at about $3,000, personal effects worth about $2,500 and superannuation of about $18,000.
I also accept that Mr Kanan’s interest in the B Street, Suburb C property also formed part of his initial contribution to the marriage. Although Mr Kanan had almost no equity in the property when the parties commenced to cohabitate, it was a contribution of some value and it did sow the seed for the establishment of a more substantial asset base over time. In the husband’s favour, I am inclined to the view that without the important early contribution made by his brother-in-law the B Street, Suburb C property would not have been brought into the marriage and possibly might not have remained an asset of the marriage. I find that this contribution made on behalf of the husband significantly benefited the marital asset pool over time and should count in the husband’s favour in determining the fair and equitable adjustment of the parties’ interests in this case.
Mr Kanan contends that he was the major financial contributor during the relationship with income derived from his work and from his receipt of workers compensation payments. He says that these significantly outweigh the financial contributions of the wife.
Mr Kanan submits that the wife’s contributions were limited to her earnings before she had children. Initially he said she had only worked for about six months, but later conceded it was closer to 2 years. It will be recalled that Ms Mirza worked until the first child was born in 1996.
Under cross-examination, the husband initially denied ever receiving cash from the wife to be put towards the mortgage. Later, Mr Kanan reluctantly conceded that his wife may have contributed some of her Centrelink payments into the family pool and that she did give cash to him during the course of the relationship.
In final submissions, counsel for the husband properly conceded that “Ms Mirza has given money at times to Mr Kanan”. It was accepted that both parties to the marriage had put money into a “family pot” and that this was then drawn down to pay family expenses including the mortgage. In the end, however, the husband steadfastly maintains that he was the major contributor.
The husband also says that post-separation he has overwhelmingly been the principal financial contributor, responsible for maintaining the B Street, Suburb C property using rent from the tenanted “granny flat”. The wife contests this and says that the mortgage on the property has fallen into substantial arrears and that no payments have been made for approximately 12 months.
As to non-financial contributions, the husband concedes that Ms Mirza was the main carer for the children and the principal homemaker. In final submissions his counsel properly conceded that the wife was “clearly the major non-financial contributor”.
Nonetheless, the husband gave evidence of his involvement in aspects of domestic life which he says should be taken into account. In his trial affidavit Mr Kanan outlined work he did in relation to the construction of the “second house” in 2000 and he also lists a catalogue of his contributions to cooking, washing, vacuuming and mopping, laundry, making beds, lawn mowing, shopping, entertaining and involvement with the children.
Although the wife contended in her affidavit that Mr Kanan did not help her with household chores, Mr Kanan’s evidence was not significantly challenged under cross-examination and the wife’s non-financial contributions were not put to him. It was for this reason that in final submissions counsel for the husband submitted that where evidence regarding the extent of non-financial contributions was a contest between the parties, the Court should prefer the husband’s evidence over that of the wife.
I accept that there is a contest about the degree of their respective contributions, but it is not contested that the wife was the major non-financial contributor and the evidence in that respect is overwhelming.
In terms of s 75(2) factors, the husband contends that he has a number of health issues which were described in his Outline of Case as “disabilities”. However, save in relation to an episode of Bell’s Palsy suffered in 2020 which caused these proceedings to be delayed, there was no medical evidence proffered to support the submission that the husband is subject to any impairment.
There is no suggestion that the husband is totally incapacitated or unable to earn an income. Although the husband says that he has been on workers compensation since July 2020, it is conceded that he is currently working and earning income as a transport worker.
The husband’s principal submission is that his earning capacity is less than that of the wife’s true earning potential, having regard to her business degree and accounting experience.

Mr Kanan contends that the wife’s earning potential is much greater than her current earnings and that she is holding herself back by limiting her hours in order to pick up adolescent children from school - a task which he says is not necessary given their age.
Mr Kanan contends that the wife’s potential future earning capacity should be assessed on the basis that she is capable of working full-time at the level of a finance professional. He concedes that having the future care of the children obviously favours her, but says that they will shortly reach adulthood.
The husband also submits that he continues to pay child support of $253.87 per week and that this should be taken in consideration. He submits that overall the s 75(2) factors favour him by 5%.
Wife
Ms Mirza acknowledges that Mr Kanan did bring the B Street, Suburb C property to the marriage, but says his interest in 1994 was very small given that Mr Radi had paid the deposit on the property and it was otherwise heavily indebted. Ms Mirza does not submit that she brought any assets to the relationship.
The wife submits that she has made financial contributions from the commencement of cohabitation. Her case is that there was very little transparency in management of the family finances and that was left to Mr Kanan.
The wife is adamant that the husband paid the mortgage on B Street, Suburb C at all material times, and that she would assist on a monthly basis by providing the husband with cash upon his request, which was to be paid toward the mortgage or for other household expenses. She maintained the truth of her affidavit evidence in cross-examination and reiterated that she had given the husband cash payments whilst she was employed, and I am content with this aspect of the wife’s evidence. Despite the husband’s attempt to diminish the wife’s financial contributions, I also accept that the wife also gave the husband cash on a regular basis when she was in receipt of Centrelink benefits, after the birth of their first child in 1996.
The wife submits that she was the primary homemaker and carer for the children during the marriage. It is undisputed between the parties that the wife took care of the majority of domestic duties, and the husband conceded to this fact during cross-examination. I generally accept the wife’s evidence about her role during the marriage, including that she was responsible for the cooking, cleaning, caring for the children, taking them to medical appointments, taking and collecting the children from school and assisting them with homework tasks.
Mr Maddox put to Ms Mirza a series of questions relating to paragraphs 56 to 76 of Mr Kanan’s affidavit. In those paragraphs the husband deposed to having made a number of non-financial contributions to the household during the course of the relationship. For example, he claims to have cooked once a week and to have attended parent-teacher interviews twice a year.
For the most part Ms Mirza took issue with the husband’s asserted contributions to the household. She said that he had only cooked for the home once or twice in 21 years and even that occurred when she was sick. She said that when he was on workers compensation he was rarely ever home and spent a lot time seeing friends. She rejected his evidence that he swept, vacuumed, did the laundry or other house work on a weekly basis. She said that he did not make beds or engage in general tidying up, other than when she was not at home, sick or in hospital with the children. She strongly rejected Mr Kanan’s evidence that he did grocery shopping or that he ever bought things on the way home from work. Although she agreed that they entertained guests every one or two months, she said that all tasks associated with that were left to her. She rejected his evidence that he attended parent teacher evenings or that he spent significant periods of time driving the children to and from school and to other activities. Nor, according to Ms Mirza, did Mr Kanan read bedtime stories to the children or take the children to sporting events but she agreed that he did bathe and clothe the children on occasion.
Ms Mirza displayed signs of emotion and increasing fervour in her rejection of the various propositions that the husband had contributed around the home. As this part of the cross-examination unfolded, Ms Mirza strove to give the impression that Mr Kanan had made almost no contribution to the home at all. She summarised his lifestyle, at least while he was on compensation, as involving lying around all day and visiting friends at night. My impression was that Ms Mirza overplayed her responses, but I accept she was understandably indignant at the husband’s exaggerated claims.
Although I consider it improbable that the husband did almost nothing around the home, I do accept that Ms Mirza was principally responsible for and carried out the vast majority of domestic tasks, including cooking, cleaning, shopping and attending to the children’s schooling and other activities. I am inclined to the view that the husband offered minimal practical assistance to the wife to lighten the burden of that load.
As to financial contributions post separation, Ms Mirza submits that the husband is not in fact making mortgage repayments on the B Street, Suburb C property as he claims and that the mortgage has been allowed to increase by at least $5,000 in recent months. The evidence supports that submission. She says that this conduct is reducing the available pool.
The wife submits that she has been left to financially provide for the two younger children since they were 9 and 10 years of age. She also submits that the husband has not been meeting his child support obligations and that a significant debt has accumulated, albeit one which has reduced recently. She is critical that the husband appears to have prioritised the purchase
of expensive motor vehicles over ongoing support for the children.
In terms of section 75(2) factors, Ms Mirza says that there is no medical evidence that the husband has any incapacity for employment.
Furthermore, the wife submits that based on most recent tax returns, the husband earns more than she does. She also submits that he has failed to disclose his income as an transport worker.

The wife rejects the proposition that she is limiting her earning potential. She submits that her many years as a homemaker and parent during the marriage has negatively impacted her ability to earn an income. She submitted in any event that she is effectively working full-time hours and while she has improved her qualifications by obtaining a degree, there is no certainty that that will increase her current earning capacity.
The wife continues to have the sole care of the two younger children of the marriage and she wishes to purchase a house for herself and them. She submits that these obligations should weigh heavily in her favour in any consideration of future needs.
The wife also submitted that the husband has an income earning son who should be regarded as an available financial resource. There is evidence that the son has paid Mr Kanan money, for example to work on his car.
CONSIDERATION OF ADJUSTMENT OF INTERESTS
The determination of what order, if any, should be made requires consideration of s 79(4).
While there is no presumption of equality of contribution or partnership, including as between the parties to a long relationship, this will not uncommonly be an appropriate conclusion in cases involving a long relationship: Mallet v Mallet (1984) 156 CLR 605, 609; JEL v DDF (2000) FLC 93-075, [152(a)].
The evaluation that is required to be made is necessarily holistic: Dickons & Dickons (2012) 50 Fam LR 244, [152(a)]; Wallis & Manning [2017] FamCAFC 14, [23]; Han & Ngo [2021] FamCAFC 97, [42]; Samper & Samper [2021] FamCAFC 140, [64] and cases cited. An over-zealous ascertainment of the parties’ contributions should not be adopted. Instead, s 79 of the Act requires the ascertainment and weighting of all contributions; a process which “is not a simple mathematical calculation based upon financial contributions. It is the disparity in contributions which is important…”: Bulleen & Bulleen (2010) 43 Fam LR 489, [19], [183], [188]-[194] (Cronin J).
Applying the principles stated above, I accept that in this relationship of 21 years duration, equality is an appropriate conclusion upon evaluation of the parties’ contributions of all kinds.
I accept that the husband introduced the B Street, Suburb C property to the marriage and that the asset pool has benefited greatly from its growth in value over the years. But that growth has only been possible because the parties have each made important financial and non-financial contributions during the marriage.
I accept that over time Mr Kanan has probably made the major financial contributions and, one way or another, mortgages have been paid and household expenses met. I have no doubt that Ms Mirza has also contributed financially to the family pot and that cash given by her to Mr Kanan was used for the household.
The level of care given by the wife to the children and her to contribution to domestic duties and home life generally was equally important. I am satisfied that Ms Mirza was involved in and assisted her husband with the development project at B Street, Suburb C and I consider that her contribution at many levels is reflected in the key matrimonial asset.
On the basis of the evidence before the Court and the submissions of the parties, I conclude that the parties’ contributions of all kinds in this case should be seen as equal.
I now consider whether there should be an adjustment having regard to the future needs of the parties.
Having regard to the fact that the wife has primary care of two teenage children, I consider that there should be an adjustment in her favour of 5%, with the result that the wife receives 55% of the asset pool and the husband 45%. This adjustment is made on the basis that:
(a)the wife will continue to maintain full care of two teenage children which is a significant cost;
(b)the wife’s role as primary carer for the two children should be protected and supported;
(c)I consider both the husband and wife currently have a similar capacity to earn income, but the wife’s caring responsibilities, even for adolescent children, will impinge her capacity to maximise her earning potential for some time;
(d)given the age difference between the parties, and the fact that there is some uncertainty about his state of health over the long-term, I allow for the possibility that the husband’s time in the workforce may be limited;
(e)there is a realistic prospect that the wife will be able to utilise her business degree to secure higher paid employment after the children leave school, but this remains uncertain for the medium term;
(f)the husband has failed to meet his obligations with respect to the payment of child support and there is a realistic prospect that he will continue to do so;
(g)unlike the wife, the husband has access to equity in the B Street, Suburb C property and receives significant rental income from the granny flat as an additional source of income and financial resource;
(h)I remain concerned that the husband has not made full and frank disclosure of his financial affairs and that lends weight to an adjustment in favour of the wife.
In arriving at a final determination, I have undertaken a review of the entirety of the facts and circumstances as presented in the evidence. I have done so for the purpose of reflecting, holistically, on what order is just and equitable in all of the circumstances.
CONCLUSION AND ORDERS
For the reasons above, I have concluded that it is just and equitable for there to be an adjustment of the parties’ property interests and that it should be effected in the proportions so described.
On the basis of the consideration above:
(a)the net asset pool, exclusive of the intervenor’s beneficial interest in superannuation interests, available for adjustment between the parties is valued at $606,763.00.
(b)there should be a division of the non-superannuation asset pool as to 55% in favour of the wife and 45% to the husband.
(c)on the basis of that division, the wife’s share of the asset pool is $333,719.65 and the husband’s share is $273,043.35.
(d)While the wife’s entitlement is to a share of $333,719.65, it is agreed that she will retain her Motor Vehicle 2, household contents, jewellery and savings, with a combined agreed value of $9,300. Accordingly, after deducting the value of those items, the wife’s entitlement is $324,419.65.
I will order that the husband pay the sum of $324,419.65 to the wife within 90 days. In the event he does not do so, I order that the property be sold and the proceeds distributed to satisfy the intervenor’s interest and wife’s entitlement.

I certify that the preceding two hundred and thirty (230) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Forbes.

Associate:
Dated: 16 February 2022

File number(s):	PAC 6036 of 2016
Judgment of:	JUDGE FORBES
Date of judgment:	16 February 2022
Catchwords:	FAMILY LAW – Property - Establishing asset pool - Third party claim of equitable interest in matrimonial home - Third party paid deposit and some mortgage payments - Consideration of nature of equitable interest - Whether facts evidence existence of trust - Whether express trust, resulting trust or constructive trust - Third party’s initial contributions preserved when property transferred to husband - Just and equitable distribution of property excluding third party interest - Consideration of parties’ financial and non-financial contributions - Consideration of future needs.
Legislation:	Family Law Act 1975 (Cth), ss 79, 79(4) Evidence Act 1995 (Cth), s 140(1) Conveyancing Act 1919 (NSW), s 23
Cases cited:	Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 Bevan & Bevan [2013] FamCAFC 116 Stanford v Stanford (2012) 247 CLR 108 Skye v Saidel [2020] FamCA 18 Abrath v North Eastern Railway Co (1883) 11 QBD 440 Briginshaw v Briginshaw (1938) 60 CLR 36 In the matter of James v James [2016] FCA 332 In the matter of Hillsea Ltd [2019] NSWSC 1152 Giunti & Giunti[1986] FamCA 15; (1986) FLC 91-759 Hall v Hall (2016) 257 CLR 490 Weir & Weir(1993) FLC 92-338 Black & Kellner (1992) FLC 92-287 Cierpiatka v Cierpiatka [1999] FamCA 1286 Grant v Roberts; Smith v Smith; Roberts v Smith; Curtis v Smith [2019] NSWSC 843 Calverley v Green (1984) 155 CLR 242 Black Uhlan Inc v New South Wales Crime Commission and Ors [2002] NSWSC 1060 Sivritas v Sivritas [2008] VSC 374 Noack v Noack [1959] VR 137 Muschinski v Dodds (1985) 160 CLR 583 Baumgartner v Baumgartner (1987) 164 CLR 137 Mallet v Mallet (1984) 156 CLR 605 JEL v DDF (2000) FLC 93-075 Dickons & Dickons (2012) 50 Fam LR 244 Wallis & Manning [2017] FamCAFC 14 Han & Ngo [2021] FamCAFC 97 Samper & Samper [2021] FamCAFC 140 Bulleen & Bulleen (2010) 43 Fam LR 489
Division:	Division 2 Family Law
Number of paragraphs:	230
Date of last submission/s:	14 October 2021
Date of hearing:	12, 13 and 14 October 2021
Place:	Melbourne
Counsel for the Applicant:	Mr Maddox
Solicitors for the Applicant:	Parramatta City Legal
Counsel for the Respondent:	Ms Spain
Solicitors for the Respondent:	Johnsons Solicitors and Attorneys
Counsel for the Intervenor/Second Respondent:	Mr Cairns
Solicitors for the Intervenor/Second Respondent:	Harb Lawyers

PAC 6036 of 2016
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR KANAN Applicant
AND:	MS MIRZA Respondent
MR RADI Intervenor

ORDER MADE BY:	JUDGE FORBES
DATE OF ORDER:	16 FEBRUARY 2022

ASSETS
Description	Owner	Value ($)
B Street, Suburb C	H	1,039,291.00
Motor Vehicle 1	H	78,000.00
Motor Vehicle 2	H	30,000.00
Household contents	H	3,000.00
Westpac Choice Savings Act	H	1,539.35
Bank P retirement access plus	H	476.60
Motor Vehicle 3	W	1,300.00
Household contents	W	2,000.00
Jewellery/personal property	W	3,000.00
Westpac savings	W	3,000.00
$1,161,607.00[11]

LIABILITIES
Westpac loan accounts (B Street, Suburb C)	H	$441,484.11
Q Motor vehicle finance – Motor Vehicle 1	H	78,297.60
R Finance – Motor Vehicle 2	H	35,062.52
ATO – HECS	W	36,000.00
$554,844