Karimi & Shah
[2022] FedCFamC1F 741
Federal Circuit and Family Court of Australia
(DIVISION 1)
Karimi & Shah [2022] FedCFamC1F 741
File number(s): SYC 6153 of 2017 Judgment of: ALTOBELLI J Date of judgment: 29 September 2022 Catchwords: FAMILY LAW – PROPERTY – Property adjustment – Issues of disclosure – Where husband seeks to withdraw admissions made by way of a Notice to Admit Facts – Consideration of Kennon & Kennon – Finding of family violence – Dowry – Where the full value of various properties situated in Country B cannot be realised in Australia due to sanctions imposed on the overseas transfer of such property – Final property orders made. Legislation: Family Law Act 1975 (Cth) ss 75, 79, 90C, 102NA
Family Law Rules 2004 (Cth) rr 11.07, 11.08, 11.09
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 8.03
Federal Circuit Court Rules 2001 (Cth) r 15.31
Federal Court Rules 2011 (Cth) Pt 22
Cases cited: Benson & Drury (2020) FLC 93-998; [2020] FamCAFC 303
Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116
Deangrove Pty Ltd v Commonwealth Bank of Australia [2003] FCA 268
Drabsch v Switzerland General Insurance Co Ltd (1996) 130 FLR 127
Hashim & Hashim [2012] FamCA 135
Hickey and Hickey and Attorney General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143; [2003] FamCA 395
Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78
Keating & Keating (2019) FLC 93-894; [2019] FamCAFC 46
Kennon v Kennon (1997) FLC 92-757; [1997] FamCA 27
Khadem & Dabiri [2020] FamCAFC 321
Lo Pilato (liquidator) v Barclays Workshop Pty Ltd (in liq) [2013] FCA 729
Mehra & Bose (No.3) [2013] FCCA 2273
Mendicino & Mendicino and Ors (No. 4) [2015] FamCA 485
Singh & Dala [2017] FCCA 2945
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173
Weir and Weir (1993) FLC 92-338; [1992] FamCA 69
Division: Division 1 First Instance Number of paragraphs: 150 Date of hearing: 23–25 May 2022, 2 June 2022 Place: Sydney Counsel for the Applicant: Mr O’Brien Solicitor for the Applicant: Diana Perla & Associates Counsel for the Respondent: Mr Guterres Solicitor for the Respondent: Fox & Staniland Lawyers ORDERS
SYC 6153 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS KARIMI
Applicant
AND: MR SHAH
Respondent
order made by:
ALTOBELLI J
DATE OF ORDER:
29 September 2022
THE COURT ORDERS THAT:
1.Within 28 days of the date of these orders:
(a)the Respondent husband (“husband”) do all acts and things and sign all documents to transfer to the Applicant wife (“wife”) the property at C Street, Suburb D, also known as E Street, Suburb F and more fully described as Folio Identifier … ("the Suburb D property");
(b)the wife do all acts and things and sign all documents necessary to discharge the mortgage to Westpac Banking Corporation Registered No. … ("the Westpac mortgage") and/or refinance the Westpac mortgage over the Suburb D property.
2.In the event that the wife is unable to refinance the Westpac mortgage, then:
(a)the wife be appointed as the Trustee of the husband, to sell the Suburb D property, including but not limited to signing all documents necessary on his behalf, with the wife to have sole control of all aspects of the sale, including appointing the Conveyancing Solicitor, Real Estate Agent, marketing the Suburb D property and deciding the sale price, and to keep the husband informed of all steps taken;
(b)the proceeds from the sale of the Suburb D property be disbursed as follows:
(i)Payment of legal, selling and marketing costs related to the sale;
(ii)Payment of council and water rates outstanding at the time of settlement;
(iii)Payment of the Westpac mortgage; and
(iv)The remainder to the wife.
3.Super split:
(a)Pursuant to s 90XJ(l)(c)(i) of the Family Law Act 1975 (Cth), whenever a splittable payment becomes payable in respect of Mr Shah's interest in Superannuation Fund 1, the trustee shall pay to Ms Karimi the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth), using a base amount of $75,000 and there should be a corresponding reduction in the entitlement of the person to whom a splittable payment would have been made but for these orders.
(b)The Trustee of the Fund shall do all such acts and things and sign all documents as may be necessary to:
(i)Calculate in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the entitlement created for the wife by operation of these Orders; and
(ii)Pay the entitlement whenever the Fund Trustee makes a splittable payment out of the husband's interest in the Fund.
(c)The operative time for the payment under these orders is four business days after service of a sealed copy of these orders upon the Trustee of the Fund at which time these orders shall have effect.
(d)Having been accorded procedural fairness in relation to the making of these orders, Orders 3(a)–(c) hereof bind the Trustee of the Fund.
4.Within seven days of the date of the orders, the husband pay to the wife $600 for his half of the Single Expert valuation fees paid by the wife.
5.The wife shall do all necessary acts and things, including signing such documents as are necessary to:
(a)discontinue any legal action she has taken to enforce any dowry money owed to her;
(b)ensure that any interest she may have as a result of legal or administrative proceedings initiated by her or on her behalf, or any court order or judgment in her favour relating to a 50 per cent interest in the property situated at 2 G Street, City H, reverts to or is assigned to the husband; and
(c)release the husband from his obligations to pay the dowry to the wife, NOTING THAT the wife acknowledges and confirms that the husband shall have no further obligation to pay her any amount in Country B for the dowry.
6.Otherwise each party be solely entitled to the exclusion of the other, to all other property currently registered in his/her name, either individually or jointly with another person, or in his/her current possession or control at the date of these orders, including but not limited to real property, bank accounts, businesses, money, superannuation and leave entitlements, shares, jewellery and personal effects, presently in his/her possession.
7.Except as these orders provide to the contrary, each party be responsible for as against the other and indemnify and keep indemnified the other in relation to all debts and liabilities in his/her name (or jointly with any other person or entity).
8.In the event that either party refuses or neglects to execute any deed or instrument, the Registrar of the Court be appointed pursuant to s 106A of the Family Law Act 1975 (Cth), to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.
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 the pseudonym Karimi & Shah has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
Introduction
These reasons for judgment explain the orders for alteration of property interests made in this case. All values referred to in this judgment are expressed in Australian dollars unless otherwise specified.
background
Ms Karimi (“the wife”) is the applicant. She lives in Sydney, is 45 years old and describes herself as a professional.
The respondent, Mr Shah (“the husband”) is 61 years old. He also lives in Sydney and describes himself as a tradesperson.
Both parties were born in Country B. The husband moved to Australia from Country B in or around 1986.
The husband began working as a tradesperson in 1988, and by 1995 the husband enjoyed considerable success in his business. He had a team working with him. His work was both commercial and residential. The business was later incorporated as J Pty Ltd., with him being the sole shareholder and director.
In 2000, the husband purchased a commercial property in a northern Sydney suburb (“the commercial property”) for $850,000. He contends that he used savings of $500,000 and a loan from the Commonwealth Bank of $380,000 towards the balance.
The parties commenced cohabitation in Country B in or around 2003, and married in 2004.
It is common ground that on marriage the husband undertook to give the wife a dowry upon her request. The dowry has been the subject of litigation in Country B, and remains an issue for the Court to consider in the present context.
The parties have two children, both aged 15 years. One child spends equal time between both parents, and the other child lives with the mother.
In 2009, the family relocated to Australia. They moved into a property in a northern Sydney suburb owned by the husband (“former matrimonial home”). He purchased this in 1996 for $220,000, by way of a bank loan and $60,000 from his savings. Between 1998 and 2003, the husband renovated the property and estimates he spent between $250,000–300,000, from a line of credit.
The period of cohabitation was a tumultuous one. The wife makes allegations about family violence, including coercive and controlling violence, almost throughout the entire relationship. The police became involved from time to time. The relationship was unstable, and a strong inference is that both parties felt insecure about their own financial circumstances.
For example in mid-2011 they entered into a binding financial agreement providing for the wife to become an equal owner in the former matrimonial home and the commercial property. This binding financial agreement was later set aside by Judge Henderson (as her Honour then was) on 23 August 2018.
In 2012, the parties were on holiday in Country B. The wife alleges, but the husband denies, that he then effectively prevented the wife and children from leaving the country. The Court finds that the wife attempted to leave, initially with the children, but was prevented from doing so, as the children had been placed on the Watch List in Country B.
In early 2013, the wife returned to Australia without the children. The husband returned to Australia without the children a few months later in 2013, and there were negotiations between them about their financial affairs, including the wife’s right to the dowry.
It is common ground that they travelled to the Country B Embassy in City K and that the wife signed a document purporting to relinquish her rights in the dowry. As it turns out, and as a result of later proceedings in the Country B courts, this act was found to be invalid. The husband did not deny in these proceedings that the wife was entitled to claim her dowry.
The children eventually returned to Australia in mid-2013, after a period of not seeing the mother for six months. The wife contends that the husband facilitated this because she had honoured, at least in part, an agreement they had made pertaining to their finances.
It is common ground that before and during cohabitation, and after separation the father travelled to Country B on multiple occasions, for either family or business purposes.
In late 2013, the husband sold the commercial property for $1,930,500 receiving a net amount of just under $960,000. The wife contends that she was unaware of the sale, or of how the proceeds of sale were disbursed. She contends that the money was transferred to Country B and used by the husband for property development purposes.
The date of final separation was on or around 22 June 2017, when the husband left the former matrimonial home, and initially spent time with the children each alternate weekend.
The present proceedings commenced on 19 September 2017.
The wife contends, and the Court finds, that from about August 2018, just over a year after separation, the husband ceased making mortgage payments on the former matrimonial home. He contends he was unable to afford the same. The Court will find to the contrary. This put the wife under significant financial and personal strain, and she had to work several jobs as well as rent out rooms to assist with the mortgage.
It was on 23 August 2018 that Judge Henderson (as her Honour then was) declared that the binding financial agreement dated 16 May 2011 was not in fact a financial agreement for the purposes of s 90C of the Family Law Act 1975 (Cth) (“the Act”). The husband was ordered to pay the wife’s costs in the sum of $11,925, which remains unpaid.
From 2018 onwards, the litigation between the parties was characterised by what the Court will find was the husband’s inaction and obfuscation. There were periods when he was represented, and lengthy periods where he represented himself. The Court finds that his attitude towards the proceedings, and particularly as regards his obligation of disclosure, was cavalier.
The main issue in contention between the parties was the identification of assets the husband owned or controlled in Country B. As will be seen, he denied ownership of all but one of a series of properties in Country B. There were issues with having these properties valued. There were further family violence proceedings between the parties.
On 30 June 2021, I made an order under s 102NA of the Act.
The wife also owned property in Country B. She contends that in mid-2021, in order to mitigate her financial circumstances, she sold that property, with the sale proceeds going into her sister’s bank account in Country B.
It is common ground that transferring moneys from Country B to any external location is highly problematic because of international sanctions. Accordingly, parties seeking to transfer funds have to seek alternative, informal, and possibly sometimes less than legal means.
As a result of the above matters, once the ownership of the properties in Country B is determined by the Court, the issue of valuation is rendered more complex as the market value does not necessarily represent the value to the parties if they are in Australia.
A further complicating factor is the wife’s dowry proceedings in Country B. The wife brought proceedings in Country B consequent upon the husband’s failure to pay the dowry. This resulted in enforcement proceedings and an order for the sale of one of the husband’s properties in Country B in which he has a half share.
When the property failed to sell at auction, the wife’s lawyers in Country B sought to have the property transferred into the wife’s name. The wife contends that she should not be treated as owning this property, as she cannot afford to pay the cost of actually registering the transfer into her name. The husband contends that the dowry is a factor to be taken into account in the present proceedings. At least implicitly he contended that the wife should be treated as owning the property above, in satisfaction of the dowry.
Despite the husband’s legal representation under s 102NA of the Act, he became unrepresented. He sought an adjournment of the proceeding, which was declined. He later obtained representation at his own cost.
By the time of the final hearing, both parties were capably represented by experienced family law junior counsel.
THE ISSUES
This is a complex case. There are issues about credit arising mainly out of inconsistencies in the evidence and omissions to disclose what the Court considers to be highly relevant material. There are issues about non-disclosure, partial disclosure and late disclosure.
The biggest challenge for the Court is establishing the constitution of the asset pool. The husband’s contention is that most of the Country B properties on the joint balance sheet which are allegedly his are not in fact his, but belong either legally or equitably to members of his family.
The next issue is what value should be attributed to these properties, not just in the current market value sense, but in the sense of the realistic value to the parties because of sanctions limiting the remittal of funds outside of Country B.
The relevance and significance of the dowry and the dowry proceedings in Country B is another issue. There are issues about the validity of various other items on the joint balance sheet, including liabilities.
The contributions and future needs, if any, of the parties must be assessed. In addition, the wife has brought a claim under Kennon v Kennon (1997) FLC 92-757 (“Kennon”).
The Competing proposals
The wife’s proposed minute of order as at closing submissions on 2 June 2022 is reproduced in Schedule A to these reasons. She proposes an order that the husband transfer to the wife his interest in the former matrimonial home, on the basis that she discharge the mortgage over the property or refinance the same.
If she cannot refinance the same, then she seeks that she be appointed trustee for sale to cause the property to be sold, and, after the payment of all costs and disbursements, she would receive the balance of the sale proceeds.
In addition, she proposed a super-splitting order in relation to the husband’s superannuation interest in the Superannuation Fund 1. It is agreed that the value of the husband’s interest is approximately $110,000, and the wife proposes a split of $75,000 in her favour.
The wife otherwise proposed that they each keep all property in their possession or control, whether legal or equitable.
It is obvious to the Court that the wife’s proposal was a pragmatic response to a highly complex factual situation. In short, it leaves her with all the property in Australia and leaves the husband all of his alleged properties in Country B.
The orders proposed by the husband are reproduced in Schedule B to these reasons for judgment. His proposed orders require the wife to vacate the former matrimonial home, after which the husband would remove any caveat lodged in relation to the same, and appoint an agent to sell the property by way of public auction. His proposed orders also include a provision for undertaking and financing any work to prepare the property for sale. The wife would be required to make good all mortgage arrears and meet all mortgage payments and outgoings until she vacates the property.
On settlement of the sale, after discharge of the mortgage and payment of all outgoings, the wife would receive $728,014. The sum of $658,100 would be applied for the benefit of the husband, including payment of his legal representation. The balance would then be divided equally amongst the parties.
The wife would be required to formally release the husband from his obligations to pay the dowry to the wife and would be required to return to the husband certain specific items of personalty. They would otherwise keep what they respectively have at law and in equity.
The evidence
In support of her case, the wife relied on the following documents:
(a)Initiating Application filed 3 May 2018;
(b)Financial questionnaire filed 16 July 2020;
(c)Notice to Admit Facts dated 29 June 2021, marked as exhibit A8;
(d)Financial statement filed 13 April 2022;
(e)Her affidavit filed 13 April 2022;
(f)Her affidavit filed 21 April 2022;
(g)Her minute of orders sought contained in her case outline filed 22 April 2022;
(h)Case outline filed 19 May 2022; and
(i)Various documents tendered during the proceedings, marked as exhibits A1–A7.
In support of his case, the husband relied on the following documents:
(a)Amended Response to Initiating Application filed 16 May 2022;
(b)Financial statement filed 16 May 2022;
(c)His affidavit filed 18 May 2022;
(d)Case outline filed 19 May 2022; and
(e)Various documents tendered during the proceedings, marked as exhibits S1–S11.
The parties also provided to the Court a joint balance sheet.
the applicable law
This is an application under s 79 of the Act which relevantly provides:
79 Alteration of property interests
(1)In property settlement proceedings, the court may make such order as it considers appropriate:
(a)in the case of proceedings with respect to the property of the parties to the marriage or either of them—altering the interests of the parties to the marriage in the property; or
(b)in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the marriage—altering the interests of the bankruptcy trustee in the vested bankruptcy property;
including:
(c)an order for a settlement of property in substitution for any interest in the property; and
(d)an order requiring:
(i) either or both of the parties to the marriage; or
(ii) the relevant bankruptcy trustee (if any);
to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.
…
(2)The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
Section 79(4) incorporates the provisions contained in s 75(2) of the Act, which states:
(2) The matters to be so taken into account are:
(a)the age and state of health of each of the parties; and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i)himself or herself; and
(ii)a child or another person that the party has a duty to maintain; and
(e)the responsibilities of either party to support any other person; and
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party’s role as a parent; and
(m)if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i)the property of the parties; or
(ii)vested bankruptcy property in relation to a bankrupt party; and
(naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i)a party to the marriage; or
(ii)a person who is a party to a de facto relationship with a party to the marriage; or
(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties to the marriage; and
(q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
In Bevan & Bevan (2013) FLC 93-545 (“Bevan”), the Full Court considered the High Court’s decision in Stanford v Stanford (2012) 247 CLR 108, which provided guidance on how s 79 was to be interpreted and implemented. Bevan endorsed the continuing application of the four-step approach articulated by the Full Court in Hickey and Hickey and Attorney General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143 (“Hickey”), but on the basis that it is a shorthand distillation of the words of s 79, as opposed to being a statutory edict. The four steps articulated in Hickey at [39] are:
(1)Identify and value the property, liabilities and financial resources of the parties;
(2)Identify and assess the contributions of the parties and express them as a percentage of the net value of the property;
(3)Identify and assess the other facts relevant under s 79(4)(d)–(g) including s 75(2) and determine the adjustment (if any) to be made to the contribution entitlements at step two; and
(4)Consider the effect of the above and resolve what order is just and equitable in all the circumstances.
A legal issue that arises in this case is whether I should notionally add back assets to the property pool. In the Full Court’s decision of Trevi & Trevi (2018) FLC 93-858, Murphy J explains at [27]:
The Full Court held in Omacini and Omacini that addbacks fall into “three clear categories”: where the parties have expended money on legal fees; where there has been a premature distribution of matrimonial assets; and “waste” or wanton, negligent, or reckless dissipation of assets.
(Footnotes omitted)
Another significant issue in this matter was the alleged non-disclosure of the husband. Attempting to deal with non-disclosure often puts the other spouse to considerable difficulty with regards to investigating their financial affairs. The Full Court in Weir and Weir (1993) FLC 92-338 at 79,593–79,594 made the following statement regarding the duty to disclose and the Court’s powers where non-disclosure has been found:
This Court has pointed out in a line of cases leading up to the recent decision of the Full Court in Black and Kellner (1992) FLC 92-287, that it is the duty of a party involved in property proceedings in this jurisdiction to make a full disclosure of their financial affairs. See also Giunti & Giunti (1986) FLC 91-759, and Mezzacappa & Mezzacappa (1987) 11 Fam LR 957; (1987) FLC 91-853. It is clear enough from his Honour's findings in the present case that the husband had not done so and had in fact pocketed the proceeds of a substantial number of cash sales. It is obvious that in most cases of this nature it is difficult enough for the other party to establish that fact let alone establish the quantum of what has been taken.
It seems to us that once it has been established that there has been a deliberate non-disclosure, which follows from his Honour's findings in this case, then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature.
…
We appreciate that this is something of a broad brush approach, but, as we have said, where there is clear evidence of non-disclosure as there was here, the Court should not be unduly cautious about making findings in favour of the other party. It has been said by one commentator (O'Ryan and Broadfoot, 5th National Family Law Conference Handbook, p 249) the failure to disclose undermines the whole process of adjudication of proceedings for a settlement of property in that the court is unable to identify the property of the parties, to properly assess contribution, or to properly assess s 75(2) factors.
The final legal issue, raised by the wife, is the extent to which (if at all) her contributions were rendered more arduous as a result of various aspects of the husband’s conduct. In Kennon, Fogarty and Lindenmayer JJ stated at 84,294–84,295:
Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party’s contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties’ respective contributions within s 79. We prefer this approach to the concept of “negative contributions” which is sometimes referred to in this discussion.
In the above formulation, we have referred only to domestic violence…but its application is not limited to that.
…
It is essential to bear in mind the relatively narrow band of cases to which these considerations apply. To be relevant, it would be necessary to show that the conduct occurred during the course of the marriage and had a discernible impact upon the contributions of the other party. It is not directed to conduct which does not have that effect…
credit issues
In assessing credit issues, I have been conscious of a number of factors. I know that for both the husband and the wife English is not their first language. Nonetheless, they both presented as intelligent, articulate and well-educated people.
In cross-examination, the husband agreed that he speaks and reads English and has run his own business in Australia in English since 1996. His account of his English-speaking skills is consistent with the Court’s observation of him. Particularly in the context of documents that had been translated, he demonstrated a good capacity to read in both English and Country B language. Both the husband and the wife only used the interpreters occasionally as the need arose.
In a general sense, and drawing on the Court’s own experience, my impression of the Country B culture is that it is a collectivist culture which emphasises the needs and goals of the group, in this case, the family. The evidence in this case resonated with this. Both the husband and wife were part of families who were interconnected and shared common group goals.
When examining the various legal transactions in this case, such understanding must at least consider the relevance of collectivist values, rather than the individualistic values that often permeate Western cultures such as Australia. Nonetheless, the law that applies is the Act. To have regard to these matters does not mean that cultural issues become determinative. All of the evidence must be considered.
Both the husband and the wife were extensively cross-examined. With the benefit of hindsight and being able to compare their oral evidence to their affidavits and to the totality of the evidence in this case, the Court concludes that both parties lapsed into selective recollection and interpretation of past events in a fashion that they perceived would advance their interests in this case. The husband did this to a far greater extent than the wife.
In cross-examination, the husband was pervasively unresponsive, focused on advancing his narrative, and had to be reminded several times to listen to the question and answer the question. He was uncooperative and evasive at times. There were inconsistencies in his oral and written evidence. As will be seen below, some of the overall themes of his case were fundamentally implausible. The Court finds him to be an unreliable historian of past events. His evidence in relation to the significant issues in this case needs to be weighed very carefully against other documents. On the key issues in this case, the wife’s evidence is more reliable than that of the husband.
Nonetheless, some of the wife’s evidence is unreliable. The Court does not, for example, accept her evidence about the registration of a de facto relationship in 2003. She was clearly mistaken, but the Court is not prepared to find that there were improper motivations, as contended by counsel for the husband. The Court will also not accept her evidence that she discontinued her studies because of something the husband said and did.
In relation to family violence, in the context of the wife’s Kennon claim, the Court will prefer the wife’s evidence as being more consistent, coherent and plausible.
Another underlying theme of this case is non-disclosure and the husband’s self-representation. In cross-examination, the husband frequently protested that he did not know things or did not do things because he was not legally represented. The Court finds, however, that he was well-represented at two important periods since separation. Significantly, the Court will find that at all relevant times the husband had the financial resources available to him to fund proper legal representation, should he have so chosen.
The Court finds that the husband has not properly disclosed to the Court the assets and resources that he has had available to him before cohabitation, before separation, and after separation, including at the date of the hearing. Indeed, this Court will find that it does not really know the full extent and nature of the husband’s financial circumstances. This casts a further shadow of doubt over the credibility of the husband in relation to the matters before this Court.
The husband’s case was that other than the property identified at item 5 in the joint balance sheet (discussed below), he had no interest in properties in Country B, and even if he were shown to be the registered proprietor of such property, such property was simply held in trust for his sister at the request of his now deceased father.
The husband’s evidence was that his father’s testamentary wish was that his father’s property be held by the husband on behalf of his sisters, to be provided to them at the “right time”, and, in effect, to protect their property from the claims of their respective husbands. Thus, the husband’s contention was that the properties at items 3 and 4 of the joint balance sheet were in fact never his, but rather belonged to his sisters.
Thus a theme of the husband’s case was that the inheritance of his father needed to be protected from the claims of his sisters’ husbands, who, the husband contended at least implicitly, would otherwise have control over all their property because of the superior status of men in Country B society.
Curiously, the husband never addressed an unresolved issue from the Court’s perspective, which is where his share of his father’s inheritance was, given the inherent lack of plausibility in the husband’s case that his sisters inherited, but not him. As the husband framed his case on the foundation of his father’s testamentary wishes, it was for him to disclose to the Court what his inheritance was and if there was none, why. During the hearing the Court contemplated several times expressing its concern about this issue but ultimately decided against it. The husband’s cross-examination was scattered with examples of the husband providing ad hoc explanations of evidence not previously given by him.
The second major theme of the husband’s case related to family loans. He contended that he borrowed money from his family “over the years”, which he was required to repay. At paragraph 73 of his trial affidavit, he deposes that he borrowed about $1,045,000 for two named investments, as well as for wedding, engagement and living expenses over the years.
He dates the first loans from 2003, initially relating to the wedding, and then an unsuccessful investment in a distribution business. This investment was disastrous, and he deposes to having been unable to recover the money he invested. In 2003, there was an investment with his cousin in relation to the development of a building site. This too was a financial disaster.
As will be seen, the husband’s seemingly spectacular success in business as a trades person in Australia was not matched by his success in business in Country B and yet he would have the Court believe his family advanced, indeed kept on advancing, very substantial funds to him for purposes including investment.
The husband’s evidence is that he has repaid a total of $599,800 to his family as follows:
·$120,000 from the refinance of the former matrimonial home;
·$94,000 from the sale of a property he had in Country B called the L Property;
·$90,000 from the transfer of a small orchard to his sister; and
·$295,800 from the sale of the commercial property.
He deposes, therefore, to a balance outstanding to his family of $445,200. Curiously this liability, which seems to appear at item 36 of the joint balance sheet, is quantified as nil. There is no explanation for how this liability simply vanishes.
The husband’s case about the family loans lacks plausibility, and the Court does not accept the same. It is not plausible that his family would so generously provide to the husband after the first major failure of the distribution business. The disappearance of the family loan from the joint balance sheet further renders the existence of the loan implausible.
Perhaps the strongest reason why the existence of the loan is implausible is that the Court finds that between 2002 and 2004, before the relationship with the wife, the husband made the following cash transfers from Australia to himself in Country B:
(1)USD76,000 in late 2002;
(2)$300,000 in early 2003;
(3)$140,000 in mid-2003;
(4)$150,000 in early February 2004; and
(5)$280,000 in early 2004.
When these amounts are added to the amounts which the husband deposed he “repaid” by way of family loan, it is possible that the husband transferred as much as $1,469,800 and USD76,000.
It is possible in theory that some part of the $599,800 referred to by the husband at paragraph 75 of his affidavit came from the moneys that he remitted after 2003, referred to above. The Court does not know. Of course, the duty of disclosure was at all relevant times on the husband—a duty which he has failed to discharge.
The Court’s findings about the husband’s transfers of cash between 2002 and 2004 lead to a number of consequential findings. The documentary evidence produced by the wife clearly demonstrates that the husband lied when he denied sending moneys from Australia to Country B during the period above. His protestation that this was irrelevant because it was before cohabitation explains nothing. He was asked a relevant question in cross-examination and lied. This was no lapse of memory and significantly undermined the Court’s confidence in the husband’s evidence.
The husband’s contentions as to the family loans are rendered even more implausible. His contention that between 2003 and 2009 he was living off moneys provided by his family is plainly implausible given the vast amounts that he repatriated from Australia to Country B.
In the absence of other evidence, all of which could have been adduced by the husband, the only available inference from the evidence is that the source of the funds remitted from Australia to Country B was the income generated from the husband’s business. This is a plausible inference given that even the husband claimed a measure of success in his business and the work undertaken was both commercial as well as domestic.
When the husband was cross-examined about what he did with the money that he sent to Country B, he explained that he spent it and he does not have it. The husband’s evidence is, not just based on what he said but on the totality of the evidence before the Court, totally implausible. The Court will find that there are three likely scenarios as to what happened to the significant sums of money he sent to Country B. The first scenario is that such funds are in fact represented by assets on the balance sheet, whether those properties are held in the husband’s name or otherwise. The second scenario is that the balance sheet is in fact incomplete in the sense that the husband has other assets that he has not disclosed to the Court. The third scenario is either a combination of the first two scenarios, or an unknown one.
In any event, the Court finds completely implausible the two significant themes in the husband’s case identified above.
The Joint Balance Sheet
The parties provided the following joint balance sheet:
Ownership Description Wife’s Values Husband’s Values ASSETS 1. H 1 G Street $ 2,818,264 $ NIL 2. H/W 2 G Street, City H - $ 1,409,132 $ NIL 3. H M Street $ 1,064,677 $ NIL 4. H N Street $ 1,565,702 $ NIL 5. H Q Property $E 120,000 $ E18,336 6. H P Street $ 1,786,314 $ NIL 7. W T Street $ 275,781 $ 42,105 8. H C Street, Suburb D – FMH $ 1,885,000 $ 1,885,000 9. H J Pty Ltd $ NK $ NIL 10. H U Bank $ 131 $ 131 11. H CBA Account …46 $ 1,280 $ 1,280 12. H Car – Motor Vehicle 1 $ 17,000 $ 17,000 13. H Car – Motor Vehicle 2 $ 2,700 $ 2,700 14. H Car in Country B – Motor Vehicle 3 $ 5,000 $ NIL 15. W Motor Vehicle 4 $ 22,000 $ 22,000 16. W CBA Bank Account …82 $ 688 $ 688 17. W CBA Bank Account …31 $ 3,593 $ 3,593 18. W V Bank …33 $ 71 $ 71 19. W Household contents $ 3,000 $ 3,000 20. W Carpets & Jewellery $ 3,000 $ 20,000 21. W Property in City EE $ NIL $ NK 22. H Household contents $ 3,000 $ 3,000 23. W Money in Trust – Diana Perla & Associates $ 38,200 $ 38,200 24. H Money in Trust – Fox & Staniland Lawyers $ 19,800 $ 19,800 Total $ 11,044,333 $ 2,076,904 ADDBACKS 25. W Proceeds of sale of R Street Property $ NIL $ 74,604 26. W Superannuation withdrawal $ NIL $ 10,000 Total $ NIL $ 84,604 LIABILITIES 27. H Westpac Mortgage $ 498,887 $ 498,887 28. W Legal fees $ 82,500 $ NIL 29. W Lawyer in Country B $ 16,000 $ NIL 30. W Ambulance for X $E 1,500 $ NIL 31. W Orthodontist for X and Y $ 7,800 $ NIL 32. W Loan from Mr W $ 5,000 $ NIL 33. W Loan from Ms Z $ 2,000 $ NIL 34. W AA Finance $ 568 $ NIL 35. W Company BB Finance $ 19,222 $ 19,222 36. H Loan from family $ NIL $ NIL 37. H Child support arrears $ NIL $ NIL 38. H Mr CC $ $8,500 $ NIL 39. H Husband’s legal Fees $ 42,800 $ NIL 40. H Loan from Ms DD ($35,000) $ NIL $ NIL 41. H Legal fees – Diana Perla & Associates ($11,925) $ NIL $ NIL 42. H Valuation fee to Wife ($600) $ NIL $ NIL 43. H Transfer of 2 G Street, City H as to one half – Repayment to Family $ NIL $ NIL Total $ 681,777 $ 518,109 SUPERANNUATION Member Name of Fund Type of Interest Wife’s Value Husband’s Value 44. W Superannuation Fund 2 Accumulation $ 11,939 $ 11,939 45. H Superannuation Fund 1 $ 110,041 $ 110,041 Total $ 121,980 $ 121,980 SUMMARY Ownership Description Wife’s Value Husband’s Value 46. Total Assets $ 11,044,333 $ 2,076,904 47. Addbacks $ NIL $ 84,604 48. Less Liabilities $ (681,777) $ (518,109) 49. Superannuation Fund 3 $ 121,980 $ 121,980 Total NET ASSETS $ 10,484,536 $ 1,680,775 Total NET ASSETS PLUS ADDBACKS $ 10,484,536 $ 1,765,379
The first exercise to be undertaken by the Court is to adjudicate as to the ownership of the assets listed, where this is in dispute. After this task has been completed, the Court will focus on value.
The husband contends that items 1–4 and 6 should not be included in the balance sheet as they are not owned by him, and he has no interest in them. The wife disputes this. The husband agrees that item 5 is owned by him, but says that it was purchased for the benefit of the children of their marriage and should be retained as such.
Item 1 will be described as “1 G Street”. The husband is the registered proprietor of this property. However, in the husband’s case the registration of his name on the property was all a “big mistake”, and he was never meant to become the beneficial owner. He alleges that the property is held on trust for his family.
The Court does not accept the husband’s evidence. It is implausible. The title to the property reflects its actual ownership. It is inconceivable that the “big mistake” alleged by the husband that resulted in his becoming the legal owner could not have been rectified since late 2015 when the property was transferred to him. Item 1 is property owned by the husband.
Item 2 will be called “2 G Street” and the relevant interest is to a half share in the property. The husband’s contentions in this regard are the same as in relation to 1 G Street. Indeed, the husband sought to contend in cross-examination that he did not even know the name of the co-owner of the property. It later appeared in cross-examination that he did. The husband’s case is implausible. It is more likely than not that this property was in fact owned by the husband until 2021 when, in the course of proceedings initiated by the wife in Country B to enforce her dowry, an order of enforcement was made against this property. An unsuccessful auction was held. According to the wife, this property can be transferred to her if she pays a substantial transfer fee which, she contends, she is unable to pay.
Whether this property is to be treated as that of the wife or the husband is somewhat secondary to the issue of assessing contribution to the same. A number of cases stand for the proposition that the dowry payment is a direct financial contribution by the payer who, in this case, is either the husband or, as he would contend, his family. For example, see Mehra & Bose (No.3) [2013] FCCA 2273 at [68] where it was noted:
68.While the Court acknowledges that there is no specific law in Australia dealing with the ‘return of dowry’, as stated, this Court has jurisdiction in respect of property matters as between parties to a marriage. In making property orders that are just and equitable as between the parties, the Court must consider the statutory factors in s.79 of the Act. This would include contributions made to the acquisition of property before, during and following separation.
This position was also taken in Hashim & Hashim [2012] FamCA 135 where the Court dealt with the dowry as part of the overall available asset pool, subject to the usual just and equitable property division of the matrimonial assets rather than as a debt owed to wife. Similarly, in Singh & Dala [2017] FCCA 2945 it was accepted that the wife’s family paid a $100,000 dowry and it was included in the property settlement as a $100,000 contribution brought to the marriage by the wife. Consistent with these cases, the dowry will be treated as a contribution made by the husband. Despite the enforcement proceedings in Country B, the property remains in the husband’s name and will thus be treated as his.
Item 3 in the balance sheet will be described as the “family home in [Country B]”. Item 4 will be described as “the [City P] property”. Issues as to ownership will be decided in relation to both properties. Until the conclusion of the husband’s cross-examination, and technically the close of the evidence, the evidence was clear that both of these properties were legally owned by the husband. At that particular point in the hearing the matter was adjourned part-heard for further submissions. On what was the last day of the hearing, counsel for the husband sought to tender documents that he contended established that the husband was no longer the legal owner of the property, and that his sister was now the legal owner. Objection was taken to the tender of the documents given the prejudice to the wife, but the tender of the documents was allowed, subject to further cross-examination of the husband.
The further cross-examination of the husband, and the documents tendered, satisfied the Court that the husband is no longer the legal owner of the properties represented at items 3 and 4 of the balance sheet. The documents tendered (exhibits S9 and S10) plausibly establish that he did in fact transfer these properties to his sister in 2017 and 2018. In cross-examination, the husband contended that in so transferring the properties to his sister, he was merely acting in accordance with his father’s testamentary intention.
In cross-examination, he agreed that one of the reasons for transferring the properties to his sister was the breakdown of his marriage with the wife.
The Court accepts that there are minor discrepancies as between the dates the husband gives in his affidavit for transferring the properties, and the dates shown on the documents that were tendered. These are inconsequential. There is nothing on the face of exhibits S9 and S10 that detract from a strong impression by this Court that, in accordance with Country B law, he is no longer the legal owner of the property.
Of course, the Court’s concern is about beneficial ownership, and in this regard the Court finds that the husband is the beneficial owner of these properties, even if they are registered in the name of his sister. It is clear that these transfers were precipitated by the breakdown of the marriage between the husband and the wife. The husband’s case that he was merely the trustee for his sister as consequent on his father’s testamentary intention is simply not established. It must be remembered that, at least according to the husband, his father’s intention was to protect these properties from the claims of the husbands of his daughters.
He agreed in cross-examination that his sisters were still married to their husbands. When the inconsistency was alluded to, the husband suggested that he was no longer concerned because they had been married so long. Of course, the Court does not know whether his sisters were married as long as the husband was married to the wife. The Court accepts that these properties were owned by the husband’s father well before he met the wife.
The husband’s contention was that notwithstanding the fact that he was formerly the legal owner of the property, and notwithstanding the very substantial funds that the husband remitted from Australia to Country B for reasons that were never disclosed, he had no interest in the property. The Court’s doubt about the veracity of the husband’s contention that he was, in effect, a bare trustee is accentuated by, but is not solely determined by reference to, the lack of plausibility in the husband’s implied contention that his sisters were inheriting from his parents, but not himself. The Court thus finds that items 3 and 4 are beneficially owned by the husband, even if he is not noted as the registered proprietor.
Item 5 is land known as “[Q Property]”. It is agreed that this is in the husband’s name, and is owned by him. He contends that it should be held in trust for the children. The wife does not agree. The ownership of the property in the husband’s name is thus not in contention, and the Court will so find. As will be seen, there is an issue with valuation.
Item 6 will be known as the “[City S] property”. The husband’s contentions here are the same as in relation to the family home in Country B and the City P property, and the Court’s findings will be the same. Thus, even though the husband is not now the legal owner of the property, the Court finds him to be the beneficial owner of the property.
There is no dispute about items 7 and 8 in terms of legal ownership.
In relation to item 9, there is no doubt that the husband’s business, J Pty Ltd Services, is effectively owned and controlled by him. The Court is not aware of any attempt to value this business. The husband contends that it has no value, a contention inconsistent with the strong inference the Court draws that it was the prime source of the husband generating considerable funds which were then remitted to Country B. The wife contends that she does not know the value of the business. That is the best the Court can do in the circumstances.
Items 10–13 are all agreed.
There is no evidence as to the existence or value of the husband’s car in Country B, being item 14. The wife’s contention of $5,000 is without foundation. All the Court can do is to accept the husband’s contention that the asset simply does not exist
There is no dispute about items 15–19.
In relation to item 20, the wife’s carpets and jewellery, she asserts a value of $3,000, while the husband asserts a value of $20,000. There is no valuation evidence before the Court. It does not assist the husband that the wife may have previously represented to him, and indeed to the Court, that these items had a value of $20,000. In the absence of expert evidence, the wife’s representation was as much guesswork as that of the husband. In the circumstances, item 20 will be valued at $3,000, on the basis of an admission against interest.
Item 21 relates to the husband’s contention that the wife has an interest in a property in City EE. The wife denies this. On the issue of credibility alone, the Court would accept the wife’s contention. The husband is no stranger to the process of obtaining title searches and investigating land ownership in Country B, given the volume of the evidence that he presented to the Court in this regard. It is odd that he did not apply such skills to supporting his present contention. The wife was asked about this in cross-examination, and the Court is satisfied with her denials.
There is no dispute about items 22–24.
There are two issues about addbacks, at items 25 and 26. Both are the property of the wife. Item 25 is the R Street property. The wife contends it was sold for the equivalent of $331,883 in 2021. However, because of sanctions imposed, the amount that she actually received in Australia totalled only about one-sixth of its value, or about $62,000. The Court accepts that some legal fees and expenses were paid out before the wife received these funds. Strangely, the wife does not concede that there should be any addback, even though this was a premature distribution of assets, at least some of which was used to pay her legal fees. There should be an addback in relation to item 25 in the sum of $62, 000 being the amount actually received by the wife in accordance with her evidence. It is not clear how the husband contends for $74,604, unless he is dealing with a different exchange mechanism, an issue that will need to be explored below.
Item 26 represents a superannuation withdrawal of $10,000. The husband contends that it should be added back. The wife’s case is that it was withdrawn because of the intense financial pressure she was under in circumstances where she had to meet the mortgage payments on the former matrimonial home. The Court accepts that this was a reasonable thing to do in the circumstances. It preserved the major asset in Australia. The Court is satisfied that this is just and equitable, particularly in circumstances where it finds that the husband, at all relevant times, had access to property, income and financial resources that would have enabled him to properly contribute towards the needs of his family. Item 26 will read nil.
The liabilities commence at item 27, which is the agreed Westpac mortgage balance.
The wife then claims a number of post-separation expenses, and a number of liabilities at items 28–35. No cogent explanation was offered in the evidence or in submissions as to why these post-separation liabilities should be included in the balance sheet, rather than being taken into account as s 75(2) considerations in a general sense. The same conclusion is reached in relation to items 38 and 39 for the husband. The remaining liabilities are agreed at nil. The only liability, therefore, is item 27, the Westpac mortgage.
Items 44 and 45 are superannuation which are agreed.
The ownership of the assets having now been established, the focus turns to the question of valuation. This was a contentious issue in this case.
The valuation of the properties being items 1–4 and 6 on the balance sheet were established through the notice to admit facts procedure under Part 11.2 of the former Family Law Rules 2004 (Cth) (“Family Law Rules”) (now Part 8.1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“FCFCOA Rules”)). The valuations were obtained by valuers in Country B albeit there were some limitations, including limited access to one of the properties. The wife relied on the Notice to Admit Facts in respect of which no Notice Disputing Facts was filed by or on behalf of the husband. The husband contended at the hearing that he should be granted leave to dispute the facts. Alternatively, if the facts were not disputed on behalf of the husband, it was contended that the Court needed to adopt a common sense, realistic approach to valuing the properties having regard to the unusual circumstances of this case.
Rule 8.03 of the FCFCOA Rules provides:
8.03 Withdrawing admission
(1)A party may withdraw an admission that a fact is true or that a document is genuine only with the court’s permission or the consent of all parties.
(2)When allowing a party to withdraw an admission, the court may order the party to pay any other party’s costs thrown away.
(3)In subrule (1):
admission includes an admission in a document in the proceeding or an admission that is taken to be made under subrule 8.02(2).
(Emphasis in original)
Whilst the relevant rules that applied at the time the Notice to Admit Facts was served in this case were rr 11.07–11.09 of the Family Law Rules, r 11.09 is in identical terms to r 8.03 of the FCFCOA Rules.
In Khadem & Dabiri [2020] FamCAFC 321 (“Khadem”), the appellant appealed to the Full Court following the primary judge’s decision to dismiss his application for leave to withdraw deemed admissions contained in a Notice to Admit Facts served by the respondent. The respondent ultimately consented to the appeal. In its reasons, the Full Court accepted that no discrete Notice Disputing Facts was filed by the appellant, but noted that the primary judge failed to consider whether certain paragraphs in the appellant’s affidavit (filed within 14 days of the service of the Notice to Admit Facts) constituted sufficient notice disputing the facts contained in the Notice to Admit Facts. The Full Court found at [12] that certain paragraphs of the affidavit “explicitly traversed the respondent’s contentions about the disputed property in a way which clearly denied them”. In the present case, however, no relevant affidavit was filed by the husband responding within the 28 days.
When considering Khadem, it is important to note that the case concerned the application of the provisions of the then Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”), which varied slightly in wording compared to the Family Law Rules and the FCFCOA Rules (the latter two being, in substance, almost identical to one other). Relevantly, r 15.31 of the FCC Rules contemplated a prescribed form for the Notice to Admit Facts, but did not contemplate a prescribed form for “a notice… disputing the fact or authenticity of the document”. On the other hand, the Family Law Rules and the FCFCOA Rules both refer to “Notice to Admit” and “Notice Disputing a Fact or Document”.
In Mendicino & Mendicino and Ors (No. 4) [2015] FamCA 485, Kent J considered whether leave ought to be granted to the fourth respondent to rely on an amended defence which would have the effect of withdrawing admissions. This case concerned admissions made in the fourth respondent’s original defence, and thus did not concern a Notice to Admit Facts. Nonetheless, his Honour states at [9]–[10]:
[9]I have been provided in submissions with a number of authorities as to the relevant principles with respect to leave to withdraw admissions. Notably all of those authorities, so far as I am aware, emanate from civil courts where causes of action need to be established for the relief claimed. That is somewhat different to the substantive relief claimed here, where the court has an obligation to determine the existing property interests of the relevant parties (the husband and the wife) at law and equity as at the time of the trial.
[10]Jeans v Commonwealth Bank of Australia Ltd (2003) 204 ALR 327 a decision of the Full Court of the Federal Court conveniently summarises the relevant principles with approval to the matters outlined by Santow J of the Supreme Court of New South Wales in Drabsch v Switzerland General Insurance Co Ltd (1996) 130 FLR 127 as follows:
1.Where a party under no apparent disability makes a clear and distinct admission which is accepted by its opponent and acted upon, for reasons of policy and the due conduct of the business of the court, an application to withdraw the admission, especially at appeal, should not be freely granted …
2.The question is one for the reviewing judge to consider in the context of each particular appeal, with the general guidelines being that the person seeking on a review to withdraw a concession made should provide some good reason why the judge should disturb what was previously common ground or conceded …
3.Where a court is satisfied that admissions have been made after consideration and advice such as from the parties’ expert and after full opportunity to consider its case and whether the admission should be made, admissions so made with deliberateness and formality would ordinarily not be permitted to be withdrawn …
4.It will usually be appropriate to grant leave to withdraw an admission where it is shown that the admission is contrary to the actual facts. Leave may also be appropriate where circumstances show that the admission was made inadvertently or without due consideration of material matters. Irrespective of whether the admission has or has not been formally made, leave may be refused if the other party has changed its position in reliance upon the admission …
5.Following Cohen v McWilliam (1995) 38 NSWLR 476, a court is not obliged to give decisive weight to court efficiency, such that a party who wishes to defend its claim is entitled to a hearing on the merits, with costs orders being available as a means of compensating the other party for any costs thereby unnecessarily incurred or not fairly visited on the other party.
The case of Drabsch v Switzerland General Insurance Co Ltd (1996) 130 FLR 127 in the Supreme Court of New South Wales has been similarly cited in other Federal Court authorities discussing admissions made via a Notice of Admit Facts pursuant to Part 22 of the Federal Court Rules 2011 (Cth) (see, e.g., Lo Pilato (liquidator) v Barclays Workshop Pty Ltd (in liq) [2013] FCA 729; Deangrove Pty Ltd v Commonwealth Bank of Australia [2003] FCA 268).
None of the principles referred to above suggest that the Court’s discretion should be exercised in favour of the husband after taking into account all of the other circumstances apparent from the evidence.
To grant leave to the husband to contest the facts would leave the Court with no evidence about the value of these properties in a context where longstanding litigation needs to be concluded. The Court is satisfied that the notice to admit procedure was validly invoked by the wife in circumstances where the husband, albeit at the time representing himself, was at the very least tardy, and possibly uncooperative, in relation to seeking to establish the value of the properties. As it is, the Court has made a finding contrary to those sought by the husband in relation to the ownership of these properties. The cloud of non-disclosure by the husband which hovers over this case makes it inappropriate for the husband to have been granted leave to withdraw the admissions.
Nonetheless, there is considerable force in the submissions of counsel for the husband that the valuation evidence needs to be treated carefully, and having regard to the totality of the evidence in this case. This is, at least in part, because of the exchange rate issue.
The cases conducted by both parties proceeded on the underlying premise that, whatever the value of property in Country B, because of international sanctions the amount of money that can be sent outside of Country B is but a fraction of what the government foreign exchange rate actually is. The strongest evidence of this is that of the wife in relation to her property that was the subject of the addback finding (the R Street property). Her evidence is that she received one-sixth of the net sale proceeds and the Court has found that the addback should reflect the reality of the situation for her, and thus only one-sixth was added back.
Curiously, and inconsistently, the wife’s own methodology is not applied to the values that she places on the husband’s properties at items 1–5 and 6, and her property at item 7 on the balance sheet.
At the heart of the wife’s case about the values to be attributed to the Country B properties was the central contention that the value to the husband was the full value, whereas the value to her was measured by what she could remit to Australia.
Whilst the evidence does enable the Court to find that the husband travelled frequently to Country B since coming to Australia, and conducted business there, the evidence does not lead to a finding that the husband intends to live there as opposed to Australia where he has his business, his two children and the former matrimonial home, as well as motor vehicles, bank accounts and superannuation. Nonetheless, a feature of the husband’s evidence is his mobility in terms of travelling to and from Country B, and his ability to conduct business there. He has sisters there. His parents have both died. Clearly, he has strong ties with Country B even though, on balance, his present ties with Australia are at least just as strong. The Court has found, however, that he has considerable assets in Country B, whether in his name, or beneficially controlled by him. Indeed, the Court reiterates that it is not sure what is the full nature and extent of the husband’s property and resources in Country B.
By contrast, the wife’s connection with Country B is of a different nature and her ties much weaker. Her experience of being forced to leave Country B without her children, and then subsequently not seeing her children for six months would, the Court infers, inculcate a reluctance on her to return to Country B, even if she owns property there and has family there.
The Court concludes that the husband has a much greater chance of realising the value of the properties that he has in Country B at its full price than the wife has, but the question for the Court is how to reflect this in the balance sheet.
It was accepted by all parties that the balance sheet had to be in Australian dollars. The exchange rate used by the wife was what she described as the “Google rate”, obviously at a particular date. She accepted the artificiality of this in circumstances where she could only realise one-sixth of the value of the property she sold in Country B, even adopting the Google conversion rate. The Google rate probably changes from day to day.
This is a complex issue. The sanctions imposed on Country B, which have an impact on remittal of money outside of Country B, may either abate or cease in the fullness of time. If this occurs, on the wife’s own proposal the husband would be left with valuable properties in Country B and with the capacity to remit those to Australia at no discount, or a lesser discount rate than seems to be presently applicable. On the wife’s proposal, if the husband does return to Country B, once again, he will have access to the full value of his Country B assets as found by this Court. Yet, if the husband chooses not to return to Country B to optimise the value to him of these assets, or if there is no change to international sanctions having the effect of improving his ability to remit funds to Australia, then he suffers the disadvantage of non-realisable or only partially-realisable property in Country B.
There are many variables here and the Court was not assisted by any expert evidence that would support it to resolve this difficult issue. Doing the best the Court can, the Court will do as follows. The balance sheet will show the values attributed to the wife based on the Notice to Admit Facts, and using the undiscounted exchange rate as regards the husband’s property, but then adopt the discounted exchange rate as regards the wife’s property in Country B. The risk of disadvantage to the husband will be treated as a s 75(2)(o) consideration operating in his favour.
Accordingly, the balance sheet will be as follows:
Ownership Description Value ASSETS 1. H 1 G Street $ 2,818,264 2. H 2 G Street $ 1,409,132 3. H Family Home in Country B $ 1,064,677 4. H City P $ 1,565,702 5. H Q Property $E 120,000 6. H City S $ 1,786,314 7. W T Street $ 275,781 8. H Former Matrimonial Home $ 1,885,000 9. H J Pty Ltd $ NK 10. H U Bank $ 131 11. H CBA Account …46 $ 1,280 12. H Car – Motor Vehicle 1 $ 17,000 13. H Car – Motor Vehicle 2 $ 2,700 14. H Car in Country B – Motor Vehicle 3 $ NIL 15. W Motor Vehicle 4 $ 22,000 16. W CBA Bank Account …82 $ 688 17. W CBA Bank Account …31 $ 3,593 18. W V Bank …33 $ 71 19. W Household contents $ 3,000 20. W Carpets & Jewellery $ 3,000 21. W Property in City EE $ NIL 22. H Household contents $ 3,000 23. W Money in Trust – Diana Perla & Associates $ 38,200 24. H Money in Trust – Fox & Staniland Lawyers $ 19,800 Total $ 11,039,333 ADDBACKS 25. W Proceeds of sale of R Street Property $ 62,000 26. W Superannuation Withdrawal $ NIL Total $ 62,000 LIABILITIES 27. H Westpac Mortgage $ 498,887 Total $ 498,887 SUPERANNUATION Member Name of Fund Type of Interest Value 28. W Superannuation Fund 2 Accumulation $ 11,939 29. H Superannuation Fund 1 $ 110,041 Total $ 121,980 NET POOL (INCLUDING SUPERANNUATION) $ 10,724,426 Assessment of Contribution
Having regard to the Court’s findings about the balance sheet, it is clear that the husband has made a very significant financial contribution by way of the Country B properties that the Court has found are either his because they are legally registered in his name, or because they are properties to which he is beneficially entitled, even if not in his name. The dowry is also his contribution. Thus the vast majority of the balance sheet represents this contribution. Of course, there is an uncertainty as to whether the balance sheet is complete. The Court does not know whether, and if so to what extent, any of the Country B properties on the balance sheet are derived from the substantial funds that he transmitted from Australia to Country B. On any known scenario, however, his contribution is substantial in a financial sense.
The wife’s main contribution during the relationship was as homemaker and parent. She preserved the family home after separation by paying the mortgage and outgoings after 2018. In addition, she contended for an adjustment in her favour on the basis that such contribution she made was rendered more arduous as a result of the family violence perpetrated by the husband.
During closing submissions, both counsel sought to clarify their respective clients’ proposals having regard to the evidence. Counsel for the wife clarified that the wife’s proposal was that she retain the former matrimonial home (subject to the mortgage), the superannuation split she sought, and her entitlement to the dowry in Country B. If the Court, however, did not believe that was just and equitable, her alternate proposal was simply that she retain the house, subject to the mortgage, and the superannuation split she proposed. This would be inclusive of the wife’s Kennon claim. Counsel found it difficult to express this in terms of a percentage because of the many different variables available to the Court in terms of valuation and exchange rates. In general terms, he contended for a split of 60:40 in the wife’s favour if the Country B properties were included at one-sixth of their face value (i.e. taking into account the sanctions with resulting difficulties in remitting moneys outside of Country B).
Counsel for the husband contended that if the Court includes the Country B properties, then the husband’s contribution would be significantly greater than 60 per cent given the enormous contribution he makes in a financial sense. Counsel could not be more specific as to what percentage. Again, this lack of specificity reflects the complexity in terms of findings about the constitution of the balance sheet, valuation and exchange rates.
The determination of what has been described as the Kennon claim is difficult. The wife’s evidence in this regard is set out at paragraphs 73–96 of her trial affidavit. Her evidence is detailed and vivid. The wife was extensively cross-examined on this evidence. The Court accepts that this cross-examination revealed inconsistencies between the wife’s oral and written evidence. The Court does not accept, however, that these inconsistencies would necessarily lead the Court to prefer the husband’s evidence over that of the wife’s in relation to family violence. She was a far more impressive witness than the husband on this issue. The Court found the husband to be evasive in cross-examination on this issue, and to greatly minimise both what he did and the impact that this would have had on the wife.
The Court finds that the husband did perpetrate family violence on the wife as alleged by her, and that his conduct constitutes family violence as defined in s 4AB of the Act. The Court is satisfied that as a result of this family violence the contributions that the wife made became significantly more arduous as set out in the Full Court’s decisions in Kennon and Keating & Keating (2019) FLC 93-894. Consistent with the Full Court’s decision in Benson & Drury (2020) FLC 93-998, an assessment of such impact should not be undertaken in a compartmentalised manner. A holistic approach must be adopted. The contributions which have been made significantly more arduous must be weighed with all other contributions of each of the parties. It is clear that the required nexus between proven family violence and the significant adverse effect upon the contributions of the victim is capable of being inferred from the lay evidence of the parties: Benson & Drury at [49].
The Full Court in Jabour & Jabour (2019) FLC 93-898 identified that the assessment of contribution is the assessment of the myriad of contributions made throughout the relationship, in the light of their nature, form, context and circumstances, and the holistic evaluation of their significance.
The husband’s financial contribution of assets before cohabitation and during the marriage, as well as the dowry, are significant contributions to the asset pool as it is known. The wife’s diverse non-financial contribution including as homemaker and parent is also significant but not equal to that of the husband, in the circumstances. The Court does not accept the wife’s submission that as at the date of the trial, contribution should be assessed as being equal. The Court assesses contribution as being 80:20 in the husband’s favour and this reflects the findings made about her contribution being rendered more arduous due to family violence.
The wife seeks an adjustment under s 75(2) of the Act as to 10 per cent. She argues a number of factors in this regard. At a split of 80:20 there is a significant disparity between the assets of the parties. There is uncertainty as to the true nature and extent of the husband’s financial circumstances. There is an income earning disparity between the parties. The wife receives minimal child support from the husband and contends that he has so structured his assets and, arguably, even his income, so as to minimise his child support liability. The wife has the primary care of the children. The Court acknowledges that the husband is older than the wife. The Court assesses her future needs at 10 per cent.
However an important s 75(2)(o) factor in the husband’s favour is the uncertainty arising out of the treatment of the values of the husband’s properties in Country B arising from exchange rates and difficulties in remitting funds outside of Country B. Having regard to the values attributed to these assets, this is a significant factor. The Court assesses this at 12.5 per cent in his favour.
Thus a net adjustment will be made in the husband’s favour at 2.5 per cent.
This results in an order altering property interests that results in the wife receiving 17.5 per cent of the net assets, and the husband 82.5 per cent. In an attempt to simplify the implementation of this division there has been a minor rounding-up of the wife’s entitlement to the extent of $4,610. As this represents a minute percentage of the total asset pool the Court is satisfied that the orders remain just and equitable to both parties.
On this assessment each party would receive the following assets and liabilities from the balance sheet.
Assets to be retained by the husband Value 1 G Street $ 2,818,264 2 G Street $ 1,409,132 Family Home in Country B $ 1,064,677 City P $ 1,565,702 Q Property $E 120,000 City S $ 1,786,314 J Pty Ltd $ NK U Bank $ 131 CBA Account …46 $ 1,280 Car – Motor Vehicle 1 $ 17,000 Car – Motor Vehicle 2 $ 2,700 Household contents $ 3,000 Money in Trust – Fox & Staniland Lawyers $ 19,800 Superannuation Fund 1 $ 35,041 Liabilities to be retained by the husband Value NIL Total: $ 8,843,041 Assets to be retained by the wife Value T Street $ 275,781 Former Matrimonial Home $ 1,885,000 Motor Vehicle 4 $ 22,000 CBA Bank Account …82 $ 688 CBA Bank Account …31 $ 3,593 V Bank …33 $ 71 Household contents $ 3,000 Carpets & Jewellery $ 3,000 Money in Trust – Diana Perla & Associates $ 38,200 Proceeds of sale of R Street Property $ 62,000 Superannuation Fund 1 $ 75,000 Superannuation Fund 2 $ 11,939 Liabilities to be retained by the wife Value Westpac Mortgage $ 498,887 Total: $ 1,881,385 Pool total: $ 10,724,426
The effect of orders implementing the proposed alteration of property interests, largely in accordance with the wife’s alternative proposal, leaves the wife with Australian assets and her land at City S in Country B. The wife however relinquishes any entitlement to a dowry in Country B, which requires consequential orders in relation to the 50 per cent interest in 2 G Street. The property must revert to the husband’s ownership. The husband receives the rest of the known property in Country B.
The wife sought, and the Court orders, the husband to pay to the wife his half share of valuation fees, a relatively small amount.
Given the findings made about the husband’s non-disclosure, and concerns expressed about his conduct of this litigation, the Court believes it appropriate to appoint the wife as trustee for sale of the family home should that become necessary. This will be reflected in the orders made.
In the circumstances of this case, with all its attendant uncertainties, the Court is satisfied that the orders it makes are as just and equitable as is possible.
I certify that the preceding one hundred and fifty (150) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 29 September 2022
Schedule A
MINUTE OF ORDER SOUGHT BY WIFE
1.That within 28 days of the date of these Orders:
1.1the Husband do all acts and things and sign all documents to transfer to the Wife the property at C Street, Suburb D, also known as E Street, Suburb F and more fully described as Folio Identifier … ("the Suburb D property");
1.2the Wife do all acts and things and sign all documents necessary to discharge the Mortgage to Westpac Banking Corporation Registered No. … ("the Westpac mortgage") and/or refinance the Westpac mortgage over the Suburb D property.
2.In the event that the Wife is unable to refinance the Westpac mortgage, then:
2.1the Wife be apppointed as the Trustee of the Husband, to sell the Suburb D property, including but not limited to signing all documents necessary on his behalf, with the Wife to have sole control of all aspects of the sale, including appointing the Conveyancing Solicitor, Real Estate Agent, marketing the Suburb D property and deciding the sale price, and to keep the Husband informed of all steps taken;
2.2the proceeds from the sale of the Suburb D property be disbursed as follows:
2.2.1Payment of legal, selling and marketing costs related to the sale;
2.2.2Payment of council and water rates outstanding at the time of settlement;
2.2.2Payment of the Westpac mortgage; and
2.2.3The remainder to the Wife.
3.Super Split:
3.1Pursuant to Section 90XJ(l)(c)(i) of the Family Law Act 1975 (Cth), whenever a splittable payment becomes payable in respect of Mr Shah's interest in Superannuation Fund 1, the trustee shall pay to Ms Karimi the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth), using a base amount of $75,000 and there should be a corresponding reduction in the entitlement of the person to whom a splittable payment would have been made but for these Orders.
3.2That the Trustee of the Fund shall do all such acts and things and sign all documents as may be necessary to:
(a)Calculate in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001, the entitlement created for the Wife by operation of these Orders
(b)Pay the entitlement whenever the Fund Trustee makes a splittable payment out of the Husband's interest in the Fund.
3.3The operative time for the payment under these Orders is 4 business days after service of a sealed copy of these Orders upon the Trustee of the Fund at which time these Orders shall have effect.
3.4That having been accorded procedural fairness in relation to the making of these Orders, Orders 3.1 to 3.3 hereof bind the Trustee of the Fund.
4.That within 7 days of the date of the Orders, the Husband pay $600 to the Wife for his half of the Single Expert Valuation fees paid by the Wife.
5.That otherwise each party be solely entitled to the exclusion of the other, to all other property currently registered in his/her name, either individually or jointly with another person, or in his/her current possession or control at the date of these Orders, including but not limited to real property, bank accounts, businesses, money, superannuation and leave entitlements, shares, jewellery and personal effects, presently in his/her possession.
6.That except as these Orders provide to the contrary, each party be responsible for as against the other and indemnify and keep indemnified the other in relation to all debts and liabilities in his/her name (or jointly with any other person or entity).
7.That in the event that either party refuses or neglects to execute any deed or instrument, the Registrar of the Court be appointed pursuant to Section 106A of the Family Law Act 1975, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.
Schedule B
Ms Karimi & Shah
SYC 7812/2019
Minute of Final Order sought by Applicant Father
DEFINITIONS
A1. "the Wife" means Ms Karimi, the Applicant in these proceedings;
A2. "the Husband" means Mr Shah, the Respondent in these proceedings;
A3. "the parties" means the Husband and Wife;
A4."the children" means Y born 2007 and X born 2007; and
A5. "the Act" means the Family Law Act 1975 (Cth) as amended.
A6."the Suburb D property" means the property situated at and known as E Street, Suburb D in the State of New South Wales being the whole of the land comprises in Certificate of Title Folio Identifier … registered in the sole name of the Husband.
A7."the Wife's Country B property" means the property situated at and known as T Street registered in the sole name of the Wife.
A8."the Husband's Country B property" means the property situated at and known as Q Property registered in the sole name of the Husband.
A9."the dowry" means the amount of … gold coin.
PROPERTY
1.Within 42 days from the date of these orders ("the Due Date") the Wife shall provide vacant possession of the Suburb D property, leaving the property in a clean and tidy state.
2.Within 7 days of the Wife vacating the Suburb D property, the parties shall do all acts and things and execute all documents necessary to list the Suburb D property for sale by public auction including the following:
2.1The Wife shall do all acts and things and sign all documents necessary to remove the caveat lodged by her on the Suburb D property at her cost;
2.2the parties shall appoint a local real estate agent as agreed between them failing agreement the Husband shall propose 3 local agents to the Wife ("the Shortlist") within 7 days of the Wife vacating the Suburb D property and the Wife shall select 1 agent within 7 days of receiving the shortlist from the Husband. If the Wife fails to select an agent from the shortlist within the 7 days the Husband shall be at liberty to select the agent;
2.3the Husband shall sign the Agency Agreement with the Agent nominated in Order 2.2 within 7 days of receiving it and send a copy to the Wife;
2.4if the property is listed for sale by public auction, the reserve price shall be as agreed between the parties but failing agreement the reserve price shall be $1,885,000;
2.5if the property is listed for sale for public auction and in the event that the bidding at the auction does not reach the reserve price the parties may negotiate with the highest bidders or any other interested person and effect a sale of the Suburb D property at an agreed price which is not within 2.5% of the reserve price;
2.6if the property remains unsold, the parties will do all acts and things and sign all documents necessary to immediately re-list the property for sale by public auction again, on a date nominated by the agent and at a reserve price as recommended by the agent;
2.7the parties shall instruct Fox & Staniland to act on behalf of the sale or such other agent as they may agree;
2.8if the Husband or the Wife pays 100% of the upfront costs of any work to the property or marketing fees or expenses from the agent which was agreed by the other party to be undertaken they shall be at liberty to be reimbursed 50% from the other parties' share of the sale proceeds as set out in Order 5;
2.9the Husband and Wife shall co-operate in every way with the agent including (without limiting the generality of the foregoing):
2.9.1making the key available to the agent;
2.9.2signing all documents requested by the agent to sell the property;
2.9.3executing a contract for sale in the form prepared by the solicitors having the conduct of the sale at the sale price;
2.9.4allowing inspection of the Suburb D property at all times as requested by the agent;
2.9.5ensuring the Suburb D property including the grounds are in a neat and clean condition at the time of inspection by the agent and prospective purchasers; and
2.9.6doing or saying nothing to hinder or prevent a sale being effected.
3.On or before the Due Date, the Wife shall:
3.1pay or cause to be paid all mortgage arrears, in relation to the Suburb D property;
3.2do all acts and things and sign all documents necessary to remove the caveat lodged by her at her cost; and
3.3Meet the mortgage repayments, outgoings and rates on the Suburb D property until she vacates the property in accordance with Order 1.
4.On settlement of the sale of the Suburb D property the proceeds shall be distributed in the following manner and priority:
4.1All costs and agreed expenses of the sale including legal costs and disbursements, agent's commission, advertising expenses and auction expenses;
4.2The amount required to pay all municipal and water rates outstanding with respect to the Suburb D property;
4.3To discharge the mortgage on the Suburb D property and the parties shall do all acts and things and sign all documents necessary to discharge the mortgage on the Suburb D property;
4.4To pay the Wife the sum of $728,014;
4.5To pay the sum of $658,100 as follows:
4.5.1Payment to Mr CC for legal fees (if not already paid);
4.5.2Payment to Fox & Staniland Lawyers for legal fees of $23,000; and
4.5.3The balance to the Husband.
4.6To divide any balance then remaining equally amongst the parties.
5.By the Due Date, the Wife shall do all necessary acts and things, including attending the Country B Embassy in City K if necessary, to sign such documents to release the Husband from his obligations to pay the dowry to the Wife, the Wife acknowledges and confirms that the Husband shall have no further obligation to pay her any amount in Country B for the dowry or otherwise by force of this Order, now or into the future, noting that she has taken legal action to enforce the money owed to her and has 50% of the property situated at 2 G Street, City H.
6.By the Due Date, the Wife shall cause to be returned to the Husband the following items from the Suburb D property:
6.1All carpets located at the Suburb D property;
6.2The Husband's clothing;
6.3The Husband's tools;
6.4The Husband's photos; and
6.5Lazy boy chair.
7.Except as any other Order herein provides to the contrary, as against the Husband, the Wife shall be solely entitled to and the Husband has no interest in the following:
7.1The Wife's Country B property;
7.2The 2019 Motor Vehicle 4 motor vehicle;
7.3The parties' jewellery;
7.4All moneys held by the Wife in any bank account(s) held in her name;
7.5The Wife's superannuation entitlements in any fund or funds;
7.6The furniture, furnishings and effects in the Wife's possession and ownership; and
7.7All other assets of whatsoever nature and kind presently in the name, possession or ownership of the Wife.
8.Except as any other Order herein provides to the contrary, as against the Wife, the Husband shall be solely entitled to and the Wife has no interest in the following:
8.1The Husband's Country B property;
8.2Motor Vehicle 1;
8.3Motor Vehicle 2;
8.4All moneys held by the husband in any bank account(s) held in his name;
8.5The Husband's superannuation entitlements in any fund or funds;
8.6The furniture, furnishings and effects in the Husband's possession and ownership; and
8.7All other assets of whatsoever nature and kind presently in the name, possession or ownership of the Husband.
9.Except as any paragraph comprising these Orders provide to the contrary:
9.1The Husband will do all acts and things necessary to indemnify, and keep indemnified, the Wife from and against all liabilities including, but not limited to all actions, claims, suits and demands of whatsoever in his name;
9.2The Wife will do all acts and things necessary to indemnify, and keep indemnified, the Husband from and against all liabilities including, but not limited to all actions, claims, suits and demands of whatsoever in her name.
10.Except as any paragraph comprising these Orders provides to the contrary, each of the parties releases the other from all debts owing from one to the other.
11.Both parties shall promptly do all acts and things and execute all documents, authorities and writing as are necessary to give effect to all or any of the provisions of the paragraphs comprising these Orders within the timeframes specified.
12.In the event that either party refuses or neglects to execute any deed or instrument necessary to give effect to this Order, then a Registrar or a Deputy Registrar of the Federal Circuit Court of Australia at Sydney is hereby appointed pursuant to section 106A of the Family Law Act 1975 to execute such deed or instrument in the name of the defaulting party and to do all acts and things necessary to give validity and operation to the deed or instrument.
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