Kashani and Kashani
[2014] FamCAFC 139
FAMILY COURT OF AUSTRALIA
| KASHANI & KASHANI | [2014] FamCAFC 139 |
| FAMILY LAW – APPEAL – PROPERTY – VALUATION – Where the parties have lived apart for over ten years – Where there were limited assets of the parties – Where the appellant wife disputes the value of a unit purchased by the respondent husband in North America – Where the trial judge adopted the value contained within the respondent husband’s balance sheet – Where the wife asserted there was an agreement as to the value of the unit – Where the trial judge was not provided with any evidence regarding the agreed value of the unit at trial – Appeal dismissed. FAMILY LAW – APPEAL – PROPERTY – CONTRIBUTIONS – Where the appellant wife submits that the trial judge erred in relation to the weight placed on the respondent husband’s sole parenting of the parties’ child, a payment made by the wife to the husband, and the wife’s upkeep of the former matrimonial home – Where the appellant wife further submits that the trial judge erred in not making an adjustment in favour of the appellant wife pursuant to s 75(2) of the Family Law Act 1975 (Cth) due to the duration of the marriage, the appellant wife’s health issues and minimal prospects of future employment – Where the findings made by the trial judge were reasonably open and within a proper exercise of discretion – Appeal dismissed. Family Law Act 1975 (Cth): s 75(2) | |
| Gronow v Gronow (1979) 144 CLR 513 Norbis v Norbis (1986) 161 CLR 513 |
| APPELLANT: | Ms Kashani |
| RESPONDENT: | Mr Kashani |
| FILE NUMBER: | SYC | 2977 | of | 2011 |
| APPEAL NUMBER: | EA | 160 | of | 2012 |
| DATE DELIVERED: | 5 August 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Strickland, Ryan & Aldridge JJ |
| HEARING DATE: | 17 June 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 14 November 2012 |
| LOWER COURT MNC: | [2012] FMCAfam 1208 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Othen |
| SOLICITOR FOR THE APPELLANT: | Harris Freidman |
| COUNSEL FOR THE RESPONDENT: | Ms Snelling |
| SOLICITOR FOR THE RESPONDENT: | Gelonesi Parasyn Solicitors |
Orders
The appeal be dismissed.
The appellant pay the respondent’s costs of and incidental to the appeal as agreed and in default of agreement, as assessed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Kashani & Kashani has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 160 of 2012
File Number: SYC 2977 of 2011
| Ms Kashani |
Appellant
And
| Mr Kashani |
Respondent
REASONS FOR JUDGMENT
Introduction
By Notice of Appeal filed on 12 December 2012, Ms Kashani (“the wife”) appeals against the order for property settlement made by Federal Magistrate Baumann (as his Honour then was) on 14 November 2012.
His Honour ordered that the property of the wife and Mr Kashani (“the husband”), which consisted of a house at Suburb M and a unit in North America, be divided so that the wife received 45 per cent of the value of the two properties and the husband 55 per cent.
At the time of the hearing the wife was 53 years of age and the husband was 66 years of age.
The husband arrived in Australia from the Middle East in 1974 and, after a short trip overseas, returned to Australia and commenced cohabitation with the wife in around 1979. They married in 1987.
The parties have two adult children, a daughter O and a son J.
The husband purchased an interest in a property at Suburb M in 1986. The parties acquired all of the interest in that property in 1989.
In 1997 the husband and J, who was then aged six and a half years, moved to North America. They have lived there permanently ever since.
The wife remained in Australia. Accordingly, the parties separated in 1997.
In August 2002 the wife paid AUD$37,000 to the husband. The husband used those funds, and some funds he borrowed at the time, to purchase the unit in North America for (local currency) $55,000. The husband and J have lived in the North American unit ever since. In 2010 the husband transferred his interest in the unit to J for no consideration. By agreement, the parties treated the North American property as if it was still held by the husband.
In April 2000 the wife gave birth to a son, R who has lived with her since his birth. The father of that child has, at times, lived at the Suburb M property.
At the time of the hearing the wife continued to reside in the Suburb M property.
The trial judge’s reasons
Before considering his Honour’s reasons, it is instructive to note the manner in which the parties approached the hearing. The evidence of both parties was brief and it would seem reflected the fact there were relatively few relevant contentious facts on matters about which they could give evidence. The text of the husband’s first affidavit did not extend to three complete pages and his second consisted of but two paragraphs. The text of the wife’s affidavit barely covered five pages. The cross examination of both parties occupied thirty minutes of hearing time.
It is axiomatic that a trial judge can only deal with the evidence that the parties place before the court.
The trial judge found that the property available to be divided between the parties was [17]:
·[Suburb M] $1,250,000
·[North American Unit] $ 130,000
Total $1,380,000
His Honour found that a property in Suburb B was purchased for $10,000 as an investment in 1991 and that the purchase price was substantially provided by the husband. That property was sold. The trial judge did not record what happened to the proceeds of the sale of that property. The wife said the net proceeds were applied to the Suburb M property and the husband said that the proceeds were returned to the mortgagees.
The trial judge found that, although the wife worked for periods during cohabitation, the husband was the “breadwinner”. The wife was the primary home maker and parent. His Honour concluded that the parties’ contributions to their assets and the welfare of the family, as at the date of separation in 1997, were equal.
In dealing with the post-separation contributions, the trial judge said these would be evaluated within the context of the contributions made in the period between 1979 and 1997 [29]. As to post-separation contributions, his Honour took into consideration the following:
·the wife paid the rates and charges on the Suburb M property including a small mortgage of approximately $4,000;
·the wife reasonably maintained the Suburb M property but did not make any major renovations so that the increase in the value of the property represented capital gain and market appreciation;
·the husband was the primary and single parent of the parties’ son J;
·the wife did not pay any child support; and
·the wife made a contribution to the husband in 2002 of around AUD$37,000 which the husband used as part of the purchase price of the North American unit.
His Honour found that the contribution the wife made in paying rates, insurance and other expenses was offset by the contribution of the husband “essentially made of permitting the [wife], at times her new partner, and (since [R] was born) the child of the [wife] to occupy the home rent free for so long” [37].
Taking into account all aspects of the respective contributions of the parties, the trial judge determined that the appropriate overall division was 55 per cent in favour of the husband and 45 per cent in favour of the wife.
His Honour found, at [40], that no further adjustment to this assessment was required under s 75(2) of the Family Law Act 1975 (Cth) (“the Act”) taking into account:
·the age of the parties noting that the husband was 66 years of age and 13 years older than the wife. He had an ability to earn a modest income in North America but the wife, who had a longer working life ahead of herself, worked casually as a child care assistant but primarily relied on government benefits;
·both parties were in good health;
·the wife had a duty to meet the needs of her infant son from her subsequent relationship;
·the husband still supports J who is a student notwithstanding he is an adult;
·the orders to be made will provide each party with a reasonable sum of money by which they could independently move forward; and
·the wife may have a drop in her standard of living as she will be unlikely to buy a property in the same suburb but might be able to purchase a property where land is less expensive and thus purchase a home of better quality.
The Grounds of Appeal
Ground 2 in the Notice of Appeal was not pressed.
Grounds 3 to 5 inclusive were argued together. It is convenient to deal with the grounds in that way.
Ground 1
His Honour erred in that, in determining the value of the [North American] unit, he had regard to inadmissible evidence rather than the value agreed by the parties.
The only evidence provided by the parties as to the value of the North American unit consisted of the following exchange during the cross examination of the husband:
MR GREEN: … Okay. And that property I understand is currently valued at $180,000; is that right? --- No, sir. It’s value $139,000. That’s the last valuation that I have on the written – from the valuer from the government.
(Transcript, 14 September 2012, page 22, lines 38 to 40)
In the course of submissions counsel for the wife informed his Honour that he was of the understanding that there had been a value agreed for the property in North America and it was greater than $139,000. In response to that suggestion counsel for the husband said:
MR GELONESI: Your Honour, the difficulty is is (sic) that there were quite some discussions with previous instructing solicitors and after that agreed value, we then agreed that there should be another valuation of the – of the property and that’s where we’re at ‑ ‑ ‑
…
MR GELONESI: ‑ ‑ ‑ because this has been some time from beginning to end.
(Transcript, 14 September 2012, page 37, lines 39 to 46)
Subsequently the following exchange occurred:
MR GREEN: I concede, your Honour, it’s not a significant part of the pool. I was instructed that there was a balance sheet that had been agreed. I can’t find it right now, but I understand it was some time ago and that was the value.
HIS HONOUR: Well, Mr Gelonesi’s on the record saying there’s not an agreed value for that property now. Is that right, Mr Gelonesi?
MR GELONESI: Yes, your Honour.
HIS HONOUR: You’re on the record as an officer of the court ..... about that. So ‑ ‑ ‑
MR GREEN:Well, I can’t take it further than that.
(Transcript, 14 September 2012, page 39, lines 1 to 13)
The balance sheet prepared by the wife which appears in the appeal books lists the value of the North American unit at AUD$180,000.
Prior to the hearing of this appeal, the balance sheet provided by the husband was recovered from the file by the court and forwarded to the parties. It shows the value of the North American unit as being AUD$130,000. The husband’s balance sheet must be the source of the value relied upon by the trial judge because it is the only source that supports that value.
Counsel for the wife submitted that the trial judge should have adopted the value of AUD$180,000 for the North American unit, it being the agreed value. As a reading of the above transcript makes plain, counsel for the husband denied that there was such an agreement and there was no evidence there was. No application was made for an adjournment to put before the court evidence as to the value of the unit or to have it valued. There was, therefore, no basis upon which the trial judge could find that the unit had an agreed value of AUD$180,000.
It was then submitted that the trial judge should have found that the North American unit was valued at $139,000, that being the amount to which the husband referred in his evidence.
Given that the husband based his evidence on a valuation received from a government body in North America, that figure must have been in the local currency. There was no evidence as to the exchange rate between Australian dollars and the local currency at the time of the hearing. There was evidence that in 2002 the exchange rate was AUD$1 to (local currency) $0.80 – $0.85. However, that evidence could not assist the trial judge to determine the exchange rate at the date of hearing.
It follows that there is no evidence which would establish that had the trial judge found that the North American unit was worth (local currency) $139,000, this would have resulted in a finding that the unit was worth more than AUD$130,000.
This ground has no merit.
Grounds 3 to 5
Ground 3
His Honour erred in that, in assessing the relative contributions of the parties, he gave insufficient weight to the payment made by the Wife to the Husband in the amount of $37,000 after separation.
Ground 4
His Honour erred in that, in assessing the relative contributions of the parties, he gave too much weight to the uncorroborated evidence of the husband in circumstances in which the Husband had an obligation to make full disclosure and did not do so.
Ground 5
His Honour erred in that, in assessing the relative contributions of the parties, he gave too much weight to the parenting of the father of his son.
It is to be noted that each of these grounds challenges the weight the trial judge gave to the matters referred to in the various grounds.
In Gronow v Gronow (1979) 144 CLR 513 Stephen J said at 519-520:
… When no error of law or mistake of fact is present, to arrive at a different conclusion which does not of itself justify reversal can be due to little else but a difference of view as to weight: it follows that disagreement only on matters of weight by no means necessarily justifies a reversal of the trial judge. Because of this and because the assessment of weight is particularly liable to be affected by seeing and hearing the parties, which only the trial judge can do, an appellate court should be slow to overturn a primary judge's discretionary decision on grounds which only involve conflicting assessments of matters of weight. In the present case it should not have done so at all.
In Norbis v Norbis (1986) 161 CLR 513 Brennan J said at 539-540:
The difficulties in the way of developing guidelines beset an appellate review of the exercise of a discretion under s.79. Unless the primary judge reveals an error in his reasoning, the Full Court can intervene only if the order made is not just and equitable. How does the Full Court arrive at that conclusion? In Bellenden (formerly Satterthwaite) v. Satterthwaite, Asquith L.J. stated the rationale of an appellate court's approach:
“It is, of course, not enough for the wife to establish that this court might, or would, have made a different order. We are here concerned with a judicial discretion, and it is of the essence of such a discretion that on the same evidence two different minds might reach widely different decisions without either being appealable. It is only where the decision exceeds the generous ambit within which reasonable disagreement is possible, and is, in fact, plainly wrong, that an appellate body is entitled to interfere.”
The “generous ambit within which reasonable disagreement is possible” is wide indeed when there are a number of factors to be taken into account and the comparative weight to be attributed to those factors is not clearly indicated by uniform standards and values of the community. The generous ambit of reasonable disagreement marks the area of immunity from appellate interference.
In the course of oral submissions it was submitted that the wife’s contribution to the upkeep of the Suburb M property and, in particular, renovations that she had undertaken to the property, had been overlooked or given insufficient weight.
Although this was not the subject of a ground of appeal, it appeared to be a matter of potential significance and so we permitted counsel to address the point.
The valuer said this:
…
Accommodation provided includes:
…
·Updated kitchen (7 yrs old) with 1.5 stainless steel sink, melamine benches and cupboards, 4 plate electric cooker, exhaust with splashbacks and the ceiling being damaged with holes and water leaks from the roof;
…
·Fully tiled bathroom, updated 7 years ago with low down suite, wash basin and vanity, bath rub and shower;
…
(Valuation of H, 28 October 2011, page 3, lines 19 to 22 & 25 to 26; Annexure C to the Affidavit of W sworn 7 September 2012)
As to the significance of those improvements the valuer said:
…
I am of the opinion that, subject to the qualifications and recommendations contained within the body of this report, as at the date of valuation, the following Fair Market Value would apply to the subject property:
Land value $1,300,000
Improvements $ 50,000
Total Value:
$1,350,000
(One Million Three Hundred and Fifty Thousand Dollars)
(Valuation of H, 28 October 2011, page 9, lines 16 to 20 Annexure C to the Affidavit of W sworn 7 September 2012)
The trial judge referred to the opinion of the valuer that the improvements held a minimal or nominal value only. Given that the valuer said all improvements had a total value of $50,000, his Honour's conclusion there was no evidence that post separation the wife made significant improvements to the Suburb M property was undoubtedly correct. Indeed the wife made no reference to these improvements in her affidavit evidence and there was no evidence upon which his Honour could have made the findings for which counsel for the wife now contends.
It was then submitted that the trial judge gave insufficient weight to the contribution of the wife to the purchase of the unit in North America, which as we mentioned earlier was purchased for (local currency) $55,000. The sum of around AUD$37,000 was advanced from Australia. Allowing for the exchange rate at the time, the wife provided a large part of the purchase price which she advanced at a time when she herself had a low income.
His Honour weighed that matter against the husband’s care of J and concluded:
33. Considering all these factors, I regard on balance, the Husband’s single parenting of [J] [sic] since 1997 compels a contribution based adjustment. That adjustment is less than it might have been if the Wife had not paid to the Husband funds in 2002 used to buy the [North American] unit.
Thus the trial judge did weigh in the balance the contributions made by the wife to the purchase of that unit.
It was submitted that these matters required, on a proper exercise of discretion, the trial judge to increase the percentage entitlement of the wife by five per cent, or, at least, as was submitted orally, to find that overall the respective contributions of the parties were equal.
Whilst it is entirely possible that other judges hearing this matter might have made the adjustment as sought by the wife, the approach taken by the trial judge was within the broad range of discretion available to him. There was no manifest error on his part.
It follows that these grounds are not made out.
Ground 6
His Honour erred in assessing the factors under Section 75(2) in not making an adjustment in favour of the Wife.
It was submitted that, in addition to the matters considered by the trial judge, his Honour also should have given weight to the fact that:
· The wife has no significant employment skills;
· She suffers from deep vein thrombosis; and
· The duration of the marriage (33 years).
It was submitted that the above factors compelled an adjustment of at least five per cent in favour of the wife.
There was no evidence as to the nature or extent of the wife’s deep vein thrombosis or, importantly, its effect on her ability to work. In the absence of evidence of this type it would have been almost impossible for his Honour to attribute much weight to that condition.
The length of the marriage, itself, does not compel an adjustment in favour of the wife. The trial judge also specifically took into account the wife’s comparative lack of employment skills.
In coming to the view that there should be no adjustment for s 75(2) factors, the trial judge acted squarely within the range of discretion appropriately available to him and thus no error has been established.
It was submitted by the husband that the wife had, in fact, conceded that there should be no adjustments under s 75(2) and that this ground should fail for that reason.
As noted by the trial judge, however, that concession was made in the context of the wife’s submissions that she should receive between 60 to 70 per cent of the value of the Suburb M property as an appropriate distribution based on contributions. The concession does not preclude the wife from pursuing this ground, but, as we have found, it has no merit.
Conclusion
We have found no merit in any of the grounds of appeal pursued by the wife, and accordingly the appeal must be dismissed.
Costs
At the conclusion of the hearing we sought submissions from the parties as to costs depending on the result of the appeal.
In the event that the appeal was unsuccessful, counsel for the husband sought an order for costs. That application was opposed by the wife’s counsel and he submitted that there should be no order as to costs.
We consider that there are circumstances here that justify an order for costs being made, namely that the wife was entirely unsuccessful. Thus, there should be an order for costs providing for the wife to pay the costs of the husband of and incidental to the appeal as agreed or in default of agreement, as assessed.
I certify that the preceding fifty seven (57) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Ryan & Aldridge JJ) delivered on 5 August 2014.
Associate:
Date: 5 August 2014
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