Khademollah & Khademollah - [2000] FamCA 1045

[2000] FamCA 1045

FAMILY LAW ACT 1975

IN THE FULL COURT
OF THE FAMILY COURT OF AUSTRALIA                  Appeal No SA2 of 2000
AT MELBOURNE  Appeal No SA20 of 2000

File No ML10919 of 1998

BETWEEN:

RK
Appellant Husband
- and -

SK
Respondent Wife

REASONS FOR JUDGMENT OF THE FULL COURT

CORAM:  FINN, KAY & HOLDEN JJ
DATE OF HEARING:                   21 and 22 June 2000
DATE OF JUDGMENT:               5 September 2000

APPEARANCES: The Appellant Husband in person.
The Respondent Wife in person.

RK and SK

SA2 of 2000; SA20 of 2000;
ML 10919 of 1998
Coram:  Finn, Kay & Holden JJ
Date of hearing:              21 & 22 June 2000
Date of judgment:           5 September 2000

JURISDICTION-stay of proceedings - foreign proceedings between the same parties -whether a stay should be granted in favour of a foreign forum- Iranian marriage - parties immigrating to Australia- proceedings relating to aspects of the marriage pending in both countries- property in Australia.

PROCEDURAL FAIRNESS- W failed to disclose all documents in her possession-H could not demonstrate that W’s failure to disclose rendered the trial unfair.

The parties were married in Iran in 1974. There were five children born of the relationship. H had three adult children from a previous relationship. There was some dispute about the date of separation; H alleged that it occurred when the parties arrived in Australia in 1989, whereas W alleged that it was in September 1996.

At the commencement of the marriage, H owned three properties in Iran. After the Iranian revolution in 1979 he was unable to continue his work as a customs agent, and was unemployed.

The parties migrated to Australia in 1989 pursuant to a special refugee and humanitarian program. The parties received welfare benefits. In 1990, H purchased a property for $310,000. The property was financed from funds in overseas accounts which H alleged he had borrowed from his eldest son of his first marriage.

In February 1998, H returned to Iran and was arrested for failing to declare a small bottle of alcohol in his possession. He was imprisoned for 3 months. During this period, W returned to Iran and opened H's safe taking a number of documents, 1 kg of gold and a number of Persian carpets.

In about October 1997, W’s brother, on her behalf, made an application to an Iranian court for the return of her marriage portion as specified in the parties’ marriage contract. The Iranian court ordered H to repay W her marriage portion.

W then filed proceedings in the FCA seeking alteration of property interests, and the capitalisation of child support. H returned to Australia to defend the proceedings.

W further sought to restrain H from leaving the jurisdiction until he had complied with any court orders.

H contended that the extent of W’s entitlements to receive any relief from him was already the subject of orders made by an Iranian court. He also asserted that he owned no assets and that any monies that existed in foreign bank accounts belonged to the children of his first marriage.

Brown J rejected H's application to stay or summarily dismiss the Australian proceedings.

Her Honour found the net assets of the parties totalled $1,416,518 excluding the value of the Persian carpets and W’s marriage portion. Her Honour rejected H’s evidence that he was not the beneficial owner of the overseas bank accounts in the names of his children from his first marriage.

The trial Judge divided the asset pool 75:25 in H’s favour and adjusted 5% to W under s 79(4)(d) to (g) of the Family Law Act. Her Honour restrained H from leaving Australia until he had complied with the orders and further ordered that he pay capitalised child support.

On appeal H challenged the Court’s jurisdiction to make property orders given the existence of the Iranian court orders. He also argued that the only way he could properly prepare his case would be to leave the country in circumstances where he had been enjoined from so doing. H contended that the trial Judge erred in her findings of fact in relation to the value and equity of various assets. Finally, H alleged procedural unfairness due to the fact that W had not made available all documents during the trial.

Held: in allowing the appeal in part

Per Finn J:

Agreed with Kay and Holden JJ’s joint judgment detailed below.

At no time during the trial did H expressly ask the trial Judge to adjourn the hearing until W produced the documents taken from the safe. Against the background of her findings of H’s failure to provide any useful information about his financial position to the Court, it could not be said that her Honour was in error in proceeding with the hearing and her consequent findings.

As to a dispute about carpets, the onus lies on the party who is concerned about the disposition of chattels, or at least concerned to see that an adjustment be made for the value of the chattels in the overall property settlement, to put evidence before the Court of the value of the chattels in order that the Court may satisfy itself that it is not devoting its scarce resources to the resolution of disputes about assets of no or relatively minimal value. There was apparently no such evidence in this case.

Per Kay and Holden JJ

Given that the parties were Australian citizens, W and the children had lived in Australia for the ten years, H had brought proceedings in Australia for a dissolution of the marriage, and given his presence in Australia, coupled with the existence of real estate jointly owned by the parties in Australia, it was clearly open for the trial Judge to find that Australia was not an inappropriate forum in which W could continue her proceedings.

There needs to be some basis, beyond the mere assertion of the proposition, for reaching an assumption that without proper discovery the trial will be rendered unfair. Nothing was demonstrated to the trial Judge nor to the Full Court as to the manner in H was prejudiced by W’s failure to make full and frank disclosure of the documents taken by her.

There is no justification for interfering with the trial Judge’s findings in relation to the equity in the home, the car, child support and the injunction.

The Full Court needed to correct a clear arithmetical error. Further there was an inconsistent finding over the value of pure gold and the value of gold jewellery that needed to be corrected.

Her Honour's reasons for judgment did not explain why it was just and equitable to allow W to retain H's carpets and rugs. However, given the absence of evidence as to the value of the carpets, it cannot be concluded that her Honour's error in relation to them was of such a material nature as to justify interfering with her ultimate order.

APPEAL ALLOWED IN PART

REPORTABLE

FINN J:

INTRODUCTION

This is an appeal by the husband, RK, against all orders made by Brown J. on 20 December 1999. In summary those orders provided:

that the fourteen year old child and the twelve year old child of the marriage of the husband and the wife, SK, should reside with the wife, with the husband having such contact as the parties agreed;
that the child support payable by the husband for each of those children as from 1 July 1999 until each child turned 18 should be capitalised in the sums of $19,700 and $26,500 respectively; and
that by way of property settlement the husband transfer his interest in the former matrimonial home at Doncaster to the wife and pay to the wife the sum of $96,796.

Her Honour also restrained the husband from leaving Australia and from dealing with certain property until payment of all moneys required to be paid by him, and she required that copies or her orders and reasons for judgment be referred to the Attorney-General’s Department.

The husband also appeals an order made by Brown J. on 10 March 2000 requiring that he pay one-third of the wife’s costs of and incidental to the parenting and property settlement applications.

The factual background to this matter is described at length in the joint judgment of Kay and Holden JJ. as also are the husband’s complaints against her Honour’s decision. Their Honours have also analysed in depth the reasons for judgment of the trial Judge and detailed fully the husband’s complaints against her Honour’s decision. I need not traverse the same material.

I propose only to discuss those matters on which the husband concentrated in his oral submissions to us and in his written material submitted to us (particularly his document headed “Summary Information”). Those matters which relate essentially to the property settlement matter are:

the trial Judge’s decision not to stay the proceedings in the Australian court when she had found that there were pending or completed proceedings in Iran;
the trial Judge’s decision to allow the Australian proceedings to continue, having found that the wife was withholding documents of the husband;
the manner in which the trial Judge dealt with a dispute between the parties about the whereabouts of some Persian carpets; and
the value placed by the trial Judge on the wife’s gold jewellery.

THE APPROPRIATE FORUM FOR THE DETERMINATION OF THE PARTIES’ MATRIMONIAL DISPUTES

A major issue before both the trial Judge and this Court was whether the wife should have been permitted to pursue proceedings for property settlement in this country when there already were pending or completed proceedings about the same matter in Iran, the country where both parties had been born and married.

As her Honour recorded in paragraph 11 of her judgment, it was the husband’s submission “that the parties were involved in litigation in Iran and that the wife was seeking to subvert that jurisdiction (having earlier invoked it to her benefit) by bringing proceedings in Australia”. However, the difficulties facing her Honour in relation to this submission were, as she also recorded in paragraph 11, that “the nature of the proceedings in Iran was disputed” and there was before her “no expert evidence about matrimonial law in Iran”.

Having referred to these difficulties, her Honour then made the following observations concerning the manner in which courts in this country approach the question of what is the law of a foreign country, when that question arises in a proceeding in this country:
“12.The existence, the nature and the scope of the rules and principles of the law of a foreign jurisdiction are issues of fact to be decided by the judge, on which evidence is receivable. The general rule is that foreign law must be proved by an expert witness. In this Court, ss. 174 and 175 of the Evidence Act 1997 (Commonwealth) provide ways in which such evidence may be adduced.

13.The effect of the general rule is that foreign law cannot usually be the subject of judicial notice, save where the parties agree to that course or where it is sufficiently notorious. The burden of proof rests on the party asserting that foreign law differs from domestic law. As is observed in Cross on Evidence, Butterworths, Vol.1 para.41005 :
“This is frequently expressed, rather infelicitously, by saying that there is a presumption that foreign and domestic law are the same.”

14.In the absence of evidence to the contrary the Court is left in the position of having to act on the basis that the matrimonial law of Iran is the same as that of Australia, however uneasily that sits with other evidence.”

I would say at this point that I am not convinced that the above summary of the law as to the establishing of foreign law in our courts was erroneous in any way. But in any event, I have some difficulty in understanding why the question of the differences, if any, between the matrimonial law of Iran and that of Australia was of any great significance in this case, given the matters which her Honour had to consider in light of the decision of the High Court in Henry (1996) 185 CLR 571 in determining whether to grant what she categorised, in paragraph 15 of her judgment, as the husband’s application for a stay of the Australian proceedings.

In dealing with that application, her Honour reviewed (in paragraphs 16–21) the parties’ evidence regarding the proceedings in Iran and reached the following conclusions:
“22.The only conclusion I can draw from the evidence before me is that proceedings were commenced by the wife in Iran in 1997 in a court which has jurisdiction over the parties’ property, that the wife remains a party to those proceedings and has filed documents in them.
23.I am satisfied that the Iranian court in which the wife commenced proceedings ordered the husband to pay to the wife 33,679,600 rials for her marriage portion and 1,684,000 for government fees, the sum fixed representing the initial agreed marriage portion, adjusted by a formula which probably related to inflation and which multiplied that initial figure 68 times.
…
26.… I am satisfied there are still proceedings on foot in Iran, but whether they relate to enforcement of earlier orders or to a different aspect of the matrimonial relationship or property, I cannot say with any certainty.

27.I cannot say what the connection is, if any, between the order made in respect of the wife’s marriage portion and orders which could be made following a divorce which could affect property rights in Iran. I accept the husband’s evidence that he has offered to pay the judgment debt for the marriage portion and fees, either here in Australian dollars or in Iran in rials. I am satisfied the wife has refused to accept payment. There may be a number of reasons for this but it is probable they include a fear that it could further compromise her entitlements in Australia and, possibly, in Iran, knowledge that until she provides a receipt for the payment, a divorce granted to the husband by the Mosque in Iran cannot be registered with the State, and knowledge of the order which could effect his liberty were he to return to Iran without proof of payment.
28.In September 1998 the husband filed an application for a divorce in Iran. On 17 November, 1998 the wife filed the initiating application in these proceedings. I will set out a relevant chronology later, but I am satisfied that at that time the husband was still in Iran. He learned of the proceedings through the Australian Embassy there and returned to Australia on 16 February, 1999. On 18 March, 1999 he filed an application for dissolution of marriage in this Court. The divorce for which he applied in Iran cannot be registered by the State until the 12 requirements detailed by him have been met, one of which is confirmation of payment of the marriage portion and information about the arrangements with respect to children.”

Her Honour then reviewed (in paragraphs 29-35) the authorities relevant to the staying of Australian proceedings in favour of proceedings in a foreign forum. She concluded that review by quoting at length from the decision of the High Court majority in Henry, where (at 590-593) the considerations to which an Australian Court should have regard when determining whether to stay Australian proceedings, and in particular matrimonial, proceedings are set out.

Her Honour then expressed the view that although she was satisfied that the wife commenced proceedings in Australia relating to the marital relationship after commencing such proceedings in Iran, she was nevertheless satisfied that there were reasons why the Australian proceedings should not be stayed. In this regard her Honour said:
I am satisfied the wife did commence proceedings in Australia after she had commenced proceedings in Iran and that each relate to the marital relationship. Nevertheless, I am satisfied that there are reasons why the proceedings in Australia should not be stayed. The parties came to Australia in 1989 and, I am satisfied, lived as a family unit (notwithstanding the husband’s frequent trips overseas) until 1997. The wife’s evidence was that they were both Australian citizens. Before me the husband denied he was an Australian citizen. However, in the application for dissolution filed by him on 18 March, 1999 (Exhibit L) he deposed to he and the wife both being Australian citizens, and it is probable that is correct. He holds an Australian passport and for the whole of their lives in Australia the parties accepted welfare benefits. It is the intention of the wife and two younger children to remain in Australia. The evidence of the husband’s intention was ambivalent, but he clearly intended to continue to spend time here, as evidenced by his application for residence of [A] and [B].

No submissions were made as to whether the order of an Iranian court would be recognised in Australia. If the order would not be recognised that would, to use the words of the Court in Henry “dispose of any suggestion” that these proceedings should not continue. If the Iranian orders would be recognised in Australia, this Court needs to consider whether any orders may need to be enforced in other countries and the relative ease with which that can be done. Without making a full assessment of the comparative procedural or other claims of the Iranian forum, it is probable it would be easier for the wife to enforce orders of this Court rather than those of an Iranian Court in, for example, London and, possibly, Spain, and it is the cash held in those places which is in currencies easily convertible to Australian dollars. Australia is also the forum which is likely to provide more effectively for complete resolution of the matters involved in the parties’ controversy, as I am asked to deal not only with the property proceedings, but also with applications for parenting orders, spousal maintenance and departure from assessed child support.

Finally her Honour expressed her conclusion that the Australian proceedings should not be stayed in the following terms:
“38.In these circumstances, I am not satisfied that this Court is a clearly inappropriate forum for the hearing of these applications. The fact an order has been made in Iran can be taken into account when assessing the wife’s financial position.”

Nothing put to us by the husband established to my satisfaction that her Honour made any error of law or of fact when, in the exercise of her discretion, she determined not to stay the Australian proceedings, or that the exercise of that discretion otherwise miscarried.

On the state of the evidence before her and in all the circumstances of the case, it was open to her Honour to conclude that this Court was not “a clearly inappropriate forum” for the hearing of the various applications which were before her, and to adopt the approach of taking into account the order (regarding the marriage portion) which had been made in Iran when assessing the wife’s financial position. This her Honour subsequently did in paragraph 169 of her reasons for judgment.

Finally in this connection, it needs to be mentioned that at the hearing of the appeal, the husband sought to put before us a textbook apparently on the relevant Iranian law. However, as it was not in English, it would have been of no assistance to us and thus was rejected by us.

THE HUSBAND’S DOCUMENTS FOUND TO BE IN THE POSSESSION OF THE WIFE

Before us, the husband contended that as a matter of procedural fairness, the trial Judge should not have allowed the Australian proceedings to continue, having made a finding that the wife was withholding his documents.

In order to assess the validity of this complaint, it is necessary to consider the relevant findings of her Honour.

At paragraph 71 of her reasons, her Honour found that in or about May 1998, while the husband was serving a term of imprisonment in Iran, the wife arrived in Iran and took up residence in a property of the parties referred to as Faredanesh. While in that residence, the wife, according to her own evidence, opened a safe. Despite the wife’s evidence that she did this because of her concern about the lack of support being provided by the husband for herself and the children, her Honour found as follows in paragraph 72 of her reasons:
“72.… As found earlier, I am satisfied she was well aware that the family had access to income from overseas sources which was not declared to the welfare authorities, and it is probable her decision to break into the safe was aimed at acquiring financial information which could be useful in proceedings in Australia (which had not then been filed) and, possibly, Iran. In the safe were a large number of documents relating to investments and, according to the wife, two kilograms of gold.”

Shortly thereafter in her reasons, her Honour dealt with in the following terms with the husband’s failure to provide any useful information to the Court about his financial position:
“77.Despite orders and the requirement of the rules, the husband failed to provide any useful information about his financial position to the Court. He swore financial statements on 6 April 1999, 3 May 1999 and 27 September 1999. None complied with the letter or the spirit of the relevant rule and all were, effectively, useless as a record of his financial situation. I refer only to the last financial statement filed. It listed the property owned by him as his interest in Doncaster, a Toyota which he alleged had been sold by the wife, a Mitsubishi car valued at $1,000 and stated that the contents of the house (which he valued at $75,000) remained with the wife. There was no information about credits in banks or financial institutions or other assets. On the last page of that form he dealt with them as follows :
“1.I have two houses in Tehran which are very old and must be demolished and rebuild on their land. These two houses are the matrimonial assets of my first marriage which I purchased them years before my second marriage. The titles of the said houses are in the hand of the wife […].
2.I have some rials (Iranian currency) in several bank accounts in Iran which are the matrimonial assets of my first marriage. The list and receipts of them are in the hand of the wife […].
3.I am a permanent resident of Iran, I have been in Australia since 16/02/1999 and by the court order I have been restrained from leaving Australia for the wife’s application in the Family Court in Melbourne to be proceeded. Several times before I filed applications requested the said order to be cancelled but they were refused by the wife. The above said assets are unattended in Iran since 16/02/1999. Any assets that leave unattended in Iran, there are possibilities of confiscation or to be stolen. When I return to Iran I can find out what ever have been remained or nothing have been left for me. Moreover the assets and the money are devaluated day by day steadily in Iran, beside these the Iranian money cannot be converted to any other currency and transferred to overseas. It is illegal and unlawful.
4.My eldest son of my first marriage had three months deposit accounts for some foreign currencies in my name in Spain and England which the bank receipts of them concerning six or seven years ago are in the hand of the wife. Those are not her matrimonial assets and belonged to my sons and daughter of my first marriage, as I mentioned in the paragraph 25 of my affidavit.
5.All the details concerning the above facts are described in my Chief Affidavit.” ”

Her Honour then returned to the issue of the documents taken by the wife from the safe in Teheran:
“78.It was the husband’s case that the wife only produced to this Court documents taken from the safe in Faredanesh which supported her case and suppressed documents which did not support it. I have little confidence she would have made available any document which ran counter to the case she intended making. Given the documentation available to them, her solicitors clearly made diligent enquiries in an attempt to put before the Court the evidence which the husband failed to disclose. Although two of the overseas banks in which funds are held in his name have offices in Australia, neither could provide any information about the current state of the overseas accounts, meaning that the information before the Court related to balances in earlier years.”

Finally in this context, her Honour reached the following conclusions about the husband’s financial position:
“79.When various accounts were put to the husband he did not deny they existed and, indeed, gave evidence which clarified the position. He appeared to have an excellent recollection of transactions detailed in documents tendered, but professed ignorance of the current state of the various accounts. He did not say that any had been closed or that significant withdrawals had been made in recent years and in respect of some, said he assumed that interest which accrued would have been reinvested. To the end his position was that these accounts had nothing to do with him, that he held the funds as trustee, and the assets were, variously, assets of his first wife, matrimonial assets of his first marriage, or assets of the sons and daughters of his first marriage.
80.I am satisfied he is the beneficial owner of the funds and has the capacity to deal with them at will. I proceed on the basis that the balances in the various accounts are likely to now be significantly more than they were at the dates identified in tendered documents, but cannot quantify them further.
81.The husband’s evidence was that he had no idea what was left in the safe in Faredanesh and could not answer questions about that or bank accounts in Teheran until he were allowed to return to Iran. That evidence was inherently unbelievable, given that the wife left Teheran in 1998 and he remained there until February 1999, thus being the last of them to have had access to the safe and bank records. Similarly, he must have been in a position to assess the number of Persian carpets remaining after her departure.”

As I understood the husband’s submissions to us and responses to our questions, at no time during the trial did he expressly ask her Honour to adjourn the hearing until the wife produced the documents taken from the safe in Teheran. There must be considerable doubt as to whether it is open to him to raise this matter on appeal. However, leaving to one side that technical obstacle, I am not satisfied that, against the background of her findings in paragraph 77 of the husband’s failure to provide any useful information about his financial position to the Court, her Honour was in error in proceeding with the hearing and making the findings which she did in paragraphs 80 and 81 of her reasons.

Furthermore, as Kay and Holden JJ. point out, there was no attempt by the husband before the trial Judge or before us to identify the manner in which his case was prejudiced by the absence of any documents which the wife had taken but did not produce, and of which he could not obtain duplicate copies.

It is convenient to mention in this context that the husband sought that we should admit as further evidence a copy of a power of attorney executed in his favour by one of his sons, whom the husband alleged owned at least certain of the assets which the trial Judge found were in fact owned by the husband That document did no more than establish the existence of the power of attorney; it could not on its own assist with the determination of ownership of the assets in question. Accordingly, the admission of the power of attorney as further evidence should be rejected.

Overall, therefore, to the extent that the husband’s grounds of appeal assert that her Honour was in error in proceeding with the hearing in circumstances where the wife did not produce the documents taken from the safe in Teheran, they have not been established.

THE PERSIAN CARPETS

At the conclusion of her schedule of the parties’ assets under the heading “Assets which cannot be quantified”, her Honour referred to the Persian carpets in the possession of each party in the following manner (at paragraph 131):

“Assets which cannot be quantified

In possession of wife :

Persian Carpets - small number
In possession of husband

Persian Carpets - large number”

Earlier in her reasons at paragraphs 74, 75, 81, 107 and 130 her Honour had made the following findings about carpets in the possession of each party:
“74.The wife’s evidence was that when she returned from Iran she brought with her one kilogram of gold (leaving one kilogram in the safe in Faredanesh) and two Persian carpets (which had belonged to her family prior to her marriage). I understood her evidence to be that the gold had since disappeared and she blamed the husband for that, which did not fit easily with the order restraining him from attending the Doncaster property or any evidence of unauthorised entry.
75.His evidence was that she brought with her a number of Persian carpets which were not hers but belonged to his brother, being part of a stack of antique carpets stored in Faredanesh. I am satisfied the antique carpets referred to in exhibit J were in Faredanesh and are the property of the husband, not his brother. I am also satisfied it is more probable than not that the wife did not tell the truth about the number or origin of the carpets she brought to Australia, and that they included a number of the carpets owned by the husband prior to their marriage.
…
81.The husband’s evidence was that he had no idea what was left in the safe in Faredanesh and could not answer questions about that or bank accounts in Teheran until he were allowed to return to Iran. That evidence was inherently unbelievable, given that the wife left Teheran in 1998 and he remained there until February 1999, thus being the last of them to have had access to the safe and bank records. Similarly, he must have been in a position to assess the number of Persian carpets remaining after her departure.
…
107.The Persian carpets referred to in evidence remain in [the Faredanesh property] in an unrented floor. Two other floors are rented, the husband presumably receiving the rents.
…
130.Much evidence was given about the carpets. I reject the husband’s evidence that the carpets belonged to his brother; it is probable his daughter […] was telling the truth when she said that she had no doubt they belonged to him, and came from his first marriage. I am satisfied the wife bought (sic) a number of these carpets with her from Iran and retains control of them. I cannot quantify the value of the carpets.”

At the conclusion of her reasons, when considering the financial position of each party under her proposed orders, her Honour referred in paragraph 169 to the fact that the wife would retain “the Persian carpets held by her in Australia”. Then in Order 20 of her orders, her Honour provided that each party was entitled to the exclusion of the other to property in his or her possession, and in Order 21 that for the purposes of Order 20, the Persian carpets which, as at the date of the orders, were in the former matrimonial home at Doncaster were to be “deemed to be in the possession of the wife”.

Before us in his written material, the husband complained that the trial Judge was in error in not including a value for the carpets in her schedule of assets and/or in not having ordered that the carpets (or at least those owned by the husband prior to the marriage) be returned to the husband (which was an order that the husband had apparently sought from her Honour). More specifically in Ground 7 of his amended grounds of appeal, the husband asserted that her Honour erred in failing to find that the wife was in possession of 20 carpets belonging to him and in failing to order their return to him.

It would have been of assistance had her Honour explained more fully her reasoning in relation to the carpets. However, this was a case which had many complex issues in it. For the most part, her Honour dealt thoroughly with all the issues and she cannot, in my opinion, be criticised for not saying more about the dispute about the carpets, particularly in circumstances where the husband apparently made no attempt to put any evidence of the value of the carpets before the Court.

There is a view in this Court that in property settlement proceedings, the Court should not concern itself unduly with issues relating to chattels. I do not necessarily share that view, particularly in cases where the chattels are valuable or have significance for the parties. However, the onus lies on the party who is concerned about the disposition of chattels, or at least concerned to see that an adjustment be made for the value of the chattels in the overall property settlement, to put evidence before the Court of the value of the chattels in order that the Court may satisfy itself that it is not devoting its scarce resources to the resolution of disputes about assets of no or relatively minimal value. There was apparently no such evidence in this case.

VALUE OF THE GOLD JEWELLERY

I agree with the conclusion of Kay and Holden JJ. that there is substance in the husband’s complaint that her Honour was in error in valuing the wife’s gold jewellery at only $959. I agree with their Honours that the correct valuation for the jewellery was $24,000 and that the sum to be paid by the husband to the wife should be adjusted to reflect this alteration.

OTHER PROPERTY SETTLEMENT ISSUES

I also agree with Kay and Holden JJ. that there is no substance in Grounds 5 (furniture in the possession of the wife); 6 (funds for the purchase of the wife’s car); 8 (ownership of the Doncaster home); and 9 (separation date).

CONCLUSION IN RELATION TO PROPERTY SETTLEMENT ORDERS

Apart from the error in relation to the valuation of the jewellery, the husband was not able to establish to my satisfaction any error on the part of the trial Judge which would cause me, as a member of an appellate court, and having regard to the authorities which govern appellate interference with discretionary judgments, to interfere with the orders with respect to property settlement which her Honour made. It is important that the husband understands that her Honour had to determine the matter according to Australian law, not according to the law of Iran, which is what she did. In so doing, however, she was entitled to take into account as she did, the monetary award which had been made to the wife in Iran.

THE APPEAL AGAINST THE RESIDENCE, CHILD SUPPORT, RESTRAINING AND COSTS ORDERS

As to the husband’s appeal against the trial Judge’s orders relating to the residence of the parties’ children and the financial support of those children, and the order restraining the husband from leaving Australia, I adopt what has been said by Kay and Holden JJ. about these matters.

I also adopt what their Honours have said concerning the appeal against her Honour’s order with respect to costs.

Accordingly I would dismiss the appeal so far as it relates to the residence, child support and restraining orders, and also the appeal against the costs order.

KAY AND HOLDEN JJ:

This is the husband's appeal against orders made by Brown J on 20 December 1999. In summary those orders had the following effect:

1. The children [A] (aged 14) and [B] (aged 12) were to reside with the wife. The husband's contact with the children was to be as agreed between the parties.

2. Child support payable from 1 July 1999 until each child turned 18 was to be capitalised in the sum of $19,700 for [A] and $26,500 for [B] and to be paid on or before 1 March 2000.

3. The husband was to transfer his half interest in the property at […] Doncaster to the wife.

4. The husband was to pay the wife the sum of $96,796 by 1 March 2000.

5. That all outstanding monies were to bear interest at 14% per annum.

6. That until payment of all outstanding monies the husband was to be restrained from leaving Australia and from dealing with any real or personal property of the parties, including certain named bank accounts and real estate identified in Iran.

7. That the husband's Australian passport was to remain in the possession of the court until payment of all monies due under the orders.

8. That each party was to retain the chattels in their respective possession.

9. That the reasons for judgment and a copy of the orders be referred to the Civil Law Division of the Attorney-General's Department.

By his amended Notice of Appeal the husband sought to appeal all the orders made. We received no submissions or argument directed towards the orders relating to the reference of the material to the Attorney-General, which reference appears to have been prompted by evidence given by both parties that suggested that they may have been less than frank when applying and receiving social security benefits for many years. Without expressing any views on whether it is within power or appropriate for a Full Court to interfere with such a reference, given that there were no submissions made about it we do not propose to consider that direction any further.

A PRELIMINARY PROBLEM

It should be noted at the outset that this case was beset with a great many problems for both the trial Judge and the Full Court. At trial the husband represented himself and the wife had legal practitioners acting for her. At the appeal both parties appeared in person. Both parties are of Iranian origin. English is not their primary language, although they both appear to be proficient in it. Each was accompanied by an interpreter, both at trial and at the appeal, although most of the argument before us was conducted directly by the parties in English without the aid of their respective interpreters.

It was apparent before us, and from reading of the transcript before the trial Judge, that the parties' difficulties were less in understanding the language and more in understanding concepts. Each party was prone to want to argue their own agenda which frequently had little bearing upon the issues that the Court needed to focus upon. At trial there were many unresponsive answers given by the wife when being cross-examined and many of the questions posed by the husband were more in the form of a speech rather than a question aimed at eliciting facts from the witness. The trial Judge felt obliged to intervene on many occasions, in our view quite appropriately, to try to translate the husband's monologue into an appropriate question for the wife when she was being cross-examined.

Each of the parties (but especially the husband) appears to have brought to the proceedings a set of values which are not necessarily compatible with concepts of justice and equity as established within confines of the Family Law Act. This case brings into sharp focus the capacity of an Australian court to deal with litigants in person from a non common law background in a manner which enables the court to feel satisfied that a just and equitable result has been achieved.

BACKGROUND

The husband was born in Iran on 1 August 1934 and the wife was born in Iran on 30 July 1958. The parties married in Iran on 16 October 1974,when the husband was aged 40 and the wife 16. The husband had previously been married. He had three children of that marriage, a son [C] born in 1955, another son [N] born in 1957, and a daughter [V] born in 1959.

There were five children born of this marriage, [M] born 1976, [H] born 1977, [D] born 1979, [A] born November 1985 and [B] born April 1987.

All of the children were born in Iran.

In 1989 the family were given permission to migrate to Australia pursuant to a special refugee and humanitarian program. Four of the husband's siblings and his mother had already migrated to Australia by then. The family arrived here on 10 November 1989. Shortly thereafter they acquired a home at […] Doncaster. The circumstances in which the home was acquired will be discussed later.

The family occupied that home over the next ten years, although as at the date of trial only the wife and the two youngest children remained residing there.

Between 1989 and the time of the trial the husband travelled overseas at least annually. He spent long periods in Iran. The wife and at least some if not all of the children, visited Iran on two occasions.

Both the husband and the wife took out Australian citizenship.

It is common ground that at the time of the marriage the husband owned real estate in Iran and was working as a customs agent. He owned one property at F Street, Tehran, which was the home occupied by the family prior to their arrival in Australia. He owned a second property at S Street, Tehran, which remains occupied by the husband's first wife. He also had an undeveloped block of land which he sold in 1994.

The husband was employed as a customs agent until the Islamic Revolution in 1979. The husband was a member of the Baha'i faith and was subject to significant employment restrictions after the revolution. They included an inability to work as a customs agent, to freely deal with his assets or leave the country. The trial Judge found that by the time of the revolution the husband had acquired significant real property and cash assets and that he put his mind to moving the funds off shore and beyond control of the Iranian government.

After the revolution each of the children of his first marriage left Iran to study and live overseas. Her Honour found that it was possible to transfer money out of Iran for the children ostensibly for fees and living expenses. Her Honour found further that in the ensuing years the husband was able to amass sums in bank accounts in the United Kingdom, Spain and Germany, as well as continuing to generate savings in Iran.

Within months of coming to Australia the family was able to acquire unencumbered the home in Doncaster for $310,000 using money from the overseas accounts. The husband's case at trial and before us was that the money belonged to his eldest son and had been loaned to the husband, but her Honour rejected that contention, finding that the husband was the beneficial owner of the funds.

For the next ten years the family lived in Australia drawing social security benefits for the entire period. Apparently none of the overseas assets were disclosed to the relevant social security officials.

In the proceedings before Brown J the husband asserted that the parties had separated on the day they arrived in Australia in 1989. The wife sought to assert separation as at 5 September 1996, being the date upon which she first applied for a sole parent benefit.

In an application for dissolution of marriage filed on 18 March 1999 the husband swore that the date of separation was "09/05/1996". He subsequently said that that was an accidental transposition for what was intended, namely 05/09/96, which coincided with the date that the wife was asserting. The trial Judge found that that date was "arbitrarily chosen and marks no particular activity, decision or intention other than the application [by the wife] for a sole parent benefit."

There had certainly been unrest and disquiet during the period of the parties' cohabitation in Australia. The wife lodged a caveat over the Doncaster property in February 1992, which she withdrew in August 1993. There were proceedings taken by the wife in July 1995 for an intervention order. In May 1997 the husband issued an application for an intervention order against the wife asserting that she had assaulted him and was threatening to poison his food. Shortly before that application, the wife had herself issued an application to amend an earlier intervention order. Those proceedings resulted in the exclusion of the husband from the Doncaster property.

There were subsequent intervention proceedings taken by the wife against the three elder children of her marriage in July 1997 which led to those children leaving home. Since mid-1997 only the wife and the two youngest children have remained living at the Doncaster property.

Following the intervention orders in May 1997 the husband returned to Iran. He was in Australia between 20 November 1997 and 11 February 1998. When he returned to Iran in February 1998 he had in his possession a very small bottle of alcohol which had been provided to him on the aeroplane. He failed to declare it. He was arrested at the airport and immediately sentenced to imprisonment for a period of 91 days. Whilst he was in prison the wife, together with the younger two children, arrived in Iran and took up residence in the former matrimonial home in Faredanesh. Whilst she was there she arranged "to open a safe which was in the house occupied by the husband in Tehran" where she found and removed a number of documents relating to various investments. She said that she found two kilograms of gold in the safe and returned to Australia with one of them, together with two Persian carpets which had belonged to her prior to her marriage. The husband asserted at various times that the wife bought either 10 or 20 carpets back to Australia with her, and the trial Judge found (at para 75):

"...it is more probable than not that the wife did not tell the truth about the number or origin of the carpets she brought to Australia, and that they included a number of the carpets owned by the husband prior to their marriage."

Brown J was unable to say when the wife and the younger two children returned to Australia, but by November 1998 the wife had commenced proceedings for alteration of property interests, filing a Form 7 application supported by a statement of financial circumstances which had been sworn in Australia. The husband returned to Australia in February 1999 to defend the proceedings.

PROCEEDINGS IN IRAN

One of the primary defences raised by the husband at trial was the existence of proceedings between the parties in Iran. Brown J made the following findings in respect of those proceedings.

"18.On or about 10 October 1997, from Iran, the husband wrote to the wife, saying that if she wanted to continue the marriage she should come to Iran, foreshadowing a divorce if she did not do so. I am satisfied that he filed no divorce application in Iran at that time. I am satisfied the wife then authorised her brother to make an application to the relevant court for the return of her marriage portion to her. The evidence as to the meaning of the expression 'marriage portion' was contradictory, sometimes it appearing to equate to a dowry (and being a value put on assets brought to the marriage by the wife), sometimes equating more to a contractual figure agreed upon at the time of the marriage, which the wife or her family could claim in certain circumstances. Its inclusion on the parties’ marriage certificate is consistent with the latter definition.
19.The wife professed ignorance about the conduct of those proceedings, but I am satisfied she authorised them and filed documents in them. Two were tendered. The first was a 6½ page document dated 8 December, 1997 addressed to the Ministry of Justice. I cannot say with certainty when the second document was filed; it bears the date 15 January, 1999 but that may be a filing date stamp rather than the day on which it was written.
20.It was only when pressed about these documents that the wife said that the husband wanted a divorce in Iran and she feared the allegations he would make against her would result in her losing her property there. She said that she filed the documents so she would have a chance 'to save something' and because she wanted to protect herself because 'I would get nothing'. Whilst the documents filed by her raise issues relating to the decision to come to Australia and violence directed against her here, they also deal with financial matters, and the first concludes with a request that the court 'give me maintenance for my two younger children'. Her evidence was that the husband tried to say to the court in Iran that the money belonged to his first wife and that he had no assets in Iran or elsewhere.
21.It is probable the wife feared the husband would file divorce proceedings in Iran and directed her brother to act pre-emptively to recover her marriage portion, and I am satisfied that the statement in paragraph 11.1 of her affidavit that any application to the Iranian court was made by the husband, and the inference she knew nothing of orders for the return of her marriage portion, were untrue.
22.The only conclusion I can draw from the evidence before me is that proceedings were commenced by the wife in Iran in 1997 in a court which has jurisdiction over the parties’ property, that the wife remains a party to those proceedings and has filed documents in them. The wife agreed that the tribunal was a court and that cases were heard by judges, but asserted it was not fair. The husband referred to it as the Family Court.
23.I am satisfied that the Iranian court in which the wife commenced proceedings ordered the husband to pay to the wife 33,679,600 rials for her marriage portion and 1,684,000 for government fees, the sum fixed representing the initial agreed marriage portion, adjusted by a formula which probably related to inflation and which multiplied that initial figure 68 times.
24.Attached to the husband’s affidavit was a document to which objection was not taken. It consisted of two, one-page documents in Arabic, and an English translation of each. The first was an Official Notice addressed to the husband referring to file number […] in Ardestan and the parties’ marriage certificate. It stated that the wife, through her proxy, Mr. [H], was asking for her marriage portion and concluded with a calculation of the marriage portion as 33,679,600 rials and 1,684,000 rials for government fees. It is dated 10 December, 1998. It is probable that was the date on which the order in favour of the wife was made. I cannot say if the document headed Official Notice is itself an order of a court, but I am confident a court ordered payment of the sums referred to in it.
25.After that order was made the husband left Iran to return to Australia in February 1999. I am satisfied that the wife’s brother, acting as her attorney, then made a second application to the Iranian court seeking an order that in the event of the husband’s return to Iran, he be restrained from leaving until he paid the sum due. It is probable that order was made on or about 21 June, 1999 and was passed to 'the police of border and the office of issuing passport'. Again, I cannot say if the annexed document is the actual order or referable to its execution.
26.In his affidavit sworn on 27 September, 1999 the husband swore that the wife’s brother made another application on her behalf to the Iranian court for 'other aspects of wife’s marriage break down', being proceedings 477-1714/77. On 8 November 1999, during the hearing, the husband received a fax from the Iranian court. The document was in Arabic; its letterhead included a depiction of the scales of justice. The husband’s translation of it was not challenged. It required him to attend before the Court in Iran within 21 days of receipt of it, and related to file number 477. That was the number of proceedings instituted by the wife against the husband noted by him in paragraph 14 of the affidavit sworn by him on 27 September, 1999. I am satisfied there are still proceedings on foot in Iran, but whether they relate to enforcement of earlier orders or to a different aspect of the matrimonial relationship or property, I cannot say with any certainty.
27.I cannot say what the connection is, if any, between the order made in respect of the wife’s marriage portion and orders which could be made following a divorce which could affect property rights in Iran. I accept the husband’s evidence that he has offered to pay the judgment debt for the marriage portion and fees, either here in Australian dollars or in Iran in rials. I am satisfied the wife has refused to accept payment. There may be a number of reasons for this but it is probable they include a fear that it could further compromise her entitlements in Australia and, possibly, in Iran, knowledge that until she provides a receipt for the payment, a divorce granted to the husband by the Mosque in Iran cannot be registered with the State, and knowledge of the order which could effect his liberty were he to return to Iran without proof of payment.
28.In September 1998 the husband filed an application for a divorce in Iran. On 17 November, 1998 the wife filed the initiating application in these proceedings. I will set out a relevant chronology later, but I am satisfied that at that time the husband was still in Iran. He learned of the proceedings through the Australian Embassy there and returned to Australia on 16 February, 1999. On 18 March, 1999 he filed an application for dissolution of marriage in this Court. The divorce for which he applied in Iran cannot be registered by the State until the 12 requirements detailed by him have been met, one of which is confirmation of payment of the marriage portion and information about the arrangements with respect to children."

THE TRIAL

The proceedings before Brown J lasted five days. As already mentioned, the wife was represented and the husband appeared in person. The wife sought orders for alteration of property interests, residence orders in respect of the children, departure from administrative assessment of child support and the capitalisation of child support and spousal maintenance. She sought restraints on the movement of the husband out of the jurisdiction until he had complied with any orders that had been made. The precise final orders she sought in her "Outline of Case Document" were as follows:
"FINAL ORDERS SOUGHT BY APPLICANT
1.That the children of the marriage, [A K] born on ... and [B K] born on... live with the wife and the wife be responsible for the day to day care, welfare and development of the said children.
2.That the husband and the wife be responsible for the long term care, welfare and development of the said children.
3.That the husband have such contact with the said children as is agreed between the parties.
4.That the husband by way of property settlement:
(1)Transfer to the wife his interest in the land in Certificate of Title Volume […] Folio […].
(2) Pay to the wife the sum of $623,594.00.
(3)That the parties otherwise retain the chattels now in their possession.
5.That the husband pay to the wife by way of capitalised spousal maintenance the sum of $500,000.00.
6.That until transfer to the wife of the said land and payment to the wife of the said money:
(a)That the husband and his servants and agents be restrained from assigning, encumbering or dealing with any real or personal property of the parties or of the husband including money invested by the husband in the names of [B K] and [A K] and in particular the husband is restrained from dealing with, disposing or encumbering:
(i)the former matrimonial home at [Doncaster],
(ii)bank accounts in 121 various branches of Bank Meli and Bank Sepah in Tehran, Iran as set out in the wife's affidavit of the (sic) October 1999;
(iii)his bank accounts in Banco Santander in Plaza Y Fecha, Madrid, accounts No. […], […], […], […] and […].
(iv)his bank account in Midland Bank in London […], account No. […];
(v)his property at [F Street], Tehran, Iran;
(vi)his property at [S Street], Tehran, Iran; and
(vii)his property in [A], Sarbaz Sepah Square.
(b)That the husband be restrained from leaving the Commonwealth of Australia and it be requested that the Marshal of the Family Court of Australia and all Officers of the Australian Federal Police give effect to this order.
(c)That the husband deposit with the Registry Manager of the Family Court of Australia at Melbourne any Australian passport of his and the Registry Manager hold the passport in safe custody pending further order.
7. That the husband pay the wife's costs of the application."

In an affidavit filed immediately before the trial on 8 November 1999, the husband repeated that he sought 13 orders that he had sought in a Form 7A Response filed 27 September 1999. Those orders are as follows:

"I [RK] seek the thirteen orders as follow for the facts and reasons which I mentioned in my attached affidavit.
1-.That the wife's application for the assets settlement be dismissed because the same application filed in the Iranian family court in Tehran as a result of wife's applications an order was made that I pay the wife's marriage portion 33,679,600 Rials (Iranian currency). The husband is the permanent resident of Iran. The wife separated since 10-11-1989, according to the lranian law the father must have the custody of the children and this matter is in proceeding in the family court in Tehran. So the wife's application for the child's custody be dismissed.
2-That the children of the marriage, [A K] born...and [B K] born on...be lived (sic) with the husband and the husband be responsible for the day to day care and the welfare and the development of the said children.
3-That the husband and the wife be responsible for the long-term care , welfare and the development of the said children. The husband has provided the accommodation and furniture and whatever the children needed since their arrival in Australia. The wife receives family allowance and sole parent pension for them. Moreover the wife has childcare and beautician salon in the husband's house and she let the empty rooms of the house to students and have a lot of earnings, because they are in cash there is no records and do not affect her benefits from Box Hill social security.
4-That the wife's contact with the children is reserved.
5-That the wife's interest in the husband's property situated at [Doncaster] be returned and transferred to the husband. The contents of the house also $18,200 the value of the car and $55,000 the value of the some parts of the house that was sold by the wife be delivered and paid to the husband. The husband's personal effects be delivered to him too.
6-That 6,000,000 Rials (Iranian currency) which the husband paid to the wife in Tehran on March 1998 for the wife's expenses to stay in Tehran to live with the husband, but the wife without the husband's consent with two children came to Australia. Moreover the wife took two portrait carpets. Six portrait rugs and two large Persian carpets from husband's home in Tehran while the husband was absent at his home and the wife brought them to Australia. All of above mentioned items and the money be returned to the husband.
7-That all the documents which the wife took them from the husband's safe in Tehran and brought them to Australia be returned to the husband which he needs them urgently for proving his matters in the court.
8-That the restrained orders which were imposing upon the husband from leaving Australia and dealing with the assets which are not the wife's matrimonial assets be lifted. Then the husband could move freely and return to Iran. Prepare the wife's marriage portion and pay to the wife's proxy in Tehran and get the receipt then prepare the documents proving that the husband was dismissed from his job since revolution in Iran 1979 and he has not worked to earn anything to save in order to have matrimonial assets to be divided between him and the wife.
9-That the husband and the daughter [M] and the sons [H] and [D] who were excluded from the house (sic). This restriction be lifted and they return to live in the house at [Doncaster]. The Iranian family love live together, it is their culture and tradition, it was the main point that I purchased the said house with six bedrooms enough for the whole family beside this one of the reasons that I want to have the custody of my children is to live the whole family together. Australia is a multicultural society and the said culture have to be observed.
10-The wife has to return and deliver to the husband one kilo gold jewelry (sic) which mentioned in paragraph 9 of the attached affidavit.
11-The wife pay to the husband $180,000 which mentioned in paragraph 7 of the attached affidavit.
12-The husband's air return ticket from Tehran to Melbourne $2,000 which mentioned in paragraph 19 of the attached affidavit, to be paid by the wife to the husband.

13-That the wife pays the cost of this application."

The claim outlined in paragraph 11 of that application is further expanded upon in an affidavit of 27 September 1999 where the husband deposed:

"7-During ten years separation: I provided for the wife whatever she needed, even I brought her foods, shoes, and dresses from Iran, but in return she did not do her matrimonial duties. During this ten years separation, whenever I came to Australia to visit my children, the wife lived in different room. During 10 years separation more than $1500 cost me monthly for the wife's accommodation and maintenance in Australia, but in return she has not done her matrimonial duties. Moveover I paid her air return tickets from Australia to Iran twice which she has to pay me, for the almost 10 years period $180,000.
..."

The basis of wife's claim for a residence order in respect of the two youngest children was that she had always cared for them and that they wanted to remain living with her. A welfare report had been prepared and apparently its conclusions were that the children should remain residing with the wife.

The husband's claim for residence order seemed to be based upon his understanding that under Iranian law he was entitled to the custody of the children. In any event, he predicted that the wife would either return to Iran with the children, which would not be to their benefit, or would enter into a new relationship and bring another man into the house, which would also not be for the children's benefit. He proposed that the children should reside with him and be reunited with their elder siblings. There was a significant degree of inconsistency in his case because he emphasised his personal need to be living in Iran due to his health and his need to protect his assets there, whilst at the same time emphasising the importance of having the children remaining in Australia. Residence issues did not take up a significant part of the trial time.

The wife's property case was based significantly on circumstantial evidence.

It is convenient at this point to include the asset pool as identified by the trial Judge and then to explain the attitude taken by each party to the existence or otherwise of the items in this pool. The table is as follows:

"ASSET POOL
Assets in Australia  AUD$
Doncaster  $285,000
Furniture – matrimonial home  10,000
Equity in Toyota Camry when sold in 1998  8,200
1 kg. gold (in possession of wife)  24,000
Gold jewellery (in possession of wife)  959
Assets in Iran
[F Street]                300,000,000 rials  30,000
[S Street]300,000,000 rials  30,000
Bank accounts        1,278,500,000 rials  127,850

1 kg. gold (in possession of husband) 24,000
Assets in Spain
account no. […]
DM 83,421 70,201

account no. […]
US$ 96,938 150,060

account no. […]
£ 58,076 150,135

account no. […]
AUD$ 110,562 110,562

Assets in U.K.
account no. […]
US$ 140,418 217,367

account no. […]
£ 68,926 178,184

TOTAL $1,416,518

Assets which cannot be quantified
In possession of wife :
Persian Carpets - small number

In possession of husband
Persian Carpets - large number

132.I have not included as an asset of the wife’s the judgment debt in Iran, as to do so, and divide the pool, would result in the husband having an interest in it which, given its nature, would be unjust. I take it into account as a financial resource available to her."

The wife produced no up to date or direct evidence relating to the extent of the monies presently held or controlled by the husband in bank accounts either in Iran or overseas. She relied entirely upon documents which she had removed from the husband's safe, some of which detailed the most recent bank balances as at 1994. She claimed that attempts to acquire more up to date information from sources within Australia had failed, but no explanation other than likely prohibitive expense was forthcoming as to why researches had not been made outside of Australia and why an application to take evidence in Iran, Spain and the United Kingdom had not been made.

The husband's expressed attitude to the proceedings was two-fold. As far as he was concerned, the marriage between the parties was governed by the law of Iran. The wife's entitlement under the law of Iran was to recover her marriage portion as specified in the marriage contract (as adjusted by inflation) in accordance with the law of Iran and the ruling of the Iranian court at the behest of the wife. He said that she held a judgment from an Iranian court in her favour in the sum of 33,679, 600 rials which he was ready, willing and able to pay. He said that was the extent of her entitlements to any relief from him.

In any event, he asserted that he had no assets. Any of the monies which may or may not exist in any foreign bank account belonged to the children of his first marriage. Any real estate he held in Iran either belonged to him or the wife of his first marriage and the applicant in these proceedings had no claim upon them. The real estate in Australia had been acquired with monies borrowed from his son and those monies needed to be repaid. The extent of the debt exceeded the value of the real estate.

The husband further asserted that on several occasions the wife had removed valuable carpets belonging to him and/or his children and/or his brothers and that she should be required to return them. He was unable to place a value upon them. The wife asserted that the husband was in possession of many valuable carpets in Iran but she was unable to place any value upon them.

It was her Honour's unenviable task to have to determine these proceedings in circumstances where neither of the parties was anxious to focus upon the issues which her Honour had to determine in order to appropriately apply the provisions of the Family Law Act 1975.

An evidentiary dilemma

Apart from some evidence by the parties' eldest daughter, M, which her Honour found less than helpful, essentially the evidence in the case was comprised of the conflicting stories provided by each of the parties, supplemented by some of the documents the wife had removed from the husband's safe. What was conspicuously absent were:

up to date records of bank accounts in Iran, in the United Kingdom and in Spain,

testimony of the children of the husband's first marriage, whom the husband asserted were the beneficial owners of any money standing in the Spanish or English bank accounts,

valuation evidence relating to the rugs asserted to be held by each party,

reliable evidence from a qualified person as to the value of the real estate in Iran.

It was against this background of the absence of any such evidence or any attempt to provide such evidence that her Honour undertook the difficult task that was given to her.

This immediately raises an important issue. Where at least one party is unrepresented and the eventual outcome of the proceedings depends on making findings adverse to an unrepresented party's interests, is there any, and if so what, obligation upon the Court to explain to that party the ramifications of not providing adequate and proper evidence on an essential issue and to offer the party an opportunity to obtain such evidence?

The difficulty in the confines of this case is that the husband was resisting the Court's jurisdiction, asserting that there was no basis for the Court making any findings adverse to his interests, whilst at the same time asserting that the only way he could properly prepare his case would be to leave the country in circumstances where he had been enjoined from so doing. The only lever the Court had in enforcing its orders was the very presence of the husband inside the country. Should the trial Judge have said to the husband in clear and unmistakable terms that unless he produced up to date evidence as to the state of the bank accounts she would make findings that they now have a balance not less than the 1994 figures? Should she have said to the husband that unless he called as witnesses in the case the children of his first marriage, she would assume that their evidence would not be helpful to him and that she could rely upon Jones and Dunkel (1959) 101 CLR 298 principles in assisting her to reach her conclusions? Was there any point in her attempting to so inform the husband in this case, given his unwillingness or inability to come to grips with the reality of the proceedings?

THE JUDGMENT

Credit findings

In a careful and thorough judgment her Honour identifies the issues as between the parties and makes findings about those matters in dispute. She found neither the husband nor the wife to be reliable witnesses. Her Honour was particularly critical of the wife (para 5):

"...she had little capacity to tell the difference between a wild assertion and something capable of being verified as fact."

Whilst generally satisfied with the evidence of the husband, her Honour rejected the denials of the husband as to his ownership of various assets and said:

"7....I am satisfied that, in general, they were his and that he invented the alleged interests of others in them and his alleged lack of capacity to deal with them (whether in Iran or in the numerous overseas bank accounts) to ensure the wife obtain no interest in them. He maintained this fiction throughout, even when his evidence of it was patently absurd."

Her conclusion on credit was as follows:

"10.Put brutally but simply, I am satisfied both parties showed little respect for the oath to tell the truth, consistently failed to tell the whole truth and had no qualms about lying to advance their respective causes."

The Effect of the Iranian Proceedings

Her Honour then turned to the proceedings in Iran and their effect upon the Australian proceedings. She said:

"14.In the absence of evidence to the contrary the Court is left in the position of having to act on the basis that the matrimonial law of Iran is the same as that of Australia, however uneasily that sits with other evidence."

Her Honour, after discussing the nature of the proceedings that had been brought in the Iranian courts:

"22.The only conclusion I can draw from the evidence before me is that proceedings were commenced by the wife in Iran in 1997 in a court which has jurisdiction over the parties’ property, that the wife remains a party to those proceedings and has filed documents in them. The wife agreed that the tribunal was a court and that cases were heard by judges, but asserted it was not fair. The husband referred to it as the Family Court.
23.I am satisfied that the Iranian court in which the wife commenced proceedings ordered the husband to pay to the wife 33,679,600 rials for her marriage portion and 1,684,000 for government fees, the sum fixed representing the initial agreed marriage portion, adjusted by a formula which probably related to inflation and which multiplied that initial figure 68 times."

She then said at paragraph 26:

"26....I am satisfied there are still proceedings on foot in Iran, but whether they relate to enforcement of earlier orders or to a difference aspect of the matrimonial relationship or property, I cannot say with any certainty.
27.I cannot say what the connection is, if any, between the order made in respect of the wife's marriage portion and orders which could be made following a divorce which could affect property rights in Iran..."

Her Honour then discussed the various authorities in Australia on the issue of rules governing a stay of proceedings in favour of a foreign forum. She made reference to Voth v. Manildra Flour Mills Pty. Ltd. (1990) 171 CLR 538, and the High Court's rejection in Oceanic Sun Line Special Shipping Company Inc. v. Fay (1988) 165 CLR 197 of the forum non conveniens principle as stated by the House of Lords in Spiliada Maritime Corp. v. Cansulex Ltd. [1987] AC 460. She said:

"30.In Voth the High Court adopted in Australia the test propounded by Deane J. in Oceanic Sun, namely, that a stay should be granted if the local court is a clearly inappropriate forum, which will be the case if continuation of the proceedings in that court would be oppressive (in the sense of seriously and unfairly burdensome, prejudicial or damaging), or vexatious (in the sense of productive of serious and unjustified trouble and harassment). It was also held in Voth (at p.564-565) that in determining whether the local court is a clearly inappropriate forum :
'. . . the discussion by Lord Goff in Spiliada of relevant "connecting factors" and "a legitimate personal or juridical advantage" provides valuable assistance.'”

Her Honour made reference to Fogarty J's five relevant elements for determining whether Australia was an inappropriate forum as set out in Gilmore v Gilmore (1993) FLC 92-353:

"32. ...
'The substance of the Australian test involves five elements:

1.    A party who has regularly evoked the jurisdiction of a court has a prima facie right to insist upon its exercise;
2.    The power to stay proceedings regularly commenced is to be exercised in accordance with the general principle empowering a court to dismiss or stay proceedings which are "oppressive", "vexatious" or "an abuse of process". These adjectives are to be construed liberally, in the sense already referred to.
3.    The fact that the balance of convenience favours another jurisdiction or that some other jurisdiction is a more appropriate forum, will not justify a stay of the action.
4.    In the application of the above principles the discussion by Lord Goff in Spiliada of relevant "connecting factors" and "legitimate personal or juridical advantage" provides valuable assistance.
5.    In deciding whether the chosen forum is clearly inappropriate, the extent to which the law of that forum is applicable in resolving the rights and liabilities of the parties is a material consideration. The selected forum will not be seen as inappropriate "if it is fairly arguable that the substantive law of the forum is applicable in the determination of the rights and liabilities of the parties".'

33.This passage was considered by the High Court in Henry v. Henry (1995) 185 CLR 571. In the joint judgment of Dawson, Gaudron, McHugh and Gummow JJ. the Court found that the quoted passage from Gilmour (sic) may be misleading in three important respects, observing, at 588 to 589 :
'First, the substance of the test in Voth is simply whether the chosen forum is a clearly inappropriate forum. And, as already indicated, that is to be determined by considering whether continuation of the proceedings would be "oppressive" or "vexatious", in the extended sense in which those words were used by Deane J. in Oceanic Sun.
The passage may also be misleading in that it gives undue emphasis to the "prima facie right [of a party who has invoked the jurisdiction] to insist upon its exercise" a consideration which appears to have been material in the decisions in this case. It was pointed out in the majority judgment in Voth that that prima facie right was common ground in the judgments of the majority in Oceanic Sun and as such, it was doubtless taken into account in the decision to adopt the "clearly inappropriate forum" test rather than the Spiliada test. But there was also a statement to the effect that, in some cases, too much weight may have been given to "the notion that a proceeding regularly invoked provides a prima facie right to have the proceeding continue in that forum".
There may be cases in which the notion of the prima facie right has some role in determining whether or not a stay should be granted. For example, it may well be significant in what is otherwise a finely balanced context. But there are also cases in which that notion can do little more than indicate that the onus lies on the parties seeking a stay to establish that the chosen forum is clearly inappropriate. Indeed, there may be cases where the forum is so clearly inappropriate that the notion of prima facie right can have no real bearing on the matter, as, for example, if the cause of action arose in a country in which the parties reside or carry on business and the controversy can conveniently be litigated in that country.
The third matter to which reference should be made, although it does not have any direct bearing on this case, is the statement in Gilmour (sic) concerning the significance of the substantive law governing the matter in issue. Voth is not authority for the proposition that "the selected forum will not be seen as inappropriate 'if it is fairly arguable that the substantive law of the forum is applicable in the determination of the rights and liabilities of the parties'". Rather, it was said in the majority judgment that "the substantive law of the forum is a very significant factor in the exercise of the court’s discretion, but the court should not focus upon that factor to the exclusion of all others".'

34.At 590-593 the Court considered the relevance of duplicated proceedings, in the following passage :
'Foreign proceedings usually fall for consideration in a context in which they involve the same or related factual issues as those involved in the local proceedings, but not the same legal issue and, perhaps, not the same parties. Even in cases of that kind it may sometimes be appropriate to grant a temporary stay of the local proceedings to allow the factual issues to be determined in the other jurisdiction. There are more compelling considerations in favour of a stay of the local proceedings if, as can happen, there are proceedings in another country which has jurisdiction to entertain those proceedings and the proceedings are between the same parties and with respect to the same issue or controversy.
Parallel proceedings in another country with respect to the same issue may be compared with multiple proceedings with respect to the same subject matter in different courts in Australia. In Union Steamship Co. of New Zealand Ltd. V. The Caradale (1937) 56 CLR 277 at 281, Dixon J. observed of that latter situation that "[t]he inconvenience and embarrassment of allowing two independent actions involving the same question of liability to proceed contemporaneously in different courts needs no elaboration". From the parties’ point of view, there is no less – perhaps, considerably more – inconvenience and embarrassment if the same issue is to be fought in the courts of different countries according to different regimes, very likely permitting of entirely different outcomes.
It is prima facie vexatious and oppressive, in the strict sense of those terms, to commence a second or subsequent action in the courts of this country if an action is already pending with respect to the matter in issue. And although there are cases in which it has been held that it is not prima facie vexatious, in the strict sense of that word, to bring proceedings in different countries, the problems which arise if the identical issue or the same controversy is to be litigated in different countries which have jurisdiction with respect to the matter are such, in our view, that, prima facie, the continuation of one or the other should be seen as vexatious or oppressive within the Voth sense of those words.
It does not follow that, because one or other of the proceedings is prima facie vexatious or oppressive within the Voth sense of those words, the local proceedings should be stayed. However, it does follow that the fact that there are or, even, that there may be simultaneous proceedings in different countries with respect to the same controversy is highly relevant to the question whether the local proceedings are oppressive in the sense of "seriously and unfairly burdensome, prejudicial or damaging”, or, vexatious, in the sense of "productive of serious and unjustified trouble and harassment". And it also follows that courts should strive, to the extent that Voth permits, to avoid that situation.

·   Thirdly, as a matter of procedural fairness, she should not have allowed the proceedings to continue, having made a finding that the wife was withholding some of the husband's documents.
·   Then there is a challenge to several of the findings of the trial Judge relating to pool issues:
·   The trial judge found that the wife had jewellery made up of at least one kilogram of gold given by the husband (Paragraph 129). It is asserted on her Honour's own mathematics as to exchange rates, there is a arithmetical error and her Honour has in paragraph 129 left off a zero.
·   It is asserted that in paragraph 100 she uses an exchange rate of 10,000 rial, which is 1000 tumans, per US$ and that if she had properly continued that exchange rate through to her finding as to the purchase price of gold in paragraph 129, the jewellery in the possession of the would be valued at US$6,200, not $620 - AU$9590, not $959.
·   Allied to that finding it is asserted that there is an inconsistency between paragraph 129 and paragraph 131 and that in paragraph 131 her Honour finds one kilogram of gold to be worth $24,000. On that basis the gold jewellery could not have been worth less than $24,000.

· The next ground that appears to be argued is that her Honour erred in finding that furniture in the possession of the wife was worth $10,000 when in the Form 17 filed on 17 November 1998 she estimated the furniture to be worth $20,000. There is no explanation given by her Honour as to why she chose to accept one Form 17 (a copy of which is not on the court file) and an earlier Form 17 which appears on the court file.
· Finally, and I use that word cautiously, there is a challenge to a finding by the trial Judge that the wife pay $10,000 to a Chard [M] in repayment of a loan to purchase a car.
4.I suspect that there are other issues which the husband wishes to pursue relating to her Honour's findings. They seem to emerge with a mystic quality in the course of discussion, but without any sense of consistency about them. Whilst I am conscious in the circumstances of the requirement of the rule that the Appeal Book should not have any more in it than it is absolutely required, I suspect that in the course of the appeal there is likely to be a lot of meandering into a number of issues and the best way to understand those issues will be if the Court is possessed of the entirety of the transcript."

The amended Notice of Appeal contained nine numbered paragraphs under the heading "Ground of Appeal". Insofar as the same appear to be capable of any rational interpretation, they seem to make the following complaints:

1. A finding by the trial Judge that she had no evidence of Iranian matrimonial law was in error.

2. That the Australian proceedings should not have been allowed to continue in light of the Iranian proceeding.

3. The Australian proceedings should not have been allowed to continue as the wife was withholding some of the husband's documents.

4. There was an arithmetic error as to the calculation of the value of the jewellery held by the wife, and, in any event, the finding as to the valuation of the jewellery was inconsistent with other findings as to the value of gold retained by each of the parties.

5. "...that her Honour erred in finding that furniture in the possession of the wife was worth $10,000 when in the form 17 filed on 17 November 1998 she estimated the furniture to be worth $20,000. There is no explanation given by her Honour as to why she chose to accept one form 17 [in preference to] an earlier form 17...".

6. The finding that the wife repaid monies borrowed from the child [M] to purchase a car was contrary to the evidence.

7. Her Honour erred in failing to find that the wife was in possession of 20 carpets belonging to the husband and failed to order their return.

8. Her Honour erred in finding that the home in Doncaster belonged to the parties and not the husband's son C.

9. The trial Judge erred in finding other than that the parties had been separated since 10 November 1989.

Grounds 4, 5 and 6 - In the course of setting out the history of this matter we have already dealt with the issues raised in ground 4 - value of jewellery and ground 5 - value of the furniture. As to the issue raised in ground 6 - equity in the car, the trial Judge found at paragraph 105 (emphasis added) :

"In 1996 the wife bought a Toyota Camry for $19,700, borrowing $10,000 from [M]. In 1998 the wife sold it for $18,200, repaid [M], bought a Mitsubishi for $1,000 and spent the balance of just over $7,000 on airfares for her and the two younger children to travel to Iran and on household accounts. I am satisfied that the Toyota Camry was bought prior to separation. The $9,700 invested in it (the balance after the loan of $10,000) must have come from matrimonial savings...I am satisfied the equity in that car should be brought back into the pool."

The evidence relating to the disposition of the monies from the Toyota sale does not go so far as to support the finding that the loan from M was repaid to her. When M was cross-examined by counsel for the wife she was only asked about whether the loan had been taken out, not whether it had been repaid. The wife in her own evidence relating to the manner in which she disposed of the monies said in her affidavit at paragraph 11.9:

"...I admit that I sold my Toyota Camry motor vehicle to obtain money to help support myself and the children..."

In viva voce evidence-in-chief she was asked how she spent the money from the sale of the Camry. She appeared to be side-tracked in the course of giving her evidence in response to that answer and the matter was not pursued further, either in examination-in-chief or cross-examination.

Although the trial Judge has erred in respect of the finding relating to the repayment of the monies to the child M, in our view nothing turns on that error. If the wife has used the monies from the Camry for her own pursuits in circumstances which would justify the monies being notionally added back into the pool of assets, then the liability of the child M also needs to be taken into account. Given the tension that exists between the mother and the daughter there is no reason to assume that the loan is likely to be forgiven by the child. The net effect on the pool of assets is entirely neutral.

Ground 7 - carpets - It was clear from the husband's application that he was seeking the return of two portrait carpets, six portrait rugs and two large Persian carpets which he asserted had been taken from his home by the wife and brought to Australia.

The trial Judge's findings in respect of the carpets appear first at paragraph 75:

"...that the wife did not tell the truth about the number or origin of the carpets she brought to Australia, and that they included a number of the carpets owned by the husband prior to their marriage."

Then at paragraph130:

"I am satisfied the wife bought (sic) a number of these carpets [belonging to the husband and coming from his first marriage] with her from Iran and retains control of them. I cannot quantify the value of the carpets."

Then, at paragraph 131 under the heading "Assets which cannot be quantified", the wife is in possession of a small number of Persian carpets.

Finally at paragraph 169 Her Honour says that the effect of her orders will be that the wife will retain "...the Persian carpets held by her in Australia."

Given the trial Judge's findings as to the origin of the carpets and her explicit acceptance of the husband's evidence that the wife removed "a number of carpets" from him without his permission, they being carpets which belonged to the husband prior to the marital relationship, there is no explanation given by the trial Judge as to why it is just and equitable to alter the husband's interest in that property.

Her Honour's power under s 79 is to make an order for alteration of property interests to the extent that her Honour considered appropriate. She was limited in the exercise of that power by s 79(2) which provides that the Court shall not make an order under s 79 unless it is satisfied, in all the circumstances, that it is just and equitable to make the order.

Her Honour's reasons for judgment do not make it apparent why it was just and equitable to allow the wife to retain the husband's carpets and rugs. Absent any such explanation, we are of the view that the findings made by the trial Judge ought to have led her Honour directly to the making of an order for the return to the husband of any rugs found by the trial Judge to belong to the husband irrespective of their value. However there were no findings made as to the exact number, description or value of the carpets removed by the wife, nor were there any findings as to how many (if any) of the carpets remain in her possession. Given a complete absence of any evidence as to the value of such carpets we are unable to conclude that her Honour's error in relation to them is of such a material nature as to justify us interfering with her ultimate order to allow the carpets to remain in the wife's possession.

As to ground 8 - equitable ownership of the home - in our view there was ample evidence to support the trial Judge's finding that the equity in that home belonged to the parties.

The husband's case was that the funds came from the Spanish bank accounts. Exhibit K indicates that US$150,000 was sent to the husband by Banco Santander bearing a reference number …. Exhibit H indicates an account in the name of the husband with Banco Santander, being No. …. This is a US$ account. The postal address on the statement is c/- of the husband's daughter V at an address in Massachusetts.

The husband further asserted that the purchase of the property was also funded by the borrowing of DM150,000 from his son. Exhibit H shows the existence of a DM account in the husband's name with Banco Santander, being account number …, which had a balance of about DM66,000 as at 30 January 1991 and DM83,000 as at 29 April 1994. The postal address for that account in January 1991 was the Doncaster address but by April 1994 it had been transferred to the home of the husband's daughter in Massachusetts.

Amongst the exhibits were handwritten instructions given by the husband to the Spanish bank as to the manner in which they were to deal with accounts held by him in his name.

There was no evidence of any demands for any repayment of monies advanced in respect of the Doncaster property prior to the letter from his son annexed to the husband's affidavit at p 125 and 126 of the Appeal Book bearing postmark 2 July 1997. The demand in that letter is not a demand seeking the transfer of the real estate to the writer but the repayment of monies asserted to have been advanced so that "you [the husband] could buy a house in Australia."

The execution by the husband of a transfer of his interest in the property to the husband and wife as joint proprietors on 31 December 1996 is clearly inconsistent with any suggestion that the equity in the property belonged to the husband's son.

The husband asserted in the course of his cross-examination that he and his son had exchanged mutual powers of attorney some 20 years prior to the trial. He was asked why he did not bring the power of attorney to Australia to which he replied "I didn't think about this." Subsequently, at p 39 on 12 November 1999 he asserted that the power of attorney was in the hands of his wife, she having taken every document from his safe in Tehran. Then he asserted that the power of attorney had fallen into the hands of his wife "through the delivery of post." Then, on 12 November 1999 at p 85 he said:

"...I have evidence that 20 years ago I gave the Power of Attorney to my first eldest son, [C] (sic). He gave me another Power of Attorney. I don't know whether this Power of Attorney is in my safe in Teheran (sic) or not..."

At the hearing before us, application was made by the husband for the admission of further evidence. He sought inter alia to tender a photocopy of what purported to be a power of attorney granted to him by his son C K on 7 March 1990. It was in the form of general power of attorney. We refused to allow the admission of the material and indicated that we would give our reasons for doing so.

The principles to be applied in respect of an application to admit further evidence were extensively discussed by the High Court in CDJ v VAJ (1998) FLC 92-828 where the Court indicated that it would be appropriate to admit further evidence if the admission of the evidence would have led to a different outcome to the proceedings than that reached. We agree with the observations in a recent unreported decision of Johnson [2000] FamCA 692 where Ellis, Finn and Mushin JJ said:

"5....The principal purpose of the discretionary power is, however, to enable the Court to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. Thus, the power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellant procedures...”

Basically the discretion to be exercised in respect to the admission of further evidence is to be exercised in circumstances where the refusal of the admission of the evidence would clearly lead to a miscarriage of justice. A general number of considerations which courts have traditionally taken into account include whether the evidence was available at the trial and whether there is an explanation adequately given for why it was not presented.

There needs to be a certain degree of flexibility when dealing with a litigant in person, especially one who is not necessarily familiar with the legal system. However, that being said, the admission into evidence of the existence of this power of attorney would, in our view, take the matter no further. It is consistent with the son of the first marriage empowering his father to carry out any acts in the name of the son, but it is not probative of the fact that the acquisition of the home in Doncaster was intended to be for the benefit of the son. It merely empowers the husband to do acts in the son's name. The home was not acquired in the son's name and the funds for its acquisition came from accounts in the husband's name.

Given the earlier circumstances described in respect to the manner in which the husband dealt with funds in the various bank accounts to his own benefit, and given the failure of the son to provide any evidence in the proceedings, in our view, the admission into evidence of the power of attorney would have taken the matter no further. Accordingly we rejected its admission.

Absent any admissible further evidence, in our view the finding of the trial Judge as to the ownership of the home in Doncaster was clearly open to her.

As to ground 9 - date of separation, there is ample evidence to support the trial Judge's finding. The husband was asserting the parties separated immediately upon coming to Australia. Thereafter they bought a house which they occupied together with their five children. They shared the same bedroom for some seven years. In the husband's application for dissolution of marriage in Australia he gave the date of separation as May 1996 (intending it to be September 1996). In our view, her Honour's rejection of the husband's evidence as to the date of separation was clearly open to her and is unassailable.

That leaves for discussion grounds 1, 2 and 3.

The complaint with ground 1 appears to arise out of her Honour's finding in paragraph 11 in her introductory remarks about the proceedings in Iran that "there was no expert evidence about matrimonial law in Iran." The husband sought to rely upon a document tendered in the Persian language with an English translation that appears at pp 661 to 666 of the Appeal Book. This document appears to be the requirements stated by the Embassy of the Islamic Republic of Iran in Canberra for the registration of a divorce decree.

The issue of the relevance of the matrimonial law of Iran to the proceedings before the Court became apparent in respect of the husband's application for a stay of the Australian proceedings. It was the husband's assertion that the parties had married according to the laws of Iran and by their marriage contract they were bound by them. It was his assertion that as the wife was conducting proceedings in Iran and had already obtained a judgment for the payment of monies in Iran under the terms of her marriage contract, she should not be allowed to conduct the proceedings in Australia.

In a passage from Henry v Henry (1995) 185 CLR 571, that her Honour set out at paragraph 34 et seq of her judgment, the High Court indicated that whilst it was prima facie vexatious and oppressive to conduct parallel proceedings in different countries in respect of the same subject matter, it did not follow that local proceedings should be stayed. The High Court indicated that in proceedings with respect to property arising out of the breakdown of a marital relationship the proceedings should be seen as part of the dissolution proceedings. In this case the husband had sought and had been granted a decree of dissolution of marriage in Australia. The Court then went on to say that where two courts had jurisdiction over the controversy it would be relevant to consider whether each would recognise the other's orders and decrees.

Given that part of the subject matter of the proceedings in Australia concerned itself with real estate situate in Australia, it is difficult to see how an Australian court would have recognised an Iranian decree relating to that property. The general rule with respect to real estate is that the court will not exercise jurisdiction in respect of title to or possession of land situated outside the forum (see British South Africa Co v Companhia de Mocambique [1893] AC 602; Potter v Broken Hill Pty Ltd (1906) 3 CLR 479). At common law a foreign judgment in personam is enforceable in Australia only if it is for a fixed sum. (see Nygh, Conflict of Laws in Australia, 3^rd ed at 147). The Foreign Judgments Act 1991 (Cth) has no application as Iran is not a country to which the application of the Act has been extended, and in any event, the Act has no application to matrimonial causes. Thus, an order from an Iranian court declaratory of the ownership of the property in East Doncaster or an order requiring the wife to transfer her interest in the property to the husband would be incapable of being enforced in Australia.

The High Court also pointed out in Henry (supra) that relevant considerations might include:

the order in which the proceedings were instituted,

the stage at which they had reached and the costs that had been incurred,

the connection of the parties and their marriage with each of the jurisdictions, and

whether the parties would be able to participate in the respective proceedings on an equal footing.

The test, however, remained as to whether Australia was a clearly inappropriate forum.

Her Honour was bereft of any admissible information regarding the law of Iran. Her Honour correctly identified the proposition that evidence of foreign law must be given by a person who is expert in that law. Unless authorised by statute or the agreement of the parties, the court may not make its own investigation of foreign law by reference to statutes, reported decisions and treatises. Absent any expert evidence, as a general rule there is a presumption that the law of a foreign country is the same as that of the forum. The application of this presumption has certain surreal qualities about it when dealing with non-common law countries, especially those which profess to be ruled by religious codes, but be that as it may, the principle still applies. (See Nygh at 266.)

The mutual evidence of the parties in this case was that at any time after marriage an Iranian wife may demand the payment to her of the marriage portion set out in her marriage contract. The assertion by the husband, without any denial by the wife, was that that sum was to be calculated in Iran presently according to a statute which provided for inflation. There was however no evidence before her Honour as to the remedies available to the estranged wife of an Iranian husband in respect of alteration of property interests or sharing in the mutual property of the parties attendant upon the breakdown of the marriage. As absurd as the proposition must seem, her Honour was to assume that the law of Iran would mirror the Family Law Act absent any evidence to the contrary. In Saxby v Fulton [1909] 2 KB 208 at 211 Bray J took judicial notice that gambling was lawful in Monaco. He was the subject of some criticism for so doing (Nygh at 266). In the age of the Internet and CNN, the time must be near when a Family Court Judge in Australia can take judicial notice that in countries ruled by religious law the rights of men and women to share in each other's property after divorce are likely to be dramatically different than they are in Australia.

Section 174 of the Evidence Act 1995 (Cth) makes provision for evidence of a statute, proclamation, treaty or act of a state or a foreign country to be adduced into proceedings by inter alia a publication containing that statute, proclamation, treaty or act:

"Evidence of foreign law
(1) Evidence of a statute, proclamation, treaty or act of state of a foreign country may be adduced in a proceeding by producing:
(a)a book or pamphlet, containing the statute, proclamation, treaty or act of state, that purports to have been printed by the government or official printer of the country or by authority of the government or administration of the country; or
(b)a book or other publication, containing the statute, proclamation, treaty or act of state, that appears to the court to be a reliable source of information; or
(c)a book or pamphlet that is or would be used in the courts of the country to inform the courts about, or to prove, the statute, proclamation, treaty or act of state; or
(d)a copy of the statute, proclamation, treaty or act of state that is proved to be an examined copy.

(2) A reference in this section to a statute of a foreign country includes a reference to a regulation or by-law of the country."

The provision of a list of requirements by the Iranian Embassy in Canberra before it will register a foreign decree is not proof of the laws of Iran as to the relief available for either party or the defences available to either party in proceedings attended upon the breakdown of their marriage.

Given that the parties were Australian citizens, given that the wife and children of the marriage had lived in Australia for the ten years prior to the commencement of the proceedings by the wife, given that the husband had brought proceedings in Australia for a dissolution of the marriage, and given his presence in Australia, coupled with the existence of real estate jointly owned by the parties in Australia, in our view it was clearly open for Brown J to find that Australia was not an inappropriate forum in which to allow the wife to continue her proceedings.

Ground 3 - procedural fairness. The final ground to be dealt with was whether, in the circumstances of the case, the wife should not have been allowed to proceed because of her Honour's finding that the wife had not made complete discovery of all of the documents taken by her from Iran. The difficulty with this ground is that no attempt was made by the husband to identify either before the trial Judge or before us the manner in which his case was prejudiced by the absence of any documents which he said the wife had taken but which she was not producing.

The main factual issue in the proceedings was the extent of the husband's wealth. The wife was able to prove the past existence of a series of bank accounts in the husband's name or control in Spain, the United Kingdom, Iran and Australia. There was no suggestion by the husband that the wife had taken documents from him which he could not otherwise have duplicated from the relevant financial institutions which would demonstrate the state of those accounts or their ownership. At its highest, the husband kept complaining about the absence of the power of attorney previously referred to.

Whilst the failure to make appropriate discovery is often seen as a firm basis for denying a party the right to proceed or defend proceedings, such a remedy is generally only available where it is clear that the failure to comply with the Rules of Court will leave the other party so prejudiced that the trial would become unfair. Order 20 rule 12 of the Family Law Rules provides as follows:-

“12.Where a party to proceedings fails to comply with an order, requirement or agreement under this order, the court may make such order as to discovery, production, inspection, continuance of the proceedings or as to the right of the party in default to continue the proceedings as the court thinks fit.”

By way of further illustration of the practice concerning discovery, reference can similarly be made to the English Supreme Court Practice. Order 24 relates to the discovery and inspection of documents in that jurisdiction. The commentary on this provision at 24/16/2 sets out the ordinary English procedure-

"The exclusion from any further part in the proceedings of a party who deliberately disobeys a peremptory order of the court as to discovery is appropriate where there is a real risk that the default will render the fair trial of the action impossible and any judgment in favour of the defaulter unsafe."

There needs to be some basis for reaching an assumption that without proper discovery the trial will be rendered unfair beyond the mere assertion of the proposition. As nothing was demonstrated to the trial Judge nor to us as to the manner in which the husband was prejudiced by the failure of the wife to make full and frank disclosure of the documents taken by her, in our view there can be no substance in the ground as argued.

Residence and Child Support

The husband addressed us briefly in relation to his appeal against the orders granting to the wife the residence of the two children of the marriage still under 18 and providing for lump sum child support for those children. In relation to the residence issue, his complaint was, as we understood it, that the matter had not been determined according to the principles of Iranian law, and in relation to the child support orders, he relied on the fact that he apparently provides meals and pocket money for the children.

As with the property settlement matter, the trial Judge was required to determine the residence dispute according to Australian law. Having regard to the principles which govern the determination of appeals against discretionary judgments, we are satisfied that her decision with respect to the residence of the two children is sound.

Similarly the husband did not put any matter to us which would cause us to interfere with her Honour’s orders in relation to lump sum child support.

The restraining order

In challenging her Honour’s orders before us, the husband put considerable emphasis on the difficulties which her Honour’s order restraining him from leaving Australia placed on him, and also, at least as we understood him, his capacity to meet his obligations under the orders.

We see no justification for this Court interfering with her Honour’s restraining order, particularly when her Honour has provided a mechanism for the re-listing of the matter before herself.

Costs appeal

On 10 March 2000 Brown J ordered that the husband pay one third of the wife's costs of and incidental to the applications for property and parenting orders.

The husband's Notice of Appeal insofar as it purported to deal with the costs judgment and the order, provided no specific grounds that related to the costs appeal but sought an order:

"The costs of proceedings that the husband pay one third of the wife's cost (sic), according to grounds of appeal in four pages that are attached, are not justified, I seek order the wife pay my cost (sic) and her cost (sic) completely."

In her costs judgment delivered 10 March 2000 her Honour identified the relevant legislative basis for exercise of a costs power, namely s 117 of the Family Law Act. She dealt seriatim with the various matters required to be considered under s 117(2A) and concluded that the circumstances justified the making of an order that the husband pay one third of the wife's costs.

She particularly identified:

the parties' respective financial positions as found by her in the substantive judgment,

the fact that the wife was in receipt of legal aid,

the failure of the wife to disclose documents which would run counter to her case,

the failure of the husband to provide detailed information about money standing in bank accounts in his name, and the inadequacy of his financial statements,

the husband's general failure to comply with the requirements of the Rules and make disclosures as ordered by the Court,

the success of the wife in the residence proceedings, and the significant success of the wife in the property proceedings.

The costs order is a discretionary order. The extent of that discretion has been referred to by the High Court in Penfold (1980) FLC 90-800. In our view, her Honour has properly approached the matter, having regard to the provisions of s 117, which required her Honour to give proper consideration to the matters set out in s 117(2A). Even though the appeal has succeeded in respect of an arithmetical error, that error does not in our view impinge upon her Honour's costs order. In our view, nothing has been demonstrated which would indicate that we should as an appellate court interfere with the exercise of her Honour's discretion.

SUMMARY OF CONCLUSIONS

The judgment is sound as it stands, save in two areas, being:

1. The valuation of the wife's jewellery, and

2. The manner in which the trial Judge dealt with the husband's carpets.

In order to give effect to the pre-evaluation of the wife's jewellery it is necessary to increase the value attributed to that jewellery from $959 to $24,000, thus increasing the pool of assets from $1,416,518 to $1,439,559. The trial Judge accepted that there were $13,000 of the wife's liabilities to be brought into calculation, which would have reduced the pool down to $1,403,518 but now reduces the pool down to $1,426,559. The wife's entitlement is to 30% of that pool, which is $427,967. It is convenient to round up to $428,000 net. To achieve that result requires the transfer to or the retention by her of assets with a total value of $441,000, taking into account the liabilities identified above.

If she receives the house $285,000,

and retains the furniture $10,000,

car equity $8,200

her gold $24,000

and jewellery $24,000,

there is a balance owing to her of $76,800.

Given the matters discussed in para 98 above, we do not propose to interfere with the orders made concerning the carpets.

The orders we would make in the circumstances are:

1.That the appeal against the orders made by the Honourable Justice Brown on 20 December 1999 be dismissed, save as hereinafter provided in order 2.
2.That order 10 of the orders made by the Honourable Justice Brown on 20 December 1999 be amended to substitute the sum of $76,800 for the sum of $96,796 therein provided for.
3.That the application of the appellant to adduce further evidence at the hearing of the appeal be dismissed.
4.That the appeal against the order made by the Honourable Justice Brown on 10 March 2000 with respect to costs be dismissed.

I certify that the preceding
180 paragraphs
are a true copy of the reasons
for judgment delivered by this
Honourable Full Court.

Associate