Lee and Duan
[2009] FMCAfam 557
•12 June 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LEE & DUAN | [2009] FMCAfam 557 |
| FAMILY LAW – Property dispute – extraordinary facts – immigration sham – neither party’s version credible – impossibility of affirmative factual findings – unusual outcome. |
| Evidence Act 1995, s.140 Federal Magistrates Act1999, s.14 Family Law Act 1975, ss.4, 71, 75(2) Marriage Act 1961, ss.5, 23 Dr Anthony Dickey - Family Law – Fourth Edition |
| Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 Jones v Sutherland Shire Council [1979] 2 NSWLR 206 In the Marriage of Deniz (1977) FLC 90-252 In the Marriage of Nemir Osman [1989] FamCA 78 In the Marriage of Hosking (1994) FamCA 87 R v Cahill [1978] 2 NSWLR 453 Briginshaw v Briginshaw (1938) 60 CLR 336 Granada Tavern v Smith [2008] FCA 646 |
| Applicant: | MR LEE |
| Respondent: | MS DUAN |
| File Number: | MLC 12396 of 2007 |
| Judgment of: | Burchardt FM |
| Hearing dates: | 24 & 25 February, 5 March & 1 May 2009 |
| Date of Last Submission: | 22 May 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 12 June 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr F. Lim |
| Solicitors for the Applicant: | Francis Lim Barristers & Solicitors |
| Counsel for the Respondent: | Ms M. Pandeli |
| Solicitors for the Respondent: | Maria Barbayannis & Co |
ORDERS
Each party retain all chattels presently in their possession.
Out of the funds held in Trust the total of $7,400.00 be paid to Maria Barbayannis & Co to satisfy the orders already made.
The funds held on Trust by the solicitors for the applicant remain so held until further order of this Court or of the Family Court of Australia, following agreement in writing between the solicitors for the parties on their instructions as to their distribution.
IT IS NOTED that publication of this judgment under the pseudonym Lee & Duan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 12396 of 2007
| MR LEE |
Applicant
And
| MS DUAN |
Respondent
REASONS FOR JUDGMENT
This is a property dispute. Leaving aside some very minor issues as to chattels, the real dispute is who gets how much of the net proceeds of the sale of the former home jointly owned by the parties. There is some $230,000 held on trust pending the resolution of these proceedings.
This is a wholly extraordinary case, turning on the most outlandish assertions made by the parties. For the reasons that follow, I have come to the conclusion that it is wholly beyond my power to ascertain the level of contributions made by either of the parties to the purchase of the former home and I have come to the conclusion that the web of lies and obfuscation that the parties have put in place prevents the Court making any order whatsoever.
In the ultimate, I have concluded that the proceeds of the sale of the home should simply be held in trust until such time as the parties themselves decide who should get how much of it. If they are unable to agree, the money will simply sit there accruing interest until one or other of them dies or gives in to the other. In the context of this case as a whole, that is, paradoxically enough, not a result that is unjust or inequitable.
The Facts - A Brief Overview
It will be necessary to return to the facts in much more detail but at this stage it is helpful to give a broad indication of the facts asserted by the parties. The parties underwent a form of civil ceremony of marriage according to the laws of the People's Republic of China in October 2001.
The parties may have met before then in late 2000, although that is by no means wholly clear, but on any view, any interrelationship between them was of the briefest duration prior to that ceremony.
Thereafter, the applicant rapidly returned to Australia. He visited China on three further brief occasions in 2002.
The respondent's application for a spouse visa was initially rejected but was eventually approved and she turned up unannounced in Australia in February 2004. Both sides agree that within a matter of hours, the relationship, such as it may have been, was totally sundered.
The applicant says that the marriage was always a sham, in that the respondent never intended to marry him in any real sense but underwent the ceremony of marriage simply for the purpose of getting an Australian permanent resident visa for herself and her teenage daughter. He says that he, however, was genuine in the marriage and distressed at its failure.
The respondent by way of contrast says that she was genuine in the marriage and that the applicant was not and that his violence perpetrated upon her on her arrival because of the non-payment of funds by her to him shows that the relationship was not sincere.
Each party asserts that they advanced considerable amounts of cash to the other. The applicant says he gave the respondent cash sums of $23,500, which he now wants back and that he made the bulk of contributions to the price of the former matrimonial home (as I shall describe it).
The respondent by way of contrast says that she in fact gave the applicant very large amounts of Australian dollars and Chinese yuan in cash in China and that therefore she should have 60 per cent of the funds presently held in trust, to reflect her greater contribution.
Notwithstanding the applicability of s.140 of the Evidence Act 1995,
(“the Evidence Act”) I have come to the clear conclusion that neither of these parties entered into this marriage as anything other than an unlawful contract to deceive the Australian immigration authorities, getting the respondent residence in Australia in exchange for money.
I am completely satisfied that this was never a marriage in the sense of the union of a man and woman for life to the exclusion of all others. It was a contract whereby the applicant agreed to sponsor the respondent and her daughter to Australia in exchange for money and nothing more or less than that.
The parties' financial dealings are so obscure and the evidence called on their behalf so completely confusing and inadequate that it is not in any way possible to work out what really happened and it is for that reason I have reached the conclusion I have indicated.
Agreed Facts or Facts That Are Clearly Established
The applicant was born in 1952 in China and is therefore now 56 years old. He has lived in Australia for some years and has Australian citizenship but still has no command of English. His evidence was entirely given through an interpreter.
The applicant has been married once before with three children when he lived in China and is now repartnered and expecting the birth of a child.
The respondent was born in 1963 and therefore is now 46. She likewise has been married before and divorced on 15 August 2001. She has a child born in 1991 who lives with her.
Both sides agree that the applicant relevantly arrived in China on 15 October 2001, that the celebration of the purported marriage took place on 30 October 2001 and that on 18 November 2001, the applicant returned to Australia.
One thing that is immediately apparent is the almost complete absence of any evidence by either side as to how this marriage came to pass in the sense of the antecedent relationship and/or negotiations which one assumes must have taken place. It is possible I have overlooked something, but as far as I can see there is absolutely nothing whatever, not a single word, in the applicant's affidavit material or his oral evidence that explains how he came to be in the relationship with the respondent that led him to assume he was entering into a bona fide marriage in October 2001.
The nearest either of the parties gets to describing the development of the relationship is in paragraph 3 of the respondent's affidavit sworn on 18 November 2008 where she says:
“I refer to paragraph 2 of the husband's affidavit and deny that our marriage was not genuine. The husband and I met through a mutual friend approximately one year prior to our marriage. The husband's younger brother introduced the husband and I and we soon formed a relationship. The husband and I had sexual intercourse on each occasion that he visited me in China. I recall that the first occasion the husband and I became intimate was in October 2000.”
The parties have filed lengthy and copious affidavit material. It is absolutely crammed with argumentative material about who gave whom what money and various other matters. Given that the applicant has squarely raised the genuineness of the marriage, one would have expected both sides to have said rather more about the basis of their relationship.
It is clear that the applicant returned to China on 17 June 2002, returning to Australia on 21 June 2002, and again on 11 September 2002, returning to Australia on 17 September 2002. He visited once more between 2 November 2002 and 9 December 2002.
The respondent executed a Power of Attorney while in China on 7 August 2002 and on 21 October 2002 the applicant bought the property at Property W for $305,000, the sale of which has produced the funds earlier referred to.
On 10 November 2001, the respondent signed an application for a spouse visa and following an initial rejection by the Department in June 2002, the respondent and her daughter were ultimately given a visa in about October 2003.
It is common cause that the respondent and her daughter arrived unannounced in Australia on 10 February 2004 and that on 11 February 2004 the applicant wrote to the Department of Immigration withdrawing his sponsorship and accusing the respondent of fraud to obtain her visa.
The applicant left the Property W home on 22 February 2004 and on
24 February 2004the respondent lodged a complaint with the police. This led to an interim intervention order which was not, however, subsequently upheld.
The respondent lived in the Property W property until it was sold, during which time the applicant paid the mortgage and at least for some time, all of the utilities. Both the applicant and the respondent appear to own a car of indeterminate value and which is not the subject of expert evidence. I will simply order that they retain those vehicles.
The only other assets of the parties other than chattels in their possession seem to me to be the moneys held in trust.
In order to understand the way in which this case has been presented, it is now appropriate to present the narratives as presented by each of the competing parties.
The Applicant's Case
The applicant says that he went to China in 2001 for the purpose of getting married to the respondent. He says nothing whatever about the nature of the relationship prior to that visit. (In paragraph 19 of his affidavit filed on 26 September 2008 he says, without elaboration, “When I first met the wife in 2001”).
On any view, he arrived in China as is agreed on 15 October 2001. The marriage was celebrated [late] October 2001 and on 10 November 2001 the respondent's application for a visa was completed. He says he was not present.
The applicant says that he supported the respondent's application for a spouse visa and an ancillary visa for her daughter and this seems agreed. The applicant says that the respondent's application was refused by a delegate on 5 June 2002 on the basis that the wife did not provide evidence to support her claim that the spousal relationship was genuine and continuing. The delegate's decision constitutes “Exhibit A” to the applicant's affidavit filed on 14 November 2007.
In September 2002 the applicant lodged an application to the Migration Review Tribunal. He says that he remitted $8,000 to the respondent on 11 October 2002.
He confirms that he visited China again from 17 June 2002 to
21 June 2002, from 11 September to 17 September 2002 and from 2 November 2002 until 9 December 2002. He qualifies that history by asserting that he spent a substantial amount of time on each visit not with the respondent but rather visiting friends and family and touring in China and says that the relationship was never one of husband and wife. He does not state in terms whether or not there was a sexual relationship between the parties at any stage. These are some obvious inconsistencies in his account (see affidavit filed 14 November 2007 at paragraphs 26-27).
In his second affidavit filed on 26 September 2008 the applicant says that in or about October 2003 the respondent received a letter from the Australian Embassy in China advising her to undergo a medical check‑up and that thereafter she became cold towards him whenever she talked on the telephone. He goes on to say that in or about November 2003, after several arguments, the respondent said she did not wish to come to Australia as she felt the relationship would not work and he therefore cancelled his financial sponsorship for her and her daughter. He says he did not think she would proceed with her visa application.
The applicant states, amongst other things, and in my view tellingly, at paragraph 7(a) of that affidavit:
“I went to China in October 2001 to register with her as husband and wife so that she can lodge her application for a provisional spouse visa with her daughter.”
He went on to confirm that he had sent payments of $23,500 in total to the respondent on six occasions from 19 October 2002 until 30 October 2003. “Exhibit J” to the applicant's first affidavit does seem to me to support those payments. It is a set of bank transfer records in the amounts asserted by the applicant.
The applicant asserts that he and his siblings each inherited a unit in China following the death of his father in the 1990s. He asserts that one such unit was held by his brother on trust for him. (I should note there has also been some argument about a property allegedly owned by the respondent in China but that seems to have fallen away. I have not been asked to make any orders about it).
In an endeavour to persuade the Australian authorities that the spousal relationship between the parties was genuine, the applicant says that he caused his brother to transfer the apartment in China to his wife and himself. He asserts that no money was paid to the brother for this transfer, and that it was in any event later re-transferred and has been sold.
He asserts that the purchase of the Property W property was in joint names to prove that they had a joint property in Australia and that he paid a total of $77,000-odd for the purchase of the property. The balance was financed by a loan of $244,000 from AIMS Home Loans.
The applicant says that when the respondent turned up unannounced, he was very pleased to see her but instantly she told him that she did not wish to live with him as husband and wife and that nonetheless she would pay him money if he in effect kept quiet about the immigration fraud for several years.
It is on the same day he wrote to the migration authority bringing these events to the attention of the authorities.
He says that he moved out of his property in February 2004 to avoid the respondent making false allegations of violence against him.
He denies all the assertions made by the wife that he was ever given any cash by her while he was in China but says that it was the other way round. He also says, and this seems to me to be the case, that he paid the mortgage on the Property W property for a considerable time after he moved out. He says that the respondent effectively made no contribution to the Property W property and that he should have all of the equity in it, together with repayment of his $23,500.
The Respondent's Case
The respondent asserts that she entered into the marriage in good faith following the relationship that had commenced about a year previously. She says that the parties went together to the translation agent at the time of the completion of her visa sponsorship form. Given some of the things asserted on the form, the attendance of the applicant is an important issue.
She says that she gave the applicant very substantial quantities of money in cash, either on occasion in Chinese yuan or more commonly in Australian dollars.
She asserted that she obtained Australian dollars in effect on the black market in China by exchanging Chinese yuan for Australian dollars. These funds included an alleged settlement with her first husband, the proceeds of sale of a property in China, various payments from a firm of which she had been both previously an employee and a shareholder, and from savings generally. The total of these funds well exceeds $100,000.
She produced a number of documents from China in support of her various assertions. Putting the matter in the round, she said that she gave the applicant money because they were married and contemplating a life together. She said (paragraph 8 of the affidavit filed on 11 January 2008) “The property was purchased in joint names as the husband and I were in a genuine marriage and as an acknowledgment that we had both contributed towards the acquisition of said property”.
She says that she was never cold towards the applicant and never told him while in China that the relationship was at an end. Rather, she asserted that the parties continued as husband and wife when he visited China and indeed that sexual relations occurred between them on each such occasion.
She said that she came to Australia in February 2004 but that immediately upon her arrival, the applicant berated her for not bringing money and proceeded to assault her, pouring oil upon her and threatening her life. She said that this was what gave rise to her intervention application. The respondent said that although the applicant advanced moneys to her in the sums he asserted, namely the $23,500, these were in truth just funds remitted from funds earlier sent by her from China to him. Why this remission of funds was necessary was not on any view convincingly explained.
The respondent asserted that the cash amounts, amounting to tens of thousands of dollars, were taken out of China illegally by the applicant in his clothing which she herself sewed to enable him to do so. She asserted that she had made in effect the majority of the commitments to the purchase price of the Property W property and that there should be an adjustment accordingly of ten per cent in her favour. She also asserted that the property in China should be transferred to her sole name.
Consideration of the Facts
I should make it clear at this point that even the above relatively fulsome recitation does not cover each and every aspect of controversy raised by the parties. The parties roundly disagree with one another on every significant factual assertion, save where those assertions are inescapable because of the documentation provided. There is even vivid dispute as to the meaning and purpose of some documents, particularly those from China.
Both sides gave their evidence with the assistance of interpreters and any assessment of their demeanour is necessarily made more complex by this fact. Furthermore, I am keenly conscious that one must give proper regard to the kind of cultural or cross-cultural issues to which the case may be said to give rise.
Nonetheless, and giving every possible credit for the natural difficulties that the two witnesses would have giving evidence, in a foreign land in a legal system with which they are essentially unfamiliar, I would wish to emphasise that both were to my mind largely unimpressive witnesses. Both gave self-serving and evasive answers on numerous occasions and their demeanour (which is an issue I approached with considerable caution in the light of the kind of language and cultural issues to which I have referred) nonetheless gave me no impression that either of them was telling the truth.
Having heard and observed them giving their evidence, and bearing in mind more particularly the inherent probabilities that the facts as disclosed give rise to, I have no doubt that what took place was as follows.
The parties entered into a marriage in October 2001 with a view to obtaining an Australian permanent resident visa for the respondent and her daughter. That is what the applicant said in his affidavit and I think that that is in fact the truth.
I think that the price for that visa was money, although I will never know how much.
No satisfactory explanation has been proffered by either party as to how their relationship is said to have developed. The very brief extract from the respondent's affidavit touching on this aspect of the controversy is one that I have already set out. Making every allowance for marriages of convenience and the possibility of some sort of arranged marriage, it is scarcely compelling evidence.
The applicant has given evidence that the parties never lived together as husband and wife and I think it is more probable than otherwise that that is true. It is clear from photographic evidence given to the Court that some sort of interrelationship took place. There are photographs of the parties in Beijing, where I can only assume they went for a trip. There are also photographs showing the parties with family members (overwhelmingly the respondent's). It seems to me more probable than otherwise that these photographs were taken with a view to an immigration fraud by people who well knew what they were doing.
Nonetheless there are a number of other objective factors which give rise to the supposition that this was never a genuine relationship.
“Exhibit A4” which is the respondent's visa application shows, in an answer to question 61, the box "yes" was ticked. Question 61 reads as follows:
“Did you enter into this relationship with your partner solely to gain permanent residence in Australia?”
The respondent asserts that that form was one of many filled out at the time by some sort of translation agency. The respondent says the applicant was with her at the time and was the guiding force behind the completion of the form.
The applicant vividly denies that he was there, although he was plainly in China at the time.
I think that it is more probable than otherwise that in this regard at least the respondent's version of the events is correct. The applicant himself asserts that he went there with a view to getting the respondent a visa. This form was part of that process. Notwithstanding his lack of command of English, he was the one who lived in Australia and who by definition had some familiarity with the visa process.
Given that neither of the parties speaks English, it is certainly more probable than otherwise that the visa application form was filled out by the third party who completed it. That form however contains details of the applicant's children and earlier relationships which can only have come from the applicant himself. I think his explanation that these details may have been provided in advance is specious. It is far more probable than otherwise that they were both together there on the day.
The fact that the person filling out the form was ingenuous enough to reveal the true intention of the parties is one of the more bizarre elements in this whole extraordinary saga. I think that what happened is that the parties told the translator what their true intention was and forgot to tell him or her not to put it on the form.
I do not accept the evidence of the respondent that when they attended the delegate in China to discuss the application, the applicant told the delegate that he was still living with his first wife in Australia. It is clear from the delegate’s decision that it was the respondent herself who proffered this information. Little wonder that the application in the face of this sort of evidence was not accepted.
The parties were thus then faced with a conundrum. The migration sham that the purported marriage represented had not produced the desired result.
An appeal was lodged to the Migration Review Tribunal but the husband withdrew his sponsorship.
I accept the applicant's evidence that following notification to the respondent of her medical interview in late 2003, the attitude of the respondent changed. She would by then have known that her visa application was successful. This may have caused the applicant to withdraw sponsorship but the applicant’s evidence on this point was thin.
This takes one back a step to the execution of the Power of Attorney in August 2002 and the purchase of the property in Property W a few months later.
It is quite clear from what both parties say that the arrangements in relation to the purchase of the property in Property W and the transfer of the property in China into the joint names of the parties were done to convince the Australian immigration authorities that this was a genuine spousal relationship. That is what each of the two parties said in terms in their evidence.
Although the applicant says that he put up all the money for the purchase, that does not explain why it was necessary for the property to be placed in joint names. Indeed, the property could have been placed in joint names even without a Power of Attorney. The applicant could have bought the property and simply nominated himself and his spouse as owners. He could have done this as her agent or alternatively he could have simply bought the property himself and transferred it into joint names out of love and affection.
Nonetheless it does not do to get carried away with assumptions about what the parties' understanding of the law of Australia as to landholding would have been. It is in my view more probable that the Power of Attorney was executed to enable the parties jointly to buy property. This would have the joint advantages of assisting the respondent's visa application and, were it to be the case, reflecting the financial input she was making.
This brings us to the financial records of the parties, an area of considerable difficulty.
As earlier indicated, I have accepted the payment of $23,500 by the applicant to the respondent. It is supported by bank records which have not been in my view the subject of any significant challenge.
There are however in my view insuperable difficulties in working out the parties' contributions, save to this limited extent. It should be noted that if I were to believe the applicant, the $23,500 can not have been applied to the matrimonial home in any event as according to him it was sent to China and no funds were sent back from China to Australia.
The applicant's evidence is that until 2000 he had a job which was a salaried job paying him approximately $50,000 per year. His tax records are consistent with that assertion.
In about 2001 he stopped his job and went out on his own with a cleaning franchise and his income thereafter has at all times been much, much smaller, somewhere in the range of 10 to 15 thousand dollars per year.
With an income of that order, he nonetheless maintains that he has been able to make periodic payments on the mortgage and outgoings in the property in excess of $110,000 from 2002 to 2007 when the property was sold (see first affidavit paragraph 38). It is not possible to say what proportion of any such expenditure was made from funds provided by the respondent. His current assertions as to his income and expenditure are wholly unbelievable. He asserts that he has rent of $200 a week and an income of $350 per week (see financial statement filed on 10 January 2008).
Notwithstanding that, he says he has been able to return to China on a number of occasions since the separation of the parties and appears to assert that he is in the practice of having loans to other parties in tens of thousands of dollars.
When challenged as to how a person with his income could have the very substantial financial dealings disclosed by his bank records, he asserted that these in large part reflected informal loans to or from friends. He asserted in relation to a loan from a friend (there is no transcript in this proceeding and my description of names therefore reflects merely a phonetic approximation) called [X]. He said that he borrowed $12,000 from this person because he needed to buy assets to prove that the marriage was genuine. He asserted that he was sure he could call [X] as a witness, but [X] was not called. He asserted a loan to somebody called [S] who repaid him $25,000, shown to have been paid by bank records to his account on 30 January 2002. He was unable to remember Sam's surname and that person was not called.
In effect he said he had lots of transactions in his then business account because he was hiding money from his first wife with whom he was involved in some financial disputation.
He further asserted that a payment received on 16 December 2002 was from a long‑term friend called [H]. He was not sure of [H]’s surname but said that [H] was repaid in 2006 and that there was a document with his solicitor that proved this. He said that he could provide evidence of that loan but no such evidence was produced.
The applicant also asserted loans from siblings, including brothers in Australia and a sister in China. Notwithstanding the provision of a certain amount of evidence from China by the respondent, no evidence was called from either the applicant’s sister in China or the brothers in Australia.
One thing that is immediately apparent from an examination of the bank records of the applicant is that there are a very substantial number of payments just under the $10,000 reportable limit. I have no doubt that what has been happening is that the applicant has been grossly under-declaring his income as the payments he says he has made are completely inconsistent with the income he discloses.
The one aspect of the applicant's assertions about his finances for which there is at least some small element of objective proof is the settlement entered into with his first wife, (being “Exhibit R” to the applicant’s affidavit filed on 26 November 2008) in the sum of $60,000. I accept that this settlement took place and was probably the source of at least some of the settlement proceeds for the Property W property.
Nonetheless it is quite impossible for me to say how much money the applicant contributed to that purchase.
The reason I cannot say that is that I am satisfied that the respondent did give the applicant substantial cash amounts while the applicant was in China.
I accept, notwithstanding the detailed criticisms advanced by the applicant's counsel, that the respondent had some sort of shareholding and interest in the company she described. The documentation annexed to the various affidavits by the parties seems to me to make it clear that the respondent had amounts of money from various sources including from a settlement with her first husband, from a bonus payment made to her, from repayments of a loan (or alternatively the sale of some indeterminate shareholding interest).
I have paid careful attention to the very detailed written submissions and further submissions of counsel for the applicant. I do not propose to traverse each assertion made. It is sufficient to say that:
a)while I accept there are some inconsistencies in the respondent’s evidence in the intervention proceedings with her evidence in this Court, it should be noted that:
i)the intervention proceedings took place shortly after arrival in Australia and in circumstances of great stress;
ii)
the respondent did not have much of her documentation
(as far as I can see from the transcript) available to her at that earlier hearing;
b)the applicant’s submissions, not surprisingly, contain and/or are influenced by self-serving assumptions that the applicant’s versions of events are correct; and
c)while the applicant advances a number of criticisms of the respondent’s documents, none of them are said to be forgeries or fraudulent.
The documents from China all seem to me to have the risk of losing something in translation. There are a number of real difficulties with them. Nonetheless, just as the applicant's complaints of the insincerity of the respondent seem to me to have some vague ring of truth to them, so too the shrill assertions of (in effect) fraud asserted by the respondent on the part of the applicant likewise strike a chord.
The only version of the events that makes sense to me is the one I have earlier described. It sits very well with what actually can be objectively seen to have taken place.
The parties, through whatever introduction, decided to get the respondent and her daughter a visa in return for money. That is overwhelmingly more likely than some sort of marriage that went wrong.
Following the ceremony of marriage, the parties almost instantly applied for a visa for the respondent and unwittingly alerted the authorities to the true purpose thereof.
That then presented the parties with a dilemma which they endeavoured to solve by creating a further facade of joint property holdings.
The applicant obtained a property in their joint names and I have no doubt used moneys from the respondent to do so. Although of course the respondent has not provided any receipts for her unlawful currency dealings in China (a matter I found unremarkable despite the submissions of counsel for the applicant to the contrary) I have no doubt she gave the applicant money and in substantial amounts.
It is clear from her banking records that she had from time to time substantial amounts of money at her disposal. It is true, as counsel for the applicant submits, that the availability of these funds and the times at which they were dealt with according to the banking transactions do not fit by any means entirely contiguously with the events that transpired in Australia but in my view they are not only close enough to those events to make sense but they show substantial amounts of money that the respondent plainly does not now have.
Following an indication that she would be successful in her visa, the relationship appears to have cooled (to the extent that it was ever warm) and upon arrival, things immediately went disastrously wrong.
I accept the respondent's evidence that the applicant berated her for not bringing moneys when she came to Australia. It is true that the respondent has given differing accounts of a property that she owned in China at some point. What I think, however, is more probable than otherwise is that the applicant became extremely annoyed upon the arrival of the respondent, both because he did not expect it
(he presumed that he would get the Property W property to himself as the price of the visa sponsorship) and because the respondent did not bring more money with her when she in fact turned up.
Upon this breach of the bargain, the applicant immediately sought to prejudice the respondent by writing to the migration authorities and the respondent moved to secure her position by seeking an intervention order. Such an order would have probably assisted her in the event of visa difficulties.
All this in my view leads to the inexorable conclusion that, as I have already stated, I have no doubt that both parties contributed funds towards the Property W property. Indeed, that finding would obtain even if I am totally wrong as to the nature of the bargain into which the parties entered. I repeat, at the risk of saying all too often the same thing, both parties undoubtedly contributed in substantial measure to the purchase of the Property W property but I am quite unable on these materials to say in what proportions.
It is of course true that the respondent has formally sought a division of 60/40 in her favour in respect of the ownership of the Property W property. She did, however, also seek full ownership of the property in China, the value of which appears to be a matter in issue. The wife has sought through to trial a 60/40 division of the proceeds of the matrimonial home. I have been tempted to treat that as an admission against interest and that leans toward the applicant receiving at least
40 per cent of the pool.
In the end, however, I do not think this is appropriate. The Court is required, in circumstances such as these where the parties have competing cross claims, to achieve some measure of satisfaction as to what really transpired rather than merely to guess.
The Court has a clear obligation to seek to determine finally and completely controversies before it. That general obligation is given more precise focus by the terms of s.14 of the Federal Magistrates
Act 1999.Nonetheless the following observations by the learned editors of
Cross on Evidence at paragraph 9095 are relevant:
“If the possibilities of one version exceed another, but the tribunal does not “feel an actual persuasion”, to use Mahoney JA’s expression, of either, neither version can be found as a fact. “There are … some questions to which the only answer is:
I do not know”.”That is an extract from the decision of the Court of Appeal of New South Wales in Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at 262 per Mahoney JA.
In that decision at [123] his Honour said:
“The inferences which may be drawn from facts will depend upon what are, in accordance with human experience, possibilities left open by the evidence, and the support which the evidence gives to each of those possibilities. In Jones v Sutherland Shire Council, I referred to some of the authorities relevant in this regard. If there are several possible causes of an occurrence, and there be no basis in the evidence for choosing one rather than another of the possible causes, then, in my opinion, whether the tribunal of fact be a judge or jury, the choice cannot be made.
[124] Following what was said in Briginshaw v Briginshaw, I expressed the view in Jones’ case that, in order to choose one possible inference rather than another (I was there referring to the inferences the ultimate question of fact) it is necessary that the tribunal of fact “feel an actual persuasion of” its existence and that that conviction be based upon reasonable grounds.
It is not enough that the tribunal feel the chances of one possibility being the fact are 5 per cent and the other 6 per cent but not be persuaded as to the existence of either. There are, as it has been said, some questions to which the only answer is:
I do not know.”In Jones v Sutherland Shire Council [1979] 2 NSWLR 206 at [227] Mahoney JA said:
“According to this meaning, something is probable, if that person has the appropriate degree of confidence in its existence or correctness, based on or judged according to reason.
It is in this sense that “probability” is used in determining whether a particular proposition of fact should be accepted for the purpose of litigation. It was, in my opinion, to this that
DixonJ referred in Briginshaw v Briginshaw. In referring to what constituted proof of a fact, his Honour said “… the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality.”
In this case, as I hope I have made clear, I simply am utterly unable to form any conclusion as to who contributed what for the purposes of the Property W property. Since that constitutes the vast bulk if not all of the funds under consideration, and having no state of persuasion whatever that either party put in any particular amount, although I have no doubt that both contributed substantially, I do not think it proper to adopt some sort of guess or to adopt the 40 per cent in effect conceded by the wife as an appropriate outcome.
That only leaves the property in China to be considered. Once again the evidence here is hardly satisfactory. The document annexed by the applicant which according to him shows unequivocally the sale of the property on its face (“Exhibit M” to the affidavit filed 26 September 2008) does nothing of the sort. On one view, it simply shows the payment of tax in respect of that property.
I accept that the property was transferred into the joint names of the parties solely for the purpose of advancing the respondent's visa application. I reject the respondent’s evidence that it was jointly purchased. It may have been sold. In any event, the respondent made no contribution towards its ownership and it should be excluded from the pool.
Is This Case Justiciable In This Court?
I expressed some reservation during the currency of the proceeding as to whether there was in this case a justiciable controversy before the Court. That was because I did not think that there had ever been a marriage.
"Matrimonial cause" is relevantly defined in s.4 of the Family Law Act 1975 (“the Act”) as:
“Proceedings between the parties to a marriage with respect to the property of the parties to the marriage by either of them, being proceedings - arising out of the marital relationship.”
The term "marriage" is not itself defined in the Act but in the Marriage Act 1961 (“the Marriage Act”). By s.5 of the Marriage Act, a marriage is defined as:
“Marriage means the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.”
Pursuant to s.23B of the Marriage Act, relevantly, grounds on which marriages are void where, (1)(d):
“the consent of either of the parties is not a real consent because:
(1) it was obtained by duress or fraud;
and not otherwise.”
In other words, marriages are only void in this country if they meet one of the grounds set out in s.23B.
Here, the applicant asserts that his consent to the marriage was obtained by fraud because the spouse never intended to be married to him in any meaningful way but was simply conspiring to get a visa.
That argument cannot be sustained. Although in the matter of
In the Marriage of Deniz(1977) FLC 90-252 (“Deniz”), Frederico J held that in circumstances where a woman had been misled by a husband who only wanted a visa, the marriage was a nullity, that case has not since been followed. In the Marriage of Nemir Osman [1989] FamCA 78 and more particularly In the Marriage of Hosking [1994] FamCA 87, Deniz has been roundly disproved.
Those cases support the traditional interpretation that once a ceremony of marriage is entered into, fraud has a very limited operation. It goes only to such limited matters as to the identity of the party or the nature of the ceremony itself.
That analysis is supported in the analysis of Dr Dickey QC in the fourth edition of his work, Family Law, at pages 178 to 179.
His Honour refers to R v Cahill [1978] 2 NSWLR 453 in which the New South Wales Court of Appeal dealt with the validity of a marriage of convenience between a Chinese prohibited immigrant from Hong Kong and an Australian citizen where the validity of the marriage was not even called into question.
Faced with that line of authority, there is no doubt that this marriage is not a void marriage. It does not meet any of the subconditions contained in s.23B of the Marriage Act.
I confess I find that a curious outcome. While I appreciate the force of the argument set out in Dr Dickey's work and in the cases to which I have referred, it seems extraordinary to me that a marriage can be deemed valid where the parties at no time whatever, and least of all at the time of the ceremony itself, had any intention of joining together as man and wife, to effect a union to the exclusion of all others for life.
I have come to the conclusion that there is no doubt that this is a case in which the Court has jurisdiction. That is reinforced by the fact that in s.71 of the Act, a marriage, for the purposes of property proceedings, is taken to include a void marriage. Here of course the marriage is not void, even though it was at all material times a sham.
Conclusion
In these extraordinary circumstances I propose to order simply that the parties retain all chattels presently in their possession.
It is not possible to approach this case in the light of the ordinary methodology. Although the pool is easy to describe, the contributions are utterly impossible to disaggregate. The s.75(2) future needs considerations are scarcely the subject of any meaningful evidence. The applicant appears to have remarried and to have further parental responsibilities. It is not possible to get any idea of his income because I have no doubt that he is wildly undeclaring it. By the same token, I strongly suspect the same is true of the respondent. She has, according to her own case, a proven track record of conduct in China in breach of that country's laws as to financial matters. I further found her explanation for the non-provision of tax returns in China extremely unconvincing.
Whether she is dealing in the same way in Australia is open to question but once again, the information as to her financial circumstances would be insufficient to enable any apportionment on s.75(2) grounds to occur.
As the materials filed by the parties show, this case was to all intents and purposes fought on the issue of contribution alone.
The only order that seems to me to make any sense in these circumstances is to order that the moneys held on trust remain held on trust until the parties agree to its distribution, and that the parties each retain the chattels in their possession.
This brings these two dishonest and dissimulating people to the position in which in my view justice and equity require them to be placed. They alone know the truth of the enormously competing lies they have told. They will have to work it out between them. If they never agree, then the money will simply stay in trust earning interest until the nerve of one or the other cracks or alternatively, death or some other supervening event gives control of their affairs to some third party more amenable to reason.
This is not an outcome I find in any way attractive. While I have deplored the parties’ conduct generally, there is no question of punishing them for that conduct by withholding from them a decision that is otherwise possible. I would decide this case affirmatively if I could but it is beyond my powers.
I certify that the preceding one hundred and thirty (130) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Associate: Ms B Evans
Date: 12 June 2009
ADDENDUM
Consideration of the Parties’ Further Submissions Filed on or about
22 May 2009
By the end of April I had already drafted the reasons set out earlier.
On 1 May 2009 I caused the matter to be listed. I did so because I had formed the view, expressed earlier, that I did not essentially believe either of the two parties’ evidence. When the matter was heard I explained the possibility that I might not believe either party and might not be able to make any orders. I drew the attention of the advocates to the extract from Cross on Evidence and the decisions of Mahoney J which I have cited earlier.
Given that it was likely that the Court would simply be unable to arrive at any conclusions at all and therefore not be in a position to make any orders and given that the parties had not addressed this possibility in their submissions, I felt it proper to give the parties an opportunity to comment.
Both parties filed written submissions which were received by the Court on or about 22 May 2009.
The applicant’s written submissions by and large re-traverse the extensive written submissions already made. They proceed to re-assert the proposition that the applicant’s evidence is to be believed.
There are a number of difficulties with those assertions. While it is clear that the applicant transmitted $23,500 to the respondent in China, those funds were never applied on the applicant’s case to the purchase of the matrimonial home with which we are concerned.
Furthermore, while it is clear that the applicant arranged the deposit and ancillary costs for the purchase of the matrimonial home, it is clear to me that this in part was effected as a result of the benefit of the funds given to him in China by the respondent. As I hope I have made clear, I do not know how much these funds were, but they were substantial.
The propositions advanced in paragraphs 12 and 13 of the applicant’s written submissions are not to be accepted. Those submissions proceed on the footing that the applicant is a person of honesty in his financial dealings and I am quite satisfied that he has under-declared his income for taxation purposes in Australia by very substantial amounts. Indeed, the written submissions filed on behalf of the applicant show complete lack of insight into the disclosure I made to the parties that I did not believe either of the two witnesses.
While it is of course clear that the applicant has made substantial payments in respect of the deposit, interim mortgage payments and the utilities in respect of the matrimonial home, what I am not able to say is how much of those funds expended by him flow directly from contributions made by the respondent. The applicant’s submissions simply fail to grapple with the vital consideration.
I note that while the written submissions of the applicant traverse in some detail the line of authorities stemming from Briginshaw v Briginshaw (1938) 60 CLR 336, those authorities must now be approached more particularly in the light of s.140 of the Evidence Act (see Granada Tavern v Smith [2008] FCA 646 per Heerey J).
I accept the force of what Hutley J said in Andrews v John Fairfax & Sons Ltd [1980] NSWLR 225 at paragraph [247]:
“What was said in Howe v Teefey to the assessment of damages in contract, namely, that “a jury is not relieved from the duty of assessing the loss merely because the calculation is a difficult one or because the circumstances do not admit of the damages being assessed with certainty”, applies equally to damages in tort.”
Nonetheless, the assertion advanced in paragraph 54 of the applicant’s submissions that:
“Unlike the Plaintiffs / Appellants in Jones & Andrews, the husband’s financial contributions towards the acquisition and conservation of the Property W property are clearly supported by direct and undisputed documentary evidence although your Honour could not make a conclusive finding on the wife’s alleged financial contributions”
is in my view misconceived and wrong.
To repeat yet again, while there are some aspects of financial dealing on the part of the applicant that seem relatively clear, namely the $23,500 sent to China and apparently expended there and the $60,000 property settlement from the applicant’s first marriage, and the payments made from time to time towards the matrimonial home, it cannot for an instant be said that these are not disputed because the respondent’s whole case is that very substantial amounts of this must have flowed from funds that she herself provided. As I have said, I accept that proposition although I do not know how much she provided.
It is overly simplistic to look at the deposit on the matrimonial home and note its rough similarity to the $60,000 contained in the applicant’s property settlement. It is quite clear that these parties were both in the habit of dealing in the most free-wheeling way with substantial amounts of money. The disposition of their various transactions is entirely unclear. Given that I accept that the respondent gave the applicant substantial amounts of money in cash in China the conclusions that I am asked to draw simply cannot be drawn.
The written submissions advanced on behalf of the respondent proceeded in a slightly different way but did not traverse any case law other than that to which I had referred the parties. The written submissions did not seek to assert any particular quantum of contribution by the respondent but simply referred to them as “significant” financial contributions. Relevantly the submission said:
“The issue then arises as to the percentage contributions to be allocated to each party. The wife submits that the court is able to arrive at a conclusion of a 60/40 contribution entitlement in her favour.”
But for the reasons already expressed I am quite unable to arrive at such a conclusion.
Alternative Possible Methodologies
Although the matter was mentioned by counsel for the respondent in passing on 1 May 2009, neither side has sought that I should divide the proceeds of the sale of the matrimonial home equally on the footing that both parties were registered on title as tenants in common and equal shares. In my view that implied concession is correct.
It should be noted that the purchase price of the matrimonial home was $305,000 of which $60,000 was placed by way of deposit. The equity in the property at that time, therefore, given the amount of the mortgage, was approximately $245,000.
At the time of sale in November 2007, the value of the property was $481,000 and the clear proceeds appear to be about $230,000. That suggests that the mortgage had diminished but little during the intervening period. It is the applicant’s case that he ceased paying the mortgage payments in mid 2006 and the respondent said that he did so in about March 2005.
It should be noted that the contributions made throughout by the applicant towards payments of the mortgage were either directly or indirectly more probably than otherwise contributed to by the sums advanced by the respondent to the applicant prior to her arrival in Australia in 2004, although the force of that proposition might be said to diminish after her arrival and particularly so if the payments went on as long as 2006.
Nonetheless, and bearing in mind that the Court should strive to reach a result if it is in any way proper to do so, I simply cannot.
The pool in this case is easy to describe. For the reasons earlier given it is the moneys held in trust arising from the sale of the matrimonial home.
As I have earlier indicated, there is really no significant evidence as to the s.75(2) factors.
Thus the case really falls to be determined entirely on the respective contributions made by the parties. For the reasons I have perhaps over-laboriously expressed, it is not possible to determine the value of contributions made by the parties. In these circumstances it is not possible to achieve any state of satisfaction, even taking the broadest possible approach to the task, to produce a result.
I have prepared draft orders. I will hear the parties as to the form of these orders and further as to whether any distributions should be permitted to enable the parties to access the funds held on trust to discharge their obligations in respect of legal fees.
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