Linwood & Linwood (No 3) - [2024] FedCFamC1F 393

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Linwood & Linwood (No 3) [2024] FedCFamC1F 393

File number(s): MLC 10185 of 2020

Judgment of: BENNETT J

Date of judgment: 12 June 2024

Catchwords:
FAMILY LAW – PROPERTY SETTLEMENT – contributions – short marriage of 3 years during which parties cohabitated for 2 years – one child born to parties

FAMILY LAW – PROPERTY SETTLEMENT – contributions – arranged marriage – identification of dowry – treatment of dowry – treatment of wedding expenses – treatment of costs of wife’s visas and immigration requirements from Country G to Australia

FAMILY LAW – PROPERTY SETTLEMENT – contributions – where wife’s contribution was almost exclusively as homemaker and parent and husband’s contribution was very largely financial – where contributions are assessed at 65/35 in favour of the husband – where s75(2) factors favour wife and uplift of 10 percent is ordered

FAMILY LAW – PROPERTY SETTLEMENT – Just and equitable – where parties both want to retain former matrimonial home – where they agree to sequential options to retain home – what informs court’s discretion to order which party gets first option – where exercise of power must be just and equitable but not punitive

FAMILY LAW – PROPERTY SETTLEMENT – credibility – where neither husband nor wife considered to be truthful witnesses – where wife lied on her application for a loan

FAMILY LAW – PRACTICE & PROCEDURE – witness – where witness from Country G not adequately prepared to give evidence remotely – list of guidelines for witnesses giving evidence remotely – where court appointed interpreters were not sufficiently skilled and disrupted hearing

FAMILY LAW – PRACTICE & PROCEDURE – Registrar – where direction to Registrar for reasons for decision to be referred to OPP (Vic) and to the professional standards body for investigation of actions of wife’s accountant

FAMILY LAW – COSTS – costs reserved

Legislation:
Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth)

Cases cited:
AJO & GRO (2005) FLC 92-218

Bevan & Bevan (2013) FLC 93-545

Bhasin & Handa [2021] FCCA 1446

Brayton v Brayton [2021] FedCFamC1F 337

Browne v Green (1999) FLC 92-873

Damjanovic v York Agencies Pty Ltd [2003] NSWCA 222

Dickons v Dickons (2012) 50 Fam LR 244

Farmer and Bramley (2000) FLC 93-060

GVC v HPC (1998) FamCA 143

Hashim & Hashim [2012] FamCA 135

Karimi & Shah [2022] FedCFamC1F 741

Marker v Marker (1998) FamCA 42

Mehra & Bose (No.3) [2013] FCCA 2273

NHC & RCH (2004) FLC 93-204

Savage v Soloman [2021] FedCFamC2G 278

Singh & Dala [2017] FCCA 2945

SMB & MFB (2006) FamCA 46

SS & TS [2003] FMCAfam 478

Sumner v Booth [1974] 2 NSWLR 174

Division: Division 1 First Instance

Number of paragraphs: 230

Date of hearing: 8, 9, 10 & 11 April 2024, 14, 15 & 17 May 2024

Place: Melbourne

Counsel for the Applicant: Mr Duckett

Solicitor for the Applicant: Parminder Sandhu Solicitors

Counsel for the Respondent: Mr C Allen

Solicitor for the Respondent: TFA Legal (until 26 April 2024), QM Lawyers Pty Ltd (from 3 May 2024)
ORDERS

MLC 10185 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR LINWOOD

Applicant

AND:
MS LINWOOD

Respondent

ORDER MADE BY:

BENNETT J

DATE OF ORDER:

12 JUNE 2024

THE COURT ORDERS THAT:
1.The husband pay to the wife’s solicitors the sum of $188,707 within 30 days (by 12 July 2024 at 4:00 p.m.) (“the payment to the wife”) and contemporaneously therewith;
(a)the wife deliver to the husband’s solicitors a withdrawal in registerable form together with lodging fees of any caveat (Cavet No. …) she has lodged for registration against the Certificate of Title to the property at K Street, Suburb N in the State of Victoria (“the K Street property”);
(b)the wife deliver up vacant possession of the K Street property to the husband or his nominee together with all keys and electronic security devices for the K Street property.

2.In the event the husband has not made the payment to the wife, the wife may on or before the day which is 30 days from the date on which the payment to the wife was due (being 11 August 2024 at 4pm), pay to the husband’s solicitors the sum of $76,306 (“the payment to the husband”) and provide a discharge in registerable form of mortgage registered no. … and contemporaneously therewith the husband sign all documents as are necessary to transfer to the wife all of his right title and interest in the property.
3.For the avoidance of doubt;
(a)the legal practitioners for the husband be and are hereby responsible for preparation of all documents to affect the withdrawal of Caveat as provided for in paragraph 1 of this Order;
(b)the legal practitioners for the wife be and are hereby responsible for preparation of all documents to affect the transfer of the property and the discharge of the mortgage as provided for in paragraph 2 of this Order and, for that purpose the wife’s legal practitioners may provide a copy of this Order to any registered or proposed mortgagee of the property and/or anyone who acts on their behalf.

4.The wife be and is hereby restrained by injunction from using Q Finance to refinance the mortgage registered against the property.
5.If the husband does not make the payment to the wife and the wife does not make the payment to the husband and contemporaneously therewith provide a discharge in registerable form of the mortgage, the parties do all acts and things necessary to place the property on the market for sale as follows:
(a)to list the property for sale with S Real Estate as selling agent (“the Agent”).
(b)to be sold by way of auction on or before 29 September 2024, or such other method as is recommended by the Agent and the parties agree to adopt;
(c)for a reserve price of $760,000;
(d)with the date for settlement of the sale to be as agreed and, failing agreement, 60 days from the date of sale;
(e)the parties co-operate in every way with the Agent including (without limiting the generality of the foregoing):
(i)making the keys available to the Agent and ensuring that no rooms or areas are locked or are otherwise inaccessible;
(ii)allowing inspection of the Property at all reasonable times requested by the Agent;
(iii)ensuring the property, including the grounds are in a neat and clean condition at the time of inspection by the Agent and prospective purchasers; and
(iv)signing all documents as required by the Agents in relation to the listing for sale of the property.

6.The parties do all acts and things necessary to engage Mr R of T Conveyancers to act as conveyancer to have the conduct of the sale on behalf of both parties at equal joint expense.
7.The parties will do all such acts and sign all such documents to execute a contract on terms and conditions pursuant to Order 5 herein.
8.Each of the husband and the wife be and are hereby restrained by injunction for causing, permitting or suffering:
(a)a bid (or any number of bids) to be made on his/her behalf at any auction of the property.
(b)an offer to be made on his/her behalf in relation to any private sale of the property.

9.On completion of the sale of the property, the proceeds shall be paid in the following manner and priority:
(a)First, in payment of all costs, commissions and expenses of sale;
(b)Second, in payment and discharge of any amount due under the mortgage encumbering the property;
(c)Third, to the husband, an amount calculated in accordance with the following formula:
(E + CAB + PPAB) x 55% - (CAB + PPAB) = husband’s entitlement where
E = net proceeds of sale
CAB = $49,335
PPAB = $105,000
(d)Finally, to the wife, the balance of the net proceeds of sale.

10.Until the date specified in Order 1 or, if the husband fails to make the payment to the wife and if the wife fails to make the payment to the husband, pending settlement of the sale;
(a)subject to further order of the Court, the wife have sole right to use and occupy the K Street property; and
(b)during such occupation the wife be liable to pay, as and when they fall due all instalments payable pursuant to the V Bank mortgage encumbering the property; and all rates and taxes and other outgoings on the K Street property.

11.That there be no adjustment to the superannuation interests of the parties.
12.Unless otherwise specified in these Orders and save for the purposes of enforcing the payment of any monies due pursuant to these orders:
(a)each party retain and be solely entitled to the exclusion of the other to all real and personal property (including choses-in-action and superannuation benefits) in their respective legal or beneficial ownership or possession;
(b)any monies standing to the credit of the parties in any joint bank account are to be retained by the husband and the parties forthwith do all such acts and things and sign all such documents as may be necessary to close any such joint bank accounts;
(c)all insurance policies remain the sole property of the owner named thereon;
(d)each party be solely liable for and indemnify the other against any liability:
(e)each party be restrained from encumbering any item of property to which that party is entitled pursuant to these orders save for the purpose of compliance with this Order; and
(f)each party be solely responsible, as between the parties, for any liabilities in that party’s name including but not limited to credit cards, loans and lease agreements; and
(g)any joint tenancy of the parties in any real or personal property is hereby expressly severed.

13.I reserve liberty to the parties to apply urgently in relation to implementation of this Order.
14.Costs are reserved.
15.If a parenting application, including a contravention or enforcement application, is filed within the next two years, I reserve to either or both of the parties liberty to contact my Chambers via …@... to request that any such application be transferred to Division 1 and be listed before me for directions as soon as possible and without any intervening event or listing before a Register or Judicial Registrar or Senior Judicial Registrar or like judicial officer. In the event that I am not reasonably available, the parties (or either of them) may contact the Chambers of Judge Stewart in Division 2 …@... and seek a listing for directions of any new parenting application which is filed within two years.
16.I direct that the Registrar of the Court send a copy of this Judgment to the Proper Officer of the Office of Public Prosecutions for the state of Victoria and the Proper Officer of the professional body responsible for accountants under cover of a letter which draws the attention of the Proper Officer to paragraphs [124]-[142] in relation to the alleged actions of the wife’s accountant Mr U of W Accountants.
17.The parties and their solicitors be excused from compliance with the Harman undertaking, being their obligation to not use information disclosed in these proceedings for any purpose other than these proceedings, for the purpose of any criminal or disciplinary actions arising from paragraph 16 of these Orders.

AND THE COURT NOTES THAT
A.If I am to hear any costs hearing I would allow two hours.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BENNETT J
INTRODUCTION

This matter comes before me for final hearing of both parenting and property applications. The applicant is Mr Linwood (“the husband”), and the respondent is Ms Linwood (“the wife”).
The relationship between the husband and wife was short, just over 3 years in duration. It was an arranged marriage. The husband and wife met on one occasion in Country G in early 2016 before they were engaged in early 2016. They married in traditional style in Country G in early 2016. The wife entered Australia in early 2017 and the parties commenced cohabitation. The one child of the marriage, X, their daughter was born in 2018. The parties separated on 17 August 2019 following an alleged episode of family violence. A divorce order was made in late 2020.
PARENTING
The parenting matter largely resolved on the first day of trial (8 April 2024) and with the assistance of an Independent Children’s Lawyer who retained Mr Graham Jackson of Counsel. The agreement was that X remain living with the mother, the mother have sole parental responsibility, and X spend time with the father increasing to overnight time on alternate weekends by 2025. The parties produced a joint minute of parenting orders sought by consent. A handful of issues were not agreed. In relation to those issues:
·I refused the mother’s application to change X’s name to remove the father’s family name.
·I refused an injunction sought by the mother that the father be prohibited and restrained from allowing X to come into contact with or communicate with either Ms Y (the father’s friend and former wife) or Mr Z (the father’s friend and now the husband of Ms Y).
·I declined to make injunctions sought:
·by the father that each parent keep the other informed of each person (including their names and date of birth) who lives with or shares their residence and/or who will be sleeping the night at their residence when X spends overnight time with that parent.
·by the mother that each parent within 3 days, provide to the other parent the full name of any person who resides primarily in their residence and the full name of any other person who commences residing primarily in their residence within 3 days of them moving in.
·I made a Watch List Order in relation to X. This effectively precludes the mother taking X to Country G as she proposed.
I delivered short reasons ex tempore and reserved the right to elaborate, as to the law and further background facts, in this judgment. The Independent Children’s Lawyer was excused from further attendance, but Mr Jackson remained until day’s end to assist with property negotiations. In final addresses, Counsel for the parties said that the parties did not require published reasons in relation to parenting.
On the last day of the final hearing, Counsel for the husband informed the Court that since the final parenting orders had been made, the husband had still not seen X. The husband had missed the last three Saturdays of time with X apparently due to X being ill. The parties agreed that there would be makeup time for the next three Sundays commencing 18 May 2024 and I made orders to that effect. Consequently, X was to spend Saturday and Sunday with the father up to and including 1 and 2 June 2024.
This case has had multiple false starts including difficulty with interpreters. For those and other reasons I have made provision for the urgent listing for directions of any parenting application filed within two years. The parties should, thereby, circumvent regular case management events. It is my intention to provide speedy access for this family for a determination of any further parenting issues before those issues foment, become harder to fix or delay provides one party with a tactical advantage over the other party and to the disadvantage of the child.
APPLICATIONS FOR ALTERATION OF PROPERTY INTERESTS
The proceedings were commenced by way of the husband filing an application for final parenting orders dated 18 September 2020. He amended his application 12 March 2021 to include an application for financial settlement. He further amended his initiating application on 23 March 2023. It is that third iteration that he relied upon during the trial. The husband sought, inter alia, reimbursement of one half of the costs of the real property valuation, that the Court declare that the wife has received $52,400 by way of part property settlement, that the husband pay the wife “30% of the net value of the former matrimonial home as at the trial”, that the husband retain the former matrimonial home which is the K Street property, and a division of household chattels. In his case outline the husband contends that contributions should be assessed as 80/20 in his favour. This was refined on the last day of trial to contributions being assessable at 70/30 in his favour, consisting principally of the payment of $130,000 towards acquisition of the K Street property prior to the commencement of cohabitation. It was submitted on behalf of the husband that the wife may receive an uplift of 10 per cent. Finally, it was submitted on behalf of the husband that the appropriate payment by him to the wife, on the basis that he retains the K Street property, is $105,000.[1]
[1] Transcript of proceedings dated 17 May 2024, page 55.
The wife’s response, as to parenting and property, was filed 9 February 2021, an amended response was filed 12 April 2023 and finally a further amended response was filed 3 April 2024 and is the document upon which the wife relied upon during the final hearing. The wife sought a division of non-superannuation interests in the proportion of 75% to her and 25% to the husband, that the husband transfer the K Street property to her and a split of the husband’s superannuation interest of $12,599 in her favour. In final submissions the wife’s position was refined to 55/45 in her favour and that there be no superannuation splitting order.
Counsel for the parties jointly prepared a draft minute of order which provided, inter alia, that one party have the option to pay the other party a sum certain within 30 days and the paying party retain the K Street property. If the party who has first the option to retain the home does not make the necessary payment within 30 days, the other party can retain the K Street property upon paying the first party their entitlement within 30 days. If neither party can exercise the option, the K Street property be sold and the parties receive their entitlements from the proceeds of sale.
The parties agree on the identity and value of their legal and equitable interests in other property. They agree that there be no alteration of their respective interests in superannuation, household chattels and motor vehicles. They agree that those interests do not form part of the property settlement equation for the purpose of assessing entitlements although I can have regard to those interests in the context of s75(2)(b). As indicated, the parties agree on the current market value of the K Street property. The parties also reached agreement on the conveyancer, estate agent and the reserve price in the event of a default sale although both parties want to avoid the K Street property being sold.
Both the husband and wife want the K Street property as part of his/her entitlement on the basis that he/she pays out the interest of the other as quantified by the Court. I was informed that the issue of who retains the K Street property is the most contentious issue between the parties and has blocked a consensual resolution of the matter. The husband is the sole registered proprietor and mortgagor of the K Street property. The wife and X are in occupation of the property and have been since shortly after separation in 2019. If the husband is entitled to retain the property, the wife will withdraw a caveat which she has lodged for registration against the certificate of title to the property. If the wife is to retain the property, she would need to obtain a complete discharge of the registered mortgage which secures about $505,000 so that the husband is completely released from all obligations under that mortgage as well to as pay the husband any sum of money he is due as a result of these proceedings.

The question of the ability of either party to service such a large debt going forward was a major focus of the trial. Greatest emphasis was on how the wife could qualify for mortgage finance of approximately $505,000 plus whatever is due to the husband on the modest income deposed to in her Financial Statement.
THE LAW
Section 79 of the Act confers power on the Court to make an order for alteration of property interests. There is a pathway for fact finding which is based on evidence and the exercise of discretion. First, I am required to identify the legal and equitable interests of the parties in property which includes superannuation interests. Second, I must be satisfied that it is just and equitable, within the meaning of s 79(2), to make any order altering the interests of the parties in property. If I am not so satisfied, the application will come to an end. Third, I will assess the various contributions of the parties. That is their direct or indirect financial and non-financial contributions to property and contributions as a homemaker to the welfare of the family constituted by the husband and wife. Fourth, I will consider the effect of any proposed order on the earning capacity of either party within the meaning of s 79(4)(c) of the Act and make any adjustment to the contribution-based entitlement of the parties as a consequence of any impact on earning capacity. Then I must consider such of the 19 matters referred to in s 75(2) of the Act that are relevant. This includes, by reference to s 75(2)(o), any fact or circumstance which, in the opinion of the Court, the justice of the situation requires be taken into account shall be taken into account. Finally, I must be satisfied that, in all of the circumstances, the order which I propose to make altering the interests of the parties is just and equitable within the meaning of s 79(2) of the Act and appropriate within the meaning of s 79(1).
DOCUMENTS RELIED UPON IN RELATION TO FINANCIAL MATTERS
There are 100 filed documents associated with these proceedings.
The husband relied on the following documents:
(a)case outline filed 28 March 2024;
(b)further amended initiating application filed on 23 March 2023;
(c)financial statement sworn or affirmed on 19 April 2023;
(d)his trial affidavit sworn or affirmed on 28 March 2023;
(e)an affidavit of Mr AA sworn or affirmed on 27 March 2023;
(f)an affidavit of Mr BB sworn on 28 March 2023; and
(g)an affidavit of Mr CC enclosing a property valuation affirmed on 29 March 2023.
The wife relied on the following documents:
(a)case outline filed on 4 April 2024;
(b)further amended response to initiating application filed on 3 April 2024;
(c)financial statement sworn or affirmed on 4 April 2024;
(d)her consolidated trial affidavit sworn or affirmed on 4 April 2024;
(e)the affidavits of Mr DD affirmed on 12 April 2023 and 6 May 2024; and
(f)the affidavits of Mr EE sworn or affirmed on 12 April 2023 and 6 May 2024.
There are a number of exhibits.
ONUS OF PROOF AND FINDINGS OF FACT
Section 140 of the Evidence Act 1995 (Cth) provides the relevant test for the Court’s assessment of evidence in this matter: the facts in issue are to be proved by the party with the persuasive onus on the balance of probabilities.
The Court will do the best that it can with the evidence before the Court but it is for the parties to adduce relevant evidence upon which the Court can make necessary findings. A gap in evidence cannot necessarily be cured by inference or surmise. Insufficiency of evidence may lead to the Court not being able to make a finding which is necessary for one party’s case to succeed.
In these reasons, a statement of fact is a finding of fact.
Witnesses referred to Australian dollars and Country G currency interchangeably. For the purpose of the hearing, an exchange rate was conceded. Any reference to dollars is a reference to Australian dollars.
I will make findings as to credibility of witnesses where necessary. This was not a case where memories or perceptions are flawed. Evidence was not given honestly but inaccurately. The husband and wife each based their case on at least one elaborately constructed deception which was supported by evidence that the party relying on it knew to be false. A finding that a party has knowingly lied does not mean that all of their evidence is false. A finding of dishonesty necessitates careful scrutiny of other contested evidence or lack thereof.
THE HEARING
This trial was fully attended save for the wife’s witnesses who were overseas.
We used eBrief Ready with which all Counsel were sufficiently capable.
Both parties required F Language interpreters. The wife needed simultaneous interpretation. The husband turned to his interpreter when needed. The prolongation of the hearing was because of some incompetent interpreters and the wife giving false evidence, in affidavit and in cross examination, as to her income.
The case was originally assessed for compliance and readiness by Chief Justice Alstergren on 22 February 2022 and was to be heard for final hearing by Judge Harland on 27 April 2023.
The matter was unable to proceed before Judge Harland because the wife was unhappy with the interpreter and the interpreter indicated she was unable to continue. The Court was not able to obtain a replacement interpreter in the short time frame and the matter was adjourned to 30 August 2023, before Judge Harland. On 21 July 2023 the matter was transferred from Division 2 to Division 1 after the parties submitted their trial plan which anticipated ten witnesses were expected to be called, seven of which required an interpreter. As it turned out, in addition to the parties, only four witnesses were called when the hearing proceeded before me. The husband called his friend, Mr BB, and his brother, Mr AA. The wife called her brother, Mr DD, and her father, Mr EE. Three of those witnesses required an interpreter. The Court also funded and arranged for these interpreters. There were problems with the first three interpreters retained for the wife because the interpreters entered into conversations with the wife, which they described as “explanations” of the questions she was being asked. This was despite the interpreters having been directed on many occasions not to explain questions and to merely interpret word for word what the wife said even if the wife’s answer was non-responsive or seemed not to make sense.
On the second day of the hearing, Counsel for the husband conveyed his instructor’s complaint that the husband’s interpreter was making “at least one mistake in every sentence”. The witness withdrew for a brief period while I spoke to the practitioners in Court about whether we could proceed. There was no indication that alternative interpreters would be any better. Both Counsel obtained instructions to proceed. As foreshadowed, this part of the proceedings has been transcribed and the transcript is available to the parties on request.
During cross-examination, the husband was asked how his affidavit was prepared (it not having an interpreter’s clause). I was informed that the husband has an elementary grasp of English. He explained that his solicitor explained the contents of his affidavit to him in F Language before he signed it. I required the solicitor swear an affidavit in support of this statement and he did so.
The property application was heard on 9, 10 and 11 April 2024. On 11 April 2024, it was adjourned, part heard, to 29 April 2024. In the intervening period, the wife’s lawyer ceased to act for her. As a result, there were two further Case Management Hearings on 29 April 2024 and 8 May 2024. On 29 April 2024 I delivered brief ex-tempore reasons in Brar & Brar (No 2) [2024] FedCFamC1F 282. I incorporate those reasons into these reasons. The matter proceeded on 14, 15 and 17 May 2024.
The wife was in receipt of a s102NA grant of aid, but in the period between 29 April and 8 May she engaged private solicitors for the resumption of the final hearing on 14 May 2024. The wife was represented at the final hearing by Mr Cameron Allen of Counsel, who was first retained by way of s102NA grant and then paid privately for the final three days of hearing. Her solicitors in the first instance were TFA Legal, and then QM Lawyers for the final two days. She was also previously represented by FF Legal until 11 October 2023.
The husband is privately funded and was represented at all times by Parminder Sandhu Solicitors and Mr Marcus Duckett of Counsel. The most recent Costs Notice filed by the husband notes that he has paid $74,335 for professional fees up to 10 May 2024, with a further $9,200 estimated for the final two days of hearing (totalling $83,535). The husband has partly funded his legal costs by way of personal loans of which a total of $23,000 remains outstanding, owed to three separate personal friends of the husband.
Prior to the s102NA order, the wife was billed $33,200 by lawyers of which $20,000 was paid from funds borrowed by her brother and $13,200 from her own resources. The wife’s brother gave evidence under cross examination that there were no monies owing to him by the wife at the moment. The wife borrowed $6,600 from her friend Ms GG to pay costs. The wife’s legal costs have otherwise been covered by the s102NA scheme.
The other matter which prolonged the hearing is that the wife gave false evidence about her income, in the context of her capacity to borrow from a financial institution in order to take a transfer of the former matrimonial home from the husband. The wife was cross examined for a considerable time prior to admitting the dishonesty. The husband’s practitioners then needed to cause further documents to be produced by subpoena to be put to the wife. I estimate the wife’s false evidence and the consequential subpoena process prolonged the proceedings by two trial days and the two mention dates. This estimate does not include time wasted through the poor interpretation of evidence. I deal with the consequence of wasted Court time and legal costs below in the context of s 75(2)(o).
ISSUES
The matters which require determination by me are:
(a)whether a payment by the wife’s father to the husband’s brother a few days before the wedding was a dowry;
(b)the assessment of contributions and whether the dowry and the wedding costs are contributions attributable to the wife within the meaning of s 79(4) the Act;
(c)the assessment of s 75(2) factors;
(d)whether the husband and wife each received $52,400 immediately prior to separation or the husband retained the total sum of $104,800, the nature of any monies so received and the extent to which whatever monies were retained should be an add back;
(e)which party should have first option to keep the former matrimonial home; and
(f)whether the wife should pay the husband’s costs attributable to the time wasted as a consequence of her having given false evidence about her income and capacity to borrow funds in order to retain the K Street property.
IDENTIFICATION OF THE LEGAL AND EQUITABLE INTERESTS OF THE PARTIES
The husband and wife agree that the only property requiring alteration is the K Street property which has an agreed current market value of $770,000. It is subject to a mortgage securing $504,987. That mortgage includes the husband’s draw down of approximately $105,000 immediately prior to separation. The actual equity in the K Street property is $265,013.
I was informed by both Counsel that the husband and wife agree that the interests, assets and liabilities in the below table are excluded from the property to be adjusted but that I can have regard to them generally in the context of s75(2)(b) of the Act. This is a departure from the norm which is that certain interests will be altered and other interests taken into account as interests which a party will “keep”. The approach to which the parties have agreed in this case is that the following interests will not be counted.

Description Current ownership Husband’s value ($) Wife’s value ($)

Motor Vehicles

Motor Vehicle 1 Husband 7,000

Motor Vehicle 2 Wife 1,000

Superannuation interests

Superannuation Fund 1 at 30 June 2023
NB As at 30 June 2017 the husband’s superannuation interest was $23,500.00 Husband
45,416.07

Superannuation Fund 2 at 30 June 2020
NB The wife cannot locate a statement from her superannuation from 2017-2019 Wife 1,394.05

Superannuation Fund 3 as at 30 June 2023 Wife 13,212.00

Total superannuation interests 45,416.07 14,606.05

Personal Loans

Personal loan from Mr HH for legal costs Husband ~~14,500~~ (repaid)
+ 8,000 (2024)

Personal loan from Mr BB for legal costs Husband 5,000

Personal loan from Mr JJ for legal costs Husband 12,000 (2024)

~~Personal loan to Mr DD~~
NB: In cross-examination the wife’s brother said that there was no outstanding debt owed to him by the wife. ~~Wife~~ ~~E20,000~~

Personal loan from Mr EE Wife 5,000

Personal loan from Mr KK Wife 8,500

Personal loan from Ms GG for legal costs Wife 6,600

Total personal loans $25,000 of which all is for legal costs $20,100 of which 6,600 is for legal costs
IS IT JUST AND EQUITABLE TO MAKE AN ORDER ALTERING PROPERTY INTERESTS?

Both parties seek an alteration of property interests. Given the breakdown of the relationship, the ownership and current use of property, I am satisfied that it is just and equitable that there be an alteration property interests.
RELEVANT HISTORY INCLUDING FINDINGS AS TO CERTAIN FACTS
The husband is 43 years old, and the wife is 36 years old. Both were born in Country G. They are both of the same religion and speak the same language, F Language. They met in Country G in early 2016. They were engaged in early 2016. They married in early 2016. The husband returned to Australia and the wife remained in Country G until early 2017 when she entered Australia on a tourist visa and the parties commenced cohabitation.
Dowry
In the wife’s affidavit, she deposes that her marriage with the husband was arranged by her parents, who saw an advertisement in a newspaper and contacted the relevant matchmaking agency. She says at [20] of her trial affidavit that “our families did not know each other and there was no business relationship between our families”. The parties were engaged in early 2016 in front of 150 people. The wife’s evidence is that her parents wanted the engagement to last a year before any marriage, however pressure from the husband’s family resulted in a short engagement period, and marriage in early 2016. The wife’s case is that a few days before the ceremony her family were pressured by the husband’s family and the matchmaker into paying a dowry. The wife’s evidence, supported by evidence from her brother and father, is that her father was asked to pay the dowry in early 2016 which was five days before the wedding, and that her father felt he had no choice but to pay the dowry or face the social stigma of a broken engagement and all of the wedding preparations going to waste.[2] The wife’s brother, Mr DD, who gave evidence from Country LL via the Court’s MS Teams platform, said that he was against the payment of the dowry but said his father made the payment in part to save embarrassment but also because he had paid his education fees in an equivalent amount and wanted there to be equality between him and his sister.
[2] Wife’s affidavit filed 4 April 2024 [16].
Counsel for the wife submitted that the first mention of a dowry was by the wife in her affidavit affirmed 5 February 2021, where she deposes that:
[8] At the time of our marriage my parents contributed approximately $50,000 towards a property the Applicant purchased in Australia at [K Street, Suburb N], Victoria (''the matrimonial home"). The Applicant returned to live in Australia [in mid] 2016.
In the husband’s trial affidavit sworn 28 March 2023, the husband replied:
[33] As per paragraph 8 of the Respondent's affidavit affirmed 5 February 2021, I vehemently deny the claim that the Respondent's parents provided $50,000 for the matrimonial property. I have been living in Australia since 2009 and during this time, I was almost always employed. As earlier deposed in this affidavit, I had approximately $144,000 in savings and $23,563.16 in superannuation prior to marriage.
Notably neither party referred to a “dowry” in the above affidavits. Bank statements were tendered[3] which corroborate the husband’s evidence about his savings.
[3] Exhibit H1.
The wife squarely raised the issue of a ‘dowry’ in her affidavit sworn 11 April 2023 and this was repeated in her updated trial affidavit sworn 4 April 2024 in the following terms.
[16] … There was no discussion in relation to the dowry between the families when we got engaged. However, [in early] 2016, just before our wedding, the matchmaker came to my family and asked for the dowry and they asked for a specific amount of cash […]. This is the equivalent of $50,000 AUD. Their reasons for asking for cash is to pay for my visa and tickets and half of the money they requested was spent on [the husband’s] studies in Australia.
[17] My family didn’t have that much money just two days before the marriage. My brother [Mr DD] was angry about this, but we couldn’t say no because of what the community would say if the engagement was broken. My father borrowed the money from my uncle and family in return for security from land that we owned.
[18] My family wanted to give [the husband’s] family cash so that everyone in the [community] knew how much dowry was paid […], which is the usual custom. But [the husband’s] family preferred an account transfer as they wanted to hide it from everyone in the [community]. We asked them for the account details. [The husband] said that he does not live in [Country G] and does now have any accounts. He asked for the money to be transferred to [Mr AA], which is [the husband’s] brother.
[19] My family was not happy about the dowry but because the wedding had been organised and wedding invitations sent out, they felt that there was no choice but to go ahead with the wedding. After that, my family gave [the husband’s] family [a portion of the requested amount] and the remaining [amount] we used to spend on the wedding.
The husband’s evidence in cross-examination was that no dowry was sought or paid, and that the payment received by his brother from the wife’s family was regarding a transaction over livestock. The husband denied that he was involved in the bank transfer between the wife’s father and Mr AA. The husband deposes:
[36] I believe the sum was transferred to my brother as the Respondent’s father and my brother had an ongoing business relationship and were involved in an exchange of goods and services, namely [livestock]. From my understanding, the funds were also payments for prior outstanding business dealings between [Mr AA] and the Respondent’s father. I did not receive the money or utilise it for my personal expenses. More so, I was not aware of this transfer of money as I do not interfere in my brother’s financial affairs. I understand [Mr AA] had ceased all business dealings with the Respondent’s father before my marriage with the Respondent.
The husband’s brother, Mr AA, swore an affidavit on 27 March 2023. He lives in Suburb MM (Melbourne) and is a goods producer. He was cross examined on the morning of the third day of trial. He gave evidence through an interpreter. He received the payment made by the wife’s father and he deposed that:
[3] Around three to four years before [Mr Linwood’s] marriage to [Ms Linwood] [in early] 2016, I had a business in [Region F, Country G] namely involving the sale of [livestock]. I can confirm the transfer of [money] by [Ms Linwood’s] father to me [in early] 2016 was for the sale of [livestock] and payment for outstanding business dealings I had with [Ms Linwood’s] father before the marriage. The transfer of money by [Ms Linwood’s] father was unrelated to the marriage and only related to my business at the time. I can confirm my business dealings with the Respondents father had ceased before my brother’s marriage with [Ms Linwood].

In the course of cross-examination, Mr AA claimed that his business with the wife’s father commenced in 2013 or 2014 and there had been multiple smaller payments made in the period 2013 to 2016. He did not provide much detail about the business when asked by Counsel save that the business involved livestock, that the wife’s father was a partner in the business and there were up to six other partners. Mr AA did not identify any of the partners and was not asked to name them. Mr AA said that all payments prior to the payment that was made in the week of the wedding were cash payments.
Pursuant to Country G legislation, it is prohibited to give or take a dowry in Country G.[4] In approximately late 2020, the wife made a complaint, via email, to Country G police about the dowry. The wife stated that an amount of money was transferred by the wife’s father, Mr EE, to the bank account of the husband’s brother Mr AA.[5] This was four and a half years after the alleged dowry payment.[6] The police case was closed by police in late 2022.[7] In cross‑examination, Mr AA, the husband’s brother, denied knowledge of the dowry investigation in Country G:
MR ALLEN: There’s a court case in [Country G] about the wife –
MR DUCKET: Not a court case -
MR ALLEN: - perhaps - an investigation… Are you aware of that?
HER HONOUR: Aware of what? Make the question again.
MR ALLEN: That there is an investigation about whether a dowry was paid?
INTERPRETER: The people were taking dowry, but we didn’t take any dowry –
MR ALLEN: There is an investigation… You know there is an investigation?
INTERPRETER: No.
[4] Exhibit H9.
[5] Exhibit H18.
[6] Exhibit H17.
[7] Exhibit H18.
This was despite a reference to the police investigation in paragraph 5 of Mr AA’s affidavit as follows:
[5] [In late] 2021, I understand [Ms Linwood] lodged a Police complaint against me and [Mr Linwood] in [Country G]. In her complaint, [Ms Linwood] alleged the transfer of [money] mentioned above in paragraph 4 was dowry for [Mr Linwood’s] marriage. In response to [Ms Linwood’s] complaint, I had advised the Police and maintained that the transfer by [Ms Linwood’s] father to me was only for business purposes and unrelated to [Mr Linwood’s] marriage.
Mr AA was asked about business records but replied that the only records were the payments themselves. He denied ever telling the husband about his business dealings with the wife’s father, which I find implausible given the size of the payment, the length of the alleged business partnership, and the fact that the brother and the wife’s father were both going to be in attendance at the wedding.
Mr DD is the wife’s brother and currently lives in Country LL. He swore an affidavit on 6 April 2023 and a second affidavit during a hiatus in the final hearing on 6 May 2024. Mr DD gave evidence from Country LL over MS Teams. He did not require an interpreter. His evidence was that a dowry was demanded and paid. Further, that there had been no business dealings between the families. Under cross examination, he elaborated on the nature of the family business which had been run by his father which revealed that his parents kept an animal for themselves, that his father did not keep “[livestock]” and his business did not deal directly in livestock.
Mr DD was also asked about his father’s occupation. He explained that his father had worked at a distribution centre in Region F, Country G as an agent for a corporation. Mr DD was asked about the events leading up to the alleged dowry payment and repeated that he was not in favour of the payment. He explained that, apart from wanting to spend money equally for all of his children, his father was also motivated to pay the dowry as a “matter of pride”, that they had invited “everyone” to the wedding and that it could not be called off. He suggested that the wedding, which on his evidence was paid for entirely by the wife’s family as is custom, had been expanded from 200 guests to 400 guests by the husband’s family and that the wedding alone cost the family approximately AU$25,000.
On the issue of the dowry, my impression of Mr DD was that he was truthful.
Mr EE (the wife’s father) swore an affidavit on 11 April 2024 which was witnessed and signed electronically and swore a second affidavit on 7 May 2024 which was witnessed and signed in Country G. He gave evidence from Country G over MS Teams on 15 May 2024. In his first affidavit, Mr EE provided details as to the events behind the marriage such as the marriage negotiations and his perspective of the dowry dispute. His view is consistent with his daughter’s and Mr DD. He deposes that he was asked for an amount of money by way of dowry only days before the wedding and that this was renegotiated to a lower amount with a further amount spent on the wedding. In his second affidavit, Mr EE absolutely denied ever having business dealings with Mr AA.
Mr EE had the assistance of a video interpreter which was provided by the Court. There were significant organisational and interpreting issues with his cross-examination. The wife’s father was not able to identify his own affidavit, and he did not present as a calm or understanding witness. At several points during his cross-examination, he appeared to be talking to or looking at someone else in the room with him. This was despite him being told by Counsel and by the Court that he should be in a private room by himself. He denied ever having a business relationship with Mr AA and said that he did not keep documents as to the proposed loan to his daughter because “there is no point in making an agreement with children”.
The wife’s father was not adequately prepared by the wife’s representatives to give evidence remotely. My impression is that he was not honest about who was in the immediate vicinity of the room and whether that person, most likely his wife, was communicating with him. He was largely unresponsive in his answers. His frequent response to Counsel for the husband was that Counsel was trying to trick him by asking the same question over and over again. All in all, the wife’s father was an unsatisfactory witness.
The necessary preparations for a witness to give evidence remotely include the following:
(1)The behaviour, manner and presentation of a witness should be the same as if they were attending the Court hearing in person. This includes addressing the Judge correctly as “Your Honour” and addressing Counsel politely and courteously.
(2)A witness is to be alone, in a secure room with doors closed.
(3)The witness is to ensure that there will be no interruptions or distractions for the duration of the video appearance at the hearing.
(4)If witnesses are unable to give uninterrupted evidence, they should advise their legal representatives as soon as practicable.
(5)A witness may have a glass of water with them but a witness is not permitted to eat or to drink anything else during the course of the hearing, without permission to do so.
(6)The witness may take notes and have pen and blank paper for doing so but the taking of notes will not be permitted where it impedes the flow of the evidence.
(7)A witness should have recently re-read all affidavits or statements made by them in these proceedings and have a clean copy of those documents with them. Copy affidavits should be placed face down on the surface in front of the witness and not turned over or read by the witness unless or until the witness is directed to do so. If the witness only has electronic copies, the files should be placed on the desktop of the witness’ computer, and not opened or read by the witness unless or until directed to do so.
(8)The witness will be sworn or affirmed by the Associate prior to commencement of their evidence. It is expected that the witness has had explained to them the distinction between an oath and an affirmation and be able to say whether they wish to make an oath or an affirmation.
(9)The party cross-examining the witness is to ensure that the witness has all documents to which they may be referred. This means that a cross-examiner must know in advance what documents will be shown to the witness and ensure that those documents are available to the witness in a timely manner.
(10)Witnesses cannot communicate with anyone about their evidence whilst under cross‑examination:
(a)Witnesses are not permitted to use or access their phones whilst giving evidence, except where their evidence is being interpreted. They may use their telephone to communicate with their practitioner at all other times;
(b)Witnesses may be asked to show the Court their location for giving evidence, to confirm that they are alone.
(11)Where an objection is made and discussions are required in the absence of the witness, the witness may be asked to mute their computer or otherwise be virtually ejected from the meeting space and invited to re-join when the objection has been dealt with.
These guidelines appear in the Court’s Practitioner and Litigant Guide to Electronic Hearings, available here: To these, there should be added two further requirements. First, a witness giving evidence remotely should not be expected to give evidence when they would ordinarily be asleep in the time-zone in which they are located. This may entail the Court sitting outside regular Court hours. Practitioners have to be careful in scheduling the evidence of remote witnesses. Second, interpretation of a remote witnesses’ evidence must be contemporaneous and effected through a separate telephone line so that the hearing does not need to be interrupted for every translation.
I do not accept that the payment was referrable to a livestock transaction rather than as a dowry. I reject the evidence of Mr AA in this regard. He was not a reliable witness. The description of his ‘business relationship’ with the wife’s father was implausible and impressed me as being made up for these proceedings. The lack of any corroboration, by even a single document or some evidence from any of the other six partners to whom he referred, is notable. His denial of knowledge about the complaint to police was inconsistent with his affidavit evidence. I do acknowledge, however, that his evidence appeared to be plagued by errors with interpretation. Some issues with his responses may be attributable to inaccurate interpretation of convoluted questions.
Payment of money is conceded as having been made by the wife’s family to the husband’s brother. The divergence in evidence is what the payment was for. The wife in her affidavit evidence says her family contributed money to the husband’s family, of which a portion was spent on the wedding and the remaining amount was paid by the wife’s brother into the bank account of the husband’s brother, Mr AA. The wife’s brother, Mr DD, describes the figure as the total amount in his affidavit filed 6 May 2024. In cross-examination he clarified that the wedding, paid for by the wife’s family exclusively as is the custom in their culture, cost the wife’s family approximately AU$25,000. The wife was not sure how much was spent, in cross‑examination stating that she was not in charge of expenses. She was adamant however that her family contributed to the cost of the wedding.
After hearing all of the evidence, I am satisfied that at least an amount sent by the wife’s brother which was intended as a dowry and another amount was spent for wedding expenses. I do not accept the evidence of the husband’s brother that the payment of the total sum (or any part of it) was for business purposes unrelated to the wedding of the husband and the wife. I regard the evidence of the husband and his brother, about a historical transaction of livestock which was paid for over time, to be a fabrication.
Jewellery
The husband contends that his family contributed “approximately $25,000” towards the wedding celebrations. The wife alleges that her family paid approximately $20,000 towards the wedding.
The husband alleges that his family gave $10,000 worth of jewellery to the wife.[8] The husband tendered Exhibit H5, which is a handwritten jewellery receipt from a jewellery store dated early 2016 for a total of approximately AUD$9,000 in Country G currency. The jewellery shop is located in Region F of Country G. Both parties to the jewellery transaction speak F Language. I asked why the receipt for the jewellery was written in English. Counsel for the husband submitted that the receipt is in English because English is the “single unifying language” of Country G. The receipt for jewellery describes the items.
[8] Outline of Case of Mr Linwood filed 28 March 2024.
The wife and her family deny that any jewellery was given to the wife by the husband or his family. No photos from the wedding or photos of the jewellery were tendered. The wife deposes at [80] that the husband is in possession of a number of jewellery items which she received at the time of marriage. Notably, the wife’s description does not (with the exception of two items) correspond with the jewellery described in the receipt. In oral evidence she denied ever receiving any jewellery at her wedding from the husband or his family, so I presume that the wife received the jewellery from her family.
On the issue of jewellery, I prefer the evidence of the husband to that of the wife. If the wife’s family gave her jewellery, I am confident that they would have described it in detail. They have not. Indeed, the evidence of the wife’s brother and father does not mention jewellery.
I find that the husband did give the wife the jewellery for which he produced a receipt. Both parties say that the other party has gold jewellery which belongs to the wife but there was no cross-examination focused on establishing a chain of custody and its whereabouts.
Finances
The husband was living in Australia at the time of the marriage, having arrived here in approximately 2009. The husband deposes that prior to the marriage he had $144,000 in savings. He deposed that his superannuation interest was worth $23,563.16 prior to the marriage. That evidence was verified by documents produced at the hearing.[9]
[9] Exhibit H2.
Following the marriage in early 2016, the husband returned to Australia and the wife remained in Country G to study for her English language qualifications.
In mid-2016 the husband paid $1,000 as a deposit to purchase the land at K Street, Suburb N. The wife was still ling in Country G. In mid-2016 he paid a further $10,000 towards the deposit and later that month he paid the balance of deposit of $14,500. Bank statements were produced to verify the payments and the wife admits the payments save that she claimed the last two, totalling $24,500 were made in 2017. The bank statements produced by the husband verify that the payments were made in 2016, as stated by him, and not in 2017 as alleged by the wife.[10] The husband’s evidence is that he applied savings totalling $130,000 to purchase the K Street property.
[10] Exhibit H26 shows $24,500 & H14 shows $105,000.
The wife entered Australia on a tourist visa and the parties’ commenced cohabitation in early 2017. That was 11 months after the marriage was solemnised. The wife’s tourist visa was valid for three months.
The wife states that the husband opened a joint account for himself and the wife at National Australia Bank in early 2017 and that was the only bank account she had access to, with all her income (but not the husband’s) going into that account.
The husband agreed that his income did not go into the joint account. He deposed that he did not give the wife any copies of his personal accounts as he would transfer her money when she asked for it. He deposed that all expenses were met from his personal account.
The husband deposed that he purchased a car for the family and that he paid $2,500 for the wife’s tertiary qualification.
The wife left Australia for a period of time in 2017 and stayed in Country M. Leaving and re‑entering Australia was a requirement of her application for a Partner Visa. The husband claims to have given the wife $7,000 for travel, accommodation, and shopping in Country M. The husband claims that his total outlay for the wife’s various visas, excluding the living costs in Country M, was $17,500. This is disputed by the wife who claims that the funds were joint funds.
Before going further, I should mention that the husband had been previously married to Ms Y. They divorced in approximately 2014 and Ms Y is now married to the husband’s friend, Mr Z. The wife maintains that she had been unaware the husband was previously married to Ms Y until well after she (the wife) arrived in Australia and found their marriage certificate in about December 2017 whilst tidying the home. The wife deposed that she believed the husband was in an ongoing relationship with his ex-wife Ms Y even after she (the wife) arrived in Australia and she and the husband were cohabitating. She deposes that Ms Y lived with them for a period of time at their rental accommodation and the husband involved Ms Y, rather than the wife, in decisions relating to the construction of the K Street property.
The husband denies not telling the wife about his prior marriage to Ms Y, pointing to the word ‘divorcee’ as his status on the marriage certificate for himself and the wife as evidence that he had told the wife and her father prior to their marriage in early 2016. The wife also takes issue with not having been told by the husband that Ms Y is the husband’s relative. This controversy about the husband’s prior marriage and his relationship with Ms Y has no bearing upon substantive issues in the financial proceedings but is emblematic of the lack of trust and consequential resentment that existed between the parties from relatively early on in their cohabitation. The wife had arrived in Australia in early 2017 and found the certificate for the husband’s prior marriage in December 2017. I am satisfied that, at least from December 2017, the wife was suspicious of the husband, making serious allegations against him (which he denied) and that the wife would have been on guard, wary of the husband’s motives and unlikely to accept what the husband said at face value.
The husband and wife moved into the newly built dwelling at K Street in mid-2018.
The wife deposes that the husband was physically violent to towards her whilst she was pregnant with X. She deposed that she called her brother who tried to calm the husband. The husband then invited the wife’s parents to stay in Melbourne and paid the $2,000 referred to above towards their trip. The wife’s parents arrived in 2018, shortly before X’s birth.
X was born in 2018.
When X was a few months old, the wife found out that her Medicare card was cancelled. She was subsequently informed that her immigration visa had expired. The wife deposed at [51] that the husband “had previously told me that once we had a child together, he would apply for a partner visa for me”. The wife contacted her brother who called the husband and threatened to go to the police if the husband did not apply for the visa.
As part of her application for permanent residency, the wife deposed that she had to write a statement about the husband. The wife deposed that Ms Y wrote it out for her and that she copied it. The wife’s evidence was that she did not think she would ever separate from the husband because it is uncommon in her culture and that she thought they would sort out their differences. Exhibit H10 is a copy statement by the wife dated 7 May 2019 and includes the following:
•My husband and I take care of our child as a joint responsibility. He is a good person. He is very supporting and caring at all time [sic]. He is very coopertive [sic] in raising our child. We look after child together [sic].
•I am very emotionally attached with my husband. He is very caring and responsibe [sic]. I share all my problems with him. He is very supportive in raising our child. He help me [sic] emotionally during my pregnacy [sic]. Our relationship gets storg [sic] and stronger every day as the time passes. I feel lonely without him. He is working hard to help our family grow. I believe our relationship is very strong and is forever.

The husband refers to this document in response to the wife’s complaints of family violence perpetrated by the husband against the wife. He also relies upon it as being indicative of the wife and himself having a functional relationship. When asked about this document she said that “I cannot say anything about this time I just copied everything he gave to me.” For reasons which appear below, my assessment of the wife is that she will say, or give evidence on oath, in whatever terms she believes are necessary to obtain the result she seeks. I am satisfied that the wife understood enough of the document to know that it was documentation required to progress her visa application. I do not think that the wife would have acted solely on the direction or recommendation of the husband and/or Ms Y to sign a document the contents of which she could not comprehend particularly given her suspicion of the husband and her antipathy towards Ms Y.
On 15 August 2019, the husband refinanced the matrimonial home through NN Financial Services for a total loan of $496,000. This refinancing increased the mortgage by $105,000 or thereabouts that the husband withdrew in cash over several transactions on 16 August 2019. The husband says that the refinancing of the property in the days prior to separation was done with the wife’s knowledge and consent and that she met the lender’s valuer when that valuer attended the property to inspect it. The wife in her written evidence says that she did not agree to renegotiation of the mortgage and did not ever meet with the mortgage broker. She recalls a valuation inspection but says the husband told her it was for insurance purposes.
As indicated above, the first application filed was by the husband seeking only parenting orders. His affidavit in support of that application was made on 18 September 2020 and, unsurprisingly, does not refer to financial matters including the approximately $105,000 which he withdrew or the $52,400 allegedly given to the wife. The wife’s response also sought a property settlement. In her affidavit in support of that response/application sworn on 5 February 2021 the wife describes the further borrowings of $105,000 as follows:
[48] [In mid] 2018 the Applicant took a second mortgage on the matrimonial home in the amount of $104,434.19. The amount of $103,000 was withdrawn the Applicant’s ANZ account number […05] in cash at various six different ATMs across Melbourne on 16 August 2019. A further $2,350.91 was withdrawn on 19 August 2019. Annexed to the Affidavit and marked with the letters “[MSL]-4” is a copy of the bank account statement showing these withdrawals.
By an affidavit sworn on 12 March 2021 the husband deposed to the following:
[26] It is true that the family property was refinanced; however, it was done with [Ms Linwood’s] consent. As I was working full time at the time; as a result, [Ms Linwood] attended all meetings with the valuer who attended the property for a valuation purpose. She took her part [in mid] 2019 and [Ms Linwood] agreed not to claim any further amounts from the house and that she would accept this in full settlement of any claim she might have. The amount given to [Ms Linwood] was in cash. Hence, no bank statements are proving this.
Notably, neither the husband nor his lawyer referred to an acknowledgment in writing by the wife to having received $52,400 in circumstances where it would have been pertinent, if not irresistible, to do so if they had possession of such a document. I say irresistible because it would have been a complete answer to the wife’s version of events given in her affidavit of 5 February 2021.
In his trial affidavit sworn 28 March 2023, the husband refers, I think for the first time, to the wife having signed a document acknowledging receipt of the $52,400. He deposed as follows:
[35][In mid] 2019, a day before we had formally separated, the Respondent and I entered into a written agreement where the Respondent accepted cash payment of $52,400 as final settlement for her share in the matrimonial property. On this day, I had called my brother [Mr AA] (“[Mr AA]”) and friend [Mr BB] (“[Mr BB]”) to attend my property in the evening. I note that [Mr BB] was initially attending my house to collect money that I owed him in the past, however he agreed to stay back as a witness. [Mr AA] was living with us at the property during this period, however he had gone out for grocery shopping with his wife. I had first provided the Respondent cash and then the agreement was signed by the Respondent and myself in the presence of [Mr BB] and [Mr AA], who witnessed me physically provide the Respondent cash in denominations of $50 and $100 notes, and then signed as witnesses. I note that I had provided the cash in an envelope. This event occurred in the front living area of the former matrimonial house. I saw the Respondent physically count the cash and she did not raise any concerns as to the amount in the presence of [Mr BB] and [Mr AA]. The Respondent then went to her room to I assume to securely pack the cash as she intended to leave the house the following day. I have enclosed the agreement dated [mid] 2019 written in [F Language] and a corresponding professionally translated version marked with the letters “[MRL]-13”. Both [Mr AA] and [Mr BB] have filed affidavits in these proceedings.
The copy of the acknowledgment in his possession is a photocopy and not the original document was tendered at the final hearing as Exhibit H3. He claims that the wife has the original document. The document is in F Language. A certified translation is as follows:
16-08-2019
Subject: Mutual division
[Ms Linwood] and [Mr Linwood] have ended their marriage relationship with mutual agreement. [Ms Linwood] has received $52,400 in cash in the presence of two witnesses and [Ms Linwood] will have no share in the house now and thereafter.
Witnesses
[Mr Linwood]
[Ms Linwood]
[Mr BB]
[Mr AA]
The date of the certified translation is 14 July 2021. In passing, I note that the husband has had the same solicitor throughout these proceedings and that practitioner is sufficiently competent in F Language to purport to correct a number of the professional interpreters during the final hearing. Accordingly, I am satisfied that the husband’s solicitor would not have needed to wait for a certified translation of the alleged acknowledgement document. It is not part of the husband’s case at final hearing that the wife has no claim for an alteration of property interests, just that she has received $52,400 on account of her entitlement. The wife unequivocally denies that the husband paid her $52,400 as alleged.
According to the husband and his brother, the wife signed the document evidencing receipt of the $52,400 within 40-45 minutes from the husband’s initial drafting of the document. The wife counted the money before signing the document which the husband composed as the wife was counting the cash. The money was in several packets. The husband’s evidence is that the wife requested the money be paid in cash as she did not have her own bank account (in her sole name) at that time. The husband’s case is that when the wife signed the receipt document the two other witnesses were present and there was no one else in the room.
The husband’s case is that he owed money to Mr BB. Mr BB visited the K Street property to collect money from the husband contemporaneously with the husband handing $52,400 to the wife. The husband’s brother, Mr AA, also called at the K Street property at the husband’s request.
Mr BB swore an affidavit on 28 March 2023. Mr BB gave evidence in person on the afternoon of the second day of trial and did not require an interpreter.
He is a friend of the husband’s and has loaned the husband money in the past. He stated that he does not charge the husband any interest on personal loans. The husband’s Financial Statement sworn on 19 April 2023 notes that at the time of the statement he owed Mr BB $5,000.
In summary, Mr BB’s affidavit evidence was that he witnessed the wife’s signature on the informal property settlement agreement in mid-2019. His evidence was that he witnessed the wife physically counting the cash and was also witness to her signing the document in the living room at the front of the house. His evidence during cross-examination was consistent with his affidavit evidence. Mr BB said the wife spent around 15-20 minutes counting the cash in bundles over five envelopes, and that his entire visit took 35-40 minutes.
The wife alleges that the signature appearing in Exhibit H3 is a forgery. The wife asserts that the husband has forged her signature on a number of occasions. The wife’s evidence is that she believes that Ms Y may be able to copy her signature. The husband maintains that the signature is genuine.
As the wife propounds that the signature is a forgery, she bears the onus of satisfying the Court that the signature is not genuine (see Damjanovic v York Agencies Pty Ltd [2003] NSWCA 222 at [25]). That includes calling expert evidence, where expert evidence is available. Counsel for both parties acknowledged some difficulty in establishing that there is a body of science around handwriting in respect of which there are experts. I take that as a tacit concession on the part of the husband that the wife’s failure to call expert evidence does not impel me to draw an inference that there is expert evidence which would have not assisted the wife.
This is a copy of the signature from the photocopy acknowledgement/receipt (Exhibit H3):
IMAGE OF SIGNATURE NOT FOR PUBLICATION
Below is a copy of the signature which appears on the wife’s Financial Statement sworn 9 February 2021 (Exhibit H21).
IMAGE OF SIGNATURE NOT FOR PUBLICATION
A letter in the wife’s given name is distinctive. Save for the family name the composition and placement of letters is the same in both samples. Where the letter appears in the wife’s family name in the second specimen they are distinct loops whereas on the signature from the alleged receipt the letter is a narrower loop. However, the first specimen is blurred and may have been written with a thicker pen. It is also conceivable that Exhibit H3 is a copy of Exhibit H21 so that both are the same signature rather than two signatures by the same person. Exhibit H3 was first put into evidence well after the wife swore her Financial Statement on 5 February 2021 (Exhibit H21).
In cross-examination of the wife said, referring to Exhibit H3: “I would not sign a document like this”. Counsel for the husband invited her to compare the signatures between Exhibit H3 (the document purporting to evidence the payment) and a signature on Exhibit H21. The wife denied that the signatures were similar stating “I don’t think they are the same”. The wife maintained that she signed Exhibit H21 (the Financial Statement) but that she did not sign Exhibit H3 (the alleged acknowledgment).
I don’t agree with the wife that the above two signatures are not “similar”. Indeed, they are so similar that, after reviewing all of the evidence, I am deeply suspicious of the authenticity of Exhibit H3. Notably:
(a)There is a notch in the top of a letter in H3 which appears in precisely the same place in Exhibit H21.
(b)The reason that the signature on Exhibit H3 is blurred may be that it was photocopied for the purpose of affixing it to Exhibit H21. Electronic coping would also replicate the notch whereas tracing the signature would be unlikely to see the notch replicated.
(c)It is unusual, to my mind, that they person in whose favour the acknowledgment of receipt of payment was allegedly given, being the husband, should elect to keep a copy of the acknowledgement rather than the original document. There was no cross examination about how a copy was made at the husband’s house. However, I readily accept that it is harder to authenticate a photocopy document than it is to authenticate an original document. There is no ink to compare or date and there is no pen pressure to check.
The final persuasive fact comes from the submission by Counsel for the husband that the wife’s signature “changed over time” or words to that effect. He referred to the below signature which appears in the wife’s first affidavit, exhibited as H20.
IMAGE OF SIGNATURE NOT FOR PUBLICATION
What Mr Duckett did not mention, and presumably overlooked, is that the wife’s Financial Statement affirmed on 5 February 2021 was only one of three documents signed by her on that day for her solicitor. H20 is from the wife’s narrative affidavit affirmed on 5 February 2021. Both H20 and H21 were signed on the same day and yet the wife’s signatures are quite different. The fact that two of the signatures are so different, leaves me with a deep suspicion that Exhibit H3 is actually a copy of H21 rather than an authentic signature of the wife.
The Court has commented on drawing conclusions on the basis of handwriting analysis in the cases of Savage v Soloman [2021] FedCFamC2G 278 and Brayton v Brayton [2021] FedCFamC1F 337. Both decisions refer to the decision of Holland J in Sumner v Booth [1974] 2 NSWLR 174 at 178 where his Honour referred to “…the great dangers in the field of handwriting or in the expression of opinions by handwriting experts in acting upon insufficient samples of genuine signatures, including evidence of the date at which those samples came into existence”. Here there is no expert evidence in circumstances where the wife bore the onus of disproving it was her signature. However, there is a lack of evidence all around with the result that I am not comfortable to conclude that the signature on the acknowledgment of receipt of funds (Exhibit H3) is an authentic signature of the wife affixed as described by the husband and his two witnesses.
On balance, I cannot find that the wife signed the document acknowledging receipt of the $52,400. For the avoidance of doubt, it follows that I do not accept the evidence of Mr BB or the husband’s brother, Mr AA, or the husband on the point of the wife having received and acknowledged the alleged payment of $52,400 in their presence.
The husband did not depose to what happened to even the remainder of the proceeds of the refinance ($52,400) according to him save that he gave $20,000 to a friend, whom I assumed to be Mr BB, to repay an outstanding personal loan. There was no evidence about the use of the funds from the personal loan. On the last day of trial, I gave Counsel for the husband the opportunity to seek to have his client give viva-voce evidence as to how the funds had been used. The husband’s Counsel said from the bar table that the funds had been used in part to repay a personal loan to Mr BB and some further funds used for home improvements. However, the husband was not called to give further evidence on oath.
Family Violence & Separation
The parties separated on a final basis on 17 August 2019 following an incident in which a Family Violence Safety Notice was issued against the wife. X was less than one year old at that time. The wife was required to vacate the home pursuant to the Family Violence Safety Notice and moved into emergency accommodation with their daughter X for several months. The father did not see X from August 2019 to June 2021.
The wife was asked in cross-examination about the incident on 17 August 2021 when she cut up the husband’s suitcase. Her affidavit evidence was that the husband took all her documents and jewellery and locked them in a suitcase. She says this then triggered her to take a kitchen knife and attempt to open the suitcase to retrieve her documents. She says the husband used cameras to record her with the knife. This event resulted in there being a Family Violence Safety Notice issued against her. The wife sought support from OO Support Services. However, when asked about this in cross-examination, she said that she cut up the suitcase with the husband’s permission as he had locked it and lost the keys.
The conflict between the husband and the wife did not abate post separation. There were several applications for Intervention (Family Violence) Orders under State legislation. The parties have mutual Final Intervention Orders against each other, which are due to expire in late 2027.
Neither party seeks an adjustment in the terms of Kennon v Kennon (1997) 22 Fam LR 1.
The parties have not resided together since August 2019.
In September 2019 the wife moved back into the K Street property.
After separation, the husband says that he made further contributions by way of $2,000 in council rates, $900 in water rates and $12,800 in mortgage repayments in the period separation to June 2021. He says he also paid $2,260 for house insurance and continues to pay $80 per month in home insurance. In June 2021 the mother assumed responsibility for payment of the house mortgage. She has paid interest only. The husband asserts that the wife has been late in paying instalments but adduced no evidence of late payments save for the last payment which was due during the hearing and made by the wife a day or two late.
Post separation, the husband rented a four-bedroom share house in Suburb PP, Victoria where he lives with two other adult males who are employed as transport workers. The husband is also a transport worker.
The parties were divorced with effect from late 2020. Neither party has entered into a new relationship although the wife said that she is planning to marry again at some stage.
In her affidavit sworn on 4 April 2024, the wife gave her occupation as “[Educator/Service industry]”. Her statements to the Family Report writer with respect to the parenting proceedings are consistent with this. However, over the course of cross-examination it became clear that the mother had been less than transparent with the Court as to her working status and income. This is discussed in more detail below.
CREDIT
The husband and wife were both cross examined. Both had an elementary grasp of English, with the husband more fluent than the wife. They were both assisted by interpreters. Some interpreters were good, but the majority were not.
Husband
The husband was softly spoken and stoic. While he had some understanding of English there was often confusion between the husband and the interpreter, or the interpreter and the Court. His evidence in cross-examination was largely consistent with his filed material. I found him to be a cagey witness. He was truthful when it suited him. A large part of his case was denying that a dowry was paid. His evidence on the subject was minimal but I am satisfied that the premise was dishonest.
I do not accept the evidence of the husband and his witnesses as to the payment of $52,400 to the wife.
I did not find his oral evidence under cross examination particularly helpful.
Wife
The wife presented similarly to the husband in the beginning of her evidence. However, once it became apparent that she had lied in her application to Q Finance and therefore to the Court, she became very emotional. For the remainder of her cross-examination, she presented as confused and was generally avoidant in her responses. I found her to be an unreliable witness who does not feel constrained to tell the truth.
It is convenient to outline the events leading up to the wife’s false evidence below so as to not unnecessarily repeat them later.
The first day of the wife’s evidence in Court was spent clarifying the wife’s income and whether the information provided by her or on her behalf in her application to Q Finance was truthful. The mortgage finance to for which the wife applies was to enable her to take a transfer of the K Street property as part of the alteration of property interests. In order to be entitled to retain the K Street property, the wife would have to provide mortgage or other funds which are sufficient to pay out the existing mortgage, of $504,987 together with any funds to which the husband is entitled. In her Financial Statement, the wife deposed to an income of approximately $52,000 consisting of income, tax benefit and child support payments. Her list of expenses total $1,115 per week, which is $95 more than her weekly income. A key issue in the case was how she purports to obtain loan approval and continue to service loan repayments and buy out the husband’s interest in order to have the K Street property transferred to her.

In Karimi & Shah, Justice Altobelli found that a dowry paid by the husband (or his family) in another country was a direct financial contribution. This case before me differs from Karimi & Shah in that the dowry was outstanding and there were proceedings ongoing in the other country in relation to the wife’s entitlement. The husband in that matter contended that the wife should be treated as owning certain real property in satisfaction of the outstanding dowry.
In Hashim & Hashim [2012] FamCA 135 the dowry was recorded on the marriage contract, and it does not appear to be in dispute that at least part of the dowry was paid to the wife by the husband.[11] The court was satisfied that whatever funds were held by the parties at the time of cohabitation went into the joint acquisition and improvement of the family home, thus demonstrating a link between the dowry funds paid and property of the parties within the meaning of s79(4).
[11] Hashim & Hashim [2012] FamCA 135 [21].
Section 79(4) does not require the wife to demonstrate a nexus between a contribution and a particular item of property: Farmer and Bramley (2000) FLC 93-060; Dickons & Dickons [2012] FamCAFC 154. Nor is it required that the wife establish that the funds were used towards the purchase of real property as opposed to personalty. However, in the current case, the wife did not establish the relationship between the dowry and the husband at all. The evidence takes the dowry no further than the husband’s brother. Had the wife established the money had reached the husband, in the absence of other evidence, it would have been “property” in the husband’s or husband’s and wife’s hands. However, the wife did not establish the funds were received by the husband from the husband’s brother. The wife’s Counsel invited the Court to draw an inference that the funds were transferred from the husband’s brother to the husband and the timing of the payment requires the payment be characterised as a dowry and that the funds went into the deposit for the K Street property. Again, it is not necessary to demonstrate that the dowry was applied to the K Street property for it to be a direct or indirect financial contribution made on behalf of the wife. However, it was not demonstrated that the dowry reached the husband at all. I am not prepared to find that the dowry is a contribution within the meaning of s79(4).
Jewellery
The husband claims to have given the wife jewellery which she still has in her possession. The wife denies there was a gift of jewellery at all. The wife asserts that her family gave her jewellery which the husband has in his possession. The husband denies he has any jewellery belonging to the wife. Neither party includes jewellery in their lists of assets. The evidence in relation to jewellery is too vague for me to consider it as a contribution in any relevant sense.
Wife’s immigration costs
The husband alleges that he contributed approximately $17,500 to the immigration costs of the wife. Had he not done so, that money would have been otherwise available to the parties. In any event, the extent of the payments were approximately $11,000 as documented in Exhibit H11. I am not satisfied that payment of the of fees for immigration visas of $11,000 is a contribution under s 79(4). However, I will have regard to it pursuant to s 75(2)(o).
The husband claims a contribution of $7,000 as shopping, accommodation, and travel expenses for the wife to leave Australia as required for her visa application. I consider that expenditure to be living expenses and not a contribution under s79(4) or a matter which justice and equity requires I take into account under s75(2)(o).
Wife’s education costs
I would regard the $2,500 in education costs which the husband alleges he paid for the mother’s tertiary education in the same way as the immigration costs. The wife alleges that her parents paid her educational expenses. If that was the case, I would expect that there would be a record of payment by her parents. There is insufficient evidence upon which I can make a finding either way as to payment.
Husband’s pre-cohabitation savings
I accept (as does the wife) that the husband contributed $130,000 of his pre-cohabitation savings towards purchase or acquisition of the K Street property.
Post cohabitation contributions
The husband’s case outline at page 11 describes the payment of $52,400 to the wife at separation as a “contribution”. That is obviously not sustainable as it was one half of the monies drawn down on the security of the home just prior to separation and the parties have taken the increased mortgage balance into account when agreeing to the current equity in the property at $265,013.
I accept that the husband’s payment of mortgage instalments ($12,800), council rates ($2,000), water rates ($900) and insurance ($3,360) were direct financial contributions to the conservation of the home. Similarly, the wife has paid the house mortgage since mid-June 2021.
The mortgage repayments are contested. From 13 May 2021 onwards, following the Orders of Judge Harland, the wife was responsible for monthly instalments as and when they fell due together with council rates and water rates in respect of the property. On 14 October 2022 the husband filed an application seeking enforcement of those orders. By consent, it was ordered on 16 February 2023 that the wife pay arrears of $3,995.21 to V Bank.
The husband serviced the mortgage for the period from separation to 13 May 2021. He was living in the house for a few months after separation while the wife was in emergency accommodation. She returned to live in the matrimonial home with X sometime in late 2019. As such, the husband’s post-separation contribution with regards to the mortgage repayments can really only be defined as the period from late 2019 to May 2021. He paid interest-only repayments. During that period, the wife had full-time care of X and worked as an educator to support herself and their daughter, X, earning approximately $59,000 per year before tax.
Contributions to the welfare of the family including as a homemaker and parent
I consider the homemaker and parent contributions pursuant to s79(4)(c). This is an important head of contribution which must be given significant weight against other contributions of a different nature.
The wife was the primary carer of X prior to separation. That is the way that the parties organised their life. The wife had full-time care of X for extended periods post separation. There were extensive periods following separation when the husband did not spend time with X. His case is that the mother unreasonably restricted his time with X. However, that is an argument in relation to parenting. As far as contributions as a homemaker and parent are concerned, those have been done predominantly by the wife vis a vs X post separation.
Assessment of contribution for which each party contends.
The husband contends in his case outline that contributions are 80/20 in his favour. This was refined on the last day of trial to 70/30. Counsel for the wife originally contended for a finding as to contributions of 70/30 in her favour which was refined in closing addresses to 55/45 in her favour. Counsel did not assist me with an analysis of how each calculated the assessment of contributions for which they contended.
Assessment of contributions
It was a short marriage. The husband contributed all the capital and most of the income to the acquisition, improvement, and maintenance of the K Street property. A large part of that financial contribution was provided by savings which the husband had prior to marriage and cohabitation. There is a distinction between pre-marital contributions and the contributions which each party made contemporaneously with contributions made by the wife albeit in a different capacity.
Without the husband’s pre-relationship savings, the parties would not have the K Street property.
The wife’s homemaker and parent contributions must be recognised in a real and substantial way.
Having regard to all of the relevant evidence, I assess contributions at 65/35 in the husband’s favour.
SECTION 79(4)(d)
The proposed orders do not affect the income earning capacity of either party.
CONSIDERATIONS UNDER S 75(2)
Section 79(4)(e) requires the Court to consider matters referred to in s75(2) in so far as they are relevant. Section 75(2) of the Act sets out the matters which must be taken into account by the Court when determining applications with respect to maintenance. There is no spousal maintenance claim in this case. Section 75(2) also provides a prospective element or forward‑looking perspective for the determination of the application for property settlement. The assessment of contributions during the marriage is a retrospective perspective.
The age and state of health of each of the parties (s 75(2)(a))
The husband is 43 years old, and the wife is 36 years old. They are both in good health.
Income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment (s 75(2)(b))
The wife’s evidence about the hours that she is prepared to work indicates a very significant willingness and capacity to be employed outside of the home. Her evidence was that she will work before and after the hours required by her full-time job as well as on weekends. This was in the context of her being able to meet any payments necessary for her to retain the K Street property. However, I doubt those hours would be sustainable. Certainly, her evidence about taking the child with her in the car, whilst completing gig work at night and on weekends, is not a practice to be encouraged.
The wife’s income is greater than the husband’s income. The wife’s income from employment in her Financial Statement is $850 per week. The husband’s is $770 per week, a figure upon which he was not cross-examined. The husband claims, and the wife did not appear to demur, that his income during cohabitation was $176,000 compared to the wife’s income of $35,668 and $12,000 for maternity leave.
The husband is a transport worker earning approximately $40,000 per year according to his Financial Statement. In Court, he was asked how he was able to afford legal representation on his limited income. He said that he regularly borrowed money from his friends for legal fees and they had mutual arrangements for borrowing and lending which did not attract interest.
The wife was cross-examined extensively as to her income. Her annual income is in the vicinity of $50,000 to $60,000 gross per annum. It was put to her that she could not afford the current mortgage repayments (interest only) on that income, and she would only have $400 to live on per month. The wife agreed and said that she would rely on her family members for periodic financial support.
The parties have the following contribution-based entitlements based on the agreed current market value of the K Street property and their agreement not to adjust cars, superannuation and other personalty against their equity in the home. I calculate the equity at $265,013. The contribution-based entitlement:-
(a)The husband is entitled to $172,258 from the property. He otherwise has his superannuation of $45,416, his motor vehicle, $25,000 in loans for legal costs and more legal costs to pay.
(b)The wife is entitled to $92,745 from the property. She otherwise has her superannuation interests of $14,606, her motor vehicle which was valued by her at $1,000 but is presumed to be worth more, all the contents of the K Street property and loans of $20,000 of which $6,600 is referrable to legal costs which have been paid.
The husband has a lower income but more capital than the wife.
Commitments of each of the parties that are necessary to enable the party to support himself or herself and a child or other person that the person has a duty to maintain and the responsibilities of either party to support another person (s 75(2)(d) and (e))
Neither party has any dependants other than X. The wife has full time care of the child and there was no application for alteration to child maintenance arrangements. The wife can only work while the child is at school or otherwise will need to organise someone to look after her.
The husband pays only $40 per month to the wife in child support and there is no suggestion that will change anytime soon. There was no application seeking a departure from the administrative assessment of child support.
The husband has care of the child every Saturday during the day and every Tuesday after school for two hours. This will gradually increase overtime until the husband has care of X on alternate weekends and a 5-day overnight period (extending to two such periods) every school term holiday. An increase in time with X will result in the husband having to absorb more child expenses than he has now but those increased expenses will not approximate those which the wife has to meet.
Eligibility of either party for a pension, allowance or benefit from the government or from a superannuation fund or scheme (s 75(2)(f))
The parties’ superannuation interests are described above. The husband has more superannuation than the wife, but each are a long way from reaching a condition of release.
The wife would be entitled, as she currently is, to receive some Family Tax Benefits by virtue of being the full-time carer of the child. At the moment, her combined Family Tax Benefit A & B totals $160 a week. I was not addressed on either party’s eligibility for means tested rental assistance from the Commonwealth government. I do not have regard to it.
A standard or living that is in all circumstances reasonable (s75(2)(g))
A reference to ‘reasonable’ in this sub-paragraph imputes a necessity to economise if necessary. Neither party will be able to spend a lavish amount on accommodation. It is likely that at least one of them will have to live in rental accommodation.
The duration of the marriage and the extent to which it has affected the earing capacity of the party whose maintenance is under consideration (s75(2)(k))
The parties were married for just over three years and cohabited for just over two years. It was a short relationship. The wife now has primary care of a young child which limits her capacity to work. She has also settled in Australia and has obtained a qualification which has led to gainful employment.
Any fact or circumstance which, in the opinion of the Court, the justice requires to be taken into account (s75(2)(o))
This final factor under s 75(2) allows the Court to take into account anything that it considers is just and equitable to have regard to. I will deal with the following:
(1)the treatment of the wife’s immigration expenses.
(2)add backs contended for by each party for:
(a)the $105,000 withdrawn just before separation, and
(b)paid legal costs;
(3)which party should have first option to keep the K Street property;
(4)the costs incurred by the husband which are referrable to the wife having wasted the court’s time giving false evidence.
Wife’s immigration costs
I am satisfied that the husband spent some $11,000 on the wife’s immigration expenses. They are not a contribution in the formal sense, but I take them into account.
Addbacks
The parties both contend there should be addbacks.
The wife says it should be $104,800 as against the husband, and the husband says it should be $52,400 against himself and the wife. Contrary to the husband’s case, I have found that the wife did not receive $52,400 at the time of separation. I do not know what the husband did with the approximately $105,000 obtained by way of refinance save and except for repaying a loan of $20,000 to Mr BB. There is no evidence about what the $20,000 was used for. Very late in the day, Counsel for the husband attempted to tender a handwritten account of expenses drawn during the luncheon adjournment on the final day of trial about the husband’s application of funds including, I think, the $20,000 borrowed from his fiend Mr BB. It was objected to on behalf of the wife. I upheld the objection on the basis that the husband had closed his case, the wife had closed her case and the wife’s practitioners had no realistic opportunity to challenge the evidence in cross examination having regard to a fair opportunity to obtain instructions, the ability (or lack thereof) to request documents by way of corroboration and to be able to test the husband’s new and further evidence in a meaningful sense. It could not have come as a surprise to the husband’s practitioners that this information would be needed if it was to be relied upon.
The law in relation to add backs is settled. In GVC v HPC (1998) FamCA 143 the Full Court (Nicholson CJ, Ellis & Kay JJ) stated at [46]:
Whilst not seeking to place a fetter upon the exercise of discretion of a Trial Judge in individual cases, it seems to us that the concept of adding monies reasonably disposed of back into the pool, ought be the exception rather than the rule. The parties are entitled to reasonably conduct their affairs post separation in a manner that is consistent with properly getting on with their lives.
In the decision of Marker v Marker (1998) FamCA 42, the Full Court, comprising Baker, Kay and Chisholm JJ observed:
There seems to be no appropriate basis for notionally adding back monies that existed at separation but which have been subsequently spent on meeting reasonably incurred necessary living expenses. Neither the Family Law Act nor the case law requires that parties go into a state of suspended economic animation once their marriage breaks down pending the resolution of their financial arrangements. Parties are entitled to continue to provide for their own support. Whether any expenditure so incurred is reasonable or extravagant is a matter that can be determined by the Trial Judge.
This was quoted by the Full Court, comprising Finn, Kay and May JJ in NHC & RCH (2004) FLC 93-204 at 79,314. Here, there is no evidence of the other party’s expenses, whether those expenses were “necessary” or indeed whether they were “incurred”.
In AJO & GRO (2005) FLC 92-218 the Full Court comprising Holden, Warnick and Le Poer Trench JJ stated, in effect, that there were three clear categories of cases where the court had determined that it was appropriate to notionally add back to the property to be divided between the parties. First, was where the parties had expended money on legal fees. Second, where there had been a premature distribution of assets which were divisible between the parties. Third, where one of the parties have undertaken reckless investments or deliberately set out to diminish the value of the divisible assets. In relation to legal fees, their Honours stated at [30]:
To date, three clear categories of cases have emerged where the Court has determined that it is appropriate to notionally add back to the pool of assets, that is, assets that no longer exist. They are:
(a) Where the parties have expended money on legal fees. In DJM and JLM (1998) FLC 92-8l6 the Full Court said at 85,262:
" 11. 6 For reasons set out in Farnell, s 117 provides that each party to proceedings under the Family Law Act shall bear their own costs unless the Court otherwise orders. Failing to add back monies expended by parties on costs frequently has the effect of defeating the policy of s 117 by permitting the pool of available assets for distribution between the parties to be diminished by any monies that either of the parties have managed to spend on their costs up to the date of trial. We are of the view that the normal approach ought be to add costs already paid back into the pool. Whilst there may be cases where that approach is inappropriate, the reasons why it is not taken ought normally be spelt out. "
In relation to premature distributions, their Honours stated:
(b) Where there has been a premature distribution of matrimonial assets. In Townsend and Townsend (1995) FLC 92-569 Nicholson CJ as he then was with whom Fogarty and Jordan JJ agreed, said at 81,654:
"In my view, what occurred in this case, as I said during the course of argument was, in fact, a premature distribution of a proportion of the matrimonial assets. What the husband did was to distribute to himself an asset in which the wife had a legitimate interest. In such circumstances I consider that it would be unjust in the extreme to simply treat such conduct by the husband as a matter to which regard should be had under section 75(2). It seems to me that the husband has had the benefit of that money. Had he retained, for example, the taxi licence instead of selling it, that would have been brought into account as an item of property which would have been dealt with in the same way as the remaining items of property in this case. Accordingly, I am of the view that the correct way in which to deal with the husband's receipt of those moneys is to bring them into the pool of assets on a notional basis and make a distribution accordingly."

In relation to reckless and wanton expenditure, their Honours stated:
(c) In the circumstances outlined by Baker J in Kowaliw and Kowaliw (1981) FLC 91-092 at 76,644:
As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a) where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b) where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
Conduct of the kind referred to in para. (a) and (b) above having economic consequences is clearly in my view relevant under sec 75(2)(0) to applications for settlement of property instituted under the provisions of sec 79."
In AJO & GRO’s case, the Full Court went on to observe “[as] the Full Court said in Browne v Green (1999) FLC 92-873 at 86,360:
"We agree with her Honour that the principles stated by Baker J in Kowaliw certainly do not constitute any form of fixed code. They are no more than guidelines for use in the exercise of the discretionary jurisdiction conferred by s 79 of the FamilyLaw Act 1975. Nevertheless, they have over the considerable period of time since they were enunciated, become a well accepted guideline in this jurisdiction - a guideline the use of which assists in the achievement of the important goal of consistency within the jurisdiction. "
In SMB & MFB (2006) FamCA 46 the Full Court, comprising Bryant C J, Kay & Warnick JJ, held at [71]-[72]:
In the present case, no finding was made by the Trial Judge that the Wife had either embarked on a course of conduct designed to minimise the value of the matrimonial assets, or that her expenditure was reckless, wanton or negligent.
Thus, we think that there is a fundamental flaw in the pool created by the Trial Judge which included a notional addback of the monies that the Wife had received on account during the hearing. Absent any negative finding about the Wife’s expenditure which she had detailed in her Affidavit and which she asserted to be her reasonable annual expenses, we cannot see any basis upon which His Honour ought reasonably to have added back the sum of $102,500.00 to the asset pool.’
In Cerini [1998] FamCA 143 the Full Court, comprising Nicholson CJ, Ellis and Kay JJ observed that it will be “the exception rather than the rule” that a direct dollar adjustment equivalent to the amount of the alleged dissipation of the pool is made to the otherwise entitlement of a party. In Bevan & Bevan (2013) FLC 93-545 the Full Court comprising Bryant CJ, Finn and Thackray JJ said the following about add backs at [79]:
We observe that “notional property”, which is sometimes “added back” to a list of assets to account for the unilateral disposal of assets, is unlikely to constitute “property of the parties to the marriage or either of them,” and thus is not amenable to alteration under s 79. It is important to deal with such disposals carefully, recognising the assets no longer exist, but that the disposal of them forms part of the history of the marriage – and potentially an important part. As the question does not arise here, we need say nothing more on this topic, save to note that s 79(4) and in particular s 75(2)(o) gives ample scope to ensure a just and equitable outcome when dealing with the unilateral disposal of property” things.
Above, I have not been prepared to find that the wife received $52,400. On balance, I am satisfied that the husband retained approximately $105,000 and did so in the nature of a premature distribution of property. The $105,000 will be added back against the husband.
I have set out above the authorities for adding back paid legal costs. Counsel for the husband queried whether costs paid from funds acquired post separation can be added back. I am satisfied that they can be and, in this case, should be. If costs had not been paid, those funds would presumably be available for alteration between the parties. There is a qualification that comes into play in this case. That is, legal costs paid will not be added back if there is an outstanding and bona fide loan liability in respect of moneys used to pay the costs.
The most recent Costs Notice filed by the husband notes that he has paid $74,335 for professional fees to 10 May 2024, with a further $9,200 estimated for the final two days of hearing (totalling $83,535). The wife was billed $6,600 by TFA Lawyers but was otherwise funded by way of the s 102NA scheme until engaging QM Lawyers. She did not file an updated Costs Notice after privately engaging lawyers, but I understand from the Case Management Hearing on 8 May 2024 that her costs were in the range of $5,000 for QM Lawyers and 3 days of barristers’ fees at $1,700 per day (approximately $10,000 for the final three days of hearing).
The amount of $49,335 in paid legal costs should be added back against the husband. That is the $74,335 he has paid less the $25,000 loans he has taken to do so.
The wife’s paid legal costs of $6,600 are offset by a loan.
The total addbacks against the husband are $154,335.
Which party should have first option to keep the home?
Both parties want to keep the K Street property. Frequently, the fairest and easiest solution for the Court is to order that the property in contention be sold and allow each party to bid. However, the parties are desperate to avoid a sale with the attendant expenses and the practical consideration that the successful party would have to apply for and obtain another mortgage. Both parties see the K Street property as his/her only opportunity to own, rather than to rent, a home.
As mentioned above, the practitioners prepared a minute of order which I will, in essence, follow. The issue becomes which party gets the first option to pay out the other party’s entitlement. There are no criteria to inform the exercise of my discretion about who should have first opportunity to keep the K Street property over and above that the exercise of my discretion must give rise to a just and equitable outcome and I must not take into account extraneous factors.
The wife and child have been living in the K Street property since September 2019. The wife’s evidence is that she and X are settled. The wife deposed to being unable to find suitable rental accommodation in the same area. No other evidence was advanced supporting this assertion.
As should be apparent from the above discussion about the wife’s applications for mortgage finance, there has been a considerable focus on how realistic the wife’s proposal is to buy out the husband’s interest as well as obtain what will necessarily be a relatively large mortgage. Leaving aside the three applications to Q Finance, the wife claimed to have received approval from Westpac Banking Corporation for a loan of $320,000. This document produced and relied upon by the wife in that respect was marked Exhibit H15. It was not an approval. It is merely a record of “what we discussed”. It was not even a complete loan application or pre-approval. It did not include details of the wife’s liabilities and contained only rough estimations of the wife’s expenses. It is not evidence of an approval of a loan.
Whilst the hearing was adjourned for some weeks, the wife filed more affidavit evidence. The wife’s father deposed that he has agreed to lend the wife $36,000 to assist her in retaining the K Street property and that the wife has agreed to repay the funds when she is able to do so. The wife’s brother, Mr DD also made a second affidavit. He deposed that he has Country LL currency of $100,000 in savings that he is willing to loan the wife if she retains the house. He explained that his previous payment to the wife of $20,000 (in total) had been a gift/s and that he did not expect her to repay that amount. He said that the repayments for the $100,000 could happen over time.
In cross-examination, Mr DD expanded that he could provide his sister with Country LL currency of $1,000 - $1,500 a month if the wife required it as well and more capital. Counsel for the husband sought to undermine Mr DD’s evidence by suggesting that, on his declared salary, Mr DD could not afford to service his own mortgage and expenses while also supporting his sister financially. Mr DD explained that he owned businesses with half a million of gross income annually, and that he paid himself what he needed from his businesses to reduce unnecessary tax liabilities.
On the final day of her cross-examination, the wife was asked about her ability to repay the potential loans to her brother and father if she kept the house. Her response was she would repay them “slowly slowly” and that she would get a second job, working as many as 7 days a week when the child is with her father. She said she would be relying on as much as $2,500 per month from her brother by way of payment for her expenses.
The wife’s ability to finance the settlement she proposes appears to me to be tenuous. Her family is not offering to pay for all of the house so that no mortgage would be necessary. Both her father and brother refer to the wife repaying the loans but there seems not the slightest possibility of her doing so on her income. Indeed, she is seeking periodic support for day to day living expenses from her brother as well as capital.
Notably, the wife’s brother and father each swore two affidavits. They did not mention a capacity to lend the wife money in their first affidavits. Their second affidavits were made during an adjournment for the purpose of addressing how the wife would raise necessary funds. The wife’s brother limited himself to an advance of $100,000 in Country LL currency and the father limited himself to $36,000. Under cross-examination, the wife’s brother indicated that he could advance to the wife with substantially more, which begs the question as to why he did not put in an amount higher than $100,000 in Country LL currency when he swore his second affidavit.
As indicated, there is no set criteria to inform the exercise of my discretion save that the result must be just and equitable. Counsel for the husband submitted that it cannot be just or equitable that the wife can come to Court, be demonstrated to give untruthful evidence, and then be rewarded with the first option to take the K Street property. That is, with respect, a misunderstanding of what is just and equitable in this context. An alteration of property interests under s 79 is not a punitive tool. Giving untruthful evidence is compensable by costs and some other measures but not by depriving a party of the otherwise just and equitable result. To do so would be to confine what is just an equitable to an impermissible degree. In any event, this is a case in which I am satisfied that neither party was wholly truthful and each adduced evidence which was elaborate but false and intended to mislead the Court.
It is much more straightforward for the husband to retain the property. It is already in his sole name. He is the sole mortgagor and does not have to requalify for a mortgage. He would just move back in, subject of course to paying the wife monies due to her.
The husband chose and made the down payments for the property.
In my view, it is just and equitable that the husband has the first option to retain the property if he can. The husband is to have the first option to retain the K Street property.
Legal costs thrown away by virtue of the wife giving false evidence
Upon it being clear that the wife’s false evidence had resulted in a considerable waste of the Court’s time, I was inclined to make an order for costs thrown away. However, upon reflecting upon all of the evidence, it becomes apparent that both parties gave evidence dishonestly and brazenly. I think that justice between the parties will be best served if I reserve the issue of costs and wait to see whether either makes an application.
If I had been inclined to order costs in favour of the husband, I would not have ordered them in the quantum sought. The husband claims costs for 3 days of the hearing which says were wasted by the wife giving false evidence slowly and frequently by being non-responsive. I have found that two days were wasted, being the first half-day of cross-examination, the day wasted when the trial was unable to commence due to the wife dismissing her lawyer, and conservatively another half a day following the production of documents arising from her deceptive conduct around her income Counsel for the husband produced to the Court a document titled “details of itemised costs” which enclosed a list of costs at scale and was exhibited and marked H27. It totals $24,728.82 but it far exceeds the items for which I am prepared to entertain costs now.
Subject to hearing argument, I would set the time wasted as a consequence of the wife’s false evidence at two days of Counsel’s fees and an instructing solicitor at Court. I would take into account the costs of the urgent subpoenas issued and served. The total quantum claimed by the husband for the items I would allow is $8,100, as set out below.

Item Claimed cost Allowed costs

Two days of Counsel’s fees $4,600.00 x 2 = $9,200 $2,500 x 2 = $5,000

Two days of instructing solicitor’s fees $1,100 x 2 = $2,200 $1,100 x 2 = $2,200

Counsel’s attendance at mention 8 May 2024 $400 $400

Subpoena fees $195 $195

Service fees $298.82 $298.82

Total $12,293.82 $8,093.82
Counsel for the wife did not address liability for costs to any significant degree and did not challenge quantum. I have reserved the issue of all costs and as such the wife is not bound by the submissions made at the final hearing.
Conclusion on adjustments or matters under section 75(2)

The factors in favour of an adjustment in the wife’s favour are primarily her primary care of the child and the related restrictions on her income earning potential and ability to support herself as a single mother. The factors in favour of the husband are the wife’s eligibility for income support from the government and the short duration of the marriage.
The wife sought an overall division of 70% in her favour but the precise adjustment was not set out in final submissions by Counsel. The husband’s position at final submissions was that there be a 10% adjustment in favour of the wife.
I have assessed contributions at 65/35 in the husband’s favour.
In all the circumstances of the case, an adjustment of 10% in favour of the wife for s 75(2) factors is just, equitable and appropriate. Accordingly, the final entitlement of the parties will be 55/45 in favour of the husband.
ARE THE ORDERS JUST, EQUITABLE AND APPROPRIATE?
The addback against the husband ($154,335), together with the equity in the K Street property ($265,013) totals $419,348. A payment of 55% in favour of the husband would result in him receiving $230,641 of the divisible asset. The wife’s 45% share would be valued at $188,707.
From the husband’s entitlement of $230,641 there must be deducted the added back monies for legal costs at $49,335 and the premature distribution of property at $105,000 (totalling $154,335). This leaves his entitlement in the equity in the K Street property or a cash payment from the wife of $76,306 in the event that the husband cannot exercise the first option to purchase the K Street property.
There are no addbacks against the wife, so her share would be $188,707 in cash or equity in the K Street property to which must be added her car, her superannuation interests, all of the household chattels.
I am satisfied that the orders are just and equitable and otherwise appropriate.
COSTS
I will reserve the parties’ entitlement to make an application for costs in accordance with the Rules. If they chose to do so they should accompany any application with an itemised table of costs drawn in accordance with Schedule 3 to the Federal Circuit and Family Court Rules 2021. They are also at liberty to seek that costs are calculated on another basis, but my preliminary view is that any costs adjustment can be done on scale. That may change with the benefit of argument.
Any application for costs should be made promptly so that adjustments can be made in respect of costs orders from the amounts due to each party. I would not want to subject the parties to a formal assessment of costs and envisage that I would be making an order about costs on the same day as the application was heard, and the entire hearing would last approximately two hours.

I certify that the preceding two hundred and thirty (230) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett.
Associate:
Dated: 12 June 2024

File number(s):	MLC 10185 of 2020
Judgment of:	BENNETT J
Date of judgment:	12 June 2024
Catchwords:	FAMILY LAW – PROPERTY SETTLEMENT – contributions – short marriage of 3 years during which parties cohabitated for 2 years – one child born to parties FAMILY LAW – PROPERTY SETTLEMENT – contributions – arranged marriage – identification of dowry – treatment of dowry – treatment of wedding expenses – treatment of costs of wife’s visas and immigration requirements from Country G to Australia FAMILY LAW – PROPERTY SETTLEMENT – contributions – where wife’s contribution was almost exclusively as homemaker and parent and husband’s contribution was very largely financial – where contributions are assessed at 65/35 in favour of the husband – where s75(2) factors favour wife and uplift of 10 percent is ordered FAMILY LAW – PROPERTY SETTLEMENT – Just and equitable – where parties both want to retain former matrimonial home – where they agree to sequential options to retain home – what informs court’s discretion to order which party gets first option – where exercise of power must be just and equitable but not punitive FAMILY LAW – PROPERTY SETTLEMENT – credibility – where neither husband nor wife considered to be truthful witnesses – where wife lied on her application for a loan FAMILY LAW – PRACTICE & PROCEDURE – witness – where witness from Country G not adequately prepared to give evidence remotely – list of guidelines for witnesses giving evidence remotely – where court appointed interpreters were not sufficiently skilled and disrupted hearing FAMILY LAW – PRACTICE & PROCEDURE – Registrar – where direction to Registrar for reasons for decision to be referred to OPP (Vic) and to the professional standards body for investigation of actions of wife’s accountant FAMILY LAW – COSTS – costs reserved
Legislation:	Evidence Act 1995 (Cth) Family Law Act 1975 (Cth)
Cases cited:	AJO & GRO (2005) FLC 92-218 Bevan & Bevan (2013) FLC 93-545 Bhasin & Handa [2021] FCCA 1446 Brayton v Brayton [2021] FedCFamC1F 337 Browne v Green (1999) FLC 92-873 Damjanovic v York Agencies Pty Ltd [2003] NSWCA 222 Dickons v Dickons (2012) 50 Fam LR 244 Farmer and Bramley (2000) FLC 93-060 GVC v HPC (1998) FamCA 143 Hashim & Hashim [2012] FamCA 135 Karimi & Shah [2022] FedCFamC1F 741 Marker v Marker (1998) FamCA 42 Mehra & Bose (No.3) [2013] FCCA 2273 NHC & RCH (2004) FLC 93-204 Savage v Soloman [2021] FedCFamC2G 278 Singh & Dala [2017] FCCA 2945 SMB & MFB (2006) FamCA 46 SS & TS [2003] FMCAfam 478 Sumner v Booth [1974] 2 NSWLR 174
Division:	Division 1 First Instance
Number of paragraphs:	230
Date of hearing:	8, 9, 10 & 11 April 2024, 14, 15 & 17 May 2024
Place:	Melbourne
Counsel for the Applicant:	Mr Duckett
Solicitor for the Applicant:	Parminder Sandhu Solicitors
Counsel for the Respondent:	Mr C Allen
Solicitor for the Respondent:	TFA Legal (until 26 April 2024), QM Lawyers Pty Ltd (from 3 May 2024)

MLC 10185 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR LINWOOD Applicant
AND:	MS LINWOOD Respondent

ORDER MADE BY:	BENNETT J
DATE OF ORDER:	12 JUNE 2024

Description	Current ownership	Husband’s value ($)	Wife’s value ($)
Motor Vehicles
Motor Vehicle 1	Husband	7,000
Motor Vehicle 2	Wife	1,000
Superannuation interests
Superannuation Fund 1 at 30 June 2023 NB As at 30 June 2017 the husband’s superannuation interest was $23,500.00	Husband	45,416.07
Superannuation Fund 2 at 30 June 2020 NB The wife cannot locate a statement from her superannuation from 2017-2019	Wife	1,394.05
Superannuation Fund 3 as at 30 June 2023	Wife	13,212.00
Total superannuation interests	45,416.07	14,606.05
Personal Loans
Personal loan from Mr HH for legal costs	Husband	~~14,500~~ (repaid) + 8,000 (2024)
Personal loan from Mr BB for legal costs	Husband	5,000
Personal loan from Mr JJ for legal costs	Husband	12,000 (2024)
~~Personal loan to Mr DD~~ NB: In cross-examination the wife’s brother said that there was no outstanding debt owed to him by the wife.	~~Wife~~	~~E20,000~~
Personal loan from Mr EE	Wife	5,000
Personal loan from Mr KK	Wife	8,500
Personal loan from Ms GG for legal costs	Wife	6,600
Total personal loans		$25,000 of which all is for legal costs	$20,100 of which 6,600 is for legal costs

Item	Claimed cost	Allowed costs
Two days of Counsel’s fees	$4,600.00 x 2 = $9,200	$2,500 x 2 = $5,000
Two days of instructing solicitor’s fees	$1,100 x 2 = $2,200	$1,100 x 2 = $2,200
Counsel’s attendance at mention 8 May 2024	$400	$400
Subpoena fees	$195	$195
Service fees	$298.82	$298.82
Total	$12,293.82	$8,093.82