Linwood & Linwood (No 3)

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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…
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Details
Case
[2024] FedCFamC1F 393
Decision Date

CaseChat Overview and Summary

Mr Linwood and Ms Linwood, who were married for three years and have one child, sought an alteration of their property interests. The court had to decide the contributions of each party, the treatment of the dowry, wedding expenses, and immigration costs, and the credibility of both parties as witnesses. The court found that the husband's financial contributions were greater than the wife's, and that the wife's contribution was almost exclusively as a homemaker and parent. The court assessed contributions at 65/35 in favour of the husband but made a 10% adjustment in favour of the wife, resulting in a final entitlement of 55/45 in favour of the husband. The court found that neither party was a truthful witness, and that the wife's false evidence resulted in a considerable waste of the court's time. The court reserved the issue of costs and directed the Registrar to refer the case to the Office of Public Prosecutions and the professional standards body for investigation of the wife's accountant. The court ordered that the husband pay the wife $188,707 and that the wife deliver up vacant possession of the former matrimonial home to the husband. If the husband does not make the payment to the wife, the wife may pay the husband $76,306 and provide a discharge of the mortgage. If neither party makes the payment, the parties must place the property on the market for sale. The court also directed the Registrar to inform the Proper Officer of the Office of Public Prosecutions and the professional body responsible for accountants of the alleged actions of the wife's accountant. The parties and their solicitors were excused from compliance with the Harman undertaking for the purpose of any criminal or disciplinary actions arising from this case. Costs were reserved.

Orders

Orders of the court

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.

Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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. 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.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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.