Orchard & Orchard - [2009] FamCAFC 90

FAMILY COURT OF AUSTRALIA

ORCHARD & ORCHARD

[2009] FamCAFC 90

FAMILY LAW - APPEAL – FROM A DECISION OF A FAMILY COURT JUDGE – PROPERTY SETTLEMENT – Asserted errors of fact in recording of concessions as to contributions, errors of discretion and/or principle in weighing of contributions and consideration of circumstances of separation, and division of property to the wife, such that she received no liquid assets – At trial the wife gave evidence via interpreters – Issues arose during the hearing as to the qualification of the interpreters used – Wife asserted that the trial judge did not adequately consider the impact of interpretation issues on her findings as to credit – At trial and appeal the husband was an undischarged bankrupt – Official Trustee in Bankruptcy submitted that the interests of creditors ought be considered by the Court in regards to how the property was divided – Multiple concessions as to contributions were made during the hearing – No misconstruction or inconsistency in the trial judge’s recording of the particular concession challenged – Submissions as to the trial judge’s treatment of contributions, particularly parenting, focus upon a discrete period when separation was occurring – Contributions in this period are of minor consequence – Principle that the law does not concern itself with trifles applies – No connection between the trial judge’s statements as to the circumstances of separation and the weight given to contributions – What constitutes a just and equitable division of property is in the trial judge’s discretion – Result reached not outside the bounds of that discretion – Issues of interpretation were addressed during the hearing, counsel for the wife did not seek any other course

FAMILY LAW - APPEAL – No merit in any of the arguments on appeal – Appeal dismissed

FAMILY LAW - COSTS – Directions for written submissions as to costs

Family Law Act 1975 (Cth) s 75(2)

APPELLANT:

Mrs ORCHARD

RESPONDENT:

Mr ORCHARD

INTERVENOR:

OFICIAL TRUSTEE IN BANKRUPTCY

APPEAL NUMBER:

2008

FILE NUMBER:

MLF

2759

2003

DATE DELIVERED:

29 May 2009

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bryant CJ, Warnick and Boland JJ

HEARING DATE:

5 May 2009

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

29 October 2008

LOWER COURT MNC:

[2008] FamCA 979

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Dr Ingleby

SOLICITOR FOR THE APPELLANT:

John Denton & Associates

RESPONDENT:

Appeared in person

SOLICITOR FOR THE INTERVENOR:

Ms Dewhurst

SOLICITORS FOR THE INTERVENOR:

Piper Alderman

Orders

That the appeal be dismissed
That either party be at liberty to make an application by way of written submissions in respect of costs incurred by him or her in relation to the appeal by filing such submissions at the Melbourne Registry of the Family Court and serving them on the other party within 21 days of the date hereof.
That the other party have a further 14 days in which to make written submissions in answer thereto by filing such submissions at the Melbourne Registry of the Family Court and serving them on the other party.
That either party be at liberty to reply to an answer by way of written submissions by filing such reply at the Melbourne Registry of the Family Court and serving them on the other party within a further 7 days.

IT IS NOTED that publication of this judgment under the pseudonym Orchard & Orchard is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

File Number: MLF 2759 of 2003
Appeal Number: SA 99 of 2008

Mrs ORCHARD

Appellant

And

Mr ORCHARD

Respondent

And

OFFICAL TRUSTEE IN BANKRUPTCY

Intervenor

REASONS FOR JUDGMENT

In October 2008, the Honourable Justice Dessau resolved the issue of property settlement upon the breakdown of the marriage of Mr and Mrs Orchard by orders that divided a net property “pool” of just over $600,000.00, seventy per cent to the husband and thirty per cent to the wife.
Her Honour had assessed contributions up until trial at that apportionment and made no adjustment to it on account of “s 75(2) factors”.
In this, the wife’s appeal, no challenge is made to her Honour’s treatment of s 75(2) factors, but there are attacks on her Honour’s assessment of contributions.
Dr Ingleby, counsel for the wife on appeal, asserts that the trial judge:
(i)made a factual error as to the extent of the wife’s counsel’s concessions as to contributions; and
(ii)had wrongly weighed contributions.
Two other arguments arise out of the following circumstances, which are said to have inappropriately affected the assessment of contributions.
The wife was born in Thailand. Unsurprisingly, English was not her first language. The trial was conducted with the use of interpreters, the first of whom was replaced during the hearing. Dr Ingleby argues that these matters were not properly taken into account when Dessau J made findings against the wife’s credit.
The wife and husband started to live together in early 1993 or 1994. They married in September 1994. However, from 1998 or 1999 the wife entered into a relationship with a Mr W and, from the start of 2001, lived with the husband three nights a week and with Mr W the other four nights. The parties’ son, A, was born in 2001. The wife and husband finally (and completely) separated in August 2002.
In her reasons for judgment, Dessau J referred to the arrangement which saw the wife living for part of each week with the husband and part with Mr W using terms such as “bizarre double life”, “bizarre living arrangements” and the “inevitable unhappiness about the living arrangements”.
Dr Ingleby argues that “[t]his disproportionate concentration on the circumstances of the separation contributed to an undervalue of the wife’s contribution”.
The remaining ground of appeal is:
2.That the wife should have received liquid assets as part of her entitlement. …
Though as indicated the asset “pool” was around $600,000.00, some $227,000.00 were notional assets, added back. The major remaining assets were the former matrimonial home (“K”) at $220,000.00 and superannuation interests of the husband, $138,000.00 approximately and wife, $16,000.00 approximately. At trial, the husband was 53 years, the wife 48.
Dessau J ordered that the husband receive K (but to keep it he would need to pay a debt of over $50,000.00) and the wife receive a “split” of the husband’s superannuation entitlement.
For the wife not to receive some immediately realisable assets was, Dr Ingleby argues, not just and equitable.
We will shortly turn to consider these arguments, but first to enable a full understanding of matters which Dessau J considered, mention an unusual aspect of the matter. The husband was made bankrupt in August 2007 and he remained so at trial. The Official Trustee intervened in the property proceedings and in August 2008, consent orders were made providing for the payment to the Official Trustee of $100,000.00, from an account in the parties’ names. The trial judge said:
3.…The orders removed the Trustee as a party, but left open the option for him to be joined again later.
4.The Trustee was joined again upon his request at the time of the final submissions. His solicitor confirmed that $50,000, plus rising interest, remained to be paid to annul the bankruptcy. …
The approach of the Trustee at trial was that, though any entitlement of the husband vested in the trustee until the husband’s bankruptcy was annulled, the trustee was content to rely on submissions, which, as later seen, Dessau J outlined and indeed, placed weight on.
Of the amount necessary to annul the husband’s bankruptcy, when assessing liabilities, her Honour said:
67.The husband owes at least another $50,000 to the Official Trustee in Bankruptcy. I will take it into account below. I will not record it in the pool as a debt. It is unrelated to the parties’ marriage. Much of the debt relates to the husband’s own legal fees in these proceedings. It must be met from his share of the property settlement.
And when addressing the final outcome and the justice and equity of it, her Honour said:
91.… In the mix in this case, the Official Trustee in Bankruptcy has urged me, pursuant to s 75(2)(ha) of the Act, to consider the effect of the orders on the ability of a creditor to recover a debt, so far as is relevant. To that end, the fact that Mr [Orchard’s] superannuation is exempt for bankruptcy purposes, (according to s 116(2)(d)(iva) Bankruptcy Act 1966), is a relevant consideration.
…
94.The effect of the order is the opportunity for Mr [Orchard’s] creditors to be satisfied, as he shall retain the non-exempt asset.
In the appeal, Ms Dewhurst, solicitor, appears for the Trustee and relies upon her submissions to the trial judge.
We return to the arguments for the wife.

Did the trial judge err about a concession made by the wife?

The argument as put in the wife’s written summary was:
4.The learned trial judge correctly stated (RFJ para 69 1^st sentence 1AB32) that the wife’s counsel opened her case on the basis of her having a contribution-based entitlement of 60%: 2 Appeal Book 59 line 5.
5.But the learned trial judge was in error when she stated:
a.at RFJ para 77 1 Appeal Book 34 that the wife “conceded during the hearing that each party made equal contributions, at least while they lived fully together”; and
b.at RFJ para 78 1 Appeal Book 35 that “Mrs [Orchard] ultimately conceded the equal contributions in the course of the marriage”.
6.The wife’s case was that contributions should be equal overall because the husband’s greater initial contribution was outweighed by the “later contributions over a nine-year marriage” 8 Appeal Book 838 line 35
7.The wife did not concede equality of contributions from the date of living together, and the learned trial judge’s assumption that the wife did make this concession contributed to her error as to the wife’s contribution-based entitlement.
Dr Ingleby took us to that part of the final address of counsel for the wife at trial, where he said:
Just very briefly summarising the contributions argument: I am putting to your Honour that his greater initial contribution is put in context by the later contributions over a nine-year marriage, of all sorts; the negative contributions that he has made and my client’s greater role as homemaker and as a parent and it’s my submission, your Honour, that the contributions that your Honour will find are equal.
Dr Ingleby acknowledged that, save for a reference to the wife’s contributions as parent, the concession of the wife’s counsel in closing submissions at trial is recorded by her Honour in paragraphs 69 of her reasons, which is:
69.The case was opened for Mrs [Orchard] on the basis that there should be a 60/40 adjustment in her favour, largely because of the husband’s negative contribution to his radio collection, gambling, and various monies that he used, as referred to above. In closing submissions it was submitted that contributions should be regarded as equal. Mr Hutchins acknowledged the husband’s greater initial contribution but referred to the parties’ contributions during the marriage, Mr [Orchard’s] negative contributions, and the wife’s greater role as homemaker.
However, Dr Ingleby relies upon the absence of any reference to the wife’s parenting contribution in paragraph 69, and the asserted inconsistency between the concession as recorded in that paragraph and the statements in paragraphs 77 and 78, quoted from the written summary above.
An odd aspect of this submission, so far as it relates to the concession as recorded in paragraph 69, is that, if her Honour is to be taken as thinking that the concession of the wife did not include her parenting contribution, that misunderstanding should have worked in the wife’s favour, as she would then have been entitled to argue for something beyond equality of contributions, because of her parenting.
In any event, as to the first aspect of this argument, the proposition that her Honour should be taken to have misunderstood the wife’s concession because the words “and parent” did not appear in her Honour’s description of it, fails to acknowledge that earlier in her reasons, her Honour had also set out the same concession, as follows:
5. …
·… Mr Hutchins, counsel for the wife, ultimately submitted that the parties made equal contributions. It is agreed that the husband brought assets into the marriage, but the wife claims wastage on his part, particularly by way of gambling. She claims that all her earnings during the marriage were used for family expenses, while the husband’s were not. She also claims a contribution as home-maker and parent during and since the marriage. … (emphasis added)
We are not satisfied that, the absence of the words “and parent” in paragraph 69 of her reasons, means that Dessau J failed to properly understand the wife’s concession.
As to inconsistency between what is said of concessions in paragraph 69 on the one hand and paragraphs 77 and/or 78 on the other, the critical point is to have regard to the periods (and therefore the contributions within each period) to which the concessions relate. Shortly put, as effectively recorded in paragraph 69, the wife conceded that all contributions up to trial would be regarded as equal between the parties.
On the other hand, the “concession” adumbrated in paragraph 77 clearly relates to a different time-period to that covered by the concession outlined in paragraph 69. That in paragraph 77 related to the period of cohabitation and does not include initial contributions, which her Honour discusses in paragraphs 71 to 76; and about which she draws a conclusion at the end of paragraph 76, nor does it include contributions post final separation. The relevant portions of these paragraphs are:
76.…Ultimately I could not make a definitive finding as to the level of the wife’s debt at the time of the marriage, but it is clear that on any view the husband made the far more substantial contribution in terms of the assets he brought into the relationship.
77.Although the affidavit material is full of allegations and counter-allegations as to contributions in the course of the marriage, it was conceded during the hearing that each party made equal contributions, at least whilst they lived fully together. They each worked and contributed their income. They each contributed to the home. The concession that each made about that was reasonable. Mr [Orchard’s] claims that he was paying the upkeep and repayments for properties would not have fully taken into account Mrs [Orchard’s] contributions. Mrs [Orchard’s] claims that she was the greater contributor to [A’s] care failed to take into account the bizarre living arrangements that she put in place whereby she and Mr [Orchard’s] baby lived half the time with another man. (emphasis added)
Thus we see no inconsistency between what is said in paragraph 69 and what is said in paragraph 77.
So far as her Honour’s reference to a concession in paragraph 78 is concerned, that reference (whether in its terms right or wrong) is merely made so that her Honour can point out that one of the “negative contributions” relied upon by the wife to “offset” the husband’s contributions was dealt with as a “pool” issue. Dr Ingleby does not challenge that approach. The paragraph is:
78.Although Mrs [Orchard] ultimately conceded the equal contributions in the course of the marriage, she did of course claim that towards the end of the marriage the husband was gambling. It was on that basis that she sought some of the add-backs I have dealt with above. In dealing with them, I have dealt with the gambling issue. It should not be dealt with again as a negative contribution.
We do not therefore accept that Dessau J misconstrued the concession made by the wife’s counsel in addresses.

Did Dessau J wrongly weigh contributions?

We leave for separate consideration the argument that a disproportionate concentration by her Honour on the circumstances of the separation contributed to an undervalue of the wife’s contributions. Here we consider two other arguments.
The first focuses on the following passage of paragraph 77 (already quoted in another context), when her Honour was considering contributions during “the course of the marriage”:
77.…Mrs [Orchard’s] claims that she was the greater contributor to [A’s] care failed to take into account the bizarre living arrangements that she put in place whereby she and Mr [Orchard’s] baby lived half the time with another man.
Of this, the written submission for the wife said:
11.At the very highest, the circumstances of the relationship with [Mr W] may have been relevant to the extent to which the wife contributed as homemaker.
12.But the wife’s contribution as parent to [A] existed independently of which adult she was living with. …
13.This sentence [that quoted from paragraph 77] clearly indicates that the irrelevant consideration influenced the finding as to contribution.
14.The fact that the wife was living with another man does not diminish the extent to which she was looking after the parties’ child.
We agree with those submissions, subject to one possibility. That is, that pursuant to s 75(2)(o) her Honour was regarding the wife’s conduct to be such that the wife should not be able to receive credit for a consequential contribution. We pass no opinion on whether such an approach would have been open. If that was her Honour’s approach, her reasoning is insufficiently exposed but Dr Ingleby did not mount such an argument.
Dessau J does not say in what way or to what degree the claim of the wife failed because of the living arrangements, but at the most the period concerned was 16 months, halved because of the living arrangement, to arrive at the time when the husband was not in the household with the child. By the time of trial the child was nearly seven and one-half years old, so the period in question represented childcare for less than nine percent of his life.
That short period represents but one of numerous contributions, including initial financial contributions, income earned during the cohabitation, non-financial work, homemaking and the bulk of parenting.
In our view, any difference that an accurate consideration of the particular contribution could have made was of such a minor consequence that the principle that the law does not concern itself with trifles applies. This principle has particular strength when a re-exercise of discretion might, judging by what was said to us by each party in relation to possible further evidence, not be possible and a re-trial necessary. Proportionality underpins the principle here.
Dr Ingleby’s second point in support of his contention that Dessau J undervalued the wife’s non-financial contributions and the parenting aspect in particular, is the asserted absence of any mention of non-financial contribution by the wife in the concluding paragraph of her Honour’s discussion of contributions. There, her Honour said:
83.Mr [Orchard’s] superior contribution at the start of the marriage, with the combination of valuable real estate, and long-standing superannuation, must be recognised. So too must the building of assets by the parties’ hard work and/or the passage of time and inflation in the relatively short time they were together. On balance, it is fair to recognise a contribution by the husband of 70%, and 30% by the wife.
We do not necessarily agree that the term “parties’ hard work” excludes non-financial contributions, but, in any event, disagree with Dr Ingleby’s argument, as the paragraph must be read in conjunction with those from paragraph 69 to 82.

Paragraph 69, in which her Honour set out the wife’s position, has already been discussed. After summarising the husband’s submissions in paragraph 70, her Honour continued her discussion of “contributions”:
71.There is no question that Mr [Orchard] brought substantial assets into the marriage, as compared to the wife. And there is no question that Mr Hutchins’ approach on the wife’s behalf grossly underestimates the husband’s contributions.
Her Honour then discussed the detail of initial contributions. The husband had purchased a property, P, from his parents eleven or twelve years before he started to live with the wife. The husband also provided for the expenses of purchase, including stamp duty, in respect of K, purchased in both names shortly before marriage. The P property was sold in 2000 for $285,000.00 and those proceeds could be traced, through the purchase of other property, to monies retained on trust for the parties until dealt with by consent. Her Honour’s consideration of the detail of these contributions is not attacked.
Then, as seen, Dessau J discussed contributions during “the course of the marriage”. Of the period of the parties’ cohabitation, her Honour said:
79.…More accurately, they lived together fully for six to seven years, and then only partially for the remaining two years.
Lastly, as to particular contributions, before her conclusion as to contributions overall, Dessau J considered contributions to superannuation, noting that the husband had contributed to his fund for 36 years.
This context demonstrates that, in that final paragraph, (83) her Honour isolated the telling factors for the apportionment at which she arrived. There is no indication that she intended to list every contribution she had earlier considered.
Though, particularly in the written summary, it was contended that the trial judge gave undue weight to the husband’s initial contribution, this was only the corollary of the argument that Dessau J undervalued the wife’s contributions.
We find no merit in these arguments.

That the trial judge’s assessment of contributions was tainted by a disproportionate concentration on the circumstances of the separation

Leaving aside the question of the mother’s parenting contribution over the period when she was living partly with the husband and partly with Mr W, which we have already discussed, this argument amounted to no more than the bare proposition contained in the expression of it in the heading above.
As the foundation for the first part of this contention, namely that there had been a disproportionate concentration on the circumstances of separation, in other words a moral judgment about those circumstances, the written summary of argument contained ten references by the trial judge. We think five of these – unusual; two separate households; ambiguity in living arrangements; started living with Mr W for more than half of each week; enormous ambiguity as to the state of the marriage; - neither imply nor express any criticism or moral judgment on the arrangement. However, others – long standing affair; the arrangement of living half time with another man, at just the time when she was expecting a baby; bizarre double life; inevitable unhappiness about the living arrangements and Mr W’s role with Mrs Orchard and with A; bizarre living arrangements that she put in place whereby she and Mr Orchard’s baby lived half the time with another man; - arguably carry a pejorative tone.
However, we are unable to see any connection, (except that already discussed in relation to the wife’s claim of parenting contribution during the period when living in two households) between any criticism which her Honour implied and the weight given to any relevant contribution.

That the wife should have received liquid assets as part of her entitlement

As seen, the composition of the asset pool, apart from add-backs, which of course were only notional assets, was K, $220,000.00, which the husband wished to retain as his home, the husband’s superannuation $137,932.00 and the wife’s superannuation $16,159.00. The orders provided for the wife to transfer to the husband her interest in K but that the amount of $106,487.00 be allocated to the wife as the base amount out of the interest of the husband in his superannuation fund. Each party otherwise retained what they had.
As to the justice and equity of this arrangement, her Honour said:
93.The effect of the order is that Mrs [Orchard] shall not receive further assets immediately. She has received some, but I am conscious that the balance of her share of the settlement will be in superannuation that she cannot yet access (she is 48 years’ (sic) old). However, she is housed and financially secure with [Mr W]. She moves into the future secure, and this gives her her own financial resource.
94.The effect of the order is the opportunity for Mr [Orchard’s] creditors to be satisfied, as he shall retain the non-exempt asset.
95.Finally, the effect of the order will be to extend to Mr [Orchard] at least an opportunity to retain his home. His long working life shall no longer be rewarded with the expectation of any but the most modest superannuation, but he should be securely housed, without paying rent. That is, if he can negotiate with the Official Trustee in Bankruptcy to retain the home. The Trustee’s solicitors indicated it may be a possibility. At least Mr [Orchard] will have the opportunity to give it his best shot.
96.I acknowledge that in the course of Mr [Orchard’s] final submissions I forewarned him that he was likely to need to sell or transfer the house to pay out the wife. I had not had the benefit of assessing the complex evidence, and although he tried, Mr [Orchard] was unable to make the cogent submissions that counsel would have made on his behalf. Having had the opportunity to reflect, I am satisfied that this is a just and equitable settlement of this case.
Dr Ingleby does not argue that the trial judge did not give reasons for the result but merely submits that it was not just and equitable for the wife to receive only superannuation, apart from jewellery. Yet he conceded, quite properly, that there might be cases in which a similar result was just and equitable, though he argued this was not one.
The question of a just and equitable division of property, having regard not only to the percentage apportionment of the available property, but also the nature of the assets to be received or retained by each party, is of course in the trial judge’s discretion.
Within the few paragraphs within which her Honour discussed the justice and equity of the proposed orders, she succinctly identified some telling factors. Firstly, if the husband received a “non-exempt asset” the trustee in bankruptcy could be paid. Of course, a transfer to the husband of the entirety of K was not necessary to achieve that end, but had the home been sold and the trustee paid, provision of 30 percent of the balance to the wife would see her receive around $50,000.00. Her Honour had to balance the utility of that to the wife against the factors that favoured giving the husband an opportunity to retain the home. Significantly in the husband’s favour with regard to that aspect, was the relativity of the period of cohabitation to the period of his working life and the situation upon which her Honour observed that, after that working life, he would “no longer be rewarded with the expectation of any but the most modest superannuation”. As well, the wife was already securely housed and financially secure, which her Honour contrasted with the position of the husband.
Having regard to the breadth of the trial judge’s discretion, we are not satisfied that the result reached by her Honour was outside those bounds.
In response to a question from the bench, Dr Ingleby submits that there was no evidence before the trial judge that showed that the husband was likely to be able to retain the home having regard to the amount required before his bankruptcy could be annulled. That submission may appear to gain support from the content of paragraph 96 of Dessau J’s reasons, when she refers to forewarning the husband that he was likely to need to sell or transfer the home. However, all that her Honour has done, in her own words, is to provide the husband the opportunity to retain the home. There is no error of fact involved. Moreover, her Honour did record, in paragraph 95 earlier set out, that “The Trustee’s solicitors indicated it [the husband retaining the home] may be a possibility”. In any event, whether in such circumstances her Honour ought have heard further from the wife at trial or provided for a division of the balance of proceeds of any sale of K between husband and wife (with a corresponding adjustment to the superannuation splitting order) was neither within any ground of appeal nor touched upon in the written summary of argument. Late in his address Dr Ingleby sought to amend the Notice of Appeal but we did not grant him leave to do so in circumstances where the husband appeared for himself and the difficulties which the husband had appearing unrepresented in the trial process were commented upon more than once by Dessau J.

That in assessing the wife’s credibility the trial judge failed to give proper weight to the fact that her evidence was given through an interpreter

Dr Ingleby stresses that there were difficulties in having the wife’s evidence translated. The interpreter sworn at the commencement of the wife’s evidence confirmed that she had a level 3 qualification from the National Accreditation Authority for Translators and Interpreters. On the second and third days of the hearing, the trial judge frequently intervened to remind the interpreter of her duties, one such example that Dr Ingleby gives demonstrates the trial judge requesting the interpreter merely to translate and not to engage in exchanges about the witness’s answers with the witness, before relaying the wife’s answers. Late on the second day of the wife’s evidence, the interpreter ultimately confessed to the trial judge that she had no NAATI qualification and was not registered with that organisation. Other interpreters were located.
As to matters of the wife’s credit, the trial judge said:
20.Parts of the evidence of both the husband and wife caused me to doubt their veracity. …
From that point, her Honour did not rely upon any assessment of the wife’s demeanour or any behaviour such as hesitation, which might have been difficult to assess when evidence is given through an interpreter. Rather, Dessau J addresses the quality of the evidence on an issue by issue basis. We see no reason to think her Honour did not give appropriate consideration to any issue because of the circumstance that the wife’s evidence was translated.
Asked if he could point to any connection between any finding by the trial judge and some particular difficulty in the wife’s evidence, Dr Ingleby points only to the finding in paragraph 45 of her Honour’s reasons, that paragraph being as follows:
45.Mrs [Orchard] claims she was also contributing to bills at the time. She produced a book of her notes of payments. It is hard to tell which household most of the payments relate to, although she apparently met some bills for the [Orchard] household. It is hard to accept her as a witness of truth when she was living a bizarre double life, and I found her evidence in parts incredible, for example her feigned ignorance as to how she came by the two new BMW motor vehicles.
Dr Ingleby argues that in reaching a conclusion that the wife had “feigned ignorance” her Honour ought have considered the difficulties experienced in obtaining translation of the wife’s evidence. We do not accept this submission for two reasons.
The finding in relation to the wife’s evidence about BMW vehicles in paragraph 45 is supported by findings elsewhere in her Honour’s reasons:
36.…She was vague as to how she was provided with two successive new BMW’s late in and after this marriage. …
…
30.…Her evidence clearly suggests she was (until she stopped work to have [A]) employed by a company connected with [Mr W], although he denied that. Certainly [Mr W] seems to have been involved in the hire or purchase of two consecutive BMW cars for the wife (in October 2000, and in February 2003), although the wife claims the former was provided by her employer. The second BMW was purchased in the name of a company owned by [Mr W], [M Pty Ltd]. Mrs [Orchard] claims [M Pty Ltd] was the name of her employer. [Mr W] denies he employed her.
31.Given the long-standing affair between Mrs [Orchard] and [Mr W], the ambiguity in Mrs [Orchard’s] living arrangements during 2001 to 2002, and the confused evidence about the cars and employment, …
Secondly, and we think, tellingly, counsel for the wife at trial did not ask for any other course to be taken, other than that which was taken, in relation to the translation of the wife’s evidence, nor did he make submissions to her Honour that the wife had suffered because of any matter related to the translation of her evidence. Indeed, when Dessau J was addressing the issues arising from the first interpreter’s performance, she said:
I am heartened by Mrs [Orchard] herself saying that she is comfortable with the interpretation, even with its shortcomings to date and although in one sense she is not the best judge of that because she might not know what she is not hearing, I have the additional level of comfort in that it’s quite clear that she does speak some English and understands some English very well. She has a very experienced lawyer with her who has also said to me that, from his perspective, weighing things up, the trial should proceed even with this interpreter.
We see no merit in this argument.

Conclusion

As we have found no merit in any of the arguments on the appeal, it should be dismissed.

Costs

As we took no submissions on costs pending a determination of the appeal, we will include directions for written submissions. Though the husband was unrepresented at the hearing, he may have incurred some legal costs in connection with the appeal.

I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.

Associate:

Date: 29 May 2009