Patel & Kadam and Ors

FAMILY COURT OF AUSTRALIA

PATEL & KADAM AND ORS

[2008] FamCA 990

FAMILY LAW – PROPERTY SETTLEMENT – Brief cohabitation – The parties’ only child born after separation and at all material times lived with the wife – Not established on balance of probabilities that husband has no beneficial interest in the only property with any nexus to the marital relationship, nor that any of the respondent members of his family have an equitable interest in the property

CONTRIBUTIONS – In view of the very brief cohabitation of the parties and their non-financial contributions being so long ago and unquantified, husband found to have made the overwhelming, if not total contribution to the acquisition, conservation and improvement of the husband’s interest in the property – In view of the wife’s total responsibility for the care and support of the child for the whole of the child’s life, save for token child support from the husband, established wife’s indirect, non-financial contribution based entitlement in the sum of $20 000

SECTION 75(2) FACTORS – The wife’s contribution based entitlement reflecting all the factors which could reasonably be accommodated within s 75(2) rendered any further s 75(2) adjustment inappropriate

Family Law Act 1975 (Cth) ss 4, 75(2), 79(4), 106(1)
Child Support (Assessment) Act 1989 (Cth)

APPLICANT:

Ms Patel

FIRST RESPONDENT:

Mr Kadam

SECOND RESPONDENT:	Mrs K
THIRD RESPONDENT:	Ms W
FOURTH RESPONDENT	Mr R
FIFTH RESPONSENT	Mr G
SIXTH RESPONDENT	Ms S

FILE NUMBER:

PAF

4938

2002

DATE DELIVERED:	19 November 2008
PLACE DELIVERED:	Parramatta

JUDGMENT OF:

Coleman J

HEARING DATE:

28 & 29 October 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Battley

SOLICITOR FOR THE APPLICANT:

McDonnell Schroder

COUNSEL FOR THE RESPONDENT:

Self represented.

Orders

That by way of settlement of property the husband pay to the wife the sum of $20 000 within 60 days of the date of these orders.
That, upon receipt by the wife of the said sum of $20 000, the wife indemnify the husband with respect to any present or future assessments of child support against the husband in excess of the minimum level of child support from time to time assessed by the Child Support Agency pursuant to the provisions of the Child Support (Assessment) Act 1989.
That payment of the said sum of $20 000, together with interest accrued thereon pursuant to the Rules, in the event of the husband failing to pay the said sum within 60 days of these orders, be and remain a charge upon the interest of the husband in the property known as L property and being the property comprised in Lot … in DP ….
That within 7 days of these orders the second, third, fourth, fifth and sixth respondents respectively execute and deliver up to the wife’s solicitors a Withdrawal of Caveat in registrable form with respect to Caveat number …J (the second respondent), Caveat number …H (the third respondent), Caveat number …D (the fourth respondent), Caveat number …G (the fifth respondent) and Caveat number …Y (the sixth respondent) in order to permit the solicitors for the wife to lodge a Caveat against the husband’s interest in the said property in support of the charge created in her favour by these orders.
That in the event of any of the respondents referred to in Order 4 hereof failing to sign a Withdrawal of Caveat in a form approved by the Registrar General of New South Wales within 7 days of such Withdrawal of Caveat being submitted to him, her or them, the Registrar of this Court be appointed to sign same on behalf of such respondent(s) pursuant to s106A(1) of the Family Law Act.
That costs be reserved.

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

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: (P)PAF 4938/2002

MS PATEL

Applicant

And

MR KADAM

First Respondent

MRS K

Second Respondent

MS W

Third Respondent

MR R

Fourth Respondent

MR G

Fifth Respondent

MS S

Sixth Respondent

REASONS FOR JUDGMENT

By amended application filed 23 April 2008 Ms Patel (“the wife”) sought orders for settlement of property against Mr Kadam (“the husband”) in the following terms:
1.    The parties shall forthwith, do all such acts and things and sign all necessary documents to effect a sale of the real property known as [L property] Lot […] DP […] (hereinafter called “the real property”) and by way of consequential arrangement that shall be made for the purposes of effecting a sale:-
(a)The listing price for the real property shall be as agreed between the parties but if there is no agreement within fourteen days of these orders the listing price shall be as advised by a valuer nominated by the President of the NSW Division of the Australian Property Institute.
(b)The real property shall be listed for sale by private treaty for a period of three months with an agent as agreed by the parties but if no agreement within fourteen days of these orders an agent nominated by the President of the Real Estate Institute NSW.
2.    In the event that the real property has not been sold by or before a date three (3) months from the date of listing with such agent as provided in order 1(b) above then:-
(a)The parties shall make all such arrangements and do all such acts and sign all such documents necessary to list the real property with such agent as provided at order 1(a) above at such price as advised by the President of the NSW Division of the Australian Property Institute with further reviews of such price on a monthly basis, and
(b)The parties shall adopt such marketing program as may be advised by the President of the Real Estate Institute NSW.
3.(a)     If the real property remains unsold for a further period of three months the property shall then be sold by public auction by an agent appointed by the Real Estate Institute of NSW (unless otherwise agreed between the parties) and the reserve price shall be as advised by the President of the NSW Division of the Australian Property Institute (unless otherwise agreed between the parties).
(b)In relation to order 3(a) above the marketing program shall be advised by the President of the Real Estate Institute NSW.
4.    Upon completion of the sale the proceeds of the sale shall be applied as follows:
(i)first, to pay all costs commissions and expenses including such costs to the President of the Real Estate Institute and/or President of the NSW Division of the Australian Property Institute as may be required and to pay any council and water rates outstanding in respect to the real property;
(ii)Secondly, discharge mortgages to the St George Bank secured by mortgage registered […] and […].
(iii)Thirdly, [the husband’s mother, Mrs K] 50% of the balance of the proceeds
(iv)Fourthly pay the wife 30% of the remaining balance of the proceeds.
(v)Fifthly, pay remaining balance to the husband;
5.    To give effect to these orders the conveyance of the above-mentioned Real property shall be undertaken by a solicitor nominated by the President of the Law Society NSW.
6.(i)     It is hereby declared that the second, third, fourth, fifth and sixth respondents do not have a caveat able [sic] interest in the real property.
(ii)Within 7 days of these orders a withdrawal of caveat in registrable form shall be provided by the second, third, fourth, fifth and sixth respondent to the wife’s solicitors as follows;
(a)In relation to the second respondent, [the husband’s mother Mrs K] caveat number […]J.
(b)In relation to the third respondent, [the husband’s sister Ms W] caveat number […]H.
(c)In relation to the fourth respondent, [the husband’s brother Mr R] caveat number […]D.
(d)In relation to the fifth respondent, [the husband’s father Mr G] caveat number […]G.
(e)In relation to the sixth respondent, [the husband’s sister Ms S] caveat number […]Y.
(iii) Pending payment to the wife pursuant to these orders the second, third, fourth, fifth and sixth respondents are restrained from registering any caveat on the title of the real property.
7.     Pending sale of the real property the husband and the second respondent shall:-
(i)Maintain the real property and improvements in good condition, fair wear and tear excepted;
(ii)Co-operate with all reasonable requests of the selling agent to gain access to the real property and improvements (as the case may be);
(iii)Make all rate and mortgage payments as and when they fall due to the date of completion of payment to the wife;
(iv)Keep the real property and improvements fully insured with a reputable insurer and provide evidence of the same to the wife;
(v)Be restrained by way of injunction from redrawing from the mortgage or otherwise encumbering or charging the real property and
(vi)Subject to 5(i) to (v) above the first and second respondents shall be entitled to exclusive use and occupation of the premises pending sale of the real property.
8.(i)     Each party shall, and is hereby directed, to sign all documents and things and do all such acts as may be required to give effect to these orders
(ii)It is sufficient evidence of neglect or refusal if either party refuses or neglects to sign any such document or deed necessary to give effect to these orders within 7 days of a written request to do so.
(iii)If either party refuses or neglects to sign (within seven days of a written request to do so) any document necessary to give effect to the terms of these orders the Registrar or a Deputy Registrar of the Parramatta Registry of Family Court of Australia is hereby appointed pursuant to section 106A of the Family Law Act 1975 to execute such document\s on behalf of the defaulting party.
That unless otherwise specified in these orders:
9.(i)     Except as otherwise provided herein each party is hereby solely entitled to the exclusion of the other to all other property and chattels of whatsoever nature and kind in the possession of such party as at the date of these orders and that for this purpose bank accounts are deemed to be in possession of the person whose name appears on the bank’s record thereof, insurance policies are deemed to be in the possession of the beneficiary thereof.
(ii)The applicant is solely entitled to all interest in superannuation funds of which he is a member.
(iii)The respondent is solely entitled to all interest in superannuation funds of which she is a member.
(iv)Each party is hereby solely liable for and shall indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.
In his helpful practice directions statement, learned Counsel for the wife quantified the relief sought by her in the sum of $60 000, payment of which was sought to be realised by the sale of the L property.
By his most recent amended response filed 13 October 2008 the husband sought:
1.     Amended application for final orders by wife applicant to be dismissed.
2.     Wife applicant to pay all court costs.
3.     Injunction order by the family law courts to be dismissed.
4.     No further legal matters by the wife applicant, all matters to close.
5.     The wife applicant to pay husband respondent $35,000.00 in relation to debts.
Although leave to intervene was granted to a number of members of the husband’s family, in no document ever filed by them or on their behalf was the nature of the interest asserted by any of them in L property articulated. As will be seen, only by the tender of a number of caveats lodged against the title to L property by learned Counsel for the wife has the Court gained some appreciation of the interest which the husband’s family members may be asserting in L property.
It is immediately apparent that the competing applications raised two broad issues. The first issue is whether there is “property” of the husband, which is a pre-requisite to there being a matrimonial cause within Section 4 of the Family Law Act 1975 (Cth) (“the Act”) and thus jurisdiction to enliven the power to make any order pursuant to Part VIII of the Act. If there is no property, there is no matrimonial cause, and can be no order for settlement of property.
It is not in doubt that the husband has a legal estate or interest in L property, the assertions maintained by him, however articulated, being that he has no beneficial interest in that property.
If there is property, it is then necessary to consider the relevant provisions of Part VIII of the Act, most notably Section 79(4) and Section 75(2) of the Act, in order to determine what order, if any, should be made in favour of the wife in a just and equitable exercise of the power conferred by Section 79 of the Act.
As learned Counsel for the wife sensibly conceded, the latter issue was narrower than a reading of the material at trial might suggest. Ultimately, if there is property of the husband with respect to which an order could potentially be made, the basis upon which that order could be made is limited to the wife’s financial and non-financial contributions to the child of the parties in the post separation period. That period covers the whole of the child’s life given that the child of the marriage was born after the parties separated.

Credit

The wife was an unimpressive witness who clearly and repeatedly said whatever seemed to her most potentially advantageous at the time. Were the wife’s entitlement to be dependent upon the acceptance of any controversial evidence given by her, it would fail. The transcript of the wife’s evidence would reveal the many and varied ways in which her evidence was unreliable.
As will be seen, ultimately the wife’s entitlement falls to be determined by reference to evidence which is not in contest and falls within a narrow compass. It is perhaps convenient to record at this point the facts upon which, sensibly and pragmatically, her learned Counsel sought to base her entitlement.
It is not in contest that the one child of the marriage was born after the parties separated in 2001. The husband asserts, uncontroversially it seems, that he has seen the child for a total of 20 hours since her birth. The husband has, and apparently desires, no relationship with the child. Thus, the wife is in the perhaps unusual position of having made 100 per cent of the parenting contribution with respect to the child from the time the child was born in 2002 until the present. The evidence does not suggest that this will change between now and the time the child attains 18 years of age. As learned Counsel for the wife properly suggested, this is a significant ongoing contribution.
The other aspect of the wife’s asserted entitlement relates to the financial support, or perhaps more accurately non support, of the child of the marriage. It is common ground that the husband pays $5 per week child support. Whilst, as the husband reminded the Court, he has always paid what the law obliges him to pay, $5 per week for 6½ years, a total of not more than $1600, that, as, in fairness, the husband acknowledged, goes no way, and has gone no way towards the real costs of maintaining the child since her birth.
Whilst it could be suggested that the wife could have sought to redress the disproportionate financial burden of caring for the child pursuant to the Child Support (Assessment) Act 1989, the combination of the complexity of that legislation and the determination and deviousness of the husband provides little cause for confidence that so doing would have been likely to succeed. The probabilities are that by an almost unparalleled pathway which the litigation in this Court has taken, any child support initiatives attempted by the wife would have been resisted by the husband until the last avenue of appellate challenge was exhausted.
Thus, to the extent that it could be suggested that 6½ years of token child support ought not be a potential basis for the wife’s claim, such a contention is not, in the circumstances of this case, one which should succeed.
The other aspect of child support relates to the future. The husband asserts that he will, when the case is over, get a job, and pay proper child support, notwithstanding that he is his mother’s carer and is paid by the Government to be so. Nothing advanced by the husband, or emerging from the evidence, provides a rational basis for accepting that the husband will ever willingly pay proper child support to a mother for whom he has contempt for the support of a child in whom he has no demonstrated interest.
In the circumstances which have been briefly outlined, it is unnecessary to refer further to the essentially unsatisfactory evidence of the mother. It is also unnecessary to refer to the less than convincing evidence of Mr U as to the nature of the relationship which exists between the mother and Mr U. It is unnecessary and unproductive to record the Court’s conclusions or suspicions about those matters.
The wife was not alone in being an unreliable witness. The husband was not a credible witness. A reading of the transcript of his evidence would reveal that he too said whatever seemed most likely to assist his cause in the course of giving his evidence.
Having regard to the circumstantial evidence and the husband’s evidence in cross-examination and his demeanour throughout the litigation, the Court would not accept the evidence of the husband with respect to controversial matters where that evidence was not supported by reliable independent evidence.
Similar observations apply to the other members of the husband’s family who gave evidence. It is quite apparent that the members of the husband’s family have colluded to seek to defeat the wife’s claim by whatever means they can.
It is unnecessary to refer in detail to the reasons why the Court does not find the husband or any of his family members to be credible witnesses. It is appropriate to refer to one matter which highlights the inescapable conclusion that the husband orchestrated the evidence of his family. Notwithstanding that, save for the husband and his brother Mr R, none of the members of the husband’s family could give evidence without an interpreter, each and every one of those family members maintained that the affidavit he or she had sworn had been prepared without any assistance or input from the husband. Each and every one of the family members was adamant on that score. So was the husband.
It is clear beyond doubt from a reading of the affidavits that they were prepared by the husband. His failure to remove paragraphs from the affidavits of other family members which could only relate to him puts the issue beyond doubt. The absolutely identical wording of all the affidavits, the identical insertion of copies of passbooks, albeit details of them appear to have been altered, leave no room for doubt that the one person prepared all of the affidavits. Only the husband could have done so.
Notwithstanding the inescapable reality, the husband and members of his family were unable to be truthful about that. When witnesses are incapable of conceding something so demonstrably obvious, it is difficult to accept anything those witnesses say where what is said is controversial. Moreover, as learned Counsel for the wife astutely recognised, amongst the plethora of affidavit material relied upon by the husband and his family members, there was no admissible evidence capable of establishing the husband’s assertion that he had no beneficial interest in L property.
Ultimately, albeit for different reasons to those applicable to the wife, the lack of credibility of the husband and his family members has limited impact given that, on any view of it, the wife’s contribution based entitlement is limited to the uncontroversial matters to which reference has been made.

Material Facts

Some material facts are relevant to the proceedings. For reasons which have been given, the material facts record only those matters which are either not controversial or are established by documentation the reliability of which cannot be doubted.
The husband was born in September 1966. He is thus 42 years of age.
The wife was born in April 1974. She is thus 34 years of age.
On 10 June 1997 the husband and his mother became registered proprietors as tenants in common in equal shares of the property known as and situate at L. The property was mortgaged at the time and has remained mortgaged at all material times. The property had been acquired by the husband’s brother, Mr R, and his mother as tenants in common in equal shares in 1995. A mortgage of $157 000 was obtained to complete the purchase.
The husband has lived in the property at all times subsequent to his acquisition of an interest in it. The evidence is unclear as to which other members of the husband’s family, and for what periods, have lived in L property, but it seems clear that for much, if not all, of the period subsequent to the acquisition of L property the husband’s mother and father have resided there.
On 4 July 1997 the husband and his mother, as registered proprietors of L property, executed a mortgage in favour of Advance Bank Australia Limited by way of collateral security for borrowings by the husband, his brother Mr R and, the husband suggested, one other, to enable them to purchase a block of 8 flats at N [Exhibit A1].
The purchase N property as an unstrataed apartment building was entirely funded with borrowings. The building was subsequently strataed, the husband’s brother Mr R receiving 4 units in the building, the husband 3 and the third investor, Mr A 1 unit.
The husband’s evidence is less than clear but seems to assert that his mother advanced to him some $41 000, or possibly $42 000 or $70 000, in order to acquire his three eighths interest in N property. No documentation establishing on the balance of probabilities that the husband’s mother provided such funds, or that any funds were thus provided, has been produced.
The husband does not assert that he charged, assigned or otherwise in any way alienated his interest in L property in favour of his mother by virtue of the alleged advance to him of the funds which he applied to the acquisition of N property. His case, and that of his family, appears to be that the husband never had a beneficial interest in L property, notwithstanding which it was provided as collateral security for borrowings the husband made.
At least so far as the husband was concerned, all the monies invested in N property were subsequently lost, a judgment for the sum of approximately $18 000 being entered against him by a mortgage insurer in 2005. When the husband’s interest in N property was lost is less than clear and not significant for present purposes in any event.
The parties married in January 2000. The marriage was “arranged” for the parties. The next day the wife returned to Fiji.
On 17 June 2000 the parties were married in a Hindu service at L and commenced cohabitation. The parties separated in February 2001, resumed cohabitation briefly in April 2001 and finally separated in May 2001. The parties did not thereafter cohabit.
In January 2002 the parties’ only child was born. The child has at all material times since her birth lived with the wife. Save to the extent of a financial contribution totalling not more than $1600, the husband has made no direct or indirect financial or non-financial contribution to the welfare of the child since her birth and asserts, uncontroversially it seems, that he has seen the child for a total of 20 hours during her lifetime.
It is unnecessary to record the earlier history of the proceedings in the Federal Magistrates Court and this Court, save to note that the proceedings have now been on foot for approximately 4½ years. From the outset, the husband has asserted he has no beneficial interest in L property. The husband, as have his family members, has had 4½ years in which to compile evidence relevant to the assertion that the husband has no beneficial interest in L property.
Moreover, the husband has had the benefit of a lengthy trial before a Federal Magistrate, and an appeal to a single judge on appeal from that decision. The inadequacies in the evidence presented by the husband and the various members of his family need to be seen within that time frame.

The property of the parties

The only significant property is the husband’s one half interest as tenant in common with his mother in L property. The property is agreed to be worth $470 000. There is a mortgage over the property in respect of which approximately $90 000 remains outstanding. The husband’s legal interest in the property is accordingly worth approximately $190 000.
The husband asserts that he has no beneficial interest in L property. There is no admissible evidence before this Court, from the husband or any member of his family, which provides the basis for concluding, or even suspecting, that the husband is not the beneficial owner of a half interest in L property.
Such evidence as there is leaves little room for doubt that, faced with a claim against his interest in the property by the wife, the husband and other members of his family colluded to assert that the husband had no beneficial interest in L property. Unsurprisingly, no consistent or rational basis for that assertion has emerged. A reading of the affidavits of the husband and the other members of his family fails to give any real clue as to who asserts what by way of beneficial interest, its nature, or the basis upon which it is said to have arisen.
Putting it at its highest for the husband and the other members of his family, the evidence relied upon might be thought to seek to establish that some or all of the members of the husband’s family who are parties to this litigation have an unspecified equitable estate or interest in the husband’s legal interest in L property or, whilst not having an estate or interest in the property as such, have an equitable entitlement by virtue of their financial involvement with the husband in that property.
The husband’s case, as urged by him and each member of his family in the affidavits which the husband drew for them, is that since 1997 he has paid nothing with respect to L property, notwithstanding that he has lived in the property. The husband and other members of his family suggest that, in ways that have not been fully or adequately identified, the husband was a “front” for other members of the family at the time the property was acquired.
Inferentially, and given that the husband’s mother, on the husband’s evidence, has at all times since she came to this country been reliant upon a pension, it is improbable that she, or the husband’s father who the evidence suggests has also been dependent upon social security since he came to this country, could have secured a substantial borrowing, as was clearly secured in order to purchase L property. It seems to be suggested that the husband was held out as having a beneficial interest in the property in order to obtain a mortgage.
These assertions ignore the reality that L property was purchased in 1995 in the names of the husband and the husband’s mother and his brother Mr R, the latter being removed, and the husband being replaced as registered proprietor of the husband’s one half interest. The mortgage in the sum of $157 000 required to complete the purchase of the property was obtained in 1995. No credible explanation of those obstacles to the acceptance of the husband’s claims has emerged from the evidence.
In the absence of any rational or clear basis for the husband’s contention that he has no beneficial interest in L property being articulated in any of the material relied upon by him, despite the years which have been available in which to formulate the basis of his case, it is difficult to meaningfully or constructively refer to the evidence. To read the evidence is to appreciate the basis of this view.
Objectively, the husband bears the onus of establishing that he has no beneficial interest in L property. He has failed to discharge that onus on the balance of probabilities.
To the extent that other members of the husband’s family assert that they have a beneficial interest in or entitlement to L property or otherwise have “claims” which the Court should recognise, they bear the onus of establishing those matters on the balance of probabilities. The members of the husband’s family have failed to establish any of those matters.
None of the evidence or documentation advanced by the husband or members of his family assists the cause of any of them.

The documentation advanced by the respondents in support of their claims.

As is apparent from the terms of the responses from time-to-time filed on behalf of the husband and other members of his family, beyond denying that the husband has any beneficial interest in L property, the respondents have failed to articulate for whom and on what precise terms the husband holds his legal interest in the property. Only from caveats tendered by learned Counsel for the wife, does the position become any less obscure.
The husband’s sister, Ms S, caused a caveat against the title to L property to be lodged subsequent to 4 July 2006. The caveat was lodged against the interest of both registered proprietors of L property, they being the husband’s mother Mrs K and the husband. The estate or interest claimed by the husband’s sister was asserted to have arisen from an oral “instrument” in 1997, the parties to which were suggested to be the husband and his mother, the registered proprietors. The facts relied upon as giving rise to the life estate asserted by the husband’s sister as caveator were “agreement between the parties that the caveator would be granted life interest in the property by the registered proprietors”. It is in inescapable inference that, whenever the alleged agreement arose, the caveat came into existence when it did in response to the wife’s claim against the husband in these proceedings and, by that time, the husband’s realisation that his assertion that he had no beneficial interest in L property required some bolstering. [Exhibit A2].
The husband’s other sister, Ms W, on the same day, 4 July 2006, before the same Justice of the Peace and at the same premises as Ms S, signed the caveat which was subsequently lodged on her behalf in precisely the same terms as those to which reference has just been made. [Exhibit A3]. It is an inescapable inference that the caveat was then prepared in response to the husband’s perceived need to bolster his case in opposition to the wife’s claim in this Court.
The husband’s father, Mr G, signed a caveat on 30 November 2005, well after these proceedings had commenced. The caveat was identical in every respect to those of his daughters, save that, whereas the caveats lodged by the husband’s sisters were no more specific with respect to the date upon which the alleged life estates were created than the year 1997, the husband’s father’s caveat asserted that the oral “instrument” whereby the interest was created was 25 June 1997. [Exhibit A5]. As with those caveats, it is an inescapable inference that the caveat was then prepared in response to the husband’s perceived need to bolster his case in this Court.
On 29 November 2005, the husband’s brother, Mr R, lodged a caveat in identical terms to those of his sisters to which reference has been made, save that the alleged oral “instrument” which created the interest was said to have been on 17 July 1997. It is an inescapable inference that this caveat also came into existence in response to the husband’s perceived need to bolster his case in this Court.
Finally, there was tendered a caveat signed by the husband’s mother on 8 November 2007. [Exhibit A7]. The nature of the estate or interest asserted by her was said to be “joint tenant and half share”, pursuant to a “registered mortgage oral” allegedly dated 1 January 1998, the parties to the “registered mortgage oral” being the husband and his mother. The facts asserted in support of the alleged interest were “[a]greement made between [the husband] and [the husband’s mother] (both Joint Tenants […]/[…]) that [the husband] bears no financial interests or share in the real property […]/[…]. [The husband] holds 0% shares and interests in property […]/[…].” As with the other caveats to which reference has been made, the evidence leads inevitably to the inference that this caveat too was created in response to the husband’s perceived need to bolster his case in this Court.
No circumstantial or other evidence adduced on behalf of the husband, or any member of his family, militates against the conclusions recorded above.
Putting to one side entirely the provisions of the Real Property Act which stand in the way of acceptance of the interests asserted by the husband and the various family members as revealed by the caveats to which reference has been made, there is no admissible evidence before this Court to establish the “facts” which were suggested in each of the caveats to give rise to the interest claimed. Sensibly, learned Counsel for the wife did not traverse that absence of evidence, thereby risking potentially curing the defect in the evidence.
Given the timing of the caveats, their contents, and the absence of any admissible evidence establishing the facts in reliance upon which the interests claimed by them were asserted to be based, the caveats cannot advance the contentions of the husband or any member of his family.
To the extent that one can discern on what basis the husband claims to have no interest in L property, other than, as is clearly the case, any basis that enables him to defeat the wife’s claim in these proceedings, 1997 appears from the caveat to be the year in which any “arrangements”, to use the broadest possible descriptor of them, between the various members of the husband’s family may have been entered into and subsequently relied upon by family members. No relevant source or other documentation from that era was ever tendered.
The husband did tender documentation from the Advance Bank which related to transactions in 1995, 1996 and 1997, albeit they were transactions on an Advance Bank account of the husband’s brother Mr R. [Exhibit R3]. Notwithstanding that the Court does not accept that the Advance Bank documents could advance the husband’s case, or that of any of his family members, some reference to them is appropriate.
On 21 December 1995 there was deposited to the account by cheque the sum of $42 974.25. That deposit, after payment of State Tax, and taking into account a previous balance of $25, left a sum in the account of $42 974.21. On a date between 4 January 1996 and 3 February 1996 which is unclear, there was withdrawn from the account and paid to a car dealer, $13 990. The balance in the account then remained at approximately $30 000 during the early months of 1996, with regular weekly debits from the account described as “loan repayment” of $96.50. Mr R gave no relevant evidence in relation to this account. From time to time cash deposits went into the account, the effect of those being to more than offset the weekly loan repayments made from it.
Between 4 June and 4 July 1996 $34 000 was withdrawn in cash from the account. No documentation before this Court reveals the fate of that sum. Thereafter, no significant transactions on the account appear until May 1997, at which time the account had an opening balance of $38 230.07.
Significantly, the statements 14 and 15, which cover the period in which the account went from having a balance of $23.47 to the figure of $38 230.07 on 3 May 1997, were not made available. How the account came to have $38 000 in it is thus unclear and no evidence given by the husband or his brother clarifies that issue. What is clear is that on 20 May 1997 $37 000 was transferred to another branch of the Bank. No documents showing what then happened with the monies have been provided to this Court. Two days later a cash deposit of $7 200 was made to the account. Its source is not explained.
The statements reveal a balance as at 4 June 1997 of $7 409 which had dwindled to $37.96 at the date of the last statement produced, which covers the period 4 August to 4 September 1997. Again, two significant intervening pages were not produced. To what these statements relate is unclear. What is clear is that they provide no support whatsoever for the assertion of the husband, his brother or any other family member that the husband lacked an interest, or that persons other than the registered proprietors had an interest, in L property.
The husband also tendered statements of a St George joint account which covered the period 8 February 1997 to 7 May 1999. [Exhibit R4]. It is reasonably clear that those statements were asserted by the husband to support his contention that his mother, whose only source of income according to the husband, had for the previous 8 years been an Australian Government Pension, provided $70 000 of her funds to the husband and his brother to invest in the N property project, all of which monies were ultimately lost, or were insofar as they related to the husband.
The husband asserted that he had suffered an $18 000 judgment debt in favour of a mortgage insurer on the finalisation of the transaction. There is no evidence that the husband has been, or is being pursued in respect of the debt. Notwithstanding the curious materialisation of the St George Bank statements in 1997, no other documentation relating to or asserted to relate to the N property transaction has been produced to this Court.
Necessarily, the husband’s assertion appears to be that the two deposits, one of $34 000, the other of $37 000, made to the account of the husband by his mother on 20 May 1997 to extinguish the $69 366.46 debit balance in the account created by the withdrawal of $70 000 from the account on 19 May 1997, came from the husband’s mother’s funds.
No evidence before this Court supports that contention. There is no evidence before this Court in relation to subsequent significant deposits totalling $30 000 on 18 June 1997 or any other significant transactions appearing in the various statements tendered.
The statements do not support the claims of the husband or his family members with respect to the beneficial ownership of L property, albeit they were not tendered by the husband for that purpose. Nor do they support the contentions of the husband in support of which they were purportedly tendered.
The husband produced a bundle of St George Bank passbooks. These were not arranged in any chronological or other sequence. Not without some difficulty, the Court has put the passbooks in sequence and examined their contents. The accounts referred to by the passbooks are in every instance in the name of the husband’s mother. The earliest time covered by the books is 1999. They continue to the present time. There are some curious, and unusual changes made to the books. The books do not cover the period 1997. They provide no support for the interests asserted in the caveats to which reference has been made.
To the extent that the books might be suggested thereafter to provide support for what appears to be the husband’s assertion that he paid nothing with respect to L property after 1997, and other family members paid everything in reliance upon the alleged agreement that the husband would have no beneficial interest in the property, the passbooks do not support that inference.
It is clear, as the husband’s mother and all members of his family were obsessed with asserting, that the husband’s mother has accumulated in bank accounts in her name some $91 000 over the past decade.
The husband’s evidence is that the mother’s only source of income since she came to this country in 1989 has been social security payments. With the possible exception of the husband’s brother Mr R, the evidence does not suggest that either the husband or any member of his family has during the past decade been in receipt of income or other means of support independent of the Australian Social Security system. No tax returns for the husband or his family have ever been tendered to establish earnings other than pension payments.

The savings accumulated by the husband’s mother over the past decade represent an accumulation of approximately $10 000 per annum. The evidence does not establish how that could have occurred other than by virtue of the husband’s mother being able to retain and save a substantial portion of the pension payments made to her.
The passbooks establish that the funds in them belong to the husband’s mother. The husband and members of his family have resisted the wife’s claim in the misplaced belief that, in some unstated way, the wife was seeking to share in her husband’s mother’s accumulated funds. The Bank accounts however do not advance the assertions of the husband, or any member of his family, as to the husband’s absence of a beneficial interest in L property.
No other documentation put to the Court by the husband or any member of his family advances their contentions as to the beneficial ownership of L property.
It remains to consider whether, notwithstanding the inevitable conclusions with respect to the beneficial ownership of L property, the contributions of any members of the husband’s family should result in the husband’s interest in the property being regarded as less than his legal interest.
It is possible, although the evidence does not establish it, that there is a pooling of funds within the husband’s family. It seems likely that, in pursuance of his assertion that he has no beneficial interest in L property, the husband chooses to pay board or the like to his mother who then makes the actual mortgage payments. There is no clear evidence about that, and even if there were, given the level of savings which the husband’s mother has accumulated, the fiction sought to be advanced would be transparently unsustainable.
It is unnecessary to speculate about these matters however given the absence of credible evidence to establish any basis upon which the husband’s legal interest in L property differs from or is less than his legal estate in the property.
What is relevant to determining the property of the parties however is the mortgage balance. As noted earlier, the mortgage currently has a balance of approximately $90 000. It was $116 000 in June 2004. The wife has made no direct or indirect contribution to the reduction in the mortgage since that time.
Although not expressly conceding that it was reasonably open to do so, learned Counsel for the wife did not seriously dispute that it was open to the Court to accept that the husband could have a debt to his mother of $42 000 by reason of the failed N property investment and, also by reference to that venture, a judgment debt of $18 000 to the mortgage insurer, notwithstanding that for 3½ years the judgment creditor has made no apparent attempt to recover its indebtedness from the husband.
On that basis, and on the basis that no other debts asserted by the husband have been proved, notionally regarding his interest in L property as approximately $117 000 would be reasonable. If that were further reduced by allowing another $28 000 with respect to the N property development, equity of $89 000 would result.
There is no other asset property or liability which has been proved or which has a demonstrated nexus to the marital relationship of the parties. The N property liabilities arguably do not have that nexus insofar as they arose by virtue of events which were set in train prior to the marriage of the parties.

Contributions

It was sensibly conceded by Counsel for the wife that no part of her case could be based on direct or indirect financial contributions to the acquisition, conservation or improvement of the husband’s interest in L property.
The cohabitation of the parties was so brief, and their non financial contributions (other than indirectly to the conservation of L property) being so long ago and unquantified, that to regard the husband as other than having made the overwhelming, if not total contribution to the acquisition, conservation and improvement of L property would be unfair.
As was sensibly asserted on behalf of the wife, the only basis upon which the wife could establish an entitlement pursuant to Part VIII of the Act is in reliance upon the two matters identified earlier in these reasons. They are that the wife has had and will have the total responsibility for the care, supervision, housing and nurturing of the child of the parties for the whole of her life, and that all she has received and can expect to continue to receive by way of child support has been and will continue to be no more than token.
Objectively, on any view of the evidence, and particularly having regard to the lengths to which the husband will go to avoid paying monies to the wife, all that the wife can expect to receive by way of tangible provision for the parties’ child is what she is awarded in these proceedings.
The Court does not accept that the husband will in the future make any attempt to pay more than the $5 per week which he has historically paid for the child by way of child support. Moreover, it would be naive not to imagine that the husband would take whatever steps he deemed necessary to resist any attempts by the wife to oblige him to provide more than token financial support for his daughter in the future. As noted earlier, the lengths to which the husband has gone to defeat the wife’s claims before this Court leave little room for doubting that he would have been similarly industrious in his resistance of any child support proceedings which the wife might previously have taken.
In the Court’s view, the contributions upon which her learned Counsel has relied establish an indirect, non-financial contribution based entitlement of the wife with respect to the property of the husband. That entitlement does not translate readily into dollar terms, and must be balanced against the reality that there is only a property in respect of which any order can be made by reason of the husband’s contribution of that property well prior to his ever having married the wife and in circumstances where the wife has no real contribution based entitlement which pre-dates the birth of the one child of the marriage in the year after the parties finally separated.
It would be unrealistic to ignore the reality that the husband has caused the property to be maintained during the 7½ years since the parties separated, albeit he has had the benefit of accommodation in the property during that period.
In all the circumstances, to assess the wife’s contribution based entitlement in the sum of $20 000 would in the Court’s view be a reasonable balancing of the countervailing factors to which reference has been made. To the extent that contribution based entitlements are generally expressed in percentage terms, in a case like this a percentage can have little real meaning. The mathematical result of what the Court considers to be a reasonable reflection of contributions rather than the sum which results from some percentage determination of that entitlement is more appropriate in the circumstances of this case.

Section 75(2)

As learned Counsel for the wife sensibly conceded, the factors upon which the wife’s entitlement to an order might be based were those which have earlier been discussed. To have regard to the future component of those factors again in the context of section 75 (2) would be to count the same thing twice.
Having reflected in the contribution based entitlement of the wife all the factors which could reasonably be accommodated within section 75(2), no foundation for a section 75(2) adjustment remains.
It is necessary to consider whether the proposed award in favour of the wife is just and equitable. The Court is satisfied that it is just and equitable that the wife receive $20 000 by way of settlement of property in circumstances where she has had, and will continue to have, the overwhelming financial and non-financial burden of providing for the one child of the marriage.
Whilst that sum could be said to significantly undervalue the contributions to the welfare of the child which the wife has made in the past and will make in the future, it is necessary to remember that it is only because of the contributions of the husband prior to the marriage and for many years after the marriage ended that there is any property at all.
It is also relevant in this context to refer briefly to the wife’s relationship with Mr U. As noted earlier, the wife’s evidence with respect to her relationship with Mr U was unconvincing. Technically, there probably is no de facto relationship between the wife and Mr U. It is not hard to imagine why that might be so.
The evidence of the wife and Mr U was inconsistent as to the details of their relationship. The nature and extent of the photographic evidence of the involvement of Mr U in the life of the wife and the child of the marriage, and their involvement in his life, which cannot be successfully denied, suggests that, whatever its true nature, there is a long established and enduring relationship of mutual support, whether it be financial or not, between the wife and Mr U. In short, the wife and Mr U have not fully and accurately disclosed their relationship to the Court.
To give balance to the award to be made in favour of the wife, it is appropriate to refer to those matters, lest it be thought that the wife alone has shouldered and will continue to shoulder the non-financial and possibly financial burdens, of caring for the child of the marriage.

Conclusion

An order should be made in favour of the wife in the sum of $20 000. It remains to consider how that order should be framed. The payment of $20 000 by the husband to the wife should be and remain a charge upon his interest in L property. How that charge might be given effect to is not necessarily straight-forward.
The evidence before this Court suggests that the husband and the other members of his family will seek to resist enforcement of the order against his interest in L property in reliance upon the caveats lodged against the title to the property. On the evidence before this Court, were the wife to apply to have the caveats lifted, she would be successful. The wife ought not in the Court’s view be put to the expense of potentially having to take such proceedings.
Notwithstanding that, on the evidence before this Court, no member of the husband’s family has a caveatable interest with respect to L property, the terms of the relevant legislation suggest that, whilst ever the caveats remain lodged against the property, the Registrar General may be precluded from recording in the Register an instrument of charge affecting the estate or interest of any of the caveators.
That being so, the Court will order that each of the caveators cause the caveats lodged by them to be discharged to permit an instrument of charge in favour of the wife pursuant to these orders being registered against the interest of the husband in L property. If they do not do so, the Registrar will be appointed to sign the appropriate documentation on their behalf.
The Court does not propose making an order for sale of the property as sought by the wife. Such an order would be disproportionate to the interests which the wife has with respect to the property and would be quite unfair to the other legal and beneficial owner of the property, the husband’s mother, and to his father who is aged and in ill health.
Objectively, if the husband chooses not to comply with the Court’s order the wife may well elect to bankrupt the husband, and prove as a secured creditor of his bankrupt estate.
Costs will be reserved as foreshadowed at the conclusion of the trial.

I certify that the preceding one hundred and five (105) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Coleman

Associate:

Date: 19 November 2008

[2008] FamCA 990

19 November 2008

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Family Law

Property Law

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Costs

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Jurisdiction