RAHMAN & RAHMAN

[2012] FamCA 51

FAMILY COURT OF AUSTRALIA

RAHMAN & RAHMAN [2012] FamCA 51

FAMILY LAW – PROPERTY – Where both parties allege the other has disposed of marital assets in Lebanon – Where the husband was responsible for removal of the assets of the parties to Lebanon – Where the husband has failed to disclose what really happened to the monies taken to Lebanon - Order made for the husband to make a lump sum payment to the wife

FAMILY LAW – SPOUSAL MAINTENANCE – Where the wife has remarried – Where it is not proper to make an order for spousal maintenance in the wife’s favour

FAMILY LAW – INJUNCTIONS – Where there are no significant assets remaining within the jurisdiction – Where it is just and convenient to make an injunctive order to restrain the husband from leaving Australia and associated orders in circumstances where a finding has been made that the husband controls the whole of the matrimonial assets outside Australia and in circumstances where an order has been made for the husband to make a lump sum payment to the wife

FAMILY LAW – DISQUALIFICATION – Where it was asserted that the trial judge had displayed apprehended bias arising from the order in which witnesses were called for cross examination; the interposing of one witness for cross examination; and the failure to adjourn for notices to be given to Attorney-Generals of the States and Commonwealth where an asserted constitutional point had been raised - Where no ground for disqualification existed  

Family Law Act 1975 (Cth)

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Johnson v Johnson (2000) 201 CLR 488
Re JRL; Ex parte CJL (1986) 161 CLR 341 (per Mason J)
McClintock & the Commonwealth (1947) 75 CLR 1
Black v Kellner (1992) FLC 92-287, 15 FamLR 343
Weir & Weir (1993) FLC 92-338; 16 FamLR 154

APPLICANT: Ms Rahman

RESPONDENT: Mr Rahman

FILE NUMBER: SYF 4548 of 2006

DATE DELIVERED: 10 February 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Watts J

HEARING DATE: 12 - 13 October 2011; 21 - 22 November 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Webb / Mr Mihalic

SOLICITOR FOR THE APPLICANT: Jordan Djundja

COUNSEL FOR THE RESPONDENT: Mr Levitt

SOLICITOR FOR THE RESPONDENT: H K Husseini & Co

Orders

1. Any existing interim orders are discharged.

2. The wife’s application for spousal maintenance is dismissed.

3. Pursuant to s 79 Family Law Act 1975 (Cth) the husband pay to the wife within 28 days, the sum of $377,000.

4. Until the husband has complied with order 3 and pursuant to s 114(3) Family Law Act 1975 (Cth), the husband be restrained by injunction from leaving Australia.

5. All officers of the Australian Federal Police are requested to assist in the implementation of order 4.

6. Until the husband has complied with order 3, the court requests that the Australian Federal Police place the details of the husband on the watchlist at all Australian international departure points.

7. Until the husband has complied with order 3, the officer manager, Sydney Registry of this court, is to continue to hold the passport or passports of the husband and the husband is to surrender any other passport that he may hold from time to time to the office manager, Sydney Registry of this court. 

8. All applications made by the husband be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rahman & Rahman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYF 4548 of 2006

Ms Rahman

Applicant

And

Mr Rahman

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

1. In August 2005 the husband arranged to transfer to Lebanon the amounts of US$131,000 and AUD$450,000. These monies constituted almost the whole of the parties’ assets. There are no significant assets of the parties left in Australia.

2. The main issue in this case is whether the husband improperly disposed of marital assets in Lebanon or whether the wife’s father, in concert with the wife, defrauded the husband of those assets in Lebanon.

3. The husband’s case is that he was encouraged by the wife’s father to hand all the money to a man whom asserted he had title to property in Lebanon but that assertion as to title was false and the husband was left neither the money nor the property. The husband gives a detailed account of what he said happened in August and September 2005.

4. The wife’s father and the wife’s brother deny that they had any contact with the husband in August and September 2005.

APPLICATIONS

1. At the beginning of the hearing, the husband and wife agreed that their contributions to the matrimonial funds were equal and that after a 15% adjustment for section 75(2) Family Law Act 1975 (Cth) (“FLA”) factors, the asset pool would be divided 65% to the wife and 35% to the husband. The agreed quantum of the asset pool was $580,000 which represented the money disposed of in Lebanon, either by the husband (on the wife’s case) or by the wife through her father (on the husband’s case).

2. The husband sought an order dismissing any application the wife has brought and an order in the husband’s favour that the wife pay to the husband the sum of $203,000.

3. The wife sought an order that the husband pay to the wife the sum of $377,000. She also sought that the husband be stopped from leaving Australia whilst any sum which he is ordered to pay remains outstanding.

4. The husband’s counsel originally indicated during the last day of the hearing that he wanted a similar injunctive order against the wife restraining her from leaving Australia but that it would be limited for a period of five years.  At the commencement of final submissions, counsel for the husband withdrew the husband’s application for an injunctive order against the wife.

5. Counsel for the husband also submitted that if an injunctive order was made against the husband, then it be limited in time.

DISQUALIFICATION APPLICATION

1. The matter went part heard after the initial two days of hearings. Upon resumption of the hearing on the third day, counsel for the husband made an application that I disqualify myself.

2. I refused that application and indicated that in order to be able to conclude the trial, I would defer giving reasons. I now do so.

3. The test relating to dismissal on the basis of perceived bias is conveniently set out in the High Court case of Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337. The High Court made the following remarks:

   Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge…a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide [emphasis added]. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial.

   …Deciding whether a judicial officer (or juror) might not bring an impartial mind to the resolution of a question that has not been determined requires no prediction about how the judge or juror will in fact approach the matter. The question is one of possibility (real and not remote), not probability.

4. Further explanation was provided by the High Court in Johnson v Johnson (2000) 201 CLR 488.

   Whilst the fictional observer, by reference to whom the test is formulated, is not to be assumed to have a detailed knowledge of the law, or of the character or ability of a particular judge, the reasonableness of any suggested apprehension of bias is to be considered in the context of ordinary judicial practice.

5. The High Court in Re JRL; Ex parte CJL (1986) 161 CLR 341 (per Mason J) made the following comments at 352:

   It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way. In cases of this kind, disqualification is only made out by showing that there is a reasonable apprehension of bias by reason of prejudgment and this must be “firmly established”: Reg. v. Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group; Watson; Re Lusink; Ex parte Shaw.

6. The issue of disqualification on the basis of perceived bias must be taken seriously to promote its primary principle, that not only should justice be done, but it should be seen to be done. There is however another side to the policy considerations – litigants should not be encouraged to believe that by asserting bias they may essentially choose their Judge, and attempt to have their case re-tried more favourably.  In Ebner v Official Trustee in Bankruptcy, the court said:

   …Judges do not choose their cases; and litigants do not choose their judges. If one party to a case objects to a particular judge sitting, or continuing to sit, then that objection should not prevail unless it is based upon a substantial ground for contending that the judge is disqualified from hearing and deciding the case.

   …if the mere making of an insubstantial objection were sufficient to lead a judge to decline to hear or decide a case, the system would soon reach a stage where, for practical purposes, individual parties could influence the composition of the bench. That would be intolerable.

7. The first basis on which the counsel for the husband made that application was that I called the respondent husband before I called the applicant wife to give evidence. There was good reason for my suggestion that this be the order in which evidence was given. As stated already, the central issue in the case was the money that was taken overseas (nearly all of the matrimonial assets of approximately $580,000). The husband asserted that he and the wife’s father had a central role in that, and the wife flatly refuted the husband’s assertions. Importantly on this issue, the following exchange took place between myself and counsel for the husband:

   HIS HONOUR:   All right.  In terms of then proceeding with the hearing, how do you propose we proceed?  I mean, one option would be for the husband to go first and be cross-examined on his evidence, given the blanket denials made by the wife and the wife’s father that any of these events happened at all. 

   MR LEVET:   Content with that course, your Honour.

   HIS HONOUR:   Is that a course that’s – that seems to me the most sensible way of approaching the evidence and focusing on it.

   MR LEVET:   I’m content with that course, your Honour.

   Given Mr Levet’s consent on behalf of the father, there cannot be a ground for a disqualification application on the basis of apprehended bias or any other basis.

8. The second complaint of counsel for the husband was that I interrupted the husband’s cross examination and called the wife’s father out of order. The context of this course of action was that the wife’s father had flown to Australia from Lebanon and made himself available to give evidence within the two days which had been allocated for the hearing. Time was taken on the first day dealing with objections to affidavit material. On the second day, the parties requested time for settlement negotiations and approximately two hours of hearing time was lost. Given that the father was out from Lebanon I felt it was appropriate to call him and have his evidence heard. I expressed this preference and the following exchange took place between myself and counsel for the husband:

   HIS HONOUR:   All right.  Well, do you have any objection to the course I propose, Mr Levet?

   MR LEVET:   No, your Honour.

   Given that the husband agreed to the interposing of the wife’s father, I find there is no ground for disqualification.

9. The third ground for disqualification on the basis of apprehended bias was said to be that, because the husband was still in cross examination when the wife’s father was interposed, the husband was not able to give instructions to assist in his counsel’s cross examination of the wife’s father.

10. At no point did counsel for the husband make any application that he be able to speak to his client for that purpose.  I note that in the morning of the second day, I was asked to grant leave for counsel for the husband to speak with the husband in relation to settlement negotiations and that was granted. No ground of apprehended basis arises.

11. The fourth ground for disqualification asserted by counsel for the husband arose out of my refusal to grant an adjournment on the first day of the hearing (12 October 2011) based upon what counsel for the husband asserted was a matter arising under or involving the interpretation of the Constitution.

12. Section 78B Judiciary Act 1903 provides that a Federal Court is not to proceed in a cause which involves a matter arising under the Constitution or involving its interpretation until the court is satisfied that notices have been given to the Commonwealth and State Attorney-Generals.

13. The court needs to be satisfied that the asserted issue arising under the constitution or involving its interpretation is a genuine issue.

14. The submission by counsel for the husband arises in the following context. In the respondent husband’s amended response, filed on the first day of the final hearing, he sought for the wife’s father to be joined as a party to the proceedings and sought orders against the wife’s father which, inter alia, effectively sought that the wife’s father pay money to the parties. The husband relied upon sections 90AE and 90AF FLA to make the application sought.

15. The wife was served with the husband’s amended application on the day before the commencement of the final hearing. The wife’s father had not been served with the application nor had he been given any notice that the husband wished to make any such application against him.

16. Since at least 21 February 2011 the husband was aware that it was probable that the wife’s father would attend Australia to give evidence in the case. On 21 February 2011 I dismissed the wife’s application that her father give evidence via electronic means.

17. Counsel for the husband conceded that if the application for leave to join the wife’s father as a party to the proceedings was successful then an adjournment of the substantive hearing was inevitable.

18. The claim by the husband against the wife’s father was based on a fraud that the husband alleges was perpetrated in Lebanon. There was no evidence by the husband that he had attempted to pursue any remedies in Lebanon.

19. Section 90AE(3)(c) FLA requires that a third party has to be accorded procedural fairness.

20. Given the history of the litigation between the parties (the matter had been part heard before a Judicial Registrar who had been appointed as a Judge and that hearing had been aborted), and the husband’s substantial opportunity to put the wife’s father on notice of the application that he sought to bring, the application for leave to join the wife’s father as a party to the proceedings was not successful.

21. Counsel for the husband then proceeded to make an adjournment application on an alternative basis, on the assertion that the proposed application against the wife’s father raised a matter arising under or involving the interpretation of the Constitution.

22. Counsel for the husband referred to s 90AK(1) FLA:

    The court must not make an order or grant an injunction in accordance with this part if the order or injunction would:

    (a)  result in the acquisition of property from a person otherwise than on just terms; and

    (b) be invalid because of paragraph 51(xxxi) of the Constitution.

23. Counsel for the husband said the following:

    MR LEVITT: Your Honour if I could just tease that out for a moment.  In the present case, the claim that is sought to be made by the husband against the wife’s father is, your Honour, a chosen [sic] action.  A chose in action is property which is capable of being acquired by another party.  It is well established, your Honour, that an acquisition of property by a third party pursuant to a law of the Commonwealth amounts to an acquisition by the Commonwealth. Your Honour, that’s the case in McClintock & the Commonwealth, the well known pineapple cannery case.  Your Honour, an acquisition of the husband’s property, that is to say his chosen action against the wife’s father, would occur in one of two events.  It would occur, firstly, in the event that the court refused to make an order against the wife’s father; it would occur, secondly, if the court otherwise extinguished the jurisdiction of the court by permitting the wife’s father to quit the jurisdiction.

    Your Honour, it’s submitted on behalf of the husband that an acquisition occasioned without a hearing on the merits would a fortiori be an acquisition on other than just terms.  If the court comes to consider ‑ ‑ ‑ 

    HIS HONOUR:   Mr Levet, that’s a very novel way of reading that section.  That section, as I understood it, is primarily designed to protect third parties against having property taken from them other than on just terms.

    MR LEVITT:   Well, if your Honour looks at it in these terms:  your Honour will recall McClintock’s case was a case involving wartime regulations under the defence power that pineapple growers had to render up their crop to a certain approved persons – in this case, a cannery, a pineapple cannery – at preset prices, and it was argued in McClintock’s case that despite the fact that the cannery was not the Commonwealth, an acquisition by the cannery on other than just terms pursuant to a law of the Commonwealth was, in practical terms, an acquisition by the Commonwealth. So if your Honour accepts that it’s capable for a third party to acquire property, and it is capable of being acquired pursuant to a law of the Commonwealth in such a way as to attract both 90AK of the Act and 51(xxxi) of the Constitution, it follows that before such an acquisition is occasioned there must be a hearing on the merits, because an acquisition without a hearing on the merits a fortiori could not be an acquisition on other than just terms.

    If, your Honour, we get to that position - and I would be hopeful that your Honour would deal with the matter in a manner faithful to the husband under the 90AE - if your Honour gets to the 90AK position, given that 90AK involves definitions under section – subsection 2 of that act, that both acquisition of property and just terms are defined as they are defined in section 51(xxxi) of the Constitution, then, your Honour, that, regrettably, in turn triggers the operation of section 78B of the Judiciary Act.

24. I accept that the High Court in McClintock & the Commonwealth (1947) 75 CLR 1 held that s 51(xxxi) of the Constitution is not limited to the acquisition of property by the Commonwealth but extends to the acquisition of property for any purpose in respect of which the Commonwealth Parliament has power to make laws.

25. I was unable to understand from anything that counsel for the husband said as to what genuine issue under the Constitution was raised that would require the adjournment of the case.

26. Counsel for the husband did not assert that the Commonwealth was unable to make a law which acquired property from third parties. Paragraph 51(xxxi) of the Constitution allows the acquisition of property on just terms from any person for any purpose in respect of which the Parliament has powers to make laws.

1. Section 90AK FLA was inserted into the Family Law Act at the same time as s 90AE and 90AF in recognition of the Constitutional limitation that property cannot be acquired from a party under a Commonwealth law except “on just terms”.

2. I also note in passing that the husband had not complied with Rule 6.07 Family Law Rules and had not fulfilled his duty to file a notice in the form prescribed for that purpose under the Federal Court Rules, stating the nature of the matter and the facts which would show that the matter was a matter arising under the Constitution or involving its interpretation.

3. Given that I had refused leave to join the wife’s father as a party to the proceedings for reasons already stated and given that I indicated I was not going to be prepared to adjourn the case to enable that to happen, there was in fact no cause of action before me involving a third party that would have enlivened s 90AE FLA and s 90AF FLA.

4. In any event, any error I may have made in the ruling in relation to the application for leave to join a third party and the application for the adjournment is a matter for appeal. It is not a ground upon which a disqualification application could be based.

5. There is no basis for disqualification arising from the fourth matter raised by counsel for the husband.

DOCUMENTS RELIED UPON

1. The applicant wife relied on the following:

   41.1.Amended Application for Final Orders filed 20 July 2007;

   41.2.Wife’s Affidavit filed 27 May 2011;

   41.3.Wife’s Affidavit filed 20 April 2009;

   41.4.Wife’s Financial Statements filed 26 October 2009 and 29 April 2009;

   41.5.Wife’s Financial Questionnaire filed 27 May 2009;

   41.6.Affidavit of Mr F (wife’s father) filed 20  July 2009; and

   41.7.Affidavit of Mr W (wife’s brother) filed 20 July 2009.

2. The respondent husband relied on the following:

   42.1.Response to Application for Final Orders filed 5 June 2008;

   42.2.Husband’s affidavit filed 15 July 2010;

   42.3.Husband’s affidavit filed 19 October 2009;

   42.4.Husband’s affidavit filed 22 July 2008; and

   42.5.Husband’s financial statement filed 19 October 2009.

CURRENT INTERIM ORDER

1. An order was made on 3 November 2009 that the husband be restrained from leaving Australia and all officers of the Australian Federal Police were ordered to assist in the implementation of that order. The court requested that the Australian Federal Police place the details of the husband on the watchlist at all Australian international departure points and that the husband surrender all passports in his name to the officer manager, Sydney Registry of this court. The husband was also restrained from dealing in any way, either personally or through some person on his behalf, with any bank account of his in Lebanon. These orders were extended on 5 February 2010 and made until further order on 1 April 2010.

SHORT HISTORY

1. The husband was born in 1967 and is now aged 44.

2. The wife was born in 1974 and is now aged 37.

3. The parties married in 1992.

4. The child B was born in March 1995 and is now aged 16 years.

5. The child H was born in December 1996 and is now aged 14 years.

6. The child M was born in July 2000 and is now aged 11 years.

7. The parties separated on 4 August 2006. They cohabited for 14 years.

CREDIT

Wife

1. I generally found the wife to be a witness who gave her evidence in a straightforward manner. I generally accept her evidence unless I indicate otherwise.

2. The wife gave evidence that she had not written to members of the family because her husband vetted everything that she wrote, particularly in circumstances where she said that she wrote letters to her family in Arabic and the husband did not understand Arabic particularly well. It is not inherently unlikely that a woman, particularly one who is committed to a marriage no matter what the marriage was like, would openly disclose to her parents her level of her unhappiness until it became unbearable for her and she had decided to tell her husband that she could no longer remain in the marriage.

Husband

1. The husband said in oral evidence that his brother accompanied him to Lebanon in 2005, travelling on the same plane. I note the husband’s affidavit said that prior to leaving for Lebanon he spoke to the wife and told her “I have spoken to [the brother] briefly today after I drew the cheque. It seems that I will have to travel to Lebanon myself”. The clear implication was that the husband’s brother was not going to be flying to Lebanon and did not do so. In the context of the financial transactions that saw the loss of $580,000, this is an important contradiction in the husband’s evidence.

2. When asked whether or not he had gone to the bank in Lebanon to complain immediately upon finding out he had been defrauded, the husband responded in the negative, explaining he did not know which bank to go to. I found that answer to be totally disingenuous.  Subsequent questioning of the husband made it clear that he knew exactly what bank the money had been transferred to from Australia. The husband was well aware at all times of the information contained in exhibits 2 and 3.

3. I was unimpressed on a number of occasions as to the manner in which the husband gave his evidence.

Conclusion about the credit of the wife and the husband

1. Where the wife and husband give different versions of events, I prefer the version given by the wife.

Wife’s Father – Mr F

1. The wife’s father is a central figure in the allegations made by the husband. The wife’s father was born in 1943 and gave evidence that he worked as a food retailer for 50 years. Now retired, he currently has an investment with another person who is involved in property development and is receiving income from that investment. He was an elderly gentleman who had some difficulty in focusing on the exact question which was being directed to him, and appeared to have difficulty remembering specific dates and events.

2. There was some confusion and inconsistency in parts of the wife’s father’s evidence which may go to his credit and which I will now set out.

3. The wife’s father was fairly firm in asserting that he was not a party to the 1995 property investment with the husband, claiming that the husband brought money with him to Lebanon to invest and he simply told him to buy whatever he wanted, it was the husband’s business and no concern of his. He conceded that he did show the husband around areas of Lebanon in 1995, but only after the husband had been begging him for days to do so. I note the wife’s father, in his affidavit material, denied showing the husband any vacant land on which to build, but this is not the same as showing the husband around an area of Beirut. The wife’s father was subsequently shown the 1995 contract for sale of the property, in Arabic, which when translated into English for the purpose of the hearing, clearly showed him to be a party to the sale. When the wife’s father initially looked at that document he said he only signed it as a witness, but after having an opportunity to read it in its entirety, he conceded he was a party to that agreement.

4. The wife’s father’s evidence about his involvement as a party to the 1995 sale did change over time. He originally said it was only the husband who was buying that property. His ultimate position however was that he was a party to that agreement because one half of that property was being acquired for Mr Z, his son living in the USA, and that he would receive funds from Mr Z to fund the other half of the acquisition of that property.

5. The wife’s father was not forthcoming when questioned about his financial situation. Initially the wife’s father said he had no funds in 1995. This seemed to be inconsistent with his assertion that shortly thereafter, upon retirement, he had savings of $100,000. The wife’s father was asked questions about whether his wife was working in 1995 and he said she was working as a skilled worker. This was inconsistent with his previous evidence that she had done skilled work at the beginning of their marriage but had not worked after that early period. I note that the wife’s mother gave birth to 13 children.

6. The wife’s father gave inconsistent evidence about how long the husband stayed in his home when the wife, husband and their children had visited him in 2005.

7. In his oral evidence, the wife’s father initially said he didn’t own any real estate in 1995 and then minutes later said he owned an apartment near the Islamic supermarket that he had bought a long time ago. He said it was destroyed in the war and was still being reconstructed.  Later, when shown exhibit 6, he said his house as pictured had been rebuilt two and a half years ago and took two and a half years to build. It was built on land his father owned, for which he paid his brother a very small amount in consideration. The funds for rebuilding came from a grant of around $80,000 from the government, $5,000 of the father’s savings and $15,000 of the children’s money for ‘making it beautiful’. The wife’s brother said the actual construction costs of that property were $150,000 (compared with the wife’s father’s evidence of $100,000).  He gave evidence that he contributed $12,000 and his father contributed $20,000 to $25,000.  Both however were consistent in relation to the amount of money that had been provided as a result of war relief for the purposes of reconstructing properties that had been damaged in the 2006 war. The wife’s father said that $80,000 was provided and the wife’s brother said between $70,000 and $80,000 was provided. I do not put a great deal of weight on the inconsistent memories of the wife’s father and brother in relation to contributions towards rebuilding. I prefer the brother’s version over the father’s version.  He was the one who was actually overseeing that construction process.

8. Although the wife’s father had difficulties answering the question of when he became aware of the marital difficulties between the parties, my understanding of his answer was that he was aware there was some trouble when the parties visited Lebanon in 2005 but that trouble did not crystallise until the wife became aware that the husband had removed marital funds from Australia to Lebanon. I do not make any credit finding against the father in relation to his difficulty answering this question.

9. At the end of the cross examination, counsel for the husband seemed to be making some point about the wife’s father giving unlikely evidence about the production of his affidavit for court. That evidence did not greatly trouble me. It is clear that the affidavit on its face was prepared by a lawyer in Sydney and signed in the Australian Embassy in Beirut. It is also clear that another document was prepared, with the assistance of the witness’ daughter in law, which is in reasonably identical terms to the document that was finally produced for signature by the wife’s father. I accept that it is entirely plausible that the witness was not entirely aware of the process by which the final document was actually produced. I also accept it is plausible that there was some typing done at the Australian Embassy in the course of the preparation of this document. Clearly a draft was done. It was signed by the father’s daughter-in-law and it may well be that it was transmitted to Australia and the document was incorporated into a form for an Australian affidavit and sent back to the Australian Embassy and there was some involvement of an Australian lawyer in that process. The fact that the wife’s father was not aware of how all that happened does not impinge significantly upon his credit.

10. I find some of the confusion in the evidence of the wife’s father comes from the fact that his memory is somewhat impaired. For example, he originally forgot he had been to the Australian Embassy to sign his affidavit. In any contest in the evidence between the wife’s father and the husband, I am unable to rely on the evidence of either man to resolve the conflict between their different versions.

Wife’s Brother – Mr W

1. The wife’s brother gave evidence.  He is in government service. He was asked a number of questions about two statements that were prepared, one in his own handwriting and one in a typed statement with the assistance with the wife’s lawyers. Those documents were tendered in evidence, however no submission was made about any inconsistency between those statements and the affidavit of the wife’s brother. 

2. I acknowledge that I was not able to observe the wife’s brother’s physical demeanour, however I thought that he gave answers without hesitation and in a straight forward manner.

3. The wife’s brother was tested for some time under cross examination but maintained the position in his evidence, namely, that the husband had not come to where he lived in August 2005.

4. The wife’s brother gave candid evidence about the fact that from time to time he was required to carry a firearm in the course of his duties, and I also accept his denial that he threatened the husband with a firearm as alleged by the husband.

5. I prefer the evidence of the wife’s brother to the evidence of the husband, where that evidence conflicts.

DETAILED CHRONOLOGY

1. The husband was born in 1967 in Australia and is now aged 44.

2. The wife was born in 1974 in Lebanon and is now aged 37.

3. The parties married in Lebanon in August 1992 and the husband returned to Australia. Upon sponsorship for a spousal visa, the wife moved to Australia in July 1993. The couple opened a joint Commonwealth Bank account (…381)

4. In 1995 the husband travelled to Lebanon to purchase land, which he said was upon the encouragement of the wife’s brother. In March 1995 he was contacted to say there was a problem with the vendor’s title to the land and that the vendor was not actually the owner. The wife’s father said he initiated legal proceedings against the ‘vendor’ who was eventually detained for six months. The money was returned to the husband in December 1995 and March 1997.

5. The child B was born in March 1995 and is now aged 16 years.

6. The child H was born in December 1996 and is now aged 14 years.

7. In December 1997 the matrimonial home at Sydney Suburb A was purchased in the husband’s name with the assistance of a mortgage. By 2001 the mortgage had been repaid and the home was unencumbered.

8. The child M was born in July 2000 and is now aged 11 years.

9. The husband had two bank accounts with the Arab Bank in Australia (…451 “AB1” and …600 “AB2”), one account with the Arab Bank in Lebanon ( …80-5 “ABL”) and one with Westpac (…743).

10. On 16 February 2003 the husband transferred $80,000 from AB2 to AB1. By June 2005 there was USD $131,351.44 in AB1.

11. On 13 August 2003 the husband said he paid a deposit to purchase a unit in Sydney Suburb Q for $210,000. The purchase did not proceed.

12. On 23 September 2003 the husband gave the wife’s brother Mr F a restrictive authorisation to act on his behalf in transferring money between Lebanese accounts.

13. On 9 October 2003 the wife’s brother transferred USD $9,500 from an Arab Bank account in Lebanon to AB1. The document shows this amount being transferred into AB1 by Mr F. The husband said this transfer was the wife’s brother repaying a loan.

14. On 14 October 2003 the husband opened the Westpac account and deposited $68,739.50.

15. On 24 October 2003 a $480,000 facility with ING was obtained secured by mortgage over the matrimonial home which was unencumbered at that time (account number…1184). The wife said she was unaware of the reason for opening a mortgage account. The husband did not use this facility in any significant way until August 2005.

16. In January 2004 the husband said the parties agreed to sell the matrimonial home and use the funds to invest in Lebanon, instead of using the mortgage funds.

17. It is an agreed fact that the matrimonial home was put on the market for sale in January 2004. It did not sell and was taken off the market in May 2004.

18. A bank statement of AB2 dated 31 December 2004 shows a balance of $82,534. The wife does not know the source of these funds. The balance on 31 March 2006 is shown to be $17,673.

19. On 11 Feb 2005 the husband drew a bank cheque from Westpac (account unidentified) for $76,069.88. He also deposited $58,207.50 into AB1 on this day.

20. On 16 February 2005 the husband transferred AUD $80,000 from AB2 to AB1 converting it into USD $62,488.

21. The whole family travelled to Lebanon from 20 June 2005 to 28 July 2005. The husband said at this time a bank statement was shown to the wife’s father of USD $130,725, and the husband says he also advised the $480,000 loan facility was also available to invest.

22. The wife said her relationship with the husband broke down whilst the parties were on the holiday, and the husband absconded with the children for two and a half weeks.

23. On 17 August 2005 the husband organised USD $131,000 to be transferred to Lebanon. On 30 June 2005 AB1 showed a balance of USD $131,351.44 and by 28 February 2006 it had a balance of $17,637.21.

24. On 26 August 2005 the husband drew on funds from the ING facility and organised AUD $450,000 to be transferred to Lebanon.

25. On 30 August 2005 the husband says, in the presence of the wife’s father, he handed over money to purchase a block of land in Lebanon. It is alleged that on 13 September 2005, he subsequently discovered that the man to whom he paid money was not the true owner of the land. If true, it is very similar to what happened in 1995. The husband says a bitter argument erupted between the husband and the wife’s family where the wife’s brother allegedly held a gun to the husband and the wife’s father threatened to kill the husband. The wife’s father and the wife’s brother say they had no contact with the husband in August and September 2005 and deny being involved in the transaction and any threatening exchange as described by the husband.

26. On 22 September 2005 the husband says he cancelled the restrictive authorisation he had given Mr F in 2003.

27. On 26 September 2005 the husband, unable to pay the mortgage, listed the family home for sale by auction. It did not sell at auction in November. He listed the property for sale again on 3 March 2006. The husband said there was an offer of $535,000 on 17 July 2006 but the wife stopped the sale.

28. The husband travelled to Lebanon from 13 June 2006 to 16 July 2006 and upon his return the wife noticed a bank transfer of $10,000 from ABL to AB1 or AB2. The husband agrees he transferred $9,798.66 being the last of their savings from which the mortgage could be paid, on about 22 June 2006.

29. On 21 July 2006 the husband said the wife withdrew all funds from their joint Commonwealth account (…381) and closed it.

30. The parties separated on 4 August 2006. The husband stopped paying the mortgage from this time.

31. On 8 August 2006 there was a transfer of $1,255.80 from AB1 to AB2 and AB1 was then closed.

32. On 10 August 2006 the wife applied for an Apprehended Violence Order. That application was dismissed on 28 November 2006.

33. On 22 August 2006 the wife lodged a caveat over the former matrimonial home.

34. On 28 August 2006 there was an offer of $515,000 for the matrimonial home but no contract was exchanged at that price.

35. On 14 December 2006, the husband gained access to the former matrimonial home when the wife and the children were not there. He proceeded to change the locks so that the wife and children could not gain entry.

36. On 15 December 2006 the wife again applied for an Apprehended Violence Order.

37. The caveat over the former matrimonial home was removed on 15 June 2007 and the former matrimonial home was sold by mortgagee for $495,000 on 23 July 2007. An unpaid default of $49,523 remained.

38. The husband travelled to Lebanon on 12 February 2007 and April to October 2009.

39. These proceedings were part heard before Johnston JR before he took up the position of Judge. The hearing was therefore discontinued and set down for re-hearing. The re-hearing has been delayed a number of times by both parties. The wife’s father was a central witness in this case, and a number of attempts had been made to secure his attendance in Australia for cross-examination in person, which required paying a bond with the Department of Immigration of $10,000.

EVIDENCE CONCERNING THE EXCHANGES OF 1995 TO 1997

1. The events in 1995 are only relevant because it is the husband’s case that his gullibility at that time was apparent to the wife’s father who then preyed upon his gullibility in 2005 to defraud him of all of his money by using an almost identical scam.

2. In January 1995 the husband travelled to Lebanon. The husband had decided to invest in real estate in Lebanon. There is a dispute between the husband and the wife’s father and brother as to the extent to which they encouraged the husband to do so. The husband entered into a contract jointly with the wife’s father to purchase real estate for USD $78,000. The husband paid USD $38,243 and the wife’s father was to pay the balance, amounting to USD $39,757. At this time the husband gave the wife’s father a comprehensive power of attorney. In March 1995 the husband says he was contacted and told that the person they paid the money to was not the owner and the wife’s father was trying to recover the money. An amount of USD $24,962.95 was returned to the husband in December 1995 and $12,832.25 in March 1997.

3. The wife and wife’s brother and father deny encouraging the husband to invest. The wife’s brother stated that he did not have a conversation with the husband on the phone asking him to buy units in 1995 (paragraph 3 of the husband’s affidavit of 22 July 2008) and I accept his evidence about that.

4. It is not in dispute that the 1995 transaction was discovered to be fraudulent, when it was revealed the vendor was not the owner of the property. It is agreed the husband subsequently had the money he invested returned to him.

EVIDENCE CONCERNING THE EXCHANGES OF 2005

1. As already indicated, it is the husband’s case theory that the wife’s father knew from the transaction in 1995 that the husband was a gullible person and therefore knew that he would be susceptible to another fraudulent scheme. He allegedly used this knowledge to defraud the husband in 2005 in exactly the same way that he had been defrauded in 1995. It is the husband’s theory that the wife’s father used these funds to build a new residence in the South of Lebanon, pictured in exhibit 6.

2. It is the wife’s case that the husband, when it became apparent the marriage was coming to an end, took the whole of the parties’ assets overseas to Lebanon. The wife’s father and brother deny seeing the husband after 28 July 2005, which was the last time the husband and wife visited Lebanon together, and accordingly, the wife’s father denies ever showing the husband land in August 2005 or introducing him to a vendor, or assisting in any other way at that time.

The Timing of the Relationship Breakdown

1. The husband says he was unaware of any trouble in the marriage when he visited Lebanon in August 2005, otherwise he presumably, on his version, would not have invested all of the parties’ assets at the urging of the wife’s father.

2. The wife at paragraph 20 of her affidavit of 20 April 2009 says:

   “On 20 June, 2005 the respondent and I travelled to Lebanon on a holiday. The relationship between the Respondent and I broke down whilst in Lebanon and the Respondent absconded with the children for 2 ½ weeks. He eventually returned the children to me and we were all returned back to Australia on 28 July 2005.”

3. The wife says she had dental work done when she initially arrived in Lebanon and before the husband left with the children.

4. The husband, in his affidavit, said that he originally went with the children and the wife to his uncle’s home and after they were there the wife travelled back with her father to her father’s home for dental work. The husband says that a request was made for the children to be able to travel back with the wife but he refused that request, saying that he wanted the children to spend some time with their uncle.

5. The husband denies the wife’s assertion that he was aware of problems in their marriage at that time, but I do not accept that he was being truthful about that. I find that there was a disagreement between the husband and wife while they were in Lebanon about the husband retaining the children and that the wife accurately asserts that the relationship between her and her husband had broken down at that time.

6. In her oral evidence, the wife said that she contemplated a divorce on previous occasions prior to travelling to Lebanon in June 2005. However, she said that the first person she told that she wanted a divorce was her husband and that conversation took place at the end of July 2005, after the parties had returned from Lebanon. I accept that evidence by the wife.

7. Counsel for the husband questioned the wife’s father extensively in an attempt to have the wife’s father concede that he was well aware when the parties travelled to Lebanon together in 2005, that the marriage was in trouble. It was part of the husband’s case that the imminent breakdown of the parties’ marriage, unbeknown to him, was the reason the wife’s father developed the plan to defraud the husband at that time.

8. It is unlikely that the wife’s family were not aware that she was unhappy in her marriage during that June 2005 visit. I accept the wife’s evidence that she did not announce to her family that she intended to ask the husband for a divorce until after she had done it. I accept the evidence of the wife’s brother’s, that he was aware of an ambience of disagreement and conflict between the husband and the wife when they visited Lebanon in 2005. I also accept that the wife did not talk to him about it, but that he was able to observe that she was upset, particularly when the husband took the children away to another part of the country. I accept that he did not hear about the proposed divorce until after his sister had indicated to the husband that that was her wish.

9. I accept the wife’s version that at the end of July 2005 she told the husband, as the first person she told, that she wanted a divorce. I find that the husband knew as at the end of July 2005 that the marriage was in trouble. The movement of the money from Australia to Lebanon in the following month is, in my view, significant in terms of its timing. I find that when the husband removed the $580,000 from Australia, the husband anticipated the end of the marriage. The final physical separation occurred in 2006. I accept the wife’s version that her final decision to end the marriage was heavily influenced by the fact that she became aware that the husband had moved virtually the entirety of their assets outside Australia.

10. The wife subsequently refers in her affidavit to the listing of the former matrimonial home for sale on 2 March 2006 and thereafter says:

    “As the relationship between the Respondent and I worsened, I feared the Respondent was going to sell the property without my knowledge so I attended upon a solicitor at [Sydney Suburb A]......”

11. The wife instructed that solicitor to lodge a caveat over the matrimonial home.

12. The husband says that the wife asked for a divorce on 28 July 2006. Whilst it might be possible she did it again at that time, I find that it was not the first occasion in which she asked him for a divorce.

13. The wife says that on 4 August 2006 she and the husband had a major altercation resulting in police attendance at the former matrimonial home. The husband left the home and the wife changed the locks on the home. This was the date of the final separation. It is the wife’s evidence that she had no knowledge at the time of the financial transactions that the husband undertook in August 2005.

The Agreement to Invest

1. The husband said the ING loan facility, as well as the husband’s savings of USD $130,725 (in Arab Bank) was shown to the wife’s father upon the husband travelling to Lebanon in June 2005 with the family. This is denied by the wife’s father.

2. In June 2005 the husband said the wife’s father showed him a block of land which he wished to develop, and encouraged him to buy the land on which units would be built. The husband said that back in Australia, the wife knew about and was involved in organising details for its purchase. Again, this is denied by the wife’s father. More importantly, it is denied by the wife.

3. The wife gave evidence her husband controlled the family finances and that all property was in his name. She agreed they had spoken to one another about investment in Lebanon in January 1995 and she was aware of the facility negotiated in 2003. The wife however said the facility was for the purpose of purchasing a service station but upon realising they had insufficient funds, put the house on the market to further raise funds. She agreed that they also talked about the acquisition of a unit in Sydney Suburb Q but she explicitly asserted that she was given no indication by the husband in relation to what he was doing in 2005. I accept her evidence in preference to the husband’s evidence about these matters.

The Cheques

1. The husband said there was discussion between himself, the wife and the wife’s father about how the money would be transferred to Lebanon. The husband says that originally it was suggested the wife could take the money to Lebanon. The husband says that when he raised the issues about care of the children, the wife suggested the husband transfer the money to the wife’s father’s account. The wife then allegedly told the husband that her father did not want a direct deposit as it could cause trouble with the Lebanese government and preferred a draft cheque and for the Husband to travel to Lebanon with it. The husband said he tried to arrange for his brother Mr Y, who was travelling to Lebanon to take the cheques but after drawing the cheques he told the wife “I have spoken to him briefly today after I drew the cheque. It seems that I will have to travel to Lebanon myself”. As noted above, late in the trial during the husband’s oral evidence the husband said that his brother travelled on the same plane with him to Lebanon. I find on balance that the husband’s brother accompanied the husband to Lebanon for a purpose connected to the fact that the parties’ wealth had been transferred to the husband’s brother’s name in Lebanon.

2. The wife denies that she was involved in any discussion with the husband about the transfer of almost the whole of the parties’ wealth to Lebanon.

3. The husband said he returned to Lebanon on 30 August 2005 with two cheques for USD $131,000 and AUD $450,000. The husband said the wife was in possession of the cheque butts. I pause for a moment to describe the exhibits relating to the cheques that were tendered in evidence.

4. Exhibit 2 is a requisition for overseas bank draft that was drawn on 26 August 2005 by the husband at the … branch of the Arab Bank Australia. It is a bank draft in favour of the husband’s brother, Mr Y. It is payable at the … branch of the Arab Bank in Beirut, Lebanon. The amount of the overseas bank draft is AUD $450,000. The next part of the exhibit is a cheque drawn on the Arab Bank Australia Limited. It is in the sum of $450,000 and it is payable “to the order of [Mr Y]”. It contains the words “to Arab Bank PLC Lebanon we have credited you [sic] Beirut AUD account held with ourselves”. The $450,000 was funded by way of withdrawal from monies in the husband’s Arab Bank Australia (it is not contested that these funds came from the ING facility). The second last page of the exhibit indicates that this arrangement had been made on an “urgent” basis.

5. Exhibit 3 is in similar terms to exhibit 2, being an overseas bank draft dated 17 August 2005, again drawn on the … branch in favour of the husband’s brother, Mr Y. It is payable again at the Arab Bank PLC Lebanon … branch. It is for the sum of USD $131,000. Again there is a similar cheque that has been drawn on the Arab Bank Australia Limited, again payable “to the order of [Mr Y]” and the cheque bears the words, “Arab Bank PLC […] BR Lebanon we have credited your Beirut USD account held with our Sydney office”.

6. Exhibit 17 is additional information from the Arab Bank responding to subpoenas whereby the solicitors for the Arab Bank in Australia assert that the drafts are not cheques drawn on Arab Bank Australia Limited but are in fact bills of exchange drawn on the Arab Bank PLC, Lebanon, … branch. It also explains that a copy of the back of each cheque is not kept by the Arab Bank in Australia, but would be kept by the Arab Bank in Lebanon which is a distinct and separate corporate entity, and which has informed the Arab Bank in Australia that it is unable to release such information to the Australian bank due to Lebanese privacy laws. Counsel for the father submitted that the husband would not have issued subpoenas if he thought that it would uncover documents that would crucify him. I note this belies the fact that he may well have appreciated that there was nothing in Australia and all the records were in fact in Lebanon, where all the crucial transactions took place. 

7. The way I interpret these documents is that, by way of arrangements made by the husband on 17 August 2005 and 26 August 2005, amounts of money of USD $131,000 and AUD $450,000 moved from Australia to Lebanon. The funds were held there awaiting the negotiation of cheques that had been drawn to the order of the husband’s brother at the Arab Bank PLC, Lebanon, … branch. The key inference from the face of the documents is that each of the cheques that form part of Exhibits 2 and 3 would have to be the subject of some order by the husband’s brother for them to be able to be negotiated with the Arab Bank in Beirut.

8. The husband’s evidence is that prior to leaving Australia, notwithstanding the fact that the husband’s oral evidence was that his brother travelled on the same plane to Lebanon (see above in relation to credit), the husband’s brother endorsed the back of each of the cheques. The husband gave that evidence when he was well aware of the contents of exhibit 17 which clearly indicate there was no longer any record of what was on the back of those cheques available to be obtained in Australia. I asked the husband how it could be that the Arab Bank would know that it was his brother’s signature on the back of the bank cheques. The husband said that he was unable to explain how the Arab Bank would know. There is no other evidence led in the husband’s case which would provide an explanation. The husband gave no evidence that there was any other supporting documentation that would verify that the alleged signature on the back of the cheque was his brother’s.  I find it is inherently unlikely that the Arab Bank would negotiate a cheque made payable to the order of his brother in circumstances where they simply had a signature on the back of the cheques that purported to be a signature of his brother with no other means of verifying who had placed the signature on the document. It would be highly unlikely for any bank to honour cheques totalling AUD $580,000 without identifying the person who was required on the face of the cheques, to provide an order for the payment of the monies.  The strong inference is that the husband’s brother travelled with him to Lebanon in order to facilitate the negotiation of those bills of exchange at the Lebanon bank.

9. There was a strong Jones v Dunkel submission made by counsel for the wife, that the husband did not call his brother as a witness. The husband’s brother is clearly a central character in the movement of the monies from Australia to Lebanon and the disposal of the monies in Lebanon. During cross examination of the husband on 21 November, the husband was asked questions about the whereabouts of his brother, both by myself and counsel for the wife. It was clear his brother was in the Sydney metropolitan area. Indeed, on the morning of 22 November, counsel for the husband made an application to call the husband’s brother in relation to exhibits 9 to 15.  I ruled that those documents were not relevant to any issue that I had to determine and I would not be taking those documents into account.  I infer however from what counsel for the husband said that the husband’s brother was readily available to give evidence.

10. Counsel for the husband submitted that because the husband’s brother was available to be subpoenaed, the wife could have subpoenaed him and called him as her own witness. In the circumstances of this case, that submission is not an adequate answer to the Jones v Dunkel submission that can be properly made in relation to somebody who, in relation to a central issue, could have given very important evidence as to the disposal of these funds in Lebanon, and other matters such as the husband’s evidence that upon arrival in Lebanon he was met at the airport by members of the wife’s family. The lack of plausible explanation by the husband as to how he obtained release of monies he had arranged to send to the Arab Bank in Lebanon in his brother’s name is a major difficulty in this case. 

The Alleged Property Transfer

1. The husband claims upon flying with his brother to Lebanon, he was collected at the airport in Lebanon by the wife’s father and brothers. He asserted that after lunch he was driven by the wife’s father to the office of the Notary Public and he handed the cheques over for the purchase of the land. The husband says he signed the contract for the purchase of the land, which the wife’s father held in his possession.

2. The husband said in his affidavit filed 14 July 2010 at paragraph 14:

   “.... Then, when the document was executed, the applicant’s father said to me words to the effect, ‘[The husband’s first name], where are the cheques?’. I pulled out the cheques from my pocket and I recall I handed them to the applicant’s father. The applicant’s father then said ‘These are the cheques. We can have them endorsed to your name and I ensure [sic] you will be able to bank them’. I than [sic] executed the back of the cheques and gave them back to the applicant’s father, who in turn, handed them to the Vendor.”

3. Given that cheques were made payable to the husband’s brother, I find it implausible that the husband would have executed the back of the cheques. 

4. The husband said he did not notice the Notary Public being paid, and that the wife’s father kept the sale contract.

5. The husband claimed the wife’s father told him the land had to be subdivided before it was registered and this was said to take a period of time close to two weeks.

6. On 13 September 2005 the husband says he and the wife’s father attempted to register the land at the Lebanese Department of Lands, but were told the person to whom they paid the money was not the owner. The husband says an argument later ensued and the wife’s father and brother threatened to kill the husband. The wife told the husband to return to Australia and let her father deal with it. The husband says he returned to Australia two days later.

7. The wife’s father denies any such thing happened. More importantly, the wife’s brother denies any such thing happened and the wife denies the husband spoke to her about his return to Australia. 

8. Counsel for the husband made a Jones v Dunkel submission in relation to the wife’s mother. Paragraph 11 and paragraph 18 of the husband’s affidavit of 15 July 2010 set out that he had contact with the wife’s mother when he went back in August on the day he said the cheques were handed over by him.  She was not called as a witness in the wife’s case. I am asked to presume that the calling of that witness would not have advanced the wife’s case. There was no evidence to indicate why the mother wouldn’t have been in a position to give evidence. There was no application that she give evidence by electronic means. No submission was made by the husband about the wife’s other brothers.

9. I balance the fact that all members of the wife’s family in Lebanon were not called to deny the husband came to their home in August 2005 against the evidence of the wife’s brother that he did not do so and evidence of the wife that conversations the husband asserts he had with her at that time did not take place. The Jones v Dunkel submission in relation to the husband’s brother is far stronger because I have no other credible evidence about how monies, which were transferred to the husband’s brother, were negotiated.

Return to Lebanon

1. On 14 June 2006 the husband said he returned to Lebanon. He claims he went to see the wife’s father who said the ‘vendor’ had disappeared. The wife’s father was allegedly offended at the accusation he was responsible for the vendor’s ‘disappearance’ and threatened to kill the husband. The husband says he stayed with a brother of his and on 14 June 2006 he transferred his remaining money ($9,798.66) in Lebanon to Australia. He says these monies were used to pay mortgage repayments. He said the wife picked him up from the airport upon his return on 28 July 2006 and later that evening asked for a divorce. I have already said I do not accept that this was the first occasion when the wife asked the husband for a divorce.

2. No money has been recovered. The husband says the wife’s family has since refused to meet with him. The husband said he went back to Lebanon again in February 2007 and April 2009 as well as June 2006. He said he went back to his father-in-law to try and get the money back but he was again threatened. He has made no report to the police about this “fraud” whatsoever either in Australia or in Lebanon. He has not visited or approached the Arab Bank PLC, Lebanon, … branch, to enquire about how the bank draft cheques were negotiated or who was the ultimate beneficiary of those funds.

Sydney Suburb A Property

1. In the period between 2005 and 2007, the Sydney Suburb A property was heavily encumbered and the husband tried to sell the property. He says he faced a number of difficulties, including the wife’s refusal of offers and placing a caveat over the property. Unable to meet the loan repayments, there was a mortgagee sale and the husband claims he has a $49,532 unpaid default. The husband was asked questions about exhibit 16 which is an ING statement of 1 July 2007 to 22 October 2007. It appeared to indicate that the amount of $49,523.92 (the shortfall after the mortgagee sale) had in fact been paid.  I am not able to infer from that banking record that the debit on 22 October 2007 was in fact a payment. It may well have simply been a closing of the action equity loan with that debt to be placed somewhere else on some other ledger in the banking records for future litigation against the husband. I note that the husband says, and I accept, that the bank have not chased him for that money since 2007 and I also note that the husband says he has a counter claim for negligence against the bank because of the way they conducted the mortgagee sale and sold the subject property for under market price. The husband has not asked me to take into account any potential liability to him of $49,000 to ING and accordingly I shall not do so.

Investment of the Wife’s Father

1. The husband sought in his case to establish that the wife’s father had unexplained funds which he has used to develop a property since August 2005. Exhibit 6 is a photograph of the house in which the wife’s father and family currently live.

2. As noted above in relation to the credit of the wife’s father, inconsistent evidence was given about his financial circumstances. He admitted that in 1995 he owned an apartment and had saved $100,000 upon retirement. I do not accept the husband’s argument that the wife’s father could not have saved $100,000 as a food retailer during a lifetime of work.

3. The dwelling was destroyed in the 2006 war. The reconstruction of the property was completed about two and one half years later. I have noted that the wife’s father asserts the funds for rebuilding came from an $80,000 grant from the government while the evidence of the wife’s brother was similar in that a grant of approximately $70,000 to $80,000 was granted. The rest of the building costs came from the wife’s father and his children. The wife’s father said he forwarded $5,000 of his own savings and $15,000 of the children’s money while the wife’s brother gave evidence that he contributed $12,000 and his father contributed $20,000 to $25,000.

4. The wife’s father is currently involved in a property investment with another person. He says this is the first such investment in which he has been involved. His only contribution is reportedly monetary, as he said he understands nothing about building.  He later said “We contribute funds and we work with them”. The wife’s father was keen to convince the court that this was his first investment by explaining that all his eleven children were well educated and comfortable. The wife’s father said that he had been involved in the current investment for three years and had received no money from any other source since retirement.

5. The husband has not established that the wife’s father’s current assets are such that he would have been unable to have acquired them without the “fraud” which the husband asserts the wife’s father perpetrated against him.

Conclusion

1. The undisputed fact is that the husband was responsible for moving virtually all of the parties’ assets from Australia to Lebanon. I do not accept the husband’s version as to what happened to those assets.

2. Tellingly, the husband has not explained how money effectively transferred to the Arab Bank in Lebanon in his brother’s name was negotiated. I am left to wonder what involvement Mr Y had when he travelled with the husband to Lebanon in August 2005. The husband did not make any effort to go to the bank in Lebanon to get any records, even though he had three opportunities of doing so. He did not attempt by way of any contacts he has in Lebanon, to obtain documents from that bank and quite disingenuously during his cross examination, feigned ignorance as to which bank he could make such an enquiry. That answer was telling against the husband given that in 2006 the husband still had money in that bank in Lebanon. 

3. The husband did not satisfactorily explain why, when he had been involved in 1995 in an arrangement with the wife’s father where he handed over a significant amount of money only to find that the title was not good, that he would do exactly the same thing again ten years later. It was exactly the same fraudulent scheme as in 1995, and so he is asking the Court to accept that, having been bitten once in terms of handing money over for land in Lebanon in respect of which title did not flow, he did exactly the same thing with the same person. His answer is that he trusted his father-in-law but I do not accept that explanation.

ORDERS

1. Counsel for the husband submitted that I wouldn’t be able to make a property order if I was not able to find that the monies still existed. In this case, I find that the husband has failed to disclose to the court what really happened to the $580,000. In those circumstances, I do not need to be able to make a finding about what has happened to the money in order to make an order against the husband (see Black v Kellner (1992) FLC 92-287, 15 FamLR 343; Weir & Weir (1993) FLC 92-338; 16 FamLR 154).

2. It follows from the findings that I have made that I am of the view that the husband has failed to explain what happened to the sum of $580,000 that left Australia in August 2005. It follows therefore that I am confident that the asset pool is at least of that amount. As discussed above, the parties agreed that whatever the asset pool was found to be, it should be divided 65 percent to the wife and 35 percent to the husband. In those circumstances, it follows that the wife should be successful in obtaining an order pursuant to s 79 FLA that the husband pay to her the sum of $377,000.

3. The wife also seeks that the husband be restrained from leaving Australia whilst any sum which is ordered to be paid remains outstanding. I have no evidence at all that the husband has any assets or financial resources at his disposal currently in Australia. The order to be made in the wife’s favour pursuant to s 79 FLA is therefore practically unenforceable by the wife given that the husband’s assets are outside Australia.

4. It appears to me to be just and convenient to order that the husband not leave the jurisdiction until such time as he has satisfied the order that has been made. The order for payment would be otiose, particularly if the husband was free to leave the jurisdiction and enjoy the entire fruits of the matrimonial assets overseas, whether by permanently leaving the jurisdiction or visiting overseas from time to time.  

5. Counsel for the husband made a submission that s 81 FLA would preclude me from making an open ended injunctive order under s 114(3). I do not accept that submission. Section 114(3) enables me to make an injunctive order in aid of the enforcement of other orders. I find the husband took the sum of $580,000 from Australia. I infer that he still has control over it. He should not be allowed to leave Australia in order to enjoy that control or those monies and the injunctive order will remain in place until he satisfies the order for payment of property to the wife in aid of encouraging him to do so.

6. At the end of the hearing, counsel for the husband referred to an oral application, made when the wife’s father was in Australia, to have the wife’s father restrained from leaving Australia pending the determination of the hearing. I had formed a preliminary view that there was insufficient evidence to establish that the wife’s father had behaved in the way alleged by the husband, given the evidence on the face of the documents as to what had happened with the monies (namely they had been taken out of Australia by the husband in cheques made payable to his brother). At the time the application was made, I had heard sufficient evidence to make a preliminary assessment that there was not a strong prima facie case against the wife’s father. Without hearing all the evidence I was not prepared to restrain the wife’s father from leaving the country until the case had concluded. I adjourned any consideration of this oral application until the end of the hearing.  Counsel for the husband informed me that the wife’s father had left the country (although I didn’t have any evidence confirming his departure but I assumed it was an agreed fact) and accordingly he no longer wished to pursue his oral application. 

7. Given the findings I have now made in relation to what happened to the money, in hindsight any order that I had made restraining the wife’s father from leaving Australia would have turned out to be inappropriate.  

8. In relation to the maintenance claim, it is agreed the wife remarried in August 2010. Section 82(4) FLA says that an order with respect to the maintenance of a party to a marriage ceases to have effect upon the remarriage of the party unless there is an order otherwise, based upon special circumstances. Section 82(6) FLA creates a duty on the party remarrying of informing the former spouse liable to make payments that the remarriage has occurred. Clearly the legislative intent of s 82(4) and (6) FLA is to discourage maintenance orders in circumstances where somebody has remarried, unless there are special circumstances. Although not beyond doubt, it seems s 82(4) FLA would require me to find special circumstances in order to make a spousal maintenance order in the wife’s favour. The wife has failed to disclose information about the financial arrangements of her new marriage. I find it is not proper to make an order for spousal maintenance in the wife’s favour.

I certify that the preceding one hundred and seventy (170) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 10 February 2012.

Associate:   

Date:  10.2.2012