Spalla & Spalla (No 2)
[2022] FedCFamC2F 1723
Federal Circuit and Family Court of Australia
(DIVISION 2)
Spalla & Spalla (No 2) [2022] FedCFamC2F 1723
File number(s): CAC 872 of 2020 Judgment of: JUDGE W J NEVILLE Date of judgment: 15 December 2022 Catchwords: FAMILY LAW – Property – Parties married in Country B in 1978 – Husband states date of separation as being in November 2019 – Wife states date of separation as being in August 2012 – Separation under one roof – Husband seeks final property settlement orders – Wife seeks finding that deed of settlement dated 31 January 2021 finalised property settlement between parties – Husband seeks finding deed of settlement unenforceable - Wife’s evidence accepted in accordance with deed of settlement dated 31 January 2014 – Husband’s evidence was shambolic and not credible – Husband’s Application for property settlement order pursuant to s 79 of the Act dismissed - Fixed costs order made in favour of Wife. Legislation: Family Law Act 1975 (Cth) s.79 Cases cited: Bevan v Bevan (2013) 279 FLR 1; (2014) 49 Fam LR 387
Chang v Su (2002) 170 FLR 244; (2002) 29 Fam LR 406
Greer v Kettle [1938] AC 156
Jones v Dunkel (1959) 101 CLR 298
Labracon Pty Ltd v Cuturich [2013] NSWSC 97
Stanford v Stanford (2012) 247 CLR 108
Stephens v Stephens (2011) 44 Fam LR 117
Thumbiran v Silver Chef Rentals Pty Ltd [2022] NSWCA 148
K.R. Handley, Estoppel by Conduct and Election (Second Edition) (London: Sweet & Maxwell, 2016)
N. Seddon, Seddon on Deeds (Second Edition) (Sydney: The Federation Press, 2022)
Halsbury’s Laws of England, Fourth Edition (1975) Volume 12, “Deeds and Other Instruments”
Division: Division 2 Family Law Number of paragraphs: 208 Date of last submission/s: 24 October 2022 Date of hearing: 9 & 10 September 2021 Place: Canberra Counsel for the Applicant Mr J Moffett (at trial); Mr J Masters (for post-hearing directions and submissions) Solicitor for the Applicant Marjason & Marjason Solicitors Counsel for the Respondent Ms R Winfield Solicitor for the Respondent Zali Burrows Lawyers ORDERS
CAC 872 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR SPALLA
ApplicantAND: MS SPALLA
Respondent
order made by:
JUDGE W J NEVILLE
DATE OF ORDER:
15 december 2022
ON A FINAL BASIS, THE COURT ORDERS THAT:
1.The Initiating Application filed 7 May 2020 be dismissed.
2.By 31 March 2023, the Husband is to pay the costs of the Wife from the conclusion of the Final Hearing on 10 September 2021 fixed in the sum of $25,000.00 arising from the later abandoned “fraud” claim.
3.Absent any other Application within 21 days, being by 5 January 2023, each party is to bear their own costs, in relation to the Final Hearing commencing on 9 September 2021.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Spalla & Spalla (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE W J NEVILLE
Introduction
Regrettably, it is accurate to record that the conduct of this matter was regularly shambolic. Stated somewhat more prosaically, there were many twists and turns in this, now ultimately unnecessarily, overly long-running property dispute that involved parties who were married in Country B in 1978. The date of separation is one of a number of disputed factual matters: the Wife says separation was in August 2012; the Husband says that separation was much more recent in November 2019.
The Wife was medically unfit to provide any evidence at the trial. Various medical evidence was provided to the Court, notably by her treating psychiatrist, Dr C. Her daughter, Ms D, was appointed as her litigation/case guardian.[1] In May 2016, the daughter was also appointed her Mother’s Attorney pursuant to an Enduring Power of Attorney.[2]
[1] See Transcript (9th September 2021) at p.3. Because the complete Transcript of the final hearing does not have continuous page numbering, hereafter, such references to the Transcript for the first day will be “TA” followed by the page number.
[2] A copy of the Enduring Power of Attorney, dated 4th May 2016, is Annexure B to Ms D’s Affidavit, filed 19th October 2020.
A closely related issue concerned the provenance of a Deed of settlement (“the deed”) regarding an insurance dispute with the Insurer E, dated 31st January 2014, signed by the parties and witnessed by the two adult children of the relationship. Among other matters recorded in it, Recital “ii” of that Deed, confirmed that the parties “are married but separated.”
Early in the Final Hearing in September 2021, Counsel for the Husband confirmed a number of times that no issue or questions of “fraud” are, or would be, raised.[3] Counsel continued, saying that one of his main arguments would be that, while the Husband signed the Deed, he was not relevantly and independently legally advised about it.[4] However, towards the end of the trial with Ms D giving evidence, she produced a letter that, on its face, provided the alleged missing legal advice to the Husband or otherwise referred to it. This letter had been provided to the Wife’s lawyers but somehow, and certainly inexplicably, it did not find its way into Ms D’s trial Affidavit (discussed further later in these reasons).
[3] TA 10.
[4] See T 8 – 13.
Upon the disclosure of this letter of advice, Counsel for the Husband contended that it appeared that, contrary to his earlier position, some sort of “fraud” had been committed.[5] The sudden appearance of the letter of advice from the Husband’s then lawyers, together with the contention of possible fraud, led to the trial being adjourned so that due investigation and pleadings could be prepared. In the end, however, after almost twelve months of discussions and various claims and counter-claims, as well as a separate Application regarding security for costs, the contentions of “fraud” by the Husband were abandoned. Written submissions, ultimately, and obviously very much later than was first envisaged, were filed (set out below) and the matter now proceeds in the usual manner.
[5] The Transcript for the second day of the trial on 10th September 2021 will be referred to as “TB” followed by the page number. Thus here, TB 66 – 83.
Applicant’s Orders Sought
The Applicant Husband’s Orders Sought went through a number of iterations. Initially, the Husband’s Orders Sought were contained in his Initiating Application filed 7th May 2020. The Husband’s Case Outline, filed 8th September 2021, set out the final version of his Orders Sought (emphasis in original):
Applicant’s case outline
1. The Orders Sought
1.1Noting the preliminary issues to be determined by the Court, the Applicant seeks the following orders:
1.1.1A declaration that the “Deed of Settlement and Release” (Deed) is not enforceable;
1.1.2In the alternative, if the Deed is enforceable, the Court not enforce the Deed principally on the basis to do so would not be just and equitable;
1.1.3The date of separation on a final basis occurred on or about 7 November 2019; and
1.1.4The substantive matter is listed for final hearing on a date to be determined and fixed by the Court.
2. Summary of the issues in dispute
2.1As noted in orders of the Court on 22 October 2020, the preliminary issues between the Applicant and Respondent include:
2.1.1 What is the date of separation on a final basis?
2.1.2 The Deed purportedly dated 31 January 2014 and its validity;
2.1.3The Stanford issue regarding a “post separation” purchase by the Respondent.
2.2 Due to the Respondent’s non-compliance with the Court’s orders dated 29 June 2021, whether or not leave should be granted to the Respondent to be able to rely on the following affidavits:
2.2.1 [Ms F] filed 30 August 2021;
2.2.2 [Mr G] filed 1 September 2021;
2.2.3 [Ms D] filed 1 September 2021.
2.3The Applicant also submits that the fact that the Respondent has not filed and served any evidence is a significant issue that needs to be determined and in particular the nature, extent and scope of adverse inferences which ought to reasonably be drawn.
3. List of documents intended to be relied upon
3.1 The applicant relies upon the following documents:
3.1.1 Initiating Application dated 7 May 2020
3.1.2 Affidavit of [Mr Spalla] sworn 7 May 2020
3.1.3 Affidavit of [Mr Spalla] sworn 26 August 2021;
3.1.4 Financial statement dated 7 May 2020;
3.1.5 Financial statement dated 26 August 2021.
4. List of authorities intended to be relied upon
4.1 The Applicant relies upon the following authority:
4.1.1 Stanford v Stanford [2012] HCA 52
5. Statement of asserted assets and liabilities
5.1The Applicant refers to and relies upon his financial statements dated 7 May 2020 and 26 August 2021.
Due to the various Orders Sought by both parties, and the time between the trial and the judgment preparation, it was requested by email that the parties provide a final minute of Orders Sought. The Husband provided the following Orders Sought by email on 24th October 2022; they were as follows (emphasis in original):
If the Hearing thus far relates only to the section 79(2) FLA preliminary issue.
Order
1.The Court is satisfied that, in all the circumstances, it is just and equitable to make a property settlement order pursuant to s 79 of the Act.
2.That updated financials and trial affidavits be filed and served by [insert date].
3.That the property settlement proceedings be set down for hearing [insert date].
If the hearing is to be considered a final hearing
Order
1.The Court is satisfied that, in all the circumstances, it is just and equitable to make a property settlement order pursuant to s 79 of the Act.
2.That the property be divided equally between the parties.
3.The parties provide agreed draft orders to reflect Order 2 by [insert date].
4.In the event that the orders cannot be agreed, each party provide their preferred Order reflecting Order 2 to be determined by the Court.
Respondent’s Orders Sought
The Respondent Wife’s final Orders Sought were contained in the Response filed 19th October 2020; they were as follows (emphasis in original):
1. Husband’s application be dismissed.
2. In the alternative to order 1, declaration the Wife is the sole owner to the exclusion of the Husband of all right title and interest in the property at [H Street, Town J] in the State of New South Wales.
3. Other than as provided herein, each party retain to the exclusion of the other any motor vehicle, bank account, superannuation and any other personality in his or her possession as at the date hereof.
4. The Husband pay the wife’s costs of and incidental to the application.
The Wife did not provide a Minute of Orders sought in her case outline prior to the Hearing.
In response to the request from Chambers noted above, the Wife provided the following final Orders Sought by email on 25th of October 2022; they were as follows (emphasis in original):
1.Husband’s application be dismissed.
2.In the alternative to Order 1, declaration the Wife is the sole owner at law and in Equity to the exclusion of the Husband of all the right, title and interest in the property at [H Street, Town J] in the State of New South Wales.
3.Other than as provided herein, each party retain to the exclusion of the other any real estate, motor vehicle, bank account, superannuation and any personalty in his or her possession as at and from the date hereof.
4.The Husband pay the Wife’s costs of and incidental to these proceedings.
5.The Husband pay the Wife’s costs thrown away in relation to and in respect of by the adjournment on 11 September 2021, the allegations of fraud including all appearances, applications and correspondence and disbursements on an indemnity basis.
Evidentiary issues & other things
Procedurally and substantively, this matter was hindered significantly because of multiple failures regarding either the lack of evidence, the failure properly to obtain it, and/or the failure to examine (in or out of Court) either witnesses or documents. I have noted elsewhere in these reasons the other major impediment to its expeditious determination, namely the claim of fraud towards the end of the Final Hearing and that it took the better part of 12 months before the Applicant confirmed that the fraud claim would not be pressed. The most prominent and concerning evidentiary (and other) issues were as follows:
(a)Neither party issued any subpoena or Notice to Produce to the lawyers who acted for the Husband in relation to the Deed until after the hearing in September 2021. This was an immensely regrettable circumstance. In my view, given how much focus there was upon the Deed, the signing and advice surrounding it, and/or the import of it, it is difficult to overstate this astonishing procedural and evidentiary omission;
(b)One of the parties to the Deed (although apparently not signed) was the Insurer E. In submissions, the Applicant complained about information concerning many things, including details from the Insurer E. However, although the relevant file from the Insurer E was available, it was never tendered. Nobody submitted that the Court could (or should) draw any relevant inference from this omission or otherwise. To speak somewhat colloquially, this file and any material in it was simply “left hanging”;
(c)Multiple submissions by the Husband were critical of the son, Mr G, especially but not only for his criminal record. Remarkably, however, Mr G was never required for cross examination notwithstanding that he filed an Affidavit in support of the Respondent Wife. Respectfully, it is inappropriate to criticise a witness in circumstances where that witness has not been cross examined and was otherwise available for this to occur;
(d)Somewhat similarly, the Husband’s submissions were highly critical of the daughter, Ms D. Yet, (to speak generally) it was Ms D who provided the bulk of the documents in relation to the central issues that were before the Court. But for her oral and documentary evidence, the Court would be in an even more parlous position regarding the state of the evidence before the Court;
(e)There was no evidence from the Husband’s friend and current land-lady, who is alleged to be his current partner. Again, this was a significant and unexplained omission;
(f)Multiple times during the trial, I requested that Counsel meet to formulate an agreed list of issues. While I was assured that there were some discussions, ultimately, and unfortunately, there was no agreed list;
(g)The issue regarding the January 2014 Deed was a central feature in the case but, concerningly, not a single authority was cited by either party regarding, for example, the provenance of recitals in deeds, notwithstanding the Court raising (in general terms) this precise point at the outset of the trial;
(h)The issue of relevant legal advice to the Husband, and the import of it (or purported lack of it) was scarcely explored, and again not a single authority was cited by either party; and
(i)While the High Court decision in Stanford was cited or referred to in the course of submissions, there was surprisingly little actual detailed discussion of it.[6]
[6] Stanford v Stanford (2012) 247 CLR 108.
I do not suggest that anyone was trying to make the trial more difficult than it already was. However, every attempt and suggestion by the Court to secure assistance to refine the broadly framed issues before the Court failed. As the list above indicates, there were a significant number of evidentiary and procedural lacunæ which should not have occurred, and/or should have been remedied. There was ample opportunity for the lawyers for the parties to attend to these matters.
Issues in dispute
In the Applicant’s Case Outline (dated 8th September 2021), Counsel for the Husband stated that the “preliminary issues” include (as set out in that document):
(a)The date of separation on a final basis;
(b)The Deed purportedly dated 31st January 2014 and its validity; and
(c)The Stanford issue regarding a “post-separation” purchase by the Respondent.
Counsel for the Applicant also raised in the same document some issues regarding the admissibility of certain late-filed Affidavits, and what (if anything) flowed from the Respondent herself not having filed any material. In the light of the medical evidence in particular provided to the Court, and in consequence, the Court appointing the Respondent’s daughter as her litigation guardian, the last “issue” became moot.
On 17th October 2022, the Respondent filed a document entitled “Wife’s Submissions in Response”. These are the Wife’s final or primary submissions, filed pursuant to Orders dated 22nd August 2022, following the incredibly late confirmation by the Husband that the claim of fraud was no longer pressed. In the Wife’s submissions, at par.2 Counsel submitted that the “substantial issues” in the proceeding were:
(a)Date of separation;
(b)Whether the parties separated on the date set out in the Deed signed by each of them on 31st January 2014;
(c)Whether the parties put into effect a property settlement between them as provided in the Deed; and
(d)Whether the Husband received independent legal advice about the Deed.
While there is some obvious overlap between the two lists, there remain some other issues, or perhaps more accurately, a refinement and proper ordering of them to be noted shortly.
Applicant Husband’s Oral Evidence
Summarised, the Husband’s oral evidence, given by video-link, was as follows.
At the beginning of his cross examination, the Husband was challenged about the date of separation from his former Wife. He initially said that it was simply not true (as asserted by the Wife) that separation took place between 2012 and 2014 and as recorded in the Recitals to the Deed. Then the Husband said that he did not recall signing the Deed in January 2014. To speak generally, it was a somewhat common feature of the Husband’s evidence of his lack of recollection of a range of events and circumstances.
The Husband also said that the signature on the Deed that purports to be his “don’t look like my signature.”[7] The Husband surmised also that maybe his son signed the document on his behalf because, he said, his son did his signature “many times”, as did his daughter. He confirmed however that he never asked for any forensic examination to be done of his signature. He also contended that he had told his lawyers “always” that it was not his signature on the Deed. He went further, declaring: “I said I will sign these papers. My daughter and my son signed this, this crook’s paper.”[8]
[7] TA 27.
[8] TA 28.
The Husband said further that his daughter (Ms D) “handled” his business and signed all of his “paperwork.” None of these claims were set out in his Affidavit even though he had his daughter’s Affidavit since October 2020. There was an ongoing contest with the Husband when it was put to him that his daughter did not sign his Affidavits for the current litigation.
The Husband remonstrated with Counsel for the Wife saying:[9]
THE WITNESS: My daughter is a crook like my son, just like my son, he has been here for five years. He’s a crook.
MS WINFIELD: [Mr Spalla], would you, please, answer the question.
THE WITNESS: I answer your question. I don’t sign nothing. I answer your question. Next one.
MS WINFIELD: Well, you did. You’ve signed two affidavits in these proceedings, haven’t they – haven’t you?
THE WITNESS: I don’t sign these papers. This paper is signed by my daughter or my criminal son. He has been here for four years. He being a good boy.
[9] TA 29.
The remonstrations continued by, and with, the Husband when, for example, he was asked to look at the signature on the Deed and look at the signatures on his Affidavits. It was put to him that the signatures were the same. He said they were not.
At this approximate juncture in the Husband’s cross examination there was discussion with his Counsel regarding the Deed. Counsel confirmed that his closing submissions would contend, notwithstanding the Husband’s evidence already referred to, that there was “no impropriety in the signing of the Deed.”
The Husband said he did not read English, which was in the context of whether or not he read the Deed at the time of its signing in January 2014. He maintained that he does not read English, that he did not sign the Deed, but then said that his daughter got him to sign it. He denied that he had the Deed read to him in Language B. He further denied that his daughter read the document to him in Language B saying that she did not speak that language. He maintained that his daughter always said to him “sign” but that he “don’t sign nothing.” [10]
[10] TA 32.
The Husband was then asked about having received independent legal advice from K Lawyers who were at that stage in L Street, Sydney. To this the Husband said very brusquely: “I never meet this guy. I don’t know if it’s his Wife black or Chinese. I never met this guy. This guy involved with my son in monkey – monkey business.”[11]
[11] TA 32.
There followed a series of questions over a significant period of time regarding his contact with the lawyers just referred to. For example, he confirmed that he saw a lawyer (Ms M) at offices in Suburb N between October and December 2013. To say that his evidence was both conflicting and confusing, even at this stage, was something of an understatement. For example, having confirmed that he met Ms M at the Suburb N office of his then lawyers, a little later in his cross examination he denied ever having met with the lawyers, and changed his evidence again to say that he was taken to meet the lawyers by his son who directed him to sign whatever was put in front of him (the latter description is mine).
The Husband was then taken through a series of documents that were attached to Ms D’s trial Affidavit, filed 31st August 2021. In general terms, these documents confirm the engagement of the lawyers with the Husband. They also include accounts from the lawyers for professional services.
After some further procedural and other hiccups, the Husband was taken to page 75 of Ms D’s trial Affidavit. The document referred to noted an email address which the Husband confirmed was his. Having acknowledged the email address on this correspondence, which was also sent to his son and daughter by Ms M, he said he did not get it from the lawyer because all emails went to his daughter Ms D and she sent it to him. Yet again, a degree of confusion reigned because a short while later, the Husband confirmed that he received the email shown to him from his daughter’s Affidavit, and also confirmed that he received it at his email address.
The Husband went on to state, and to deny, that there was ever a contest between him and the Insurer E. Again, there was some backtracking by the Husband, where he confirmed that there was actually a contest with the Insurer E and that the Deed was meant to reflect the resolution of that contest. Nonetheless, the Husband denied that he knew any details of the contest with the Insurer E; he said the problem with the Insurer E was caused by his son and daughter. He further denied that he knew that the litigation with the Insurer E was settled and that the Insurer E was paid $50,000 for this settlement. He went on to claim that he only learnt about details regarding the settlement when he was shown documents by his solicitor. He claimed that his solicitor received relevant details and documents regarding the claim involving Insurer E from his daughter and only after this occurred did he find out anything to do with the claim.[12]
[12] TA 35 – 37.
The Court put to the Husband that his evidence seemed to be insisting upon anything to do with the property of the parties, and/or anything else, such as the settlement with the Insurer E, he knew nothing and that everything “was being, effectively, manipulated by either or both [your] son or [your] daughter.” The Husband simply responded: “yes, that’s true. Yes.”[13]
[13] TA 38.
The Husband also confirmed that on Father’s Day in 2015, he was admitted to hospital with a cranial bleed. When asked whether or not his memory deteriorated after this episode, he said “yes, sometimes.” He had also confirmed this circumstance and its after-effects in his Affidavit.
The Husband confirmed that the Deed in question had recently been read to him. He said his solicitors had done so. It was not clarified whether or not the reading of the Deed had been done in English or Language B. Under the terms of the Deed, the parties’ T Street, Suburb U property, was to be transferred to the Respondent Wife. The Husband again denied that anybody told him anything about the terms of the Deed and their effect.
The Husband was taken to some of the operative provisions of the Deed, such as that within 28 days of the date of the Deed, the Husband was to attend upon a solicitor to execute a Binding Financial Agreement with the Wife, and further, that his share of the property was to be released to the Insurer E. The Husband again simply said “nobody tell me nothing.”[14] Another operative part of the Deed (in general terms) provided that following the separation, the Husband was to make no further claim against the Wife for any property. The Husband contended that he only learnt of Recital (ii), which stated that the parties “are married but separated” when he was in his solicitor’s office. He went on to claim that the parties separated on 7th November 2019.[15]
[14] TA 39.
[15] TA 40.
The Husband was then taken to the reproduction of one of his Facebook pages, which is annexed to his daughter’s trial Affidavit sworn 31st August 2021. The Husband acknowledged the Facebook page he had “liked” on 5th August 2010 was a dating website. While the Husband said that he “liked looking” on this dating website he asserted that he was not in fact dating or looking for someone to date.
In another Facebook page screen-shot in the same Affidavit, the Husband posted a photo of a woman who, Counsel for the Wife submitted, was his current partner, Ms P. To this the Husband said “she’s not partner. Is my friend at the time. She is my friend now.” There were other descriptions on this page of the same women such as “my beautiful wild”. The Husband said these other and later descriptions were fake. He firmly denied that he has been in a relationship with Ms P since 2014.
However, as noted below, in his primary Affidavit (filed 7th May 2020), the Husband deposed (at par.18) that as at April 2020 he had a “partner”. At par.29 of the same Affidavit, he deposed that “Ms F” was his new partner with whom he resides and who has been providing him with financial assistance since he moved in with her in approximately late 2019. The inconsistency of the Husband’s evidence, indeed its plain contradictions, are obvious. Obviously and regrettably, no one checked the Husband’s earlier Affidavit evidence prior to his cross examination. No less curiously, he was not cross examined specifically on these paragraphs from his primary Affidavit regarding (a) being in a relationship with Ms F, who was described by him as his “new partner”, and/or (b) the financial assistance she has been providing to him since he moved in with her.[16]
[16] See pars.80 – 82 of the Husband’s primary Affidavit, where he deposed that Ms F has assisted him with legal fees in relation to certain AVO proceedings, as well as (it is reasonably inferred) with rent-free accommodation (the Husband says that he makes contributions where he can to groceries and bills). He also deposed that Ms F has assisted him with various living expenses, such as fuel and CTP insurance. Again I note that no evidence was provided by Ms F in the Husband’s case.
The Husband was next taken to a Centrelink statement addressed to him, dated 28 January 2014. This document contained a “customer declaration”. The Husband said he could not remember it. It was put to him that on 28th January 2014 he contacted Centrelink and filled in a customer declaration Application for Newstart. The Husband strongly denied filling out this form, claiming instead that his daughter filled it out because he did not read English.[17]
[17] TA 46.
It was suggested to him further that anything that his daughter did for him was at his request or direction. He denied this vehemently. He said that she gave him the declaration to sign. He was asked why he would sign something if he did not know what was in it. Again, however, he stated that he doesn’t read or understand English. But, Counsel reasonably asked him that it was easy enough for him to ask what any document meant. To this he almost venomously replied:[18]
[18] TA 46.
THE WITNESS: I trust this woman. It’s a scum woman.
HIS HONOUR: A what, sorry? How did you describe your daughter?
THE WITNESS: A scum.
HIS HONOUR: A scum woman?
THE WITNESS: Yes.
HIS HONOUR: You seem to have a very hostile attitude towards your former wife, son and daughter. Is that reasonable to say, [Mr Spalla]?
THE WITNESS: Sorry?
HIS HONOUR: You have a hostile attitude towards the members of your family; yes?
THE WITNESS: Yes. Yes.
HIS HONOUR: Is there any specific reason or is there a range of reasons why you are so hostile to them all.
THE WITNESS: Because I give everything to my kids, and now my kids screw my back.
In another very strong (and colourful) contention, the Husband asserted that his son was involved with the Country R Mafia in Sydney (who kill people, he said) and that somehow (although never explained) there was some general assertion about money laundering that involved the rest of his family including his son and daughter. A little later it seemed that the reference to his daughter being involved with the “Country R Mafia” should have been a reference to his daughter-in-law.[19] The Husband was cautioned regarding these very serious, but unsubstantiated, allegations.
[19] See the somewhat extended discussion, including the caution to the Husband, at TA 47 – 48.
Questions returned to the Husband’s application for the Newstart allowance in 2014. Again when he was asked why he did not seek any advice regarding this application he simply said: “I always trust my family. This is why I’m in this position now.”[20] In the same application to Centrelink, it records the relationship status as “separated.” The document goes on to state that the date of separation was 6th May 2000 but the Husband said that did not read the document at that time. His evidence was to the effect that by putting the information to Centrelink that was contained in this application, he would get a further or additional $40 (apparently per week). No caution was issued regarding potential social security fraud.
[20] TA 49.
Regarding the Facebook posts, the Husband said that it was his daughter, Ms D, who set up the Facebook account for him. One of these posts had a photograph of the Wife but with a caption underneath saying “look at the cow”. He said he used Google Translate to make these posts. It was repeatedly put to him that, whatever his level of English and understanding of it, he knew enough to know and understand what he was posting. He denied that, notwithstanding running his own business for many years as a tradesman, his English was not sufficiently functional to read invoices and send emails. He said that his daughter did all the paperwork.
As an observation only at this stage, there were many inconsistencies in the Husband’s evidence, at the same time giving due allowance to the fact that English is not his first language. A particularly significant difficulty with his evidence was, for example, where he consistently claimed that his daughter, Ms D, did all of his emails and Facebook posts. It is inconceivable, in my view, that this could be as baldly or completely correct as he contended for the simple reason that Ms D would never have written or allowed to be written any comment that was critical, or mocking, of her Mother such as “look at the cow”. Additionally, the standard of English used in these posts is of a much lower standard to that of Ms D.
The Husband confirmed that his trial Affidavit was read to him by one of his lawyers before he signed it. He maintained that he understands English when he is spoken to, but that he cannot read. This evidence was directly contrary to paragraph 6 of his Affidavit sworn on 26th August 2021 in which (par. 6) he deposed that he spoke and read English at a conversational level. When paragraph 6 was put to him directly, and in particular that he read English at a conversational level, he said that this was incorrect.
Then followed some further questions relating to the Husband’s comprehension more generally, not only English:[21]
[21] TA 57 – 58.
MS WINFIELD: Never? All right. Well, how did you run a business if you didn’t speak enough English to communicate with people who came in?
THE WITNESS: In the time, I got [Country S] supervisor.
MS WINFIELD: All right. And you say, do you, that you can’t read English at a conversational level?
THE WITNESS: Yes.
MS WINFIELD: But you’ve signed this affidavit without it being interpreted to you in the [Language B] language?
THE WITNESS: Yes.
MS WINFIELD: Does this fall into the same category of documents that your daughter asked you to sign and you signed them without reading them?
THE WITNESS: Yes.
MS WINFIELD: And you never took it anywhere else and asked somebody to read it over to you to make sure that it said what you wanted it to say; is that right?
THE WITNESS: Yes. Never.
MS WINFIELD: [Mr Spalla], you’re not telling the truth, are you?
THE WITNESS: Sorry?
MS WINFIELD: You’re not telling the truth, are you?
THE WITNESS: It does – I tell the truth. And my .... know that.
MS WINFIELD: [Mr Spalla], you understand that you were answering my questions at a conversational level, don’t you?
THE WITNESS: Yes.
MS WINFIELD: So do you now concede that you speak English at a conversational level?
THE WITNESS: I understand the English, but I don’t speak English 100 per cent. Do you understand that?
MS WINFIELD: And you see, [Mr Spalla], I’d suggest to you that you are efficient enough that you wouldn’t sign a document that you didn’t understand, would you?
THE WITNESS: Which one?
MS WINFIELD: When you signed the deed in 2014, you knew that it was an important document, didn’t you?
THE WITNESS: I signed because my son said, “Sign, no problem, daddy.” So at that time.
He said he effectively trusted his Wife and children all the time but “when the divorce came, the problems started.”[22]
[22] TA 59.
Shortly after lunch on the first day, the Court directed the parties to agree upon specific questions to be addressed by both parties in written submissions.[23] This seemingly relatively straightforward task, regrettably, proved unable to be accomplished.
[23] See TA 64 & 65.
As cross-examination continued, various details were checked with the Husband on a number of issues, beginning firstly with the date of purchase of the property at V Street, Suburb O (“the V Street, Suburb O property”). He confirmed initially that his evidence at paragraph 48 of his Trial Affidavit (7th May 2020), stating that the purchase was in 2000, was incorrect. It was put to him that the correct date was 2006. To this he simply said: “maybe. I don’t know, I can’t remember.” He confirmed, however, that he did not check this detail when he swore his Affidavit in May 2020.[24]
[24] TA 67.
Next he was asked if the details regarding the purchase of T Street, Suburb U, in 2004, were correct or incorrect. His response here was simply “maybe.”
The Husband said he did not know precisely when the V Street, Suburb O property was sold. Put another way, he said he did not know whether this property was sold in August 2012. It was put to him that it was sold for $910,000 and that, at the time of the sale, there was a mortgage over the property of $622,343.87. Again, he said that he could not exactly remember the amount of the mortgage.
It was further put to the Husband that the profit on the sale of the V Street, Suburb O property was “about $200,000.” Again, the Husband said that he could not remember. It was then put to him that because he and the Wife were separated the net proceeds of sale were roughly divided equally. Counsel for the Wife sought to clarify this further after an objection, in which it was put that the Husband said to his Wife words to the effect “I’m happy with $100,000 of that.” The Husband vehemently denied that he said this or that there was any such agreement with the Wife over these proceeds of sale. Indeed he went further, saying that “I don’t take nothing.”[25] As part of a series of propositions still regarding the net proceeds of sale, the Husband denied that at this stage of the sale of V Street, Suburb O property, he was planning on moving to Country B with an old girlfriend.
[25] TA 69.
The Husband confirmed that the T Street, Suburb U property was purchased shortly after this time for $634,000. The following purchasing arrangement was put to the Husband:
MS WINFIELD: Yes. I think you say it was purchased for 625 to 650, and the mortgage was about 425 to 450, so – now, I would suggest to you that [Ms D] took a personal loan, [Mr G] – for $30,000. [Mr G] provided $30,000 and [Ms D] provided $20,000 and added that to the $100,000 as a deposit on [T Street, Suburb U]. What do you say about that?
The Husband confirmed that he took no cash or funds from the sale of the T Street, Suburb U property. When the Husband was asked whether or not he made any enquiries why he got nothing he simply said “ask my daughter.” He said further that the plan with the family was that “we [were] looking to buy a property, a farm, after this sale.” Again, the Husband maintained that he trusted his family but seemed, at least implicitly, to acknowledge that instead of purchasing a farm (as he thought was going to happen) the T Street, Suburb U property was purchased. He confirmed also that he never made any enquiry about “the money”, being the profit from the sale of the V Street, Suburb O property.
The Husband confirmed that there was a purchase of a property in Country B in the 1990s, which was sold on or about mid 2007. He said that his Wife and her sister sold the property. He said that his brother-in-law had Power of Attorney. This was in circumstances where, annexed to Ms D’s second Affidavit, there is a copy of a Power of Attorney in favour of the Husband’s sister-in-law, not brother-in-law. The Husband denied that anyone other than his brother-in-law had a Power of Attorney.
He also denied that on 21st August 2009 €10,000 was transferred from the sale proceeds from the property in Country B to his company Company W. The property in Country B was sold for €55,000. Other denials by the Husband included an alleged transfer of $10,000 to his company account on 2nd September 2009 for $10,000, and on 9th February 2012, a further $15,000 being transferred to an account in his own name.[26]
[26] TA 72.
In August 2012, Ms D and Mr G rented a property at X Street, Suburb Y. Typical of the difficulties and inconsistencies, as well as the changeability, of the Husband’s evidence is neatly and simply recorded in the following exchange:[27]
MS WINFIELD: Yes. [Ms D] and [Mr G] rented it and moved in it, didn’t they?
THE WITNESS: No. [Ms D]..... not [Mr G].
MS WINFIELD: All right. And you moved into [X Street, Suburb Y], didn’t you?
THE WITNESS: Yes. When you sell ..... everyone move into [X Street, Suburb Y].
MS WINFIELD: And you told Centrelink at that time that you were living at [X Street, Suburb Y] from 6 May 2013 to 15 December 2016?
THE WITNESS: Maybe.
[27] TA 73.
Again the Husband was taken to an authority given to his daughter to deal with Centrelink. He confirmed that he signed a declaration to Centrelink in relation to Newstart. Not for the first time, he simply but rather confusingly stated that: “I just signed … what my lawyer give to me.”[28]
[28] TA 73.
Next, he was asked questions about changing his residence, and a change in his daughter Ms D’s residence. It was put to him that she moved from X Street, Suburb Y to Z Street, Suburb Y. Even when stating that she allegedly moved to a block of flats in X Street, Suburb Y, and that he could not remember the address, he alternated his responses by saying either that Ms D’s move and the details of it were a lie, or that he simply “did not know” relevant details. He also said that he cannot remember now what address he gave to Centrelink on 19th November 2019. He did say that he built the house at Z Street, Suburb Y, and he used his own money to do so.[29] He denied the contention that he had never lived at a property at H Street, Town J with his Wife. He said that he now lived in AB Street, Town AC.
[29] TA 74.
The Husband also denied that he had ever been in a relationship with Ms F. He said he had known her since 2019.
One of the key issues in the case then took centre stage. This concerned details of the execution of the Deed. In this regard, I note that the Deed was never mentioned in the Husband’s primary Affidavit, filed 7th May 2020. He only mentioned it in his second Affidavit, filed 26th August 2021, clearly after his daughter (Ms D’s) Affidavit was filed on 19th October 2020 which annexed a copy of the Deed.
Not for the first time, the Husband said that he did not know if he signed the Deed. And then baldly stated: “I don’t remember nothing.”[30] However, he did remember that he lived at X Street, Suburb Y in January 2014. The following long exchanges highlight the Husband’s evidence in relation to the execution of the Deed and the circumstances surrounding it:[31]
[30] TA 76.
[31] TA 77 – 78.
MS WINFIELD: [Ms D] says that at that meeting she read the deed out loud to you in English and said, “This deed means that the final amount that is owed to dad from you, mum, is now paid in full and his name will be removed from the title of [T Street, Suburb U].” Do you remember being told that?
THE WITNESS: No.
MS WINFIELD: And she said, “As agreed by your lawyers and yourselves, the property was valued at a million dollars and five per cent equates to $50,000. Dad, this is a little bit more than what Mum owes you, but she doesn’t care.” Do you remember that being said to you?
THE WITNESS: I never meet a lawyer. I never discuss nothing this.
MS WINFIELD: She said to you, “The deed is final and gives Mum permission to pay [Insurer E] $50,000 on your behalf. It also means this separation is now final as well.” This is
THE WITNESS: I don’t – I never give permission for that.
MS WINFIELD: All right. And she said, “This has all been explained by each lawyer. Do you understand or have any questions?” Do you recall being asked that?
THE WITNESS: No, I never do permission for nothing.
MS WINFIELD: And she said to you – and you – [Ms Spalla] said, “I understand.” And you said, “I understand. Will [Insurer E] come after me for any more money?”
THE WITNESS: No, I don’t said that.
MS WINFIELD: Yes. And she said, “Well, you will need to ask the lawyer.” Do you recall that?
THE WITNESS: No.
MS WINFIELD: And you then said, “So you give me a cheque in my name, and I will give it to the [Insurer E] ”, and she said, “No, it has to go to the [Insurer E].” Do you recall that?
THE WITNESS: I never see no money at all ..... nothing.
MS WINFIELD: And after the document was signed, your son, [Mr G], witnessed your signature, do you recall that?
THE WITNESS: I can’t remember signing nothing on – on this case – on this matter.
MS WINFIELD: Did you see your wife sign it?
THE WITNESS: I see my wife sign some paper from ..... what my daughter said.
MS WINFIELD: And you see before some time – at some time between 2012 and 2015, you told [Ms D], “I’m in a new relationship with a woman known as [Ms AD], who was my ex-girlfriend from [Country AE].” Do you remember that?
THE WITNESS: I can’t remember that.
MS WINFIELD: You see, that’s why you wanted the $100,000
THE WITNESS: She’s lying.
MS WINFIELD: To go to [Country B] to live with [Ms AD], didn’t you?
THE WITNESS: I don’t needed money. What money? ..... the money on my super, which I did.
MS WINFIELD: Yes. You said, “I’m moving to [Country B] to be with my girlfriend from [Country AE]. She’s the love of my life.” Do you recall saying that to your daughter?
THE WITNESS: She’s lying. She’s lying.
MS WINFIELD: I would suggest to you, [Mr Spalla], that she isn’t lying and she’s telling the truth.
THE WITNESS: Yes, me too.
MS WINFIELD: [Mr Spalla]
MR MOFFETT: .....
MS WINFIELD: you had a cranial bleed
HIS HONOUR: Sorry. Sorry. Mr Moffett.
MR MOFFETT: Just in terms of the answer to that question, the witness said, “Yes, that’s true.” My understanding of what the witness said was, “Yes, she was” – namely, the respondent was lying, but he’s telling the truth. I just want to make sure that the yes is not interpreted by your Honour as the fact finder that he accepted the proposition that the respondent is not lying.
HIS HONOUR: Given, amongst other things, that he’s called the daughter a scum, I didn’t understand that there had been a sudden change in position.
Again the Husband was taken to the date where he was hospitalised with a cranial bleed on Father’s Day 2015. He confirmed that his memory, following this hospitalisation, was not what is used to be. Having said this, the Husband said that he remembered 100 per cent of the details involving the sale of the property at T Street, Suburb U and he declared, “I’m not crazy.”[32] He confirmed however that he had taken medical advice in relation to his cranial bleed and memory loss. He said he went to see a “Dr AF” every two years. He said he now takes five tablets each day in relation to his memory loss or as a consequence of the cranial bleed. He claimed that some of the medication assists his memory. He also said that some of his medication is in relation to the pain that he has “on the head, my brain.” Counsel for the Husband confirmed that there was no medical evidence filed in the proceedings on behalf of the Husband.[33]
[32] TA 79.
[33] TA 81 – 82.
When it was put to him by Counsel for the Wife that in fact he had not actually lost his memory because it was convenient for him not to remember certain dates and other detail, the Husband responded, unhelpfully, by saying “you’re funny.”
Among other things in re-examination, the Husband said that he had never told Centrelink that he was separated from his Wife.[34]
[34] TA 86.
It is unnecessary to go into further detail except to note that in further re-examination it was clear that the Husband alleges that he used his daughter almost exclusively for his “IT requirements” but that he also had some personal capacity in the same area such as in relation to posting photographs and inserting translations of phrases and commentary which he has taken from “Google” and seek translation from Language B.
The Court made the following observation regarding the Husband’s testimony in the following terms, which speaks for itself:[35]
HIS HONOUR: Whether it’s simply perception or otherwise, but in the re-examination, most of the questions [Mr Spalla] has responded immediately, clearly, promptly in a way that’s completely different to the way the questions were put to him in cross-examination, maybe just because his – he’s just feeling a lot more relaxed having his counsel, his champion, in his corner. But there just seems to be a greater degree of facility and felicity in the responses to you rather than from the terrorising questions of Ms Winfield. Just an observation.
[35] TA 94.
The Husband was asked further questions regarding his Affidavit sworn 7th May 2020. He said he went to the lawyer’s office but that “they not explain to me what’s here or there.” He was unsure whether or not the documents he signed were read to him. In a similar vein, he was asked about his Affidavit of 7th May 2020 and whether or not he signed it in the presence of an interpreter. He said he signed it in the presence of the interpreter, and confirmed that the interpreter assisted him with the document before he signed it.[36]
[36] TA 95.
Regarding separation, the Husband said that this only occurred “when I left the farm.”[37]
[37] TA 97.
Giving every allowance for English not being his first or primary language, although the Husband has been in Australia for many years and has conducted his business and trade over an equally long period of time, he was a somewhat cagey witness. In my view, the Husband was quite an unreliable witness. Sometimes he appeared to be very forthright, but at other times he was vague, as well as bombastic, to a significant degree. His responses to Counsel for the Wife were regularly interrupted by his inability to understand (at times this was reasonable, at others times, plainly it was not). Yet his responses to his own Counsel were quite fluent, more spontaneous and (perhaps unsurprisingly) not guarded at all. As noted above, I commented on this feature of his evidence during the trial.
Finally, with the benefit of an interpreter on hand on the second morning of the trial, a few clarifying questions were put to the Husband.
First, he said that the souring of the relationship between he and the rest of the members of his family began when he left (on his evidence obviously) the relationship with the Wife on 7th November 2019. He also said that the reason why he was so hostile with his daughter was that, in his view, she had lied about the involvement of a particular lawyer who he said he never spoke with. He said he also was offended by her “accusation” of spending money in poker machines, which was a lie. And what seemed to be a highly significant issue for him was that his daughter allegedly stopped him having any conversation with his granddaughter.[38]
[38] TB 15.
Secondly, in relation to documents from Centrelink that the Husband was shown the previous day, the Husband said that he did not know how to read them, nor did he understand any of the questions that were put to him in these documents. That said, he acknowledged that the documents that were filled in for him by his daughter were actually for his benefit.[39]
[39] TB 15 & 16.
The Husband harbours, and exhibits, very significant animus and general resentment towards all of his family members. His description of his daughter as a “scum woman”, his son as a “crook”, and that they (and his Wife) were caught up in “monkey business”, were clear statements of bitterness and much else. The comments and slurs against his family members, especially towards his daughter, were hateful and terrible. The Husband’s evidence was strongly governed by a patent sense of grievance bordering on revenge against all members of his family who he once trusted but who were now, he said, out “to screw him.” The Husband’s antipathy towards his immediate family was palpable and pretty much unrestrained. It provided a strongly jaundiced prism through which he viewed all matters that were before the Court.
For my part, I found the Husband’s evidence so problematic that, absent any independent, corroborative evidence, I cannot rely upon it at all. In my view also, in any instance (and there were quite a few) where there was any conflict between the Husband’s and his daughter’s evidence, I firmly prefer the evidence of Ms D to that of her Father.
Husband’s Affidavit (and Other) Evidence
In support of his Initiating Application, filed 7th May 2020, the Husband filed a supporting Affidavit. Summarised, this Affidavit deposed to the following matters.
The Husband firstly set out a brief history of proceedings by which he sought to recover various items of personal property held at the H Street, Town J property. He also noted (par.11) a cranial bleed he had in 2015 from which, he said, he was almost fully recovered. Further details regarding his health were set out in pars.36 – 39. I need not detail them.
At pars.12 – 19 he set out what he described as “recent background”, which included a conversation he had with his daughter, Ms D, on approximately 7th April 2020, regarding his lawyer contacting the Respondent Wife. He noted that Ms D said to him (by SMS) that he had “already received a property settlement” from the Wife. This SMS was not produced or annexed to his Affidavit.
Notably at par.18 the Husband referred to a conversation he had with his “current partner” following a conversation with the Respondent Wife. I need not recount this in any detail.
Par.20 listed what the Husband described as the “current property pool”, which showed a net balance of $989,450.
After noting very briefly his relationship history with the Respondent, which included (he said – at par.28) that the Wife handled most financial and administrative matters in the home regarding their joint finances, he confirmed that he left the relationship on 7th November 2019 and moved in with his new partner, Ms F (referred to as “Ms F”). He referred here also to the financial assistance provided by Ms F since he moved in with her, and set out details of it at pars.80 – 82.
The Husband said (par.31) that he closed his business in 2013, and had been on a Newstart allowance ever since.
At pars.32 – 35, the Husband outlined very briefly what he said had occurred with the purchase of the T Street, Suburb U property, and likewise regarding the H Street, Town J property. Further details were provided later in his Affidavit, noted below.
At pars.41 – 46, the Husband set out what he described as the “financial aspects of the relationship.” Really, what he was here referring to were the general contributions during the relationship, especially regarding the care of the children and domestic duties. He put the percentage division in this regard (at par.46) at 70:30 in the Wife’s favour. He also claimed that he made 100% of the financial contributions.
Pars.47 – 71 detailed the various property transactions that involved the parties in different ways, namely the properties at V Street, Suburb O, T Street, Suburb U, and H Street, Town J. Unsurprisingly, the Husband’s account of the purchase and renovation of these properties differs considerably from the accounts of the other members of the family who gave evidence.
For example, at pars.47 and 48, the Husband said that he saved sufficient funds for the deposit that was ultimately used to purchase the V Street, Suburb O residence. Contrary to this account, Mr G’s evidence (supported by his sister, Ms D), gave evidence of securing funds through an advance payment for some work with a builder for a deposit.
Likewise, regarding the purchase and renovation of the T Street, Suburb U property, the Husband’s evidence (at pars.50 – 52) was that, notwithstanding him being pursued by the Australian Tax Office for alleged “unpaid debts”, he purchased and renovated the T Street, Suburb U property, using some of the net proceeds of sale of V Street, Suburb O. He said that the T Street, Suburb U property was tenanted for 4 years at a weekly rental of around $1000 per week. Unlike the evidence of his adult children, no documents were provided to support any of these claims by the Husband regarding these two properties. I note that the Husband said (at par.57) that his documents, and much else, were stored at the H Street, Town J property to which he no longer had access. He also acknowledged (par.59) that his daughter, Ms D, “conducted all the business with the lawyers and finance people” regarding the T Street, Suburb U property and the settlement with the Insurer E.
Other financial matters, such as gifts, each of $10,000, to his children on the occasions of their wedding were noted, together with the purchase of a Motor Vehicle 1 for $55,000.
At par.61, the Husband deposed of $130,000 being spent on renovations at the H Street, Town J property. These funds, he said, came from the balance of funds from the sale of the T Street, Suburb U property. He also deposed (par.66 and 67) to withdrawing funds from his Super Fund 1 accounts, sums of $52,535.16 and $10,261.12. Some of these funds, he said, were used as part of the preparation for the sale of the T Street, Suburb U property, while other funds, although said to be in a joint account with the Respondent, only she had access to them. Why this was so was not explained. He said that he did not know how these further Super Fund 1 funds were spent.
According to par.70, a smaller amount of super ($5,500), from Super Fund 2, was withdrawn for the repair of a tractor, and a final amount was withdrawn in December 2019 of $5,304.74 for “living expenses.”
Finally, at pars.72 – 79, the Husband outlined what he described as “contributions to the former matrimonial home” at H Street, Town J. These contributions seem to be confined to purchasing various equipment, such as a tractor and back hoe, and cars (a Motor Vehicle 2 and Motor Vehicle 3). He said that some work tools were also at this property.
I simply note, again, that the evidence of all other witnesses is to the effect that, although the Husband sometimes resided at the H Street, Town J property, it was not his primary place of residence, he never disclosed or declared it to Centrelink as his primary residence, the date of separation remained as set out in the Deed dated 31st January 2014, and the H Street, Town J property was purchased solely in the name of the Wife.
I have already recorded earlier in these reasons the Husband’s evidence (pars.80 – 82) of him living with his “new partner”, Ms F, and her financial assistance for him since November 2019. I need not record this again. His oral evidence was contrary to his Affidavit evidence here; the discrepancies, or divergence, in his evidence was never explained or addressed.
Before turning to the Husband’s later Affidavit, the following should be noted about the first:
(a)There was nothing in the Husband’s May 2020 Affidavit regarding him having, or disposing of, any property in Country B;
(b)Although he referred to his partner, Ms F and her financial assistance provided to him, not only did he disavow the nature of his relationship with her, he never had her file an Affidavit on his behalf; and
(c)There was no mention at all of the January 2014 Deed. He made reference to it only in his second Affidavit, and only after Ms D filed her Affidavit in October 2020.
The Husband’s second Affidavit was sworn and filed on 26th August 2021. At par.10 of this Affidavit, he noted a number of matters which altered his earlier evidence regarding the property pool. The most prominent of these matters was that a property search confirmed that the Respondent only was the registered proprietor of the H Street, Town J property; and the Applicant’s debt of $30,000 to Mr AG (noted in his earlier Affidavit) had been forgiven. No other details were provided.
The Husband deposed further that (a) he had worked casually for approximately 6 months in 2021 and (b) he did not “currently” hold any property in Country B. He confirmed (par.16) that the joint tenancy regarding the T Street, Suburb U property was severed as part of the settlement with Insurer E. He said that, at the time, he was unaware of the effect of the severance whereby the Wife held 95% and him only 5% interest in the property. He also said (par.17) that he had no recollection of the January 2014 Deed.
The latter part of this very brief Affidavit confirmed that: (a) certain funds had been withdrawn from his superannuation accounts, (b) an amount of approximately $30 per week was withdrawn or withheld from his Centrelink payments in order to satisfy some unspecified debt recovery for “outstanding fines” (he did not authorise this deduction but assumed that either his Wife or daughter had done so), and (c) until he left the H Street, Town J property, he had largely been reliant upon his “ex-Wife and daughter” to assist him in the management of his financial matters.
At pars.23 – 25, the Husband said:
(a)He and his son attended lawyers offices in Suburb N [the then location of K Lawyers], on unspecified dates, where he signed documents having been convinced by his son to do so. He said that he now believes that these documents were related to an insurance claim that resulted in the Insurer E judgment against him. By observation only: such a contention would require that the lawyer involved was liable (perhaps even criminally so) for assisting in any such deception of the Husband. This is an astonishingly broad, seriously grave, and unsupported claim;
(b)On a separate, but still unspecified, occasion, he said that his daughter had also provided documents for him to sign. He averred that Ms D had said that they were necessary to submit to Suburb AH Council to change house plans. He said that the Wife signed them and he counter-signed them; and
(c)He deposed (par.25): “At no point prior to my departure from the matrimonial home [sic] that any materials I have been provided to sign declared the termination of my relationship with my wife. It has also never been explained any material signed by me would release my ex-wife of any liability for the Insurer E Judgment Debt.” For my part, I am quite unclear to what most of the matters stated here generally refer.
A final matter of documentation should be recorded here. The Husband’s principal Financial Statement, filed 7th May 2020, deposed to him having property worth $504,450.00, and liabilities of $30,000.00. As noted above, his Affidavit filed at the same time as his Financial Statement, at par.20, declared the net asset pool as $989,450.00.
In his second Financial Statement, filed 26th August 2021, the Husband deposed that the total value of his property was only $1000.00. No liabilities were listed at all. The discrepancy between the amounts deposed to by the Husband in his Financial Statements (and Affidavit) was never explained.
Case Guardian Daughter’s Oral Evidence
Summarised, Ms D, the Respondent Wife’s case (or litigation) guardian, gave oral evidence, which was as follows.[40]
[40] As with the Husband’s evidence, Ms D’s evidence was all conducted by Microsoft Teams. The same was true of any and all oral submissions by Counsel for the parties.
Ms D confirmed that the Power of Attorney annexed to her Affidavit, sworn 31st August 2021, took effect as from 4th May 2016. However, before that time, the Respondent Wife allowed Ms D to assist her with matters of money, paperwork and the like. Ms D confirmed that this was the case because she had much greater familiarity and proficiency with paperwork, documentation and the like, and also, she said, because of her Mother’s mental state. Likewise, Ms D said that her Mother’s grasp and use of English, her second language, was not as good and proficient as her own.
Ms D confirmed that immediately before 7th November 2019 her Father was residing predominantly at the H Street, Town J property. She said that he was living there as well as at her residence. She confirmed that shortly after 7th November 2019 she contacted Suburb AH Police Station, among other things, in relation to her Father’s behaviour. Her contact with the Police was with a view to seeking some protection for her Mother in relation to obtaining a provisional Apprehended Domestic Violence Order. The Police advised her that she could not speak with them on her Mother’s behalf because, formally as the complainant, the Respondent Wife was required to speak with the Police. She understood that her Mother did ultimately speak with the Police. She was not with her Mother when this occurred.[41]
[41] See TB 43 – 44.
Some discussion ensued about what text messages and other evidence was provided to New South Wales Police.[42] Exhibit E to this Affidavit contained a copy of “threats” directed to the Wife. Ms D confirmed that her Mother did not record them but that she provided them to her sister-in-law and some of them were emailed by Ms D to the Police directly. She confirmed that these messages were screenshots from Facebook and other messages.[43]
[42] References here are to Ms D’s Affidavit of 19th October 2020 at paragraph 61 ff.
[43] TB 44 & 45.
Next Ms D was taken through a range of evidence regarding the issuing of an AVO on 25th February 2020 (annexure F to her 19th October 2020 Affidavit). According to the documentation provided by Ms D, the Husband was present when the AVO issued but she was not, although a little later, Ms D said that she may have been in a witness room with her Mother at the time.[44] Ms D confirmed that her Mother never gave oral evidence in relation to the AVO proceedings.
[44] TB 45 & 46.
Ms D was taken through a series of other questions relating to Apprehended Violence Orders and how they operate in New South Wales. I do not need to traverse this territory. This said, Ms D confirmed that her Mother never made any formal complaint for such an order because, either she or her sister-in-law initiated them “because my mother was in no [fit] state.” It was her understanding that the Police ultimately made the application on her Mother’s behalf.[45]
[45] TB 47 & 48.
In the sequence of questioning, Ms D was taken to various documents that were filed in the AVO proceedings which stated, amongst other things that the Husband and Wife were “married for over 40 years” and that “the relationship ended two weeks ago on 7th November 2019 at 6:00pm when the Defendant suddenly moved out.” When it was put to her that she could or should have little or no doubt about the truth of what was stated in the documents before the Court regarding the date of separation, Ms D said that she did. Ms D said that she accepted what was stated in the documents, including the date of separation, but went on to say that she “was not present and there was no interpreter and I don’t know the state of my Mother…”[46] Ms D also commented that her Mother may have only been confirming that the parties were not yet divorced, and in the past two weeks, their relationship completely fell apart.
[46] TB 52.
Ms D also commented that:[47]
And sorry, [Ms D], can I ask do you know whether or not on any of these occasions when your mother saw the police and you weren’t there whether or not any other member of the family was with her? I believe her and [Ms D], to the best of my knowledge because I was not there, were taken into separate rooms and [Ms D] is my sister-in-law.
Right? I can tell you at that time my mother was not well and under pressure. I can tell you that what is possibly here would have been what she had definitely indicated to the police with no sense of trying to lie to anyone.
[47] TB 52 – 53.
The next issue canvassed with Ms D related directly to the Deed dated 31st January 2014. At the outset, she confirmed that she saw her Father sign the Deed on this date in the course of a “family meeting” between her brother, her Mother and Father and herself. Likewise, she said she saw her brother witness her Father’s signature and that she witnessed her Mother’s signature.[48] She maintained her evidence (recorded in her Affidavit) that her Father received independent legal advice about this Deed. She confirmed that she not attend any lawyers’ office with her Father in relation to this Deed, or advice in relation to it.
[48] TB 53.
Documents relevant to the advices and other matters relating to the preparation and execution of this Deed were annexed to Ms D’s Affidavit, sworn 31st August 2020. Initially, she thought that all of the relevant documents, either she or her Mother had regarding the Deed from K Lawyers, were so annexed. However, she only had “very limited information” regarding documents provided to the Father from K Lawyers. Ms D was then taken through a series of email correspondence primarily from Ms M regarding the Deed, commencing on 7th November 2013. This first email to which she was taken was an email from the solicitor to Ms D confirming what was explained to the Husband and her brother regarding the Deed.[49]
[49] TB 54.
It was then put to her that the information provided in this email related directly to a default notice issued by a bank and which gave rise to the prospect of a writ for the levy of property, which in turn was placed over a property owned by the Husband and Wife. In fact, it was the Insurer E who were pursuing the parties in relation to a judgement debt it had obtained against them. Documentary details of this judgment were sketchy at best. A certain writ was placed on the title to the relevant property.
Certain other questions were put to Ms D regarding discussions and advice between the lawyers and the Husband regarding him possibly filing for bankruptcy. She was taken to further emails in December 2013 which included, amongst others, details regarding a Bill of Costs. These costs related to professional fees for advice given regarding a writ registered on the title of the T Street, Suburb U property. Ms D confirmed that in relation to this [initial] “fee or costs notice” there was no reference at any stage to the lawyers providing any advice in relation to the Deed. However, Ms D said:[50]
[50] TB 57 – 58.
Nowhere in those entries at all indicates that the work of this firm was relevant to providing any relevant – to providing any advice with respect to a deed. Would you agree?‑‑‑No.
This invoice provides a detailed description of work that was performed by the solicitors for your dad relevant to the writ registered on title of [T Street, Suburb U]; correct?‑‑‑Based on the heading, yes.
Well, more than that, isn’t it? What about the description? Nowhere in the description is there any reference at all based upon the provenance of this document that your dad received any independent advice upon a deed. Would you agree?‑‑‑I’m sorry, I can’t comment on that. I mean there’s a reference there saying that [Ms M] spoke to [Mr AK] which was mum’s lawyers at that time and that could only on assumption be about the deed.
MR MOFFETT: Well, more than that, isn’t it? What about the description? Nowhere in the description is there any reference at all based upon the provenance of this document that your dad received any independent advice upon a deed. Would you agree? … I’m sorry, I can’t comment on that. I mean there’s a reference there saying that [Ms M] spoke to [Mr AK] which was mum’s lawyers at that time and that could only on assumption be about the deed.
Well, how do you draw that assumption in ? I’m not …
MR MOFFETT: …circumstances where the bill is in relation to a writ registered on title of [T Street, Suburb U]? Well, I can only assume when he went to speak to [Ms M] about the transfer when we realised there was issues he has instructed [Ms M]. I am not privy to that. I have no documentation. Only based on what I was cc’d in and, unfortunately, my brother cannot get access to those emails on his email account so, sorry, I cannot make any comment on that.
Your assumption about any conferences that your dad had with [K Lawyers] between 17 October 2013 and 3 December 2013 could be entirely wrong. Would you agree? I’m sorry. Again, I’m only going based on what I’m looking at so I can’t really make any comments.
Well, you made a comment that you only assumed that one of the meetings or one of the conversations that were between this lawyer and your mum’s lawyer was relevant to a deed. My question to you is this. Your assumption based upon the description of services provided in the context of this bill that your dad received any independent legal advice about the deed could be wrong; correct? He had a conference on 3 December 2013 just before the deed was signed. So my assumption would be that he’s at his lawyers talking to them about the deed, yes.
HIS HONOUR: Sorry. How do you know that there was that conference on 3 December? That’s the last entry that I was pointed to 3 December 2013 am conference with you
Yes? … seven units 210.
And that’s the only basis upon which you say that you at least infer that there was a discussion between the lawyers and your father about the deed, yes? … Besides what I know from also what my brother and my father told me. Yes, that we’re looking at the invoice, yes.
Ms D agreed that before 7th November 2019 the relationship between she and her Father was one where he had complete trust in her to assist him with business documents, records and the like. This was qualified because, Ms D said, before the brain aneurism suffered by her Father (noted above), she and her Father were not on speaking terms and had not been for quite some time. The converse was true: her Father’s cranial bleed brought the two of them closer together. It followed that she was concerned about his wellbeing after this significant and severe medical event.[51]
[51] TB 61.
She also confirmed that as early as approximately 2015, she had “unfettered access” to her Father’s Centrelink papers. This included access to his “MyGov” information. Naturally, this included access to any personal information of her Father. She said that even now she was still getting various letters on his behalf from Centrelink.
The document that was initially marked MFI1, being a document from Centrelink, she did not receive directly from that organisation but rather that it was from a folder Ms D found which contained various documents. She said these were documents that were left at both the H Street, Town J property and at her residence at Z Street, Suburb Y. She moved documents from the latter property to the former.
Ms D was taken to another document attached to her Affidavit (i.e. a letter to her Father at his then address at X Street, Suburb Y). In that document, the date of separation is listed at 6th May 2013. She said that the document that became MFI1 does not include her Father’s signature.
Ms D confirmed also that in relation to the Deed in question she did not provide any legal advice to anyone, including her Father, not least because she is not a lawyer. She had presumed that legal advice had been given to her Father by K Lawyers. However, she also said that she had not been able to find any legal advice between the Father’s lawyers and the Father about the Deed. She was asked again whether or not she had found any such documents but then, protesting somewhat said “I have found documents.” Then following exchange took place:[52]
[52] TB 65 – 66.
No, no. Don’t be. Don’t be sorry. That’s all right. It might have been the way I asked the question. You’ve gone through, can I suggest, all of your dad’s private paperwork at [H Street, Town J]; is that right? I’ve gone through a lot of paperwork at [H Street, Town J], yes. Not just dad’s, yes.
Okay. But is it safe to say that in your preparation of this case assisting your mum you’ve, effectively, turned the house upside down to try and find evidence which would support your mother’s claims, is that so? That would support the deed’s claim, yes.
Yes, and in going through all your dad’s private paperwork at home you were not able to find a document which would be consistent on your interpretation of your dad receiving legal advice from a solicitor; correct? I have found documents.
You have not attached any such document to any of your affidavits in this proceeding, have you? It actually should have been attached to the email dated 4 December 2013 at 11.26 am.
Do you have a copy of that document in front you? I do. I do, yes.
I can see immediately that there is a watermark across that document which says draft; is that right? That is correct.
You understand in your experience at least working for the law firm Law Partners that when a document is marked draft that doesn’t mean that the person who is the author of the advice intends for it to be published; correct? That is correct.
That document doesn’t support the proposition that your dad ever received that document, does it? There’s an email going to him and my brother and asking him to provide instructions on that draft document.
Right. I call for a copy of that document.
HIS HONOUR: So, [Ms D], do you know whether or not your lawyers have a copy of this document? I’m sorry, your Honour. It was just while I was looking at lunch I realized that there was no attachment to that back email and I have just sent it to Zali. It has just been missed. It was previously sent as well.
So, sorry, when do you say that it was previously sent? When we were going – the correspondence it has obviously just been missed when we bundled all the documents together
Counsel for the Husband then indicated that his client did not waive any legal professional privilege in relation to the document and invited the Wife’s lawyers not to read it. However, I then pointed out to Counsel that Ms D had confirmed that she had previously provided it to her lawyers some time ago which, would presumably mean, those lawyers had read it. Counsel for the Husband then said he had no idea how to proceed in these circumstances. Ms D said that the document in question here may have been part of an archive of a file she had discovered perhaps one week earlier, but then corrected her evidence to say that the document would have been discovered and disclosed to her lawyers before 3rd September 2021. Namely, before her most recent Affidavit was completed.
After multiple questions to both Counsel regarding the procedural course in the light of the very late-disclosed document that had previously been provided to the Wife’s lawyers by Ms D, a singularly important question was put by the Court to both Counsel namely, whether or not, either or both of the instructing lawyers had ever issued a subpoena to K Lawyers in order to obtain their file or files in relation to this Deed, and regarding any advice to the Husband. Both Counsel confirmed that neither parties’ solicitors had ever issued such a subpoena.[53] For my part, this confirmation was remarkable (and much else) for the simple and obvious reason that details surrounding, and the general provenance of, the Deed, since the matter was first filed with the Court, had been a crucial, if not a central, issue for the Court to determine. However, remarkably in my view, no one thought it prudent or otherwise necessary (“fundamental” would perhaps be a better description) to ensure that the lawyers advising the Husband should be subpoenaed to obtain relevant records regarding the Deed and any advice given in relation to it.
[53] TB 71.
Then followed a series of exchanges, primarily with Counsel for the Husband, regarding an allegation of potential fraud. Stated briefly by Counsel for the Husband, the possible bases for the fraud alleged were: (a) a fraud committed by the Husband and Wife and their respective children “to get out of a judgement debt that was owed and payable to Insurer E insurance in the sum of approximately $125,000”; and (b) if it is the case that there was a fraud, there may arguably need to be additional evidence in chief from the Husband as well as the cross-examination of other witnesses.[54]
[54] See TB 72 – 74.
In the course of a lengthy, detailed discussion of principle at [101] – [161], Lindsay J said, at [105] regarding the operation of “estoppel by deed”:
The essential idea of estoppel by deed is that a party who, by entry into a deed, expresses a solemn intention to be bound by a particular proposition will, in proceedings against a party entitled to the benefit of the deed, be precluded (ie, stopped), by reason of entry into the deed, from denying the truth, or at least the operation, of that proposition …
In addition to the authorities mentioned earlier in these reasons (and again noting that no authority was referred to by either party in submissions or otherwise regarding deeds), the principles outlined by Lindsay J apply generally to the facts and circumstances here.
In my view, generally speaking, in the context of the whole of it, the Recitals, and the operative parts, of the Deed, dated 31st January 2014, are “precise, clear and unambiguous.” The Husband cannot now be permitted, effectively to “walk away” from what he signed on that date. The documentary evidence before the Court, and that of the other witnesses, strongly support the account given by Ms D as Case Guardian of the Respondent Wife of the circumstances surrounding its execution. Contentions by the Husband about it not being signed at the office of the lawyer who drafted it, and other similar complaints, do not affect the validity and operation of the Deed.
For these reasons alone, the Application must be dismissed. Nonetheless, although formally unnecessary in the light of the Court’s determination of matters arising under and relating to the Deed, I will consider briefly the alternative issue arising from the application of principles articulated by the High Court in Stanford v Stanford.[65] For the reasons that follow, the evidence does not support any other avenue by which the Husband should, or would, be entitled to any property by relying upon the principles set out in Stanford.
Consideration & application of Stanford
[65] Stanford v Stanford (2012) 247 CLR 108 (“Stanford”). See also the discussion by the Full Court in Bevan v Bevan (2013) 279 FLR 1; (2014) 49 Fam LR 387.
As his submission make clear, the Applicant relied heavily upon the High Court decision in Stanford. Was he correct to do so; if so, what flows from it; if not, why not, and what follows from such a determination?
Although a tad lengthy, it is as well to note the following outline of principle from Stanford.
First, at [37] – [41], the Court set out the three primary points that must govern the exercise of the Court’s discretion under s.79 of the Act. Their Honours said (bold emphasis in original; other emphasis added; internal citations omitted):
[37] First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. So much follows from the text of s.79(1)(a) itself, which refers to "altering the interests of the parties to the marriage in the property" (emphasis added). The question posed by s.79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.
[38] Secondly, although s.79 confers a broad power on a court exercising jurisdiction under the Act to make a property settlement order, it is not a power that is to be exercised according to an unguided judicial discretion. In Wirth v Wirth, Dixon CJ observed that a power to make such order with respect to property and costs "as [the judge] thinks fit", in any question between husband and wife as to the title to or possession of property, is a power which "rests upon the law and not upon judicial discretion". And as four members of this Court observed about proceedings for maintenance and property settlement orders in R v Watson; Ex parte Armstrong[
"The judge called upon to decide proceedings of that kind is not entitled to do what has been described as 'palm tree justice'. No doubt he is given a wide discretion, but he must exercise it in accordance with legal principles, including the principles which the Act itself lays down".
[39] Because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is "just and equitable" to make the order is not to be answered by assuming that the parties' rights to or interests in marital property are or should be different from those that then exist. All the more is that so when it is recognised that s.79 of the Act must be applied keeping in mind that "[c]ommunity of ownership arising from marriage has no place in the common law". Questions between husband and wife about the ownership of property that may be then, or may have been in the past, enjoyed in common are to be "decided according to the same scheme of legal titles and equitable principles as govern the rights of any two persons who are not spouses". The question presented by s.79 is whether those rights and interests should be altered.
[40] Third, whether making a property settlement order is "just and equitable" is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s.79(4). The power to make a property settlement order must be exercised "in accordance with legal principles, including the principles which the Act itself lays down". To conclude that making an order is "just and equitable" only because of and by reference to various matters in s.79(4), without a separate consideration of s.79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.
[41] Adherence to these fundamental propositions in exercising the power in s.79 gives due recognition to "the need to preserve and protect the institution of marriage" identified in s.43(1)(a) as a principle to be applied by courts in exercising jurisdiction under the Act. If the parties have made a financial agreement about the property of one or both of the parties that is binding under Pt VIIIA of the Act, then, subject to that Part, a court cannot make a property settlement order under s.79 But if the parties to a marriage have expressly considered, but not put in writing in a way that complies with Pt VIIIA, how their property interests should be arranged between them during the continuance of their marriage, the application of these principles accommodates that fact. And if the parties to a marriage have not expressly considered whether or to what extent there is or should be some different arrangement of their property interests in their individual or commonly held assets while the marriage continues, the application of these principles again accommodates that fact. These principles do so by recognising the force of the stated and unstated assumptions between the parties to a marriage that the arrangement of property interests, whatever they are, is sufficient for the purposes of that husband and wife during the continuance of their marriage. The fundamental propositions that have been identified require that a court have a principled reason for interfering with the existing legal and equitable interests of the parties to the marriage and whatever may have been their stated or unstated assumptions and agreements about property interests during the continuance of the marriage.
The Court here clearly recognised that the parties themselves may have, and are entitled to, “make their own arrangements” (so to speak) in relation to the division of their property. The High Court also made plain that what is (and what is not) “just and equitable” is a conclusion, which can only be reached by proper consideration of the facts and circumstances before it, and in accordance with principle. To stress the point: at [41], the High Court recorded a central factor for any Court at first instance, namely that it was mandatory that the Court must “have a principled reason for interfering with the existing legal and equitable interests of the parties.”
In my view, the following summary matters (set out in detail throughout these reasons) establish that there is no principled basis upon which, by reference to the High Court’s decision in Stanford, or otherwise, this Court should accede to the Husband’s Application:
(a)The Husband’s various assertions regarding either contributions or payments alleged to have been made by him are, almost in all instances, unsupported by any independent documentation or other evidence;
(b)Conversely, almost every assertion or contention made in the Wife’s case, usually by one or other (or both) of her children, are supported by documentation, even if some of the documentation is difficult to decipher in certain respects. The evidence of the parties’ children (plus the other witnesses – one cross examined, the other not), together with the documentation provided by these witnesses, undermines and refutes almost all of the Applicant’s evidence and contentions. Notably, much of the evidence on the Respondent’s behalf was unchallenged;
(c)The Husband’s evidence was very unsatisfactory in almost every respect, while that of Ms D was sound and, usually, independently supported by documentation, such as correspondence with the Husband’s solicitor at the time;
(d)A number of witnesses were not required for cross examination by the Husband. They included his son Mr G, who provided a range of documents annexed to his trial Affidavit, which confirmed much of his account (and that of his sister) regarding things like, the date of separation, what did and did not happen leading up to the signing of the Deed in January 2014, and importantly, the payment of funds, in cash, as requested if not demanded by the Husband. By not challenging his son in cross examination, the Husband cannot now challenge (or more generally complain about) the multiple pieces of documentary and other evidence provided by his son Mr G, or his Wife, Ms D. The Applicant’s evidence regarding, for example, that he did not receive any legal advice in relation to the Deed, was clearly refuted by the evidence contained in the documents produced by Ms D, and in certain respects by the evidence supplied by Mr G;
(e)The Husband’s failure to call his “new partner”, Ms F, was also telling. So too was his own contradiction of evidence where, in his first Affidavit, he confirmed that she was his new partner, and that she had provided (and still seemingly does so) financial support and assistance to him (including, apparently, rent-free accommodation), yet in his oral evidence, he stated that she was not his partner and that he simply rented a room from her. Whether on the basis of the principles set out by the High Court in Jones v Dunkel regarding inferences drawn from the failure to call a witness, or principles set out by the Full Court in Chang v Su regarding “disclosure” (accepting that the Husband has had difficulty in accessing material), the Husband’s evidence was significantly flawed, unsupported, and/or refuted by documentary evidence supplied on behalf of the Respondent, on multiple levels.[66] And as earlier recorded when considering his oral evidence, I found him to be a most unsatisfactory witness;
(f)The Husband’s failure to provide any information regarding properties in Country B, and later denial that he currently had any such properties, in circumstances where the evidence, especially of Ms F, confirmed that there were such properties and that funds had come from them; and
(g)The same information and principles regarding the Deed, noted above, apply equally here, to preclude the Husband, and in turn the Court, according to principle, in effect permitting the litigation to continue in the face of the clear and unambiguous terms of the Recitals, and likewise the terms of the Deed itself.
[66] Jones v Dunkel (1959) 101 CLR 298; Chang v Su (2002) 170 FLR 244; (2002) 29 Fam LR 406.
In addition to the above, and again by reference to the principles set out in Stanford, at the risk of undue repetition, the problems for the Husband asserting that there should be a division of property between the parties may be further explained as follows.
First, the Husband’s Counsel asserted (indeed confirmed) at the trial on a number of occasions that the Deed of January 2014 was validly signed. The Husband’s case was conducted on the basis that the Deed was valid but that the Husband either did not receive, in accordance with the Deed, independent legal advice, and/or that he did not understand what he was signing. For reasons earlier given and the evidence before the Court, I reject both of these contentions.
Secondly, as noted earlier in these reasons, part of this submission was also misconceived because Clause 12.1 of the Deed plainly states that the parties “acknowledge that they have received or had the opportunity to receive independent legal advice in respect of the terms and effect of this Deed .…” The issue of “opportunity” as specified in the Deed was apparently, indeed clearly, completely overlooked.
Thirdly, it was never argued – by either party – that, in accordance with Clause 12.1, the Husband never had the relevant opportunity to obtain independent legal advice. In my view, there was more than ample opportunity for such advice to be obtained. In any event, the correspondence from Ms M makes plain that not only was the Husband sent correspondence, which confirmed (or plainly sought confirmation of) his instructions to her, but the correspondence also confirms that there were a number of face to face, and telephone, conferences or meetings with Ms M regarding the multiple issues facing the parties, such as the Insurer E claim and the resolution of his “family law matters.” The issues were intertwined. It appears, however, that given the way the matter was run at trial, and as set out in submissions, no one properly read the exact terms of Clause 12.1. To spell it out further, the obtaining of independent legal advice was simply one [pre - ] condition; the other was for the parties simply to have had the relevant opportunity to obtain it regarding the “terms and effect of this Deed.”
For the reasons given, both “options” – actual advice, or opportunity to obtain it – were satisfied on the evidence before the Court. And because the claim of “fraud” in relation to advice and/or the signing of the Deed was not ultimately pressed, the Deed must therefore be considered to be operational and effective. Formally, and to repeat: I make this finding.
Fourthly, in Labracon, at [128] and [132] Lindsay J said: “An estoppel by deed can be found notwithstanding the absence of detrimental reliance on the existence, or provisions, of a deed.” His Honour’s comments apply directly to the operation and effect of the Deed here. As the learned author of Seddon noted (at [5.6]) by reference to Labracon: “An estoppel by deed can support the rule that a deed means what it says.”
Fifthly, Clause 2.7.2 of the Deed provides that (emphasis added): “Mr Spalla has no further claims against Ms Spalla in relation to the Property or any other marital property in the possession and control of Ms Spalla or his personal maintenance.” Recital III to the Deed confirms that reference to “the Property” is a reference to the T Street, Suburb U property. The other Clauses in section “2 Settlement” of the Deed are not stated to be conditions precedent (or otherwise) to their operation and effect in the resolution of the dispute between the Husband and the Insurer E. Indeed, as Clause 2.5 attests, the payment to the Insurer E (referred to as “the Creditor” in the Deed) of $50,000 would act as a partial settlement of its claim against the Husband. It would also act, in accordance with Clause 2.6, as a waiver of “any and all rights to pursue a claim” against the Wife.
For immediate purposes, although a number of the Clauses might reasonably be considered to be infelicitous in expression (e.g. “any other marital property … or his personal maintenance”) and occasionally somewhat opaque in intent and/or effect, in my view, Clause 2.7.2 precludes the Husband from pursuing his claim under s.79 of the Act against the Wife.
Further to this, (a) the unchallenged, and/or relevantly accepted, evidence of both children (including a range of bank statements) attesting to the payment in cash to the Husband of approximately $100,000, (b) the Court’s acceptance of the evidence of Ms F regarding property in Country B, (c) the Husband not calling, or providing evidence from, “Ms F”, either as his “new partner” and/or as the provider of financial and other assistance to him, and (d) the Husband not challenging in cross examination the evidence of both Mr G and his Wife, provide additional reasons or grounds for the Court to conclude that the Applicant has established no relevant case, in accordance with relevant principle as outlined in Stanford, for his Application to succeed.
The evidence generally in this matter was often difficult either to obtain or to comprehend; it was more often quite incomplete and difficult to de-cipher. In the Husband’s case, it was often a case of “shifting sands”, perhaps the best example of which was his three different attempts to set out the asset pool or his assets and liabilities in particular. His account on these matters ranged from a very sizeable figure down to practically, or effectively, zero. How anyone was able to run a case on his behalf, and equally to determine relevant details, was almost impossible. To state again: accepting that the Husband had a cranial bleed some years ago which may have led to his recollection generally being clouded (as he acknowledged to some degree), the Husband’s evidence was so problematic that his own account of events, coupled with the strong and generally consistent rebuttal evidence from his children (and others) accepted by the Court, made it next to impossible for his case to succeed.
The evidence such as it was, across the board, confirms that the parties are of modest means. Throughout their marital lives, the parties – more likely than not the Husband in particular, sometimes with the assistance of his son Mr G – adopted a very “flexible approach” to matters of finance. I intend no disrespect in saying that time-honoured descriptions of financial transactions applied to the parties and their financial lives, such as “robbing Peter to pay Paul”, or “the pea and thimble trick”, all meaning that there was a regular shuffling of funds between persons and entities, with very little in the way of reasonably straight-forward, or easily, (or methodical) tracking or tracing of funds. It was certainly the case that record-keeping was not a strong suit of most of the characters in the various situations canvassed in evidence before this Court.
In part too, because of their modest means, in my view, it would be unacceptable, and not just and equitable, to allow this litigation to proceed. The provisions of the Deed relevantly prevent it doing so. The cash payments to the Husband facilitated by the children as discussed at one or more family meetings, which I accept took place and the general provenance of what was discussed at them (albeit denied by the Husband), also preclude the litigation proceeding.
Conclusion
For the reasons given, the Husband’s Initiating Application, filed 7th May 2020, must be dismissed.
There are two aspects in relation to costs. Although well known, it is sufficient to note the following from the Full Court decision in Stephens v Stephens.[67] Beginning at [62], the Full Court said (emphasis added):
[67] Stephens v Stephens (2011) 44 Fam LR 117.
[62] Section 117(1) of the Act provides: “[s]ubject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.”
[63] Section 117(2) of the Act provides that if, in proceedings under the Act, the court is of opinion that there are circumstances that justify it in doing so, it may, subject to sub-ss (2A), (4) and (5), and the applicable rules, make such order as to costs, whether by way of interlocutory order or otherwise, as it considers just.
[64] Section 117(2A) of the Act provides that in considering what order (if any) should be made under s 117(2), the court shall have regard to the matters set out in paragraphs (a) to (g). In Fitzgerald (as child representative for A (Legal Aid Commission of Tasmania)) v Fish and Another (2005) 33 Fam LR 123 the Full Court (Kay, Warnick and Boland JJ), referring to s 117(2A), said at 130 [41] :
A number of factors are then listed in the subparagraphs. The financial circumstances of each of the parties to the proceedings is the first mentioned factor. Nowhere in subs (2A) or elsewhere in s 117, is there any prescription that more than one factor must be present before an order for costs is made nor of comparative weight of the factors set out in subs (2A). As a consequence, there is nothing to prevent any factor being the sole foundation for an order for costs.
[65] As to the relationship between s 117(1) and s 117(2) of the Act in Penfold v Penfold (1980) 144 CLR 311, in joint reasons, Stephen, Mason, Aickin and Wilson JJ said at 315:
It is an accurate description of s. 117 (1) to say that it expresses a general rule, provided that it is firmly understood that the sub-section is not paramount to s. 117 (2). As sub-s. (1) is expressed to be subject to sub-s. (2) the former must yield whenever a judge finds in a particular case that there are circumstances justifying the making of an order for costs.
Sub-section (2) requires a finding of justifying circumstances as an essential preliminary to the making of an order. Beyond this there is nothing in the subject matter or in the interrelationship of the two provisions which imposes any additional or special onus on an applicant for an order for costs. Consequently, with respect to their Honours in the Family Court, we do not agree with the suggestion made in the judgment under appeal that an order can only be made under s. 117 (2) in “a clear case”. (emphasis added)
[66] As to the nature of the hearing of an application pursuant to s 117 of the Act in Penfold their Honours said at 315-16:
Sub-section (2) does not in our view as a matter of law require the judge to specify the circumstances which justify the making of an order. It does not expressly say so, and in the context of the making of an order for costs there is no sufficient basis for making an implication. Judges very frequently make orders for costs without giving reasons or making findings, even when costs are in issue. The absence of reasons or findings does not in itself indicate that a judge has erroneously exercised his discretion to award costs, though it will place an appellate court in the position of examining the circumstances and of determining for itself whether the circumstances show that the discretion was erroneously exercised (Kent v. Kent [(1970) 92 W.N. (NSW) 503, at p. 505]). Accordingly, in the absence of some positive legislative indication we should not attribute to Parliament the requirement that a judge must make particular findings in relation to an order for costs.
[67] We also observe that in Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184 the majority of the High Court (Gaudron, Gummow, Hayne and Callinan JJ, Kirby J dissenting) held that s 117(2) of the Act referred to costs in the conventional sense and thus to the payment by one party to litigation of money by way of a partial indemnity for professional legal fees and expenses actually incurred by another party in the course of the litigation: see Hayne J at 219. An order for costs is made to compensate a party against expense incurred in litigation and is not punitive in nature. Costs are not a penalty or damages: Latoudis v Casey (1990) 170 CLR 534 per Mason CJ at 543 and McHugh J at 567; Ruddock and Ors v Vadarlis and Ors (2001) 188 ALR 143 per Full Court of the Federal Court at [12] and Brott and Joachim (2006) FLC 93-259 per Full Court (Holden, Warnick and Boland JJ) at 80,403-404.
I emphasise from these principles that one factor alone is sufficient to warrant the award of costs. In my view, it is unarguable that such was the case here.
First, the Husband must pay the Wife’s costs for the period from the Final Hearing until the date of the delivery of these reasons. This is simply but precisely because the extensive delay of more than one year between the hearing in September 2021 and the present time arose from the Husband raising the question of “fraud” in relation to the Deed. That claim was only abandoned in the second half of 2022. Those costs will be fixed at the very conservative figure of $25,000. That sum is to be paid by the end of March 2023.
Secondly, in relation to the wider, more general costs up to the trial, absent any Application being made by either party within 21 days of the date of these Orders, each party shall pay his or her own costs.
I certify that the preceding two hundred and eight (208) numbered paragraphs are a true copy of the Reasons for Judgment of Judge W J Neville. Associate:
Dated: 15 December 2022
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