Stevenson and Brandon and Anor
[2018] FCCA 1971
•20 July 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| STEVENSON & BRANDON & ANOR | [2018] FCCA 1971 |
| Catchwords: FAMILY LAW – Property – Determination of asset pool for distribution between the husband & wife – transactions to defeat claims – whether contract of sale to third party a sham – consideration of s.106B of the Family Law Act1975 – rule in Browne & Dunn (when issues are clearly in dispute). |
| Legislation: Family Law Act 1975, ss.79, 90AK, 106B Federal Circuit Court Rules 2001 r.1.05(2) |
| Cases cited: Bell & Nahos [2016] FamCAFC 244 Pierce & D’Cruz and Pierce & T [2010] FamCAFC 99 Jones v Dunkel (1959) 101 CLR 298 Browne & Dunn (1989) 6R 67 D’Cruz & Pierce [2008] FamCA 819 Balnaves v Balnaves [1988] FamCA 6 In the marriage of Heath (No 2) (1984) 9 Fam LR 642 Heath and Heath; Westpac Banking Corporation (1983) 9 Fam LR 97 Halabi v Artillaga (1993) 17 Fam LR 675 Stanford v Stanford [2012] HCA 52 In the Marriage of Hickey [2003] FamCA 395 ANZ Banking Group v Harper (1987) 11 Fam LR 649 |
| Applicant: | MS STEVENSON |
| First Respondent: | MR BRANDON |
| Second Respondent: | MS KALMAR |
| File Number: | MLC 6333 of 2016 |
| Judgment of: | Judge Williams |
| Hearing dates: | 8 – 10 November 2017, 26 – 28 March 2018, 10 – 11 April 2018 |
| Date of Last Submission: | 14 May 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 20 July 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Trim |
| Solicitors for the Applicant: | T J Mulvany & Co |
| Counsel for the First Respondent: | Mr Hoult |
| Solicitors for the First Respondent: | Luat Tran & Associates |
| Counsel for the Second Respondent: | Mr Korman |
| Solicitors for the Second Respondent: | Dang Quach, Legal Practitioner |
ORDERS
The Amended Response of the second respondent filed 30 October 2017 is dismissed.
The husband and the second respondent forthwith do all acts and things to withdraw Transfer of Land from Land Registry Services.
Until compliance with order two hereof, the Registrar of Titles be restrained by injunction from registering the transfer (omitted) pursuant to section 90 (2) of the Transfer of Land Act 1958.
Pending payment to the wife, as provided in paragraph 9 of these orders, the husband and the second respondent and their servants and agents are hereby restrained by injunction from lodging at Land Registry Services any Transfer of Land in relation to the property situated at Property A, (“the Property A property”) being the land comprised in Certificate of Title Volume.
The purported sale of the Property A property between the Husband and Second Respondent be set aside pursuant to s.106B of the Family Law Act 1975.
The wife be at liberty to direct her solicitors to release to her the sum of $15,000 held in their trust account pursuant to order 3 of the orders made by consent on 17 August 2016.
That all previous the Orders made by this Court in this proceeding be discharged.
The Husband pay to the Wife the sum of $275,000.00 within 90 days of the date of this order.
That contemporaneously with the payment:
(a)The Wife do all such acts and things and sign all such documents as may be required to transfer to the Husband/Wife at the expense of the Husband all of her right, title and interest in the Property A property (including arranging the release of her caveat);
(b)The Husband be liable for and indemnify the Wife with respect to any mortgage registered against the Property A property, and all apportionable rates, taxes and outgoings of or with respect to the real property of whatsoever nature and kind;
(c)The wife shall vacate the Property A property.
That in the event that the whole of the payment has not been made by the date; then the Husband sign all documents and do all things necessary to sell the Property A property forthwith altogether out of Court (“the sale”) and upon completion of the sale, the proceeds of the sale be applied:
(a)first to pay all costs, commissions and expenses of the sale;
(b)secondly to discharge the mortgage (if necessary) and any other encumbrance affecting the real property;
(c)thirdly so much of the payment as is then outstanding together with interest thereon at the rate of 10 per centum per annum adjusted monthly from the date to the Wife;
(d)fourthly the balance to the Husband.
That pending the payment or completion of the sale:
(a)The Wife have the sole right to occupy the Property A property and during such right of occupation the Husband pay all instalments pursuant to the mortgage (if any), and all rates and taxes of the Property A Property, and the wife pay the apportionable outgoings of the real property as they fall due;
(b)The husband and the wife hold their respective interests in the Property A property upon trust pursuant to these orders; and
(c)Neither party encumber the Property A property without the consent in writing of the other party, save for the purpose of making the payment.
That the Husband be liable for and indemnify the Wife against all payments in respect of any monies he allegedly owes the second respondent (if any), and any future costs incurred by the Applicant wife regarding this issue.
That unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:
(a)Each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders (the furniture, personal possessions, and like chattels in the property being deemed to be in the possession of the Wife).
(b)Monies standing to the credit of the parties in any joint bank account are to become the property of the Wife.
(c)Each party foregoes any claims they may have to any superannuation benefits belonging to or earned by the other;
(d)Insurance policies remain the sole property of the owner/beneficiary named thereon/in;
(e)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;
(f)Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
In the event any party refuses or neglects to comply with any provision of these Orders:
(a)a Registrar of the Federal Circuit Court of Australia at Melbourne is hereby appointed to execute all deeds and documents in the name of the party in default and do all things and acts necessary to give validity and operation to these Orders; and
(b)the defaulting party is ordered to pay all reasonable costs incurred by the other party for the purpose of enforcing these Orders;
(c)for the purpose of these Orders, an affidavit setting out the defaulting party’s failure to comply with the Orders shall be sufficient evidence of neglect and default.
Within 28 days the parties file and serve any submissions as to costs.
NOTATION
Orders 7 to 14 inclusive are by consent as between the husband and the wife.
IT IS NOTED that publication of this judgment under the pseudonym Stevenson & Brandon & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 6333 of 2016
| MS STEVENSON |
Applicant
And
| MR BRANDON |
First Respondent
| MS KALMAR |
Second Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The husband and wife seek that the Contract of Sale, for the property situated at Property A, between the husband and the second respondent be set aside, and that the property be included in the matrimonial asset pool for division between them.
As between the wife and the husband, this is also an application for property adjustment pursuant to s.79 of the Family Law Act1975 (“the Act”).
The second respondent asserts that she is entitled to be the registered proprietor of the former matrimonial home, a property situated at Property A and that the property should be excluded from the matrimonial asset pool.
ISSUES IN DISPUTE
The following issues are in dispute between the parties:
i)Whether the second respondent is entitled to be registered as proprietor of the Property A property, pursuant to a Contract of Sale dated 20 June 2016 between the husband and the second respondent; or whether it is a sham;
ii)Whether the second respondent should return to the husband or retain for her own use and benefit, the sum of $100,000 paid to her by the husband on 17 June 2016 and 24 June 2016;
iii)The property pool to be divided between the husband and the wife;
iv)The second respondent’s claim for:
a.Damages arising from the lodgement by the wife of a caveat encumbering the Property A property;
b.Payment to the second respondent of $15,000 held in the trust account of the wife’s solicitors.
At the commencement of the trial, I was advised by counsel for the wife and the husband that agreement had been reached between them as to the distribution of the asset pool. This agreement was predicated on a determination that:
i)The second respondent has no interest in the Property A property; and
ii)The second respondent pay the husband the sum of $100,000 the payment.
I was provided with a proposed minute of orders sought by the husband and wife.
There was no agreement reached between the husband, the wife and the second respondent.
SYNOPSIS
I have determined that :
i)The second respondent has no interest in the Property A property;
ii)The property pool should be divided in accordance with the minute of proposed consent orders, as agreed between the husband and the wife;
iii)The claims of the second respondent arising from her alleged interest in the Property A property be dismissed;
iv)The husband’s claim for $100,000 against the Second Respondent be dismissed.
The reasons for my determination follow.
BACKGROUND
The applicant wife is aged 41 years. The respondent husband is aged 52 years. The second respondent is aged 44.
The husband and the wife commenced cohabitation in late 2008, married on 2009 and separated on 20 June 2016. A relationship of approximately 7 ½ years.
There are no children of the relationship, although the wife has an 18-year-old intellectually disabled son, who has lived with the parties for the duration of cohabitation.
In his affidavit filed 25 July 2016 the husband’s evidence is that he first met the second respondent at Suburb 1 in 2015. In his affidavit filed 16 May 2017, the husband asserts that he met the second respondent in mid-2015 in the waiting room of their mutual general practitioner, Dr T. His oral evidence during cross-examination was that this meeting may have occurred in late 2015, around 2015.
The subpoenaed medical records of Dr T demonstrated that both the husband and the second respondent had appointments with Dr T on 2015 at and at respectively.
The second respondent asserts in her trial affidavit affirmed 27 October 2017, that she and the husband first met in 2010 at Suburb 1 restaurant. The first occasion she recalled talking to him, was at the Suburb 1 around 2015, where she asserts that they exchanged telephone numbers.
The second respondent further asserts that around June 2015, she agreed to lend money to the husband and in 2015, she transferred the sum of $100,000 from a (country omitted) bank account into the bank account of her friend, Mr B. Various sums, totalling $310,000 were thereafter advanced to the husband between 2015 and 2016. The second respondent asserts that the husband required the funds she had allegedly advanced to him, because he had a gambling problem/addiction.
On 20 June 2016, the husband and the wife agree that they separated after the wife discovered a market appraisal of the Property A property. Her evidence was that she had concerns that the husband might be considering selling the property and that he had not consulted her about any proposed sale.
On 23 June 2016 the wife saw the husband and the second respondent, and an altercation took place. The second respondent obtained an intervention order against the wife, which was eventually resolved by consent. The wife was also charged with unlawful assault, which was subsequently withdrawn in December 2016.
The wife consulted her solicitors, who arranged for a Caveat to be lodged at the titles office on 27 June 2016. A copy of the Caveat and the Land Victoria lodging receipt are annexure 1 to the wife’s trial affidavit sworn 13 October 2017.
On 20 June 2016, the husband and the second respondent entered into a Contract of Sale for the Property A property. The consideration for the sale of the property from the husband to the second respondent was $455,000. A copy of the contract is annexure K 7 to the trial affidavit of the second respondent. The contract was prepared by a firm of solicitors in Suburb 1, Felix A Vitello, (“the conveyancing solicitors”) who acted for both the husband and the second respondent. I refer to the terms of the Contract of Sale later in these reasons.
On 30 June 2016 a “settlement” of the purchase took place. This was effected by a discharge of the mortgage in favour of the Bank A bank, which encumbered the Property A property. A bank cheque for $143,743.93 was handed to the Bank A bank in exchange for a discharge of the mortgage. Following settlement, when the stamped Transfer of Land was lodged for registration, the conveyancing solicitors discovered the wife’s Caveat, which had been lodged three days earlier.
On 4 July 2016 the wife asserts that a real estate agent attended the Property A property and told her that she was required to vacate the property within a week. The wife instructed her lawyer to make enquiries of the real estate agent, and she was informed that the property had been sold and would thereafter be tenanted.
RELEVANT PROCEDURAL HISTORY
On 7 July 2016 the wife commenced a proceeding in this court, seeking an abridgment for ex parte interim relief, restraining the husband from dealing with the proceeds of sale of the Property A property or disposing of the funds in his then Bank A offset account. Her application was listed on 13 July 2016.
On 13 July 2016, when the wife was represented by her solicitor and the husband was represented by counsel, orders were made by consent substantially in accordance with the relief sought by the wife, except that the husband asserted that there were no proceeds of sale of the Property A property and the funds in his Bank A account of $100,000 had been expended. The proceeding was adjourned to 27 July 2016, and procedural orders were also made for the husband to file and serve responding material.
On 25 July 2016 the husband filed a Response, affidavit and Financial Statement. In his affidavit, the husband details history of his relationship with the second respondent.[1]
[1] Paragraphs 23 to 32 of the husband's affidavit filed 25 July 2016.
At paragraphs 27 to 32 of that affidavit the husband deposes to:
i)A gambling addiction; and
ii)That between July 2015 and April 2016 he borrowed in excess of $310,000 from the second respondent to meet his gambling debts.
Paragraphs 28 to 31 of the affidavit refer to the alleged agreement between the husband and the second respondent that he would transfer the Property A property to her to discharge the gambling debts, subject to the second respondent discharging the mortgage to the Bank A bank, which encumbered the property. The mortgage was approximately $144,000.
On 27 July 2016 orders were made for:
i)Further discovery;
ii)Restraining the husband from registering the Transfer of Land at the land titles office;
iii)Joining the second respondent to the proceeding;
iv)Procedural orders pertaining to the second respondent;
v)Valuation of the Property A property;
vi)Injuncting the parties from accessing any superannuation entitlements;
vii)The wife to have sole use and occupation of the Property A property;
viii)A conciliation conference;
ix)Adjourning the proceeding to 13 October 2016.
On 15 August 2018 the husband filed a further affidavit deposing to the circumstances of the money allegedly advanced to him by the second respondent, and the gambling of those funds.
At paragraph 2 of the affidavit, the husband deposes that between June 2015 and September 2015, he received cash varying between $5000 and $10,000, on approximately 18 occasions. He deposes that he collected the cash at the home of the second respondent, in the presence of her acquaintance, Mr B. Mr B’s evidence under cross-examination did not corroborate that evidence. He eventually signed an acknowledgement of the receipt of $110,000 on 20 February 2016. This document was witnessed by Ms L, who is a friend of the second respondent.
At paragraph 3 of that affidavit, the husband deposes that between September 2015 and April 2016, he received cash varying between $5000 and $10,000 on approximately 15 occasions. He deposes that he also collected the cash at the home of the second respondent in the presence of Mr B. Mr B’s evidence under cross-examination did not corroborate that evidence. He eventually signed an acknowledgement of the receipt of $200,000 on 16 April 2016. This document was also witnessed by Ms L.
Paragraphs 4, 5 and 6 of the affidavit detail the husband’s alleged gambling addiction.
The matter was again listed on 17 August 2016, at the request of the wife’s solicitor, in order to amend the injunction restraining the husband from registering the purported Transfer of Land at the titles office.
On 17 August 2016 the second respondent was represented and the relevant injunctive orders were made by consent of all three parties.
On 17 August 2016 the second respondent filed a Response, an affidavit, a Financial Statement and an affidavit sworn by Mr B. On 27 October 2017 she filed an affidavit sworn by Ms L. She did not object to any of the ex parte procedural orders made on 27 July 2016, which required her to file a Response, affidavit and Financial Statement.
On 16 November 2016 all parties attended a conciliation conference; however they were unable to resolve the competing applications.
On 16 May 2017 the husband filed an affidavit which contradicted his earlier affidavits. He deposed that the previous affidavits were not true and that the second respondent persuaded him to deplete the matrimonial asset pool and attempt to defeat any claim by the wife for a property settlement.
On 13 October 2017 the wife filed her trial documents. On 30 October 2017 the second respondent filed her trial documents. The husband did not file any further trial documents other than a case outline.
The trial commenced on 8 November 2017.
PROPOSALS OF THE PARTIES
The wife’s proposals are set out in her Amended Initiating Application filed 13 October 2017 and in the Minute of Proposed Consent Orders submitted jointly be counsel for the wife and counsel for the husband.
The orders which she seeks in her Final Written Submissions (adopting the terminology of the Written Submissions) may be summarised as follows:
i)The purported sale of the Property A property be set aside;
ii)The second respondent be restrained from further claiming an interest in the property;
iii)Injunctions restraining the husband and the second respondent from lodging or attempting to lodge a Transfer of Land purporting to transfer the Property A property to the second respondent;
iv)Payment to the wife of the sum of $15,000 currently held in her solicitors trust account;
v)Payment of $275,000 from the husband, with the husband having the option to retain the Property A property;
vi)Costs against the second respondent for the costs of the proceeding.
The husband filed a Response on 25 July 2016. The final orders which he sought were as follows:
i)The respondent be excused from further particularising his claim until the applicant has provided full and frank disclosure;
ii)Such further or other orders as this Honourable Court deems appropriate.
The husband’s final proposals are set out in his Outline of Case document and in the Minute of Proposed Consent Orders submitted jointly by counsel for the wife and counsel for the husband.
The orders sought by the husband’s in his Case Outline are as follows:
i)That the purported sale of the Property A between the respondent, and the second respondent be set aside pursuant to section106 B of the Family Law Act;
ii)That the transfer of $100,000 from the respondent to the second respondent on 17, June and 24 June 2016 be set aside;
iii)The second respondent pay within seven days the sum of $100,000 to the applicant’s solicitor;
iv)That the wife be entitled to 40% of the value of the former matrimonial (sic) and the funds in the bank being a total of $266,800 and in this regard:
a.that the wife be entitled to the 100,000 referred to in order 2 hereof;
b.that the husband pay to the wife the sum of $166,800 within 60 days;
v)The sum of $15,000 held by the wife’s lawyers be released to the wife forthwith;
vi)A superannuation splitting order in the wife’s favour, where the base amount be $25,000.
The Second Respondent’s proposals are set out in her Amended Response filed 30 October 2017 and in her Outline of Case. The orders she seeks from the court are as follows:
i)The injunction ordered by Judge Williams on 17 August 2016, restraining the registrar of titles from registering the transfer be discharged.
ii)The applicant and first respondent within seven days of the date of these orders cause any caveats lodged by them against real property situate at Property A, Victoria to be removed.
iii)The first respondent sign all papers and doing all things necessary for him to do, if any, to cause transfer to be registered by the registrar of titles.
iv)The sum of $15,000 paid by the wife into her lawyers trust account, pursuant to the orders of Judge Williams on 17 August 2016 be paid by the wife’s lawyer to the second respondent.
v)The applicant pay the second respondent’s costs of these proceedings on an indemnity basis.
There is no claim by the second respondent in relation to return of the monies which she claimed she has advanced to discharge the mortgage, formerly encumbering the Property A property. Such relief could have been claimed by her, however, she has chosen not to pursue this cause of action.
The final written submissions of counsel for the second respondent included a claim for damages for loss of rent, arising from the “unjustified lodgement of a caveat” by the wife.
DOCUMENTS RELIED UPON BY THE PARTIES
Wife
The wife relied upon the following documents:
i)Amended Initiating Application;
ii)Trial affidavit filed 13 October 2017;
iii)Updated Financial Statement filed 13 October 2017;
iv)Affidavit of husband filed 14 May 2017;
v)Valuation of the Property A property as at one November 2017;
vi)Minute of proposed consent order between wife and husband dated 8 November 2017.
Husband
The husband relied upon the following documents:
i)Response filed 25 July 2016;
ii)Affidavits filed 25 July 2016, 15 August 2016 and 16 May 2017;
iii)Financial Statement filed 25 July 2016;
iv)Minute of proposed consent order between wife and husband dated 8 November 2017.
Second Respondent
The second respondent relied upon the following documents:
i)Amended Response filed 30 October 2017;
ii)Affidavit of second respondent filed 30 October 2017;
iii)Affidavit of Mr B filed 17 August 2016;
iv)Affidavit of Ms L filed 27 October 2017.
In addition to the applications, Responses and respective affidavits filed in the proceedings, each party tendered documents during the course of evidence.
Evidence
The standard of proof in this case is the balance of probabilities (s.140 of the Evidence Act 1995 (Cth)).
Section 140 of the Evidence Act 1995 (Cth) provides:
(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a)the nature of the cause of action or defence; and
(b)the nature of the subject-matter of the proceeding: and the gravity of the matters alleged.
In this matter, the husband and the second respondent make serious allegations against each other with significant ramifications. Section 140(2) prescribes the standard of proof and the onus on a party asserting fact or making an allegation. The court must find the case of each party proved on the balance of probabilities.
Counsel for the second respondent in his final written submissions refers to the standard of proof required in relation to the allegations of fraud perpetrated by the second respondent. I have considered the allegations and applied that standard of proof.
Counsel for the second respondent prepared a list of written objections to the evidence of the wife and the husband, some of which were resolved by consent. It was agreed that those objections which were not agreed would be argued and determined prior to the hearing. This is what occurred.
The wife, husband, second respondent, and her witnesses, Mr B and Ms L, gave evidence and were cross-examined.
I do not intend to recite the evidence of all parties at trial. However, all of that evidence, together with the affidavits the parties relied upon, the exhibits tendered and submissions made by counsel for the parties has been considered and taken into account.
In Bell & Nahos [2016] FamCAFC 244 Strickland J addressed the obligations of a trial judge in that regard as follows: [28]-[29]:
Plainly that is the case, but it is not necessary in reaching a decision for a trial judge to refer to every piece of evidence or argument that is presented during a trial. That principle is well established in a number of authorities; I will mention two:
a) In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said this:
…A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
b) In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385 – 386, Mahoney JA said this:
It is not the duty of the judge to decide every matter which is raised in argument.
…
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
I can see no error here in Her Honour’s failure to refer to all of the evidence of the mother in relation to this issue. Her Honour plainly considered the evidence that she needed to in order to the reach her decision.”.
At the commencement of the trial all counsel agreed that the issue of credibility of the husband and the second respondent was crucial to the determination as to whether the husband intended the Property A property to be transferred to the second respondent, in satisfaction of gambling debts, or whether the purported transaction was a scheme to defraud the wife of future entitlements to a property settlement.
However, in his final written submissions, counsel for the second respondent made a submission contrary to his original submission as to credibility, “Ms Kalmar’s credit cannot affect the outcome of this case.” That was a theme of both the final written submissions and reply submissions of the second respondent.
At the commencement of the trial, I warned all parties that I would not hesitate to refer their conduct to the relevant authorities, if findings warranted such referral.
The Wife
The wife gave evidence in an emotive manner and was obviously highly distressed about the proceeding. Although I was advised that the wife had some English language skills, she did not seem to fully understand questions asked of her and required the assistance of an interpreter. Similarly, I required the assistance of the interpreter to understand many of her answers. All counsel agreed that was appropriate that she give her evidence and be cross-examined through an interpreter.
She was not a particularly good historian when it came to recollecting dates and events; however, she was able to adequately described significant events. Nothing really turned on her inability to accurately recollect dates.
The wife was clearly not involved in the transaction between the husband and the second respondent. She was not aware that the husband had attempted to transfer the Property A property to the second respondent, until she was advised by an estate agent engaged by the second respondent, seeking that she vacate the property.
During the course of the trial, it was asserted that the estate agent engaged by the second respondent was in fact, the brother of the lawyer representing the second respondent in the proceedings.
As the husband and wife had agreed about the distribution of the asset pool, on the assumption that the Property A property would be included in the asset pool, the wife’s evidence, and any concessions made by her under cross-examination by counsel for the second respondent were not of particular relevance or assistance.
The Husband
I had the benefit of observing the husband whilst he gave evidence and during the trial, whilst he was seated in the body of the court.
I was advised that the husband had some English skills. He also did not seem to fully understand many questions asked of him and also required the assistance of an interpreter. On some occasions he was requested to give his evidence directly in English, however these were limited and it was evident that he did not have advanced English language skills.
The husband was at times non-responsive and did not directly answer the questions asked of him. There appeared to be some difficulty with the nuances of interpretation of some questions.
Counsel for the second respondent, put to the husband that his evidence that the second respondent was the architect of the scheme to transfer the Property A property to her, to attempt to defeat the claim of the wife, was incorrect. Counsel submitted that the existence of the prenuptial agreement dating from 2009 gave the husband confidence that the wife could not make a claim against his assets, and therefore his evidence about the Second Respondent’s scheme could not be true.
Having heard and observed the husband, I am of the view that he gave a forthright and relatively plausible explanation of how he alleged that the second respondent was the architect of what he now considered to be a scheme to defeat any claim by the wife. His evidence in that regard was spontaneous and fluid and I accept that evidence.
His explanation as to why he had sought to deceive the wife, and later confessed to that deceit is referred to in his affidavit of 14 May 2017.
The husband was cross-examined by both counsel for the wife and the second respondent about the circumstances of the alleged agreement with the second respondent, to transfer the property to her and to pay her $100,000. This is referred to elsewhere in these reasons.
Counsel for the second respondent cross-examined the husband about his first two affidavits filed 25 July 2016 and 15 August 2016, which were contradictory to his third affidavit of 14 May 2017.
During the course of cross-examination his counsel applied for a certificate pursuant to s.128 of the Evidence Act 1995 (Cth).
Prior to granting the certificate, I adjourned the court to enable his counsel to provide legal advice, notwithstanding that cross-examination had not been completed.
After satisfying myself the certificate was appropriate and issuing the statutory warning, a certificate was granted. The certificate is for evidence from the transcript dated 9 November 2017, at page 47 line 35, until the conclusion of his evidence.
I accept the husband’s position that the earlier two affidavits were not true and that they were contradictory to his third affidavit. I also accept that the husband knew the first two affidavits were false when he swore them.
However, after considering the credibility of both the husband and the second respondent, where their evidence was contradictory, I prefer the evidence of the husband. My observations and findings of the credibility of the second respondent, are set out in these reasons.
The Second Respondent
Ms Kalmar gave evidence and was comprehensively cross-examined by counsel for the wife and counsel for the husband.
I also had the immeasurable benefit of observing her demeanour in the body of the court for a couple of days prior to her cross-examination, and for successive days whilst she was being cross-examined.
During the afternoon of the second day of her cross-examination, her Counsel applied for and was granted a certificate pursuant to s.128 of the Evidence Act 1995. Prior to granting the certificate, I adjourned the court to enable the Counsel to provide legal advice to her, notwithstanding that cross-examination had not been completed.
After satisfying myself that the certificate was appropriate and issuing the required statutory warning, a certificate was granted. The certificate is for evidence from the transcript dated 28 March 2018 page 195 line 7, until the conclusion of her evidence on 10 April 2018.
The certificate was not limited to the second respondent’s evidence about an alleged failure to correctly declare income to tax authorities. The submission of counsel for the second respondent to that effect is incorrect.
I regret to say that I have never encountered a witness who has less regard for the truth than Ms Kalmar. Her evidence was implausible, contradictory, fanciful and at times remarkable, particularly in her capacity to reinvent supposed explanations for her conduct. I find a complete lack of credibility in her evidence. Where her evidence differs from that of the wife and the husband, I prefer their evidence.
I am conscious of the distinction between a finding of a lack of credibility, as opposed to a finding that a person has lied or fabricated his or her evidence. The High Court has stated that:
“as a matter of logic and common sense, something more than mere rejection of a person’s evidence is necessary before there can be a positive finding that he or she deliberately lied in the giving of that evidence” Smith v New South Wales Bar Assn [1992]HCA 36 : (1992) 176 CLR 256 at 268.
However, in this dispute the credibility of the husband and the second respondent are critical to the determination of fact. The evidence of the second respondent in relation to payment of her legal fees, which is referred to later in these reasons, enables me to conclude that she lied about this particular issue.
Examples of her troubling and evasive evidence are as follows:
i)The alleged existence of a Business in (country omitted) which provided her with a weekly income of $10,000;
ii)The lack of security for the loan of $310,000 which she alleges was advanced to the husband;
iii)Her receipt of Newstart benefits and family allowance, despite her income from the (country omitted) Business and owning two properties in Australia;
iv)Her attempts to prove she had lodged a personal tax return in (country omitted), arising from the alleged income she received from the Business.
v)Her contradictory evidence about her capacity to enter (country omitted) from (country omitted), with the assistance of “permit” in her Australian passport;
vi)Her arrival in Australia in 2016;
vii)Failure to disclose bank accounts in Australia and inability to provide bank statements evidencing payment of monies from (country omitted);
viii)Failure to recall having given evidence in a proceeding in Darwin in 2009, when confronted with a copy of the relevant judgement;
ix)Her supposed recall of her giving evidence in the Darwin proceedings the next morning, after supposedly telephoning her friends the previous evening;
x)Her failure to disclose she had a part time job, despite her alleged income of over $500,000 per annum;
xi)Her alleged work as a (occupation omitted) for a company she was unable to name, nor name the location where it was situated;
xii)Her evidence about her Australian tax returns;
xiii)Her acquisition of Mr B’s property, in the exact same circumstances as her purported acquisition of the Property A property and failure to disclose that transaction;
xiv)Her contacting Mr B, a witness for her, by telephone whilst she was being cross-examined, despite being warned not to discuss her evidence;
xv)Her evidence about payment of legal costs of the proceedings, which was directly contradicted by the statement of costs produced by her solicitor;
xvi)Contradictory evidence about how the funds were given to the husband;
xvii)Her evidence about her illiteracy and lack of numeracy;
xviii)Evidence about her friend Mr J.
I will address each of the matters referred to in the preceding paragraph.
Existence of the Business
In her Financial Statement filed 17 August 2016, at Part D paragraph 11, Ms Kalmar deposed to receiving a weekly income of $10,000 from her business. She describes her business as:
Ms Kalmar Business
Type of Business
(description of business)
Address of Business/Partnership/Company Trust
(country omitted)
Counsel for the wife cross-examined the witness about the (country omitted) Business.
Her evidence may be summarised as follows:
i)She had not been in (country omitted) since 2015, as she had an active manager who helped her in (country omitted);
ii)There was no website for the business, as she asserted the business was so large she had no need to advertise on the website;
iii)She could not provide an email address for the business
iv)She did not agree with the proposition that she did not manufacture (description of business) and that she lent out were big wads of cash;
v)Despite the name of the business, she said “I only make (type of business). I don’t do loan.”
She later modified her evidence about advancing loans as follows:
“People buy the (goods) on credit, and then after they sell the products for my company, they would pay off the buy – in debt slowly, slowly, later, in instalments or whatever”
She did not produce any documents whatsoever to substantiate the existence, let alone her ownership of the Business in (country omitted).
There were no photographs of the premises, workers producing the (goods) or the (goods) themselves. There were no invoice books, bank statements or other financial records pertaining to the Business, other than a purported tax return, which is referred to in subsequent paragraphs.
The second respondent had multiple opportunities to provide independent documentary evidence of the Business but failed to do so. Documents could have been annexed to her affidavits, or tendered by counsel during evidence-in-chief or re-examination.
The evidence of Mr B in relation to the manner in which the Business was conducted, which is referred to later in these reasons, was also unbelievable.
Having considered all relevant evidence, I am unable to find that :
i)The second respondent has any interest in a Business in (country omitted);
ii)The Business as alleged, actually exists at all.
The lack of security for the loan of $310,000 which she alleges was advanced to the husband
During cross-examination by counsel for the wife, her evidence was as follows:
i)She eventually agreed with the proposition that there was no security offered by the husband for the alleged loans totalling $310,000;
ii)She trusted the husband;
iii)The husband showed her three properties and allegedly told her that if he did not pay her back she could have one of the houses;
iv)She did not conduct a property search to confirm ownership of the houses, but followed him to the houses and accepted his alleged representations about ownership.
I do not accept that the second respondent, being a person allegedly experienced in business, could advance sums of the magnitude allegedly advanced to the husband, without making proper enquiries and obtaining security for any such loan.
Receipt of Australian Government Social security benefits
In her Financial Statement at paragraph 12, the second respondent deposes to receiving government benefits, namely a family allowance of $300 per week.
She was cross-examined by counsel for the wife about how it was possible for somebody who had an income of $10,000 per week from her business in (country omitted), to qualify for government benefits. Her response was she told the Australian government that she had no income in Australia.
She subsequently gave evidence that she did not always receive $10,000 per week from the (country omitted) business, as the income of the business fluctuated, and that her government benefit was a Newstart allowance. Her evidence was that the monthly income from (country omitted) could be $30,000, $10,000 or $20,000, although there could be months without any income.
Despite her income from the (country omitted) Business, owning an expensive motor vehicle, and two properties in Australia, one of which provides rental income, the Second Respondent has managed to obtain significant family allowance benefits and a Newstart allowance.
She did not provide any explanation or documentation how it was possible to successfully apply for and receive government benefits in those circumstances.
Lodgement of personal tax returns in (country omitted) arising from the alleged income from the Business
The Second Respondent gave evidence that the Business in (country omitted) had approximately 100 or more workers and she agreed with the proposition that it was a successful business.
Her evidence was that she had filed tax returns and paid tax on her (country omitted) income, in (country omitted).
Counsel for the wife tendered three (country omitted) documents as exhibit W8. These documents were headed Tax Return for small tax payers for the years 2014, 2015, and 2016. Some parts of the document had English headings, underneath the (country omitted) script. There was no accredited translation of the documents. Nowhere on the document did it state that the document was a personal tax return of the second respondent. The document does not have any reference to the company Ms Kalmar Business.
In fact, the document was signed at the right foot, purportedly by the Company owner/company representative, and the second respondent agreed that it was not her signature and she had never signed any such document.
Counsel for the wife called for the production of the last 10 years (country omitted) tax returns. These documents were not produced by the second respondent, and her evidence was that she had insufficient time to produce documents beyond the three years which she claimed she had produced.
I am not satisfied that of the second respondent has lodged any personal tax returns in (country omitted). I am also unable to be satisfied as to the veracity of the purported tax returns for the company.
Overseas travel to (country omitted) and (country omitted)
The second respondent initially gave evidence that she had not been back to (country omitted) since 2015. Her current Australian passport was stamped in 2015 with an entry into (country omitted).
She subsequently gave evidence that last year she travelled to (country omitted) on six or seven occasions, and that she had flown directly to (country omitted) and then crossed the border into (country omitted) by land.
According to her:
“However, from (country omitted) to (country omitted), as a (country omitted) citizen of (country omitted). I only needed to present a permit with the stamp on it, and I could travel across the border by land”
When questioned by me about who issued the permit, which was ostensibly in her passport the Response was as follows:
“The government of (country omitted) allowed the stamp on my passport because I used to live there and no longer a citizen, but I got the stamp symbolising a permit to enter the country, any time. That doesn’t require me to have a visa to enter.”
“On the citizenship, I have what now is the Australian citizenship, from then they wrote down on my passport. The letter to indicate that as a native-I used to be a native person. After… I’m allowed to enter.”
Her reason for not travelling directly to (country omitted), was because the airfares directly to (country omitted) were cheaper.
Counsel for the mother asked the second respondent to identify the permit in her passport. She was unable to do so, after being given time to do so.
The evidence about the permit is in direct contradiction to her evidence in re-examination which was as follows:
“From (country omitted) to (country omitted), as a (country omitted) citizen-because I’m a (country omitted) citizen if I go by land. I don’t need a stamp on the Visa, I just needed-– I just need to show my passport”
“I just need to show my – my passport. No there is no need to have a stamp on the Visa.”
Counsel for the mother put to her the proposition that if she had a business of over 100 employees, in which her mother had invested $2 million in the company, she would have been flying regularly to (country omitted) in the past couple of years. She did not directly comment about the proposition.
I agree with the proposition in the previous paragraph. It is also abundantly clear that the evidence relating to her entry into (country omitted) and the necessity or otherwise of a permit is completely contradictory. I do not accept her evidence that she has returned to (country omitted) by flying to (country omitted) and travelling overland to (country omitted).
Second respondent’s arrival in Australia in 2016
The second respondent repeatedly gave evidence that she had arrived back in Australia in 2016.
Counsel for the wife cross-examined her about the bank statements which were annexure 15 to her trial affidavit. Those statements clearly identify that:
i)On 21 August 2015, goods were purchased at the Store for about $2700;
ii)On 4 September 2015, the account was used at various shops, including Stores, Suburb 3, she was unable to provide an explanation for the transactions;
iii)On 12 October 2015, goods were purchased at Store for $306.
When it was put to her that the transactions were hers, her evidence was that she was and still has the use of the account. She was unable to provide an explanation as to how she was shopping in Australia in 2015 when her evidence was that she had not returned to the country until 2016.
Failure to disclose bank accounts and inability to provide bank statements evidencing payment of monies from (country omitted)
In her Financial Statement at paragraph 37 the second respondent refers to a bank account, ending with the numbers, with the Bank B branch. Her trial affidavit annexes various bank statements as follows:
i)Annexure K15 Bank B account ending in the numbers from 15 August 2015 to 12 October 2015;
ii)Annexure K16 Bank B account ending in the numbers from 15 March 2016 to 5 September 2016;
iii)Annexure K17 Bank C Saver account ending in the numbers from 22 July 2014 to 2 March 2016;
iv)Annexure K18 Bank C Saver account ending in, in the name of Mr B from 9 June 2015 to 30 October 2016.
During cross-examination, she admitted to having an additional account with Bank A into which her family allowance was paid. That account had not been discovered throughout the course of the proceedings.
Counsel for the wife asked the second respondent to look at the bank statements annexed to her trial affidavit and to identify deposits of income from (country omitted).
In September 2016 there were two deposits into the second respondent’s Bank B bank account ending in. As follows:
i)23 September 2016 $20,000;
ii)27 September $19,000;
these funds were allegedly transferred from (country omitted).
On 18 January 2016 the sum of $83,000 was deposited into the same account. The second respondent’s evidence was that this amount was again transferred from (country omitted).
On 3 February 2016 a cheque in the amount of $268,000 was deposited into the account. The explanation was that a friend borrowed money from her in (country omitted) and returned the money to her in Australia. The friend allegedly bought (goods) from the second respondent, in (country omitted) and paid her in Australia, despite the friend living in (country omitted), although she was an Australian citizen.
When questioned whether the friend’s debt of $286,000 had been recorded in the purple diary, which recorded monies owing to the second respondent, she was unable to recall.
She was unable to specifically identify any particular deposits of money from (country omitted), and her evidence was that all her income had come from (country omitted).
I do not accept the evidence of the second respondent that the funds came from (country omitted) from her business activities. She has not provided any credible explanation as to the various deposits into that account.
Failure to recall having given evidence in a proceeding in Darwin in 2009, when confronted with a copy of the relevant judgment
Exhibit W10 is Reasons for Decision of Mr R delivered 10 July 2009, in the Small Claims jurisdiction in Darwin.
The reasons arise from a dispute between the plaintiff and the defendant in respect of the value of a diamond. The plaintiff alleged that she left a diamond ring with the defendant as security for a loan, she paid back the loan and the ring was returned to her. However, the plaintiff alleged a false diamond had been substituted for the real one. The defendant claimed the ring was returned in the same state it was received.
How this dispute is relevant, is that the defendant was apparently an acquaintance of the second respondent in this case, Ms Kalmar. The reasons of Mr R refer to Ms Kalmar giving evidence, which accorded with that of the defendant. The judgement refers to Ms Kalmar giving evidence that she was the person who effected the switch of the diamonds in the ring.
Four paragraphs of the judgement refers to Ms Kalmar’s evidence under the heading:
MS KALMAR’S EVIDENCE
When it was put to her that she had given evidence in that proceeding and that adverse findings had been made against her by the magistrate, she repeatedly denied ever having given evidence in Court. She was, however, able to recall the parties to the proceedings and that there was this dispute in Darwin at that time.
The next morning, the second respondent did not arrive at court on time and neither did her solicitor. When the court resumed at 11:20 AM I asked counsel for the second respondent whether his client and instructor had travelled in the same car to court, as they both had the same excuse for being late, namely there was an accident on the freeway. Counsel did not know, and the matter was not pursued.
Most extraordinarily, the interpreter and the second respondent had a conversation prior to cross-examination commencing. Unsolicited, the second respondent gave the following evidence:
“In relation to my evidence yesterday, your honour, because of my memory problems, I didn’t remember exactly what happened, but when I got home, I rang the two women and I found out that I did in fact appeared in court to give evidence for them. I was confused yesterday, because my mind was on the allegation. I thought the allegation was about me. In fact I had nothing to do with the matter”
I do not accept the evidence of the second respondent. It is inconceivable that she would be unable to remember giving evidence, yet recall the parties to the dispute and providing a statement to the police.
Neither do I accept the revival of memory which occurred, allegedly after a telephone conversation with one nor other of the parties involved in the proceeding.
Failure to disclose she had a part time job, despite her alleged income of over $500,000 per annum
During cross-examination by counsel for the husband, the second respondent gave evidence, that despite her income of approximately $10,000 per week from (country omitted) she had on occasions had a part-time job. There was no explanation why she had previously omitted to say that she had a job.
Her evidence was as follows:
i)Despite receiving the (country omitted) income from the Business, because her children were at school, she was bored, had nothing to do, so she obtained casual work as a (occupation omitted);
ii)She was unable to recall:
a.The name of her employer;
b.The location, including the name of the suburb, referring to it being “somewhere near a farm”;
iii)She did not drive there, despite owning a motor vehicle valued at $70,000, as she had no confidence, and did not know the route well;
iv)Despite her employment and (country omitted) income she was in receipt of a Newstart Allowance, which was deposited into a Bank A bank account which she had failed to previously discover;
v)She had payslips and a group certificate from her employer. When called upon to produce them, she was only able to produce one such payslip and maintained that she had been paid in cash;
vi)She did not include her income from her employer in her Financial Statement as the document had been prepared two years ago, and she had not commenced working at that time;
vii)She had never disclosed to Centrelink, despite being in receipt of Newstart Allowance that she received income from (country omitted);
viii)She had previously given the court the impression that she had received $545,000 per annum income from (country omitted), however, her current evidence was that that income fluctuated;
ix)She had advised Centrelink that she owned two houses and stated that she paid tax.
I do not accept the evidence of the second respondent that she had any regular job as a (occupation omitted). She was only able to produce one payslip, which demonstrated she worked for (employer omitted) in 2017 and earned a total of $331.
She was not able to provide satisfactory explanation as to how she was eligible to receive a Newstart Allowance and whether she had disclosed to Centrelink her alleged (country omitted) income and income as a (occupation omitted).
Evidence about her Australian tax returns
Exhibit H6 is a copy of the tax return and Notice of Assessment of the second respondent for the financial year ending 30 June 2017.
Despite being invited by counsel for the husband to produce copies of her Australian tax returns, exhibit H 6 was the only tax document she produced.
The tax return was for the financial year 2017. Her evidence was she had only prepared one tax return in Australia because she had prepared tax returns in (country omitted) for 2014, 2015 and 2016.
She was unable to produce the personal tax returns, which she alleges were filed in (country omitted).
Acquisition of Mr B’s property by the second respondent
In April 2016 the second respondent acquired from Mr B, a property situated at Property B.
Prior to her acquisition of the property, the property had been registered in the name of Mr B and his brother.
The evidence of the second respondent about the transfer of Mr B’s house to her was as follows:
i)She purchased the house from Mr B in 2016 for $540,000;
ii)The purchase price was paid in two cheques from her account near the settlement date;
iii)As far as she knew Mr B banked the money into his own account;
iv)He sold the house to her because “he said he would like to sell that house to do some business”.
The following exchange occurred between counsel for the husband and the witness:
MR HOULT: Why did he sell it to you?
THE INTERPRETER: He said he would like to sell that house to do some business.
MR HOULT: To do some?
THE INTERPRETER: Business.
MR HOULT: So did he owe any money at the time?
THE INTERPRETER: He wanted to sell the house to me. He said he could ..... the money from the sell of the house to pay off his debts.
MR HOULT: Were these debts that he owed to you?
THE INTERPRETER: He borrowed my money, and he said that when I got back, if I have no place to live in yet, he could then sell his house – I could live in it. Because around that time I have the intention to purchase a house
MR HOULT: Yes.
THE INTERPRETER: and he was aware of that intention.
MR HOULT: Yes. And so he had borrowed some money from you.
THE INTERPRETER: Yes. Yes, he did.
MR HOULT: How much did he borrow?
THE INTERPRETER: He borrowed long time ago. I don’t remember exactly, but when the settlement occurred everything clear – calculations and everything finalised.
MR HOULT: So when he sold you the house, did you have to give him 540 or did you give him something less than that?
THE INTERPRETER: When I look back, I didn’t know the current price of properties, but the house ascertained by an agent, and I bought according to that information.
MR HOULT: Thank you. I will ask you again. Did you give Mr B 540,000 or less than that?
THE INTERPRETER: No. We were friends – not that. I pay it according to the information from the agent.
MR HOULT: Right. Well, how much did he owe you at the time?
THE INTERPRETER: He borrow – because he own – he owned – he owed money to the two banks as well.
MR HOULT: I’m asking
THE INTERPRETER: So I had to pay in – to finalise the two loans for him
MR HOULT: Did you now.
THE INTERPRETER: on his behalf, so I
MR HOULT: All right.
THE INTERPRETER: pay in two cheques. I don’t remember
MR HOULT: Right. So you paid off one of his mortgages, did you? At least one.
THE INTERPRETER: Mortgage? What do you mean mortgage?
MR HOULT: Did you pay the bank or did you pay Mr B money?
THE INTERPRETER: Everything was done by my lawyers – everything.
MR HOULT: I don’t care if it was done by lawyers or not, and I will ask you one more time. Did you pay money to Mr B’s bank?
THE INTERPRETER: Yes. I gave money to the lawyers for the lawyers to do so.
MR HOULT: Right. How much?
THE INTERPRETER: Two banks – two cheques. I don’t recall exactly but around roughly 300,000 or so.
MR HOULT: Okay. See, I will just tell you, Ms Kalmar. You’ve lied to the court this morning about this, haven’t you?
THE INTERPRETER: I don’t tell lies
MR HOULT: Well
THE INTERPRETER: to her Honour.
MR HOULT: No.
THE INTERPRETER: Maybe somebody tells – I forgot. I didn’t remember.
MR HOULT: No. No. Well, let me help you. I asked you about half an hour ago how you paid money to Mr B – and you might want to interpret as I go along or you will forget it. And you gave evidence that money went into his account.
THE INTERPRETER: Yes.
MR HOULT: At no stage did you tell us that there was a mortgage or money owed to the bank. Do you understand? And you can tell her Honour that you’ve got a bad memory or you’re illiterate or you haven’t got your reading glasses, but if her Honour finds that you’re lying, there are a lot of things that the court might do with you. Do you understand that?
THE INTERPRETER: I bought the house from him. I paid him with two bank – with two cheques.
MR HOULT: Thank you. Yes.
THE INTERPRETER: Because he owe the mortgage. He had a mortgage. He owed the bank based on this mortgage, so I had to pay out his mortgage first – help settle.
It is apparent from the transcript that the evidence about the payment of the purchase price is contradictory. Both statements as to the method of payment of the purchase price are completely different. Furthermore, her evidence differs substantially from the evidence of Mr B, which is referred to in these reasons.
The evidence significantly and adversely affects the credibility of the witness.
Payment of legal fees
Counsel for the husband cross-examined Ms Kalmar about payment of her legal fees.
The exchange was as follows:
MR HOULT: So how much have you paid Mr Quach so far?
…
THE INTERPRETER: I haven’t paid him.
MR HOULT: Well, how much do you owe him?
THE INTERPRETER: He hasn’t given me the number, the amount. So I don’t know.
On 17 August 2017 I made procedural orders in this matter.
Paragraph 5 of those orders provides as follows:
“Each party provide to the court at the commencement of the hearing, a statement setting out the costs incurred to that date and from what source those costs have been paid and what costs are expected to be incurred until the completion of the hearing.”
On the morning of 11 April 2018, in accordance with my order , Mr Quach, Solicitor for the second respondent provided a document as follows:
Date: 11/04/18
Federal Circuit Court of Australia
Dear Sir/Madam;
RE: STEVENSON & BRANDON & KALMAR – ESTIMATE OF LEGAL COSTS
I am writing in this statement setting out the costs incurred and further costs expect to be incurred until the completion as follows:-
1. Costs paid to barrister directly by Ms Kalmar so far : $31,900
2. Costs expected to barrister J Korman to be incurred until completion estimated: the $10,000
3. Costs paid for Dang Quach Solicitor so far:-$15,000
4. Costs expected to Dang Quach Solicitor be incurred until completion estimated: $10,000
5. Costs paid directly by Ms Kalmar so far for Auscripts : $8719.93
Total : $75,619.93
Yours faithfully;
Dang Quach
It is abundantly clear from the letter from the second respondent’s solicitor that as at the date of her evidence referred to in the preceding paragraphs:
i)The second respondent had paid legal costs and disbursements of $55,619.93;
ii)Both her solicitor and counsel must have known that her evidence about lack of payment of legal costs was simply not true.
Contradictory evidence about how the funds were given to the husband.
The evidence of the second respondent about this issue is addressed in these reasons under the heading “Whether the Second Respondent gave money to the husband”.
Evidence about her illiteracy, innumeracy and the purple diary
Paragraph 39 of the second respondent submissions raises the issue of whether the second respondent understood much of what was put to her, given that she completed her education at grade 2 level in (country omitted).
That is an extraordinary proposition. Not once was there any such objection to questions asked by both counsel for the wife and husband, during their respective cross-examination. From my observations the second respondent clearly understood the questions put to her and only infrequently requested clarification.
Her evidence about her literacy and numeracy came to light during cross-examination. Her trial affidavit does not refer to this issue. The second respondent’s evidence was that she had a limited education in (country omitted) up to grade 2 level and that her literacy was minimal. Her repeated evidence was that she was not computer literate and required assistance from friends and bank personnel to affect electronic transfers from her account. Despite her accounts evidencing numerous electronic transfers, she denied that she had personally made the transfers.
During the course of discovery she produced a purple diary, which she said recorded monies which were owing to her from various people, including the husband. Extracts of that document are annexure K 3 to trial affidavit of Second Respondent.
During cross-examination when she was provided with bank statements and despite her claims of extremely limited numeracy skills, I observed her to be reading from the bank statements and able to identify transactions. This ability was not consistent with her claim of extremely limited numeracy skills.
The purple diary, in which the second respondent allegedly recorded amounts owing to her by the husband and others, was produced during the discovery process.
The diary entries were not in English. The interpreter confirmed that the entries are in (language omitted). The second respondent did not adduce into evidence any certified translation of the diary.
Furthermore, there was no independent evidence that the purple diary was a contemporaneous record of loans allegedly advanced to the husband. In fact there was no evidence adduced about the circumstances of the second respondent allegedly recording loans in the diary.
Paragraph 12 and annexure 12 of her trial affidavit was the only reference to the diary in the trial affidavit of the second respondent.
Counsel for the husband comprehensively cross-examined the second respondent about the purple diary.
Her evidence was as follows:
i)The diary was mainly used to record sale of (goods) from the (country omitted) Business;
ii)The transactions recorded were those with a wholesale value, but if there was a retail value, her manager in (country omitted) would deal with those records;
iii)There was no explanation why the husband was included in the diary, as he did not buy any (goods) from (country omitted);
iv)She had the book for a number of years since the time she was living in (country omitted), despite the book being a 2016 pocket diary;
v)She had used previous books but was unable to recall when she changed to the current book;
vi)She was unable to provide any explanation why an entry in August 2016 referred to a loan advanced in May 2017 and stated:
“I'm Mr Brandon ,borrow money from Ms Kalmar $120,000 AUD at (country omitted) from 9/5/17”
vii)The entry referred to in the previous subparagraph was in relation to the sale of (goods) in (country omitted), and the purchaser was a woman, Ms Brandon, not a loan to the husband;
viii)Was unable to provide any explanation why some entries in the original diary between 28 March 2016 and 1 April 2016 differed from photocopies which were provided to the parties during discovery. Exhibit H2 is a copy of the original purple book and copies of documents provided during discovery.
Having considered the evidence of the second respondent, I do not accept that the purple diary recorded any amounts allegedly lent by the second respondent to the husband. The diary is of no probative value in relation to the advancement of funds.
Evidence about her friend Mr J
At paragraph 49 and 54 of his affidavit filed 16 May 2016, the husband refers to a friend of the second respondent, named Mr J.
When cross-examined, the second respondent denied any knowledge of a friend by the name of Mr J.
Exhibit H9, is a statement of the second respondent, signed by her, which was made to the police at 5:26 PM on 23 June 2016 at Suburb 1 police station.
That statement refers to Mr J as follows:
While the fight was still happening, my other friend Mr J who I was still meeting came and took me away to a restaurant.
The sentence in her police statement is completely contradictory to her evidence that she did not have a friend, Mr J.
Mr B
Mr B swore an affidavit on 16 August 2016. In his affidavit he deposed:
i)He met the husband and the second respondent in or about 2010 through mutual friends;
ii)In or about 2015 Ms Kalmar asked him to hand some cash monies to the husband;
iii)He agreed to hand cash to the husband;
iv)Ms Kalmar would transfer the funds into his account via telegraphic transfer, cheques to him and cash cheques;
v)After receiving the funds in his account, Ms Kalmar would ask him to meet the husband, at her home, and he would then hand the cash to the husband.
A subpoena to produce documents addressed to him at his address was filed by the husband’s solicitors on 24 October 2017.
His evidence commenced at 3:33 PM on 10 April 2018, the second last day of the trial. From the moment he was sworn in he was rude, demanding, combative, threatening, disrespectful and contemptuous. His behaviour was appalling and completely uncooperative. Shortly after he was sworn in, the issue of whether court security was required was raised by counsel.
He continually objected to answering questions properly put by counsel, thought he was in a position to question the court’s authority and questions asked of him and was under the impression that cross-examination would be limited to what he had deposed to in his affidavit.
He also informed the court that he had the right to walk out of the court, the right not to answer questions, and that he should only be asked relevant questions.
His evidence continued at 10:16 AM on 11 April 2018 the last day of the trial. After he was reaffirmed, he professed to apologise for his behaviour on the previous day.
The exchange between Mr B and myself was in the following terms:
“first of all, judge, could I please – I, Mr B, of Suburb 3, wished to apologise to the judge that – my behaviour yesterday, because my blood was boiling. Okay? So that’s all.”
“All right. Thank you, Mr B. I glad you said that because your behaviour yesterday was outrageous and bordering on contemptuous. You understand that?--- Yes. I do understand
all right?--- So that’s-I apologise to that”
Shortly after the professed apology, Mr B resumed his contemptuous and obnoxious behaviour. He was again warned by me; however this had little effect on his outrageous conduct. At one stage he started to crack his knuckles in the witness box, which was threatening and intimidating behaviour.
At the conclusion of his evidence, when first exiting the court, he made a threat to counsel for the mother.
That exchange was as follows:
All right. You can go, Mr B? Thank you. As the Christmas song say, you better watch out. Santa Claus coming to town.
MR KORMAN: Yes.
HER HONOUR: What did he – just wait there. What
MR KORMAN: No, your Honour ..... I think get security, your Honour.
THE WITNESS: That’s a song. That’s a song. Better watch out, Santa Claus is coming to town.
HER HONOUR: Sorry? What did he
MR KORMAN: That’s a threat.
HER HONOUR: Well, that’s what I – did anybody hear what he said?
MR KORMAN: He said, you’d better watch out, Santa Claus is coming to town. I think that’s – I take that as a personal threat.
HER HONOUR: Do you want me to call security to delay him in exiting the court?
MR KORMAN: It’s – I mean, it’s just contempt.
MR TRIM: I think he should be removed from the building, your Honour.
MR KORMAN: Contemptuous.
HER HONOUR: Pardon?
MR TRIM: He should be removed from the building, at least.
HER HONOUR: Yes. All right. Well, at least if he’s going. Look, we will adjourn. I will ask my associate to report that threat to security.
MR TRIM: Thank you, your Honour.
HER HONOUR: And for him to be removed from the building if he hasn’t already gone and we will resume at 5 to 12.
[The comments attributed to Mr Korman were in fact made by Mr Trim, Counsel for the Mother]
Mr B was cross-examined by both counsel for the wife and counsel for the husband.
His evidence during cross-examination by counsel for the wife may be summarised as follows:
i)He operates his own business and is paid $79,000 a year;
ii)He alleged that outside the court over the lunch break the wife had told him to “fuck off”;
iii)He met Ms Kalmar in 2010 in (country omitted);
iv)He knew that Ms Kalmar moved between (country omitted) and Australia in 2011 and 2012;
v)He did not provide any acceptable explanation why he omitted in his affidavit that he had transferred his home at Property B to Ms Kalmar in 2016;
vi)He alleged that he had bought (goods) from Ms Kalmar in (country omitted) to the value of around $220,000;
vii)he had not been paid for the (goods) by contractors and builders in (country omitted) to whom he had supplied the (goods);
viii)All alleged transactions in (country omitted) were cash;
ix)He was unable to provide the names, addresses and contact details of the contractors and builders in (country omitted) who owed him such vast amounts, other than one was called Mr S;
x)Ms Kalmar had been chasing him for the debt owing to her;
xi)He transferred his home to Ms Kalmar to satisfy the debt arising from the purchase of (goods) in (country omitted);
xii)In January 2016, he obtained an appraisal of the Property B property of $540,000;
xiii)There was no deposit paid by Ms Kalmar and the two cheques provided by Ms Kalmar for the purchase of the property totalled $330,000; [2]
xiv)Since the transfer of the house to Ms Kalmar in April 2016 he has rented the property from her and pays about $1600 a month;
xv)No renovations or improvements were carried out at the Property B property between April 2016 and August 2016;
xvi)Professed to be unaware that Ms Kalmar had obtained an appraisal of the property of $700,000 in August 2016;
xvii)Would not agree that he had sold the property to her for under market value;
xviii)On the two occasions he handed bundles of cash to the husband, he estimated the first bundle was about $5000 and the second bundle was maybe $8000 or $10,000.
[2] Market appraisal of Property B dated 21 January 2016 and copies of two bank cheques are exhibit W 11
His evidence during cross-examination by counsel for the husband may be summarised as follows:
i)None of the alleged (goods) supply transactions in (country omitted) between himself and Ms Kalmar had been documented;
ii)Denied being served with a subpoena to produce documents filed by the solicitor for the husband on 24 October 2017, despite the address on the subpoena being his work address an affidavit of a process server deposing that he was served personally at 4:25pm on 26 October 2017, at his business address and correctly identified from a photograph which had been provided to the process server;
iii)He produced documents, including bank statements from the Bank C to the solicitor for Ms Kalmar but could not provide any proper explanation why he had done so;
iv)None of the bank statements produced by him evidence him receiving wages of $79,000 per annum. He asserted, he received the amount in cash;
v)The deposit into his account on 9 June 2015 of $100,000 was from Ms Kalmar, despite him allegedly owing her $220,000 at that time;
vi)He did not know the real name, or phone number of a friend, he knew from the club, who deposited $50,000 into his account on 25 August 2015;
vii)A deposit of $61,000 into his account, in September 2015, was from his cash savings;
viii)He was reluctant to answer what he had done with $50,000 and eventually conceded that “well, on some occasion purchased a vehicle”;
ix)He could not explain why he had to use $50,000, he had ostensibly borrowed from a friend to purchase a motor vehicle, when at that time he had $61,000 in cash
x)Could not provide any explanation for the expenditure of $60,010, which he withdrew on 29 June 2015, other than ‘well, I buy toilet tissue. I buy this: I buy that. Will I mention everything?’;
xi)Denied owing $100,000 to Ms Kalmar and instead stated:
“that’s the money that she transfer. And then you can see that I keep taking $5000 here and there. It’s when she need it”.
When re-examined, Mr B stated that he had withdrawn all of the $100,000 as cash in bits and pieces and when Ms Kalmar came to Australia, he handed it to her. He did not provide an explanation why this was necessary.
I do not accept any of the evidence of Mr B and find that he was an extremely unreliable witness whose main purpose was to collude with the second respondent. His evidence was unbelievable and preposterous.
Furthermore, if the intent was to call Mr B to corroborate the evidence of the second respondent, his evidence about allegedly handing cash to the husband was entirely inconsistent with the evidence of the second respondent.
Ms L
Ms L swore an affidavit on the 16 June 2017, which was filed on behalf of the second respondent.
Her evidence was that she and second respondent met at Suburb 1 in about 2015 and that she considered Ms Kalmar her friend. She deposes:
i)To visiting Ms Kalmar’s home almost daily;
ii)On some occasions she would witness Ms Kalmar handing the husband bundles of cash wrapped in a piece of paper;
iii)The husband would sometimes count the cash;
iv)Ms Kalmar told her she was lending the husband monies because “he is owing other people’s money, he needed monies and so I lent him”;
v)Ms Kalmar confided to her that the husband wished to sell his home to her;
vi)She recalled that on one day when she was washing dishes at Ms Kalmar’s home, the husband asked her to witness a statutory declarations stating that he had received “together, totalling the sum of 310,000 from Ms Kalmar”.
Ms L was a most unimpressive witness. Her evidence was of no assistance. She seemed to have had little comprehension of the dispute between the husband and Ms Kalmar and was almost bewildered about giving evidence. She was overly keen to give evidence favourable to Ms Kalmar. I do not accept that she directly witnessed Ms Kalmar hand to the husband any bundles of cash, as deposed to in her affidavit.
Despite having apparently witnessed two statutory declarations attesting to the husband owing money to Ms Kalmar, she was clearly unqualified to witness a statutory declaration. Whilst being cross-examined by counsel for the wife she agreed:
i)That the contents of the two statutory declarations, namely that Ms Kalmar had handed to the husband a sum of $200,000 on one occasion and a further sum of $110,000, on another occasion, were correct;
ii)That no one else was present when the cash was allegedly handed to the husband.
When cross-examined by counsel for the husband, she conceded:
i)she could read limited English and in fact read aloud in court the document referring to $110,000 being advanced to the husband
ii)that she did not have a clue how much money was allegedly handed over by Ms Kalmar to the husband,
iii)she did not know whether the husband had paid back to Ms Kalmar any of the alleged advance
iv)she allegedly asked the husband how much money he had borrowed, and she signed the document when he confirmed the amounts referred to in the documents.
v)Mr B, whom she knew by another name, was not present when Ms Kalmar allegedly handed cash to the husband.
Her evidence about the nature of her friendship with Ms Kalmar was contradictory to Ms Kalmar’s own evidence.
I reject the submission of counsel for the second respondent that Ms L was an impressive witness and that ‘Ms L’s evidence is the smoking gun that establishes conclusively that Mr Brandon’s first two affidavits were truthful and his last a concoction.’ I find that her evidence did not assist the second respondent’s claim in any manner whatsoever and that she was entirely lacking credibility.
Ms J
Ms J swore an affidavit on 27 March 2018 which was filed on behalf of the second respondent.
Ms J was the conveyancing clerk employed by Felix A Vitiello solicitor, referred to by the husband and second respondent as “the solicitor”.
She had the conduct of the conveyancing transaction to effect a transfer of the Property A property from the husband to the second respondent. She had been instructed to act on behalf of both parties.
She was cross-examined by counsel for the wife and counsel for the husband.
She gave evidence in a cautious manner and endeavoured to answer many questions directly. However, in my view, when she was describing her translation of the documents she had prepared for the husband and the second respondent she embellished and overstated her explanation.
Claim by Second Respondent for damages
Paragraph 67 of the Second Respondent’s Closing Submissions include the claim for damages resulting from the wife’s lodgement of a caveat encumbering the Property A property. The claim comprises loss of rental calculated at $375 per week from 27 June 2016 and continuing until the date of judgement.
In order to satisfy the claim for damages, it is proposed that the sum of $15,000 which the wife paid into her solicitor’s trust account, pursuant to my orders of 17 August 2016, be paid to the second respondent, and such sum represents 40 weeks rent from 27 June 2016 until 3 April 2017.
Additionally, the second respondent seeks an order that the wife pay her a further sum of $19,125, representing foregone rent up to 26 March 2018, and the sum of $375 per week thereafter, until judgement is delivered.
Counsel for the wife at paragraph (a) (a) of his Final Submissions in Reply, submits that it is procedurally unfair that the second respondent to claim “damages” in her Response, as there has never been a claim for such relief in either her Response, or outline of case.
The only evidence in relation to this issue is paragraph 26 and annexure 14 of the trial affidavit of the second respondent. I agree with the submission of counsel for the wife that the matter was not pursued throughout the course of the trial, and that there were no orders sought in any of the prior court documents of the second respondent.
In any event, as I have determined that the second respondent has no interest in the Property A property, there can be no claim by her for either damages or loss of rent.
Costs
Counsel for the wife in his final submissions sought an order that the second respondent pay the wife’s costs of the proceedings.
Counsel for the second respondent in his final submissions also sought that costs submissions should be made after delivery of these reasons. I agree with that submission and will make the appropriate order.
Having determined that the second respondent has no interest in the Property A property and that the second respondent should not return the $100,000 to the husband, I will now consider the distribution of the asset pool between the husband and the wife.
Property proceedings between the husband and the wife
RELEVANT LEGISLATION
Property proceedings between parties to the marriage are governed by the provisions of s.79 of the Family Law Act1975.
Section 79 (1) of the Act provides that the court may make such orders as it considers appropriate altering the interests of the parties in the property.
Section 79 (2) provides as follows:
The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
If the Court is satisfied that it is just and equitable to make an order altering the interests of the parties in property, s.79 (4) of the Act sets out the matters which the court must take into account when considering what order (if any) should be made.
That section provides as follows:
Section 79(4) In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:
Section 79(4) (a) the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
Section 79(4) (b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
Section 79(4) (c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
Section 79(4) (d) the effect of any proposed order upon the earning capacity of either party to the marriage; and
Section 79(4) (e) the matters referred to in subsection 75(2) so far as they are relevant; and
Section 79(4) (f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and
Section 79(4) (g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
Prior to the decision of the High Court in Stanford v Stanford [2012] HCA 52 the preferred approach to determine property matters was set out by the Full Court in the matter of In the Marriage of Hickey [2003] FamCA 395.
The approach, as set out in Hickey (supra) may be summarised as follows. Firstly, the court should make findings as to the identity and value of the property pool. Secondly, the court should determine the contributions of the parties both direct and indirect, including financial and non-financial contributions and then determine the contribution based entitlements of each of the parties; as a percentage of the value of the property of the parties. Thirdly, the court should determine whether any further adjustment should be made to the contribution based entitlements of the parties, after giving consideration to the relevant matters referred to in s.75 (2) of the Act. Fourthly the court should consider the effect of those findings and decide what order for division of property is just and equitable.
In Stanford (supra) the High Court noted that s.79(1) enables the court to make such orders as it considers appropriate. However, prior to making any orders for the adjustment of parties’ interests in property, the court must first determine whether it is just and equitable to make any property orders, or to alter the parties interests in property.
The High Court stated in Stanford at [37]:
[37] First, it is necessary to begin consideration of whether it is just and equitable to make 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……. The question posed by S79(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.”
The High Court further stated at [ 42] that in most cases:
[42] In many cases where an application is made for a property settlement order, the just and equitable requirement is readily satisfied by observing that, as the result of a choice made by one or both of the parties, the husband and wife are no longer living in a marital relationship. It will be just and equitable to make a property settlement order in such a case because there is not and will not thereafter be the common use of property by the husband and wife. No less importantly, the express and implicit assumptions that underpinned the existing property arrangements have been brought to an end by the voluntary severance of the mutuality of the marital relationship. That is, any express or implicit assumption that the parties may have made to the effect that existing arrangements of marital property interests were sufficient or appropriate during the continuance of their marital relationship is brought to an end with the ending of the marital relationship. And the assumption that any adjustment to those interests could be effected consensually as needed or desired is also brought to an end. Hence it will be just and equitable that the court make a property settlement order. What order, if any, should then be made is determined by applying s 79(4).
In summary, in the majority of matters the decision as to whether or not it is just and equitable for the Court to make property orders is resolved by the breakdown of the marital relationship and the mutual applications of the parties to the court for orders altering their respective property interests.
In this matter the parties have separated and both parties have made an application to the court seeking orders altering their respective property interests. It is clearly just and equitable to adjust property matters between the parties.
Having satisfied myself that it is just and equitable to make an order altering the interests of the parties in the property, the approach and considerations I must make are as follows:
(a)Attribute value to the assets comprising the property pool;
(b)Identify and give weight to the various contributions of each of the parties as set out in s.79 (4) (a) – (c) and make an assessment as to the entitlements of the parties based on their respective contribution;
(c)Identify the identify the relevant considerations as set out in s.79(4)(d)-(g), including the matters set out in s.75 (2) so far as they are relevant, and then decide whether any further adjustment is appropriate;
(d)Consider whether the proposed orders are to equitable.
PROPOSALS
The husband and the wife agreed as to the composition and distribution of the asset pool. As previously referred to the parties provided a minute of proposed consent orders, on the assumption that the Property A property was included in the asset pool.
There was no further dispute between the parties.
THE ASSETS AND LIABILITIES OF THE PARTIES
The agreed assets and liabilities were as follows:
| No. | Asset | Valuation |
| 1. | Property A | $575,000[5] |
| 2. | Funds in trust account of the wife’s lawyers | $ 15,000 |
| 3. | Motor Vehicle (wife) | $7,000 |
| 4. | Motor Vehicle (husband) | $7,000 |
| Sub – total | $604,000 | |
| Superannuation | ||
| 5. | Wife | $8,000 |
| 6. | Husband | $250,000 |
| Liabilities | ||
| 7. | Wife’s credit card at separation | - $8,000 |
| Total | $854,000 |
[5] Valuation of Property A prepared by Valuations, dated 1 November 2017, exhibit W 4.
CONTRIBUTIONS
Initial contributions
Both parties agreed as to their respective assets at the commencement of the relationship.
The husband’s assets were as follows:
i)Property A valued as at 31 January 2009 at $265,000;
ii)Savings;
iii)Limited superannuation.
The wife did not have any significant assets.
Contributions during the marriage
During the marriage the husband worked full-time in a job he had held for approximately 23 years. His income was approximately $100,000 per annum .He contributed his income to the support of the family and additionally made non-financial contributions.
During the marriage the wife worked part time shifts as a (occupation omitted). Her income was approximately $20,000 per annum. She contributed income to the support of the family and additionally made non-financial contributions. She deposes to having done the shopping, cooking, cleaning and housework for the household.
Contributions post separation
Post separation the wife has continued to live in the Property A property and support herself.
Post separation the husband initially took steps to deplete the asset pool, by attempting to divest himself of the Property A property and $100,000 in his offset account.
Since he vacated the Property A property, it is likely that he has obtained rental accommodation. He has continued to work and support himself.
There were no submissions made by either party as to the appropriate adjustment arising from their respective contributions.
The Section 79 (4)(d),(e),(f) and (g) and the Section 75(2) factors
Section 79(4)(d): the effect of any proposed order upon the earning capacity of either party to the marriage.
The orders which I propose to make will not have any affect upon the earning capacity of either party to the marriage.
Section 79(4)(e): the matters referred to in section 75(2) so far as they are relevant
Section 75(2) The matters to be so taken into account are:
(a) the age and state of health of each of the parties; and
The husband is currently aged 52 and works full-time. He earns approximately $100,000 per annum.
The wife is currently aged 42 and works part time as a (occupation omitted). She earns approximately $20,000 per annum
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
The income, property and financial resources of each of the parties is set out in their respective Financial Statements. Both parties have physical and mental capacity for appropriate gainful employment.
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
Neither party has the care or control of a child of the marriage who has not attained 18 years. There are no children of the marriage.
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
The wife has the care of her 18-year-old intellectually and physically disabled son. He remains living with the wife and is cared for and financially supported by her.
(e) the responsibilities of either party to support any other person; and
Apart from the wife’s responsibility to support her son, neither party is responsible for the support of any other person.
(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
Until July 2017 the wife received $350 per fortnight for family tax benefits. These payments ceased upon her son reaching the age of 18.
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
The orders which I propose to make will enable each party to have a reasonable standard of living.
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
The agreement reached between the husband and the wife, provides for a payment of a lump sum to the wife, however it does not provide for payment of spousal maintenance.
(ha) the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
This is not a relevant consideration.
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
The contributions of the wife referred to in these reasons.
(k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
The parties were relationship for approximately 7 ½ years. Neither party is alleging that the duration of the relationship has affected the earning capacity of the wife.
(l) the need to protect a party who wishes to continue that party’s role as a parent; and
The orders which I intend to make enable the wife to care for her son.
(m) if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and
This is not a relevant consideration.
(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party; and
This is not a relevant consideration.
(naa) the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i) a party to the marriage; or
(ii) a person who is a party to a de facto relationship with a party to the marriage; or
(iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
This is not a relevant consideration.
(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
This is not a relevant consideration.
(o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
All relevant factors have been referred to in these reasons.
(p) the terms of any financial agreement that is binding on the parties to the marriage; and
There is no binding financial agreement. The agreement entered into between the parties on 11 June 2009 was signed by the wife without the benefit of legal advice, and without an interpreter.
(q) the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
I refer to the previous paragraph.
There were no submissions made by either party as to the appropriate adjustment arising from their respective future needs.
Is it just and equitable to alter the parties’ property interests
Both parties have sought orders adjusting their respective interests in property and have agreed to an adjustment. As a result of the evidence as to respective contributions and future needs, I am satisfied it is just and equitable to make orders sought by the husband and wife, adjusting property between them.
Adjustment of interests
The parties have agreed on the respective adjustments of the property.
The division of assets proposed by them is as follows:
Wife’s Assets
| Payment from husband | $275,000 |
| Motor Vehicle | $7,000 |
| Wife’s superannuation | $8,000 |
| Sub total | $290,000 |
| Less Liabilities (Credit card) | - $8000 |
| Nett Assets | $282,000 |
Husband’s Assets
| Property A | $575,000 |
| Motor Vehicle | $7,000 |
| Superannuation | $250,000 |
| Less payment to wife | -$275,000 |
| Nett assets | $557,000 |
The proposed division of assets between the husband and the wife results in the wife receiving 33.6% of the total superannuation and non-superannuation assets and the husband receiving 66.4%.
Spousal Maintenance
The wife initially sought spousal maintenance from the husband, however, when agreement as to distribution of assets was reached by the parties, this claim was not pursued by the wife.
Conclusion
Having considered the respective contributions and future needs of the parties I am satisfied that the division of proposed assets is just and equitable. I will make the orders sought by the husband and wife.
The division of assets referred to in the preceding paragraph will be achieved by the husband either borrowing sufficient funds to enable him to pay the wife and retain the Property A property, or alternatively a sale of the Property A property. In the event the Property A property is sold, the husband will receive a substantial cash payment. The husband would be able to rehouse himself, either by purchasing another property or renting.
The wife will have sufficient funds from the payment she will receive from the husband to rehouse herself, either by renting or purchasing a modest property. The cash sum she will receive addresses her immediate needs.
I certify that the preceding four hundred and thirty-three (433) paragraphs are a true copy of the reasons for judgment of Judge Williams
Date: 20 July 2018
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
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Civil Procedure
Legal Concepts
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Injunction
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Remedies
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Costs
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Procedural Fairness
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Appeal
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