Tian and Fong - [2010] FamCAFC 255

Family Court Of Australia

TIAN & FONG

[2010] FamCAFC 255

FAMILY LAW - APPEAL – PROPERTY – Whether the Federal Magistrate erred in including a property that was in joint names of the Wife and her father as part of the assets of the marriage – Whether the Federal Magistrate erred in relation to his treatment of loans from family members of the Husband and Wife – Whether the Federal Magistrate erred in the exercise of his discretion pursuant to section 79(5) of the Family Law Act 1975 (Cth) by failing to adjourn proceedings – Whether the Federal Magistrate erred in his finding that there should be no adjustment after considering s 75(2) of the Family Law Act 1975 (Cth) – Whether the Federal Magistrate made a property settlement order that was not just and equitable – Where careful consideration needs to be given when dealing with a witness who does not have English as their native tongue especially in findings of credit – Appeal allowed

Browne v Dunn (1893) 6 R 67
CDJvVAJ (No. 1) (1998) 197 CLR 172
Gronow v Gronow (1979) 144 CLR 513
Hickey and Hickey and Attorney-General for the Commonwealth of Australia (2003) FLC 93-143
House v The King (1936) 55 CLR 499
Jones v Dunkel (1959) 101 CLR 298
Mallet v Mallet (1984) 156 CLR 605
In the Marriage ofGrace (1997) 22 Fam LR 442
Norbis v Norbis (1986) 161 CLR 513
Prpic and Prpic (1995) FLC 92-574
Re F: Litigants in Person Guidelines (2001) FLC 93-072

Family Law Act 1975 (Cth) – s 75(2), s 79, s 79(4), s 79(5), s 93A(2), s 94AA(3)

Family Law Rules 2004 (Cth) – r 22.39

APPELLANT WIFE:

MS TIAN

RESPONDENT HUSBAND:

MR FONG

FILE NUMBER:

MLC

923

2008

APPEAL NUMBER:

2009

DATE DELIVERED:

15 December 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Melbourne

JUDGMENT OF:

O’Ryan J

HEARING DATE:

6 July 2010

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

8 October 2009

LOWER COURT MNC:

[2009] FMCAfam 856

Representation

COUNSEL FOR THE APPELLANT WIFE:

Mr D. Mort

SOLICITOR FOR THE APPELLANT WIFE:

Westminster Lawyers

COUNSEL FOR THE RESPONDENT

HUSBAND:

Ms M. Vohra

SOLICITOR FOR THE RESPONDENT

HUSBAND:

Robinson Gill Lawyers

Orders

The appeal be allowed.
The order made on 8 October 2009 pursuant to s 79 of the Family Law Act 1975 (Cth) by Federal Magistrate O’Sullivan be set aside.
The applications for property settlement be remitted to the Federal Magistrates Court for redetermination by a Federal Magistrate other than Federal Magistrate O’Sullivan.
Each party be at liberty to make an application by way of written submissions in respect of costs incurred in relation to the appeal by filing such submissions at the Southern Region Appeal Registry of the Family Court of Australia and serving them on the other party within 14 days of the date hereof.
Each party have a further seven days in which to make written submissions in answer thereto by filing such submissions at the Southern Region Appeal Registry of the Family Court of Australia and serving them on the other party.
Each party be at liberty to reply to an answer by way of written submissions by filing such reply at the Southern Region Appeal Registry of the Family Court of Australia and serving it on the other party within a further seven days.
Each party endorse on the cover sheet of any submissions filed pursuant to orders (4), (5) and (6), the date upon which a copy of that submission was served on the other parties.

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

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SA 89 of 2009
File Number: MLC 923 of 2008

MS TIAN

Appellant Wife

And

MR FONG

Respondent Husband

Reasons For Judgment

Introduction

This is an appeal by Ms Tian (“the Wife”) against a property settlement order made pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) by Federal Magistrate O’Sullivan on 8 October 2009. The Respondent is Mr Fong (“the Husband”).
The proceedings were for parenting and property settlement orders. The hearing occurred over four days, beginning in April 2009 and concluding in July 2009. At the hearing the Wife was unrepresented and the Father was represented by counsel. The Wife has since retained legal representation. At the hearing both parties required the assistance of an interpreter.
For the purpose of the property settlement proceedings, the Federal Magistrate found at [193] of his reasons for judgment that the parties had net assets of $427,402.00. There were issues as to the extent and value of the net assets.
The Federal Magistrate found at [234] that the contribution based entitlements should be assessed as to 60 per cent to the Husband and 40 per cent to the Wife. There were issues as to the contributions of both parties.
The Federal Magistrate found at [230] that having regard to the matters in s 75(2) of the Act, by reason of s 79(4)(e), there should be no further adjustment to the contribution based entitlement of either party. There were issues as to his Honour’s consideration of the matters in s 79(4)(d), (e), (f) and (g) of the Act.
The Federal Magistrate found at [240] that the Wife would have an entitlement of $174,463.00 and at [241] that the Husband an entitlement of $252,939.00 being a disparity of $78,476.00.
On 8 October 2009 the Federal Magistrate made the following property settlement order:
15.    That within 60 days of these orders the wife do all acts and things and sign all document as may be required to transfer to the husband her right, title and interest in the real property situate at and known as [property B] (“the real property”).
16.    That contemporaneously with the transfer:
a.the wife vacate the real property and leave it in a good and undamaged condition;
b.the husband pay the wife the sum of $44,463.00 being the monies in the Colonial MISA Account in his name (“the payment”); and
c.the husband do all acts and things and pay such monies as may be required to discharge the mortgage with the CBA Colonial Home Loan Account in the parties’ joint names and the wife sign any necessary documents to give effect to this order and the husband indemnify the wife against all payments and liabilities pursuant to the mortgage.
17.    That in the event the mortgage secured against the real property cannot be refinanced within 30 days by the husband then, subject to the payment being made, the wife transfer to the husband her interests in the real property to be held on trust for sale and the real property be sold by public auction and the proceeds of sale be applied as follows:
a.firstly to pay the costs, commissions and expenses of the transfer and auction;
b.secondly to discharge the mortgage secured against the real property;
c.thirdly the balance to the husband.
18.    That pending the transfer in paragraph (16) hereof the wife have the sole use of the real property and during such sole right and occupation she pay all instalments of the mortgage and all rates, taxes, utilities and outgoings of the property as they fall due.
19.    That any monies required by Pearsons Barristers and Solicitors to remove the caveat over the real property with respect to legal fees owed to that firm by the wife, if any, be deducted at first instance by the husband from the payment.
20. That pursuant to section 106A of the Family Law Act1975 (“the Act”) a Registrar be appointed to execute any document required to give effect to these orders should the wife fail to do so.
21.    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 their respective possession.
b.Monies standing to the credit of the parties in any joint bank account are to become the property of the husband.
c.Insurance policies remain the sole property of the owner/beneficiary named therein.
d.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.
e.Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
On 4 November 2009 the Wife filed a notice of appeal. An amended notice of appeal was filed on 16 April 2009. A further amended notice of appeal was then filed on 11 June 2010. At the hearing before me, counsel for the Wife sought to rely upon the further amended notice of appeal. In the further amended notice of appeal there are six grounds of appeal.
On 11 June 2010 the Wife filed an application in an appeal. The Wife sought leave to adduce further evidence in the appeal as detailed in an affidavit also filed on 11 June 2010. If the Wife is successful in her application to adduce further evidence the Wife also seeks leave to amend the further notice of appeal to include two further grounds of appeal. On 2 July 2010 the Husband filed a response supported by an affidavit he swore on the same date.
It was agreed that in the event that the appeal of the Wife was successful then the applications for property settlement would have to be remitted to the Federal Magistrates Court for redetermination.

Background

In his reasons for judgment delivered on 8 October 2009, the Federal Magistrate provided from [3] to [16] a “Procedural background” and from [17] to [38] a “Short history” of the proceedings which I will repeat where necessary. Counsel for the Wife also filed on 11 June 2010 a “procedural chronology” encompassing the period from 4 February 2008 until 8 October 2009.
The Husband was born in 1959. The Wife was born in 1972. Both parties were born in China.
When discussing the background of the proceedings under the hearing “Short history”, the Federal Magistrate at [17] stated: “In what follows a statement of fact indicates a finding of fact unless the context suggests otherwise”.
At the outset I observe that in his reasons the Federal Magistrate made findings as to the credit of the parties. This is understandable given the significant issues in relation to the extent of the net assets and the matters of contribution. For example, it is apparent that the Wife was alleging that the Husband failed to make a full and frank disclosure of his financial circumstances.
In relation to the Wife’s evidence the Federal Magistrate said:
60.    Overall, the wife was an unsatisfactory witness. The wife’s evidence was characterised by evasion and in large part an absence of any corroborating evidence. Her oral evidence constantly changed over the course of the hearing.
61.    The wife was cross examined at length. She was asked questions about particular incidents with respect to the allegations she made of the husband. Her answers to questions in cross examination contradicted her earlier evidence and/or strained the bounds of credibility. It became clear the wife’s strongly held beliefs as to what was “fair” financially were based on either a misunderstanding of the legal position, misinterpretation of documents, lack of information or a misunderstanding regarding what had become of certain monies or mere hearsay.
62.    In summary given both her behaviour during the proceedings and the weight of evidence obtained in cross-examination, the wife did not impress as a truthful witness.
In relation to the Husband’s evidence the Federal Magistrate said:
63. Contrary to the evidence of the wife, the evidence of the husband was more responsive, consistent, plausible and supported by corroborative evidence provided to the Court. In short, he was a more reliable historian than the wife.
64. The husband presented as a man, who as his Counsel put it “had always earnt his living hard” and did his best to build up assets and support the family.
The Federal Magistrate then concluded:
65. I am satisfied after hearing from the parties and observing them that little weight can be placed on the wife’s evidence. In contrast, I found the husband a credible witness. Where there is a conflict between the parties, I prefer the evidence of the husband.
The Federal Magistrate made a strong finding of credibility. However, in his reasons his Honour did not identify any particular issue in relation to which he discussed evidence that established that the Wife was not telling the truth about an issue. Further, his Honour did not identify the respective contentions about particular matters in issue and then provide reasons as to why he preferred one version over the other. It must also be remembered that the Wife was unrepresented and that English was not her first language.
In Prpic and Prpic (1995) FLC 92-574 at 81,691 the Full Court observed:
We are conscious however that we did not see the witness nor have an opportunity to observe the speed at which she gave her answers, where the pauses were in her evidence, the tone or volume of her voice and her general demeanour whilst giving the answers.
Witnesses who do not have English as their native tongue suffer under a considerable disability in endeavouring to tell an accurate story to a court. They may have some command of the English language sufficient to hear the question, but not understand the subtle nuances often involved in skilful questioning. In cases, such as the present, where a party’s evidence is given through an interpreter, that party is under an additional disadvantage. The quality of the translation depends on the quality of the translator. There is no way for a court to be able to determine the accuracy of what is being translated unless the judge is proficient in the relevant language. Many concepts in the English language may be incapable of being accurately translated into another language. There may be significant room for argument as to precisely what the equivalent word is in another language. This problem is frequently seen in interpretation of international statutes such as the Hague Convention which has its original form both in the English language and the French language. The answer that the witness gives then has to be re-interpreted back to the English language, and again there is an opportunity for a loss of meaning to occur.
The report of the Commonwealth Attorney-General’s Department entitled “Access To Interpreters In The Australian Legal System” considered the legislative and administrative arrangements for the provision of interpreters, the role of the interpreter, the manner in which language difficulties may affect equality before the law and the difficulties faced by non-English speaking litigants. At para 1.3.2 the report says:
“The role of the interpreter in the law is an important one. The party or witness in legal proceedings who cannot both speak and understand the language of the courts is at a disadvantage compared to his or her English-speaking counterparts. Justice can only be done if the evidence and arguments are fully and clearly understood by all concerned”.
Mr V Menart made the following submission to the New South Wales Law Reform Commission as set out at para 3.3.4 of the Report:
“Even a good interpreter, and they are few and far between, can only give an approximate meaning, without the nuances and the stress contained in the original. Even the best interpreter can forget a part of what was said or understand a word in a wrong context, especially when the intended context follows in time. In reality, the person who has to use an interpreter is extremely handicapped.’“
The Report considered a paper by Kathy Laster entitled “Legal Interpreters: Conduits to Social Justice” at para 3.3.10. That paper referred to a study on the jurors’ perceptions of witnesses where an interpreter was involved. It was the conclusion of the study that the manner in which an interpreter translated the evidence had a dramatic effect on the jurors’ perception and impression of a witness.
The authors of the report said at para 3.3.20:
“A literal translation, if it is possible, cannot convey the nuances of expression which are fundamental to the communication of an idea. The same words or phrases can have different meanings amongst different groups or areas even in the same country”.
In these circumstances whilst it is open to the trial Judge to clearly indicate a preference for one version of the evidence over another, we think it is only in the clearest of circumstances and where it is absolutely necessary that it is appropriate for a trial Judge to make a strong finding of credibility. It is sufficient for an appellate court’s purposes that the trial Judge prefers one version to the other and is able to explain why that be so. It is unnecessary to take the further step where the evidence is in conflict to absolutely reject out of hand the version being given by a witness whose credit is less than well established.
I have read the transcript of the hearing before the Federal Magistrate and in my view the observations of the Full Court in Prpic and Prpic are apposite to the circumstances of this case. In this case it was important to deal with the evidence in relation to contentious issues and in particular consider what corroboration was available to support a contended version.
In 1989 the Husband arrived in Australia.
Both the Husband and the Wife had been previously married. The Husband has a child from his previous marriage but he does not spend time with her and the Federal Magistrate noted at [217] that he “does not financially assist that child”.
In 2001 the Husband purchased property X for approximately $280,000.00. The Husband contended that to assist with payment of the cost of purchase he borrowed $60,000.00 from his parents “as a loan”. The remainder of the purchase price of $220,000.00 was sourced by way of a home loan from AIMS. The property was tenanted.
On or about 31 March 2001 the Husband purchased a takeaway shop (“the business”) for $25,000.00. The Husband contended in his affidavit filed on 24 July 2008 that the cost of purchase was funded by a loan from his sister. Adjoining the business was a three bedroom dwelling where the Husband lived. The Husband contended that he renovated the property at an estimated cost of $5,000.00 and worked in the business six and a half days a week.
Referring to the AIMS debt secured on the title of property X, the Federal Magistrate observed at [19] that the Husband worked in the business and “applied the proceeds from the business and the rental income to reduce the debt”. In his affidavit filed on 24 July 2008 the Husband contended that the rental income from property X, as well as additional funds lent to him by his parents and his sister “from time to time”, were applied to reduce the loan from AIMS. The Husband gave no evidence that the income from the business was used to repay the loan from AIMS.
According to the Husband’s evidence, in 2001 he borrowed a total of approximately $85,000.00 from his parents and his sister. In her affidavit filed on 11 August 2008 the Wife denied that the Husband borrowed money from his parents and sister. The Wife contended that the Husband’s parents always lived in China and his mother passed away in 2002. As well, the Husband’s sister has always lived in Shanghai. It was submitted by the Wife that no loan agreements were produced and the Husband’s sister did not give evidence.
In particular, there was an issue in relation to the subsequent repayment by the Husband of these loans from his family. The Wife contended that the Husband did not particularise when the alleged loan monies were received, whether he had any savings accumulated from 1989 when he migrated to Australia until 2001 and why he needed to borrow money from his family.

There was an issue about the inclusion in the net assets of the parties of a property located in Shanghai, China (“the Shanghai property”). A document dated 4 November 2003, described as a Shanghai Property Registration document, disclosed, and it was not controversial, that the Wife and her father were registered as the owners of the Shanghai property.
The Husband contended that the Wife was the beneficial owner of the Shanghai property, or at least of a one half interest, and this was denied by the Wife. The Wife contended that the Shanghai property was beneficially owned by her parents. In her affidavit filed on 11 August 2008 the Wife admitted that she was registered on the title to the Shanghai property, but deposed that it was purchased by her parents with their funds and was their property and that she never contributed any monies towards its acquisition, conservation or improvement. The Wife also deposed that her parents live in the Shanghai property.
On behalf of the Wife, evidence was given by her father, Mr T. The Wife’s father affirmed an affidavit that was filed on 11 August 2008 and he was not cross-examined. The Wife’s father gave evidence that in October 2002 he and his wife purchased the Shanghai property for the equivalent of approximately $68,000.00 and that he put the ownership of the property in the Wife’s name as the Chinese authorities had implemented a policy similar to the First Home Owners Grant. He deposed that the Wife put “absolutely no money towards the purchase” of the Shanghai property. The Federal Magistrate observed at [94] that, in his view, “the wife had a legal interest” in the Shanghai property.
The parties first met in China in December 2002. The Husband had returned to Shanghai to attend his mother’s funeral.
The Husband returned to Australia in early 2003 and went back to China between December 2003 and January 2004. The Husband returned to China in May 2004 and the parties were married in May 2004. The Husband returned to Australia on 27 May 2004. The Wife did not travel with the Husband to Australia.
The Federal Magistrate observed at [198] that after the parties were married, but before cohabitation commenced, the Husband gave “at least $10,000.00” to the Wife. In his affidavit filed on 24 July 2008 the Husband contended that he gave two amounts of $10,000.00 to the Wife. The Husband gave no evidence as to how he gave this money to the Wife or the source of the funds. The Wife denied that she received any money from the Husband.
The Husband returned to China between December 2004 and January 2005.
In March 2005 the Wife migrated to Australia. The parties lived at the rear of the business. The Federal Magistrate found at [196] that the parties cohabited between March 2005 and September 2007.
The Federal Magistrate observed at [23]: “At the time the parties commenced cohabitation the husband had reduced the mortgage over [property X] by half. The wife at that time had an interest in a property in Shanghai. The husband had provided the wife with approximately $10,000 in funds for the expenses associated with relocating from China and to purchase some whitegoods”. The Federal Magistrate at [204] accepted that at the commencement of the relationship the Husband had $50,000.00 in shares, the business and $165,000.00 “in equity” in property X.
In her affidavit filed on 11 August 2008 the Wife deposed that at the time of the marriage she had savings of $20,000.00 including $15,000.00 which she deposited into an account with the ANZ Bank and the balance of $5,000.00 she bought with her when she came to Australia. The Wife also contended that she had furniture, furnishings and household contents which she bought to Australia. The Federal Magistrate did not refer to this evidence when he was dealing with the contributions of the parties at [194] to [209]. However, when dealing with the credibility of the Wife his Honour observed at [80]:
In large part the wife’s evidence in cross examination belied the veracity of her claims regarding the commencement of cohabitation, contributions to and during the relationship. An example of this was her evidence in cross examination that she brought $20,000 to Australia but waited 5 months before putting it into the ANZ bank. Like most of her evidence on financial matters it had an air of unreality about it. A further example of this was that the wife claimed the husband controlled the finances and left her with nothing, yet, she could not explain the inconsistency between this position and that the husband had put the former matrimonial home in joint names.
This was in circumstances where the Wife had corroboration that she had money in a term deposit account in her name with the ANZ Bank.
As to the assets the Federal Magistrate found the Husband had equity in property X of $165,000.00, however, it was not explained by his Honour how the amount of $165,000.00 was calculated. Presumably his Honour accepted that between 2001 and perhaps late 2002 or May 2004 the Husband had reduced the mortgage of $220,000.00 obtained from AIMS to acquire property X.
In the written submissions of the Wife it was submitted that in relation to property X, the initial mortgage debt was $220,000.00 and the balance to pay the cost of purchase was met by way of a loan allegedly from the Husband’s parents. It was observed that stamp duties and registration fees were not factored in by the Husband’s evidence. In his affidavit of 24 July 2008 the Husband contended that from 2001 until March 2005 he was able to reduce the mortgage debt to $105,000.00 and that the net equity in the property was $175,000.00 (excluding his parent’s alleged loan of $60,000.00). I observe that at [198] the Federal Magistrate said that the equity was approximately $155,000.00 and at [204] he said that the equity was $165,000.00. His Honour did not refer to what the Husband said in his evidence.
The Wife submitted that the Husband contended that by March 2005, four years after the purchase, he had reduced the mortgage debt on property X from $220,000.00 to $105,000.00 or by approximately $25,000.00 per annum. As I have already observed, the Husband, in his affidavit of 24 July 2008, contended that the mortgage payments were met from the rent and funds lent to him by his sister and his mother. During cross-examination the Husband accepted that his net income from the business was only $20,000.00 per annum (Transcript, 30 April 2009, p 64). This income was corroborated because attached to the affidavit of the Wife, filed on 11 June 2010, is a copy of a letter dated 24 March 2006 from the Traffic Accident Commission of Victoria (“TAC”) to the Husband in which it was recorded that in the year to 30 June 2005 the business generated income from personal exertion of $15,905.00 for the Husband and $4,550.00 for the Wife and that the total of $20,455.00, when divided by 52 weeks, gives average pre-accident earnings of $393.37 per week. Thus, the funds to reduce the AIMS mortgage debt may not have come from the business earnings.
I also observe that with the exception of the amount of $85,000.00 in 2001, the funds the Husband contended he received from his family were not quantified or particularised. For example, during the hearing it was contended that the Husband owed $80,000.00 to his sister. In his affidavit filed on 24 July 2008 the Husband did not give evidence that he borrowed $80,000.00 from his sister. All that the Husband said was that in April and June 2008 he paid $80,000.00 to his sister being the “principal [sic] amount that was owing” to his sister.
The Wife submitted that the figures do not add up and the evidence lacks credibility. It was also submitted that these matters were not properly analysed by the Federal Magistrate and therefore his assessment as to the legitimacy of the loans the Husband contended he owed to his family was flawed.
As to the shares of $50,000.00, I observe that an outline of case document was filed on behalf of the Husband for the purposes of the hearing before the Federal Magistrate and in this document it was not contended that the Husband owned shares of $50,000.00 at the commencement of cohabitation. I also observe that in the Husband’s affidavit filed on 24 July 2008, although he gave evidence as to the assets he had at the commencement of cohabitation, he did not give evidence that he had shares of $50,000.00. Then, in his recent affidavit filed on 2 July 2010, the Husband deposed that he “also gave evidence at Trial regarding the purchase of shares and subsequent sale of shares in May 2008. These are the shares that the wife now says she now has found the Chess statement for. This evidence was already given at the trial”.
The hearing before the Federal Magistrate commenced on 29 April 2009 and the Wife appeared without legal representation. The Wife, however, was assisted by an interpreter. I do not propose to repeat all of what happened on the first day except to observe that at one point, through the interpreter, the Wife said “my English reading ability is very poor” to which his Honour responded: “That is not my problem” (Transcript, 29 April 2009, p 38). The hearing was then adjourned to 30 April 2009 and on that day, when the hearing commenced, his Honour told the Wife that the Husband’s “barrister will lead some evidence from him, and then [you] will have an opportunity to ask him questions about the evidence that he has given primarily in his affidavit. So she should listen very closely to what he says and also, having had the opportunity to read his affidavit, if she wishes to ask him any questions about that material she will get that opportunity this morning”. The Husband then gave extensive evidence in chief (Transcript, 30 April 2009, pp 42 to 61).
I also observe that during the examination in chief of the Husband there was the following exchange (Transcript, 30 April 2009, p 49):
HIS HONOUR: I appreciate the forensic challenge that confronts counsel when you get a brief, but I was pretty crystal clear with the respondent about how I would deal with documents that weren’t filed in accordance with directions in this matter. I think despite the obvious interests that counsel has in getting this material before the court, given that [the Wife] is unrepresented, I intend to apply the same rules to your client. If its not on affidavit, it’s not in.
MS DELLIDIS: I appreciate your Honour’s desire to be strict with the parties in terms of material that’s filed and evidence that is before the court. There are some matters however that I would ask for your Honour’s indulgence, and I would expect you to extend it to the wife as well, where there is a deficit in your Honour’s capacity to make determinations of fact where the issues are in dispute between the parties. There is a dispute for instance that the wife says she had certain moneys and contributed to the mortgage for instance. In due course I’m going ask her to produce any documents that show that she was contributing to the mortgage. In order to be able to do that, I have to tender this document through this witness because it’s his account.
HIS HONOUR: Well, [the Wife], I’m going to allow [the Husband]’s barrister to ask him questions about a document, being a statement from the Commonwealth Bank, because its clear that its common cause that that was an account through which a lot of moneys passed whilst you were living together, and as Ms Dellidis has said, one of the things I’ve got to do is work out what happened during that period of time so I can work out who put what into the marriage. Now, unless you want to say anything to me, I’m going to allow her to do that for those reasons. Mr Interpreter, could you ask [the Wife] whether there is anything she wants to say in response to that?
INTERPRETER: I’m not sure about this kind of matter.
The above exchange is relevant to a complaint by the Wife about the failure of the Federal Magistrate to allow the Wife to provide documentary evidence from her father in relation to the Shanghai property and the loans to the Wife from her parents.
During his examination in chief the Husband was asked questions about a document (Exhibit A7) which was described as a Commonwealth Bank statement showing money from the sale of shares, and in particular that this document revealed that on 13 May 2008 the Husband sold shares and received $57,171.32 (Transcript, 30 April 2009, pp 59 to 60). The Husband was asked what he did with the money in the account and he said: “I withdraw [sic] the money and I entrust a friend of mine, took the money back to China to give to my father, because my father was ill in hospital” (Transcript, 30 April 2009, p 59).
The Husband gave no evidence in chief about shares he had at the commencement of cohabitation. The Federal Magistrate found that cohabitation commenced in March 2005 when the Wife migrated to Australia, even though the parties were married in May 2004 and the Husband was in China in December 2004 and January 2005. In any event, the document relied upon by the Husband to establish the sale of shares in 2008 does reveal that between 13 September 2004 and 9 December 2004, being the last date recorded before March 2005, the Husband may have acquired shares for a total cost of approximately $49,265.04.
In relation to contributions by the Wife, the Federal Magistrate observed at [201]: “The husband submitted that during the marriage the wife did not work and spent much of her time learning to read, write and speak English. Following the birth of the child the wife was occupied caring for the child until the child moved back to China to reside with the maternal grandparents in January 2007. On the evidence I am satisfied that’s the case”. However, in contradiction of this finding his Honour then said at [207] that: “The wife made non financial contributions during cohabitation as a parent and homemaker between February 2006 and September 2007”
The Husband had contended in paragraphs 20 and 30 of his affidavit filed on 24 July 2008 that the Wife did not assist him in the business and that he was “principally” responsible for all of the household chores. In her affidavit filed on 11 June 2010 the Wife contended that in support of her application to the Department of Immigration for permanent residency the Husband declared on 15 May 2006 that the Wife assisted in the business as well as undertaking the household chores. The Wife annexed to the affidavit a copy of the Husband’s application dated 15 May 2006. The Wife also annexed a copy of a medical report by Dr N dated 10 April 2007 in which Dr N reported that the Husband stated to him that “he was unable to help his wife with housework”.
In December 2005 the parties purchased, in joint names, property B (“the former matrimonial home”). The Husband deposed in his affidavit filed on 24 July 2008 that the purchase price was approximately $410,000.00 and in order to fund the cost of purchase, he drew down $80,000.00 from his existing loan facility with AIMS and obtained a further loan from Westpac Banking Corporation of $330,000.00. In other words, the Husband borrowed $410,000.00. The Federal Magistrate found at [25] that the Wife made “no initial contribution to fund the purchase” of the former matrimonial home. On one view, neither party made any initial contribution to fund the purchase of the former matrimonial home.
I observe that in the written submissions of the Wife it was contended that this evidence of the Husband was contradicted by his affidavit filed on 4 February 2008, in which at paragraph 13 he deposed that he “had savings in excess of $40,000 which was used as a deposit upon the property”.
In her affidavit filed on 11 August 2008 the Wife deposed that she contributed $20,000.00 to the purchase of the former matrimonial home. In her recent affidavit of 11 June 2010 the Wife deposed that she contributed $20,000.00 towards the deposit on the former matrimonial home by way of $4,500.00 in cash and $15,500.00 from her bank accounts. The Wife attached to her affidavit a copy of a term deposit record dated 16 December 2005 from the ANZ Bank addressed to the Wife. In the document there is a summary of the Wife’s term deposit and interest earned on her investment for the period 29 August 2005 to 15 December 2005. The document reveals an amount of $15,000.00. I observe that the Wife attached to her affidavit filed on 4 March 2008 a copy of this letter of 16 December 2005. The Federal Magistrate said nothing about this evidence.
I observe that counsel for the Husband told the Federal Magistrate that the Husband’s “evidence was also that the $15,000 deposited into a term deposit in the wife’s name was withdrawn and applied to purchase of the matrimonial home” (Transcript, 30 April 2009, p 66). It was put to the Wife in cross-examination that the funds in the term deposit account were “saved up in the five months after [the Wife] arrived in Australia from the [takeaway shop]” and this was denied by the Wife (Transcript, 21 July 2009, p 80). It was then put to the Wife that the amount of $15,000.00 was from “joint savings to sponsor” the Wife’s parents to come from China and this was denied by the Wife (Transcript, 21 July 2009, p 83).
The Wife also attached to her affidavit of 11 June 2010 a copy of a letter dated 3 June 2009 from a Director of Century 21 which enclosed a trust account receipt for a deposit of $1,000.00 in cash that was paid as an initial deposit on the purchase of the former matrimonial home. In the letter the director stated that “[t]o the best of my knowledge, [the Wife] handed me the cash”. I observe that in cross-examination the Wife gave evidence that she paid $1,000.00 to the agent (Transcript, 21 July 2009, p 81).
On 24 December 2005 the parties were involved in a motor vehicle accident. As a result of the accident both parties sustained personal injuries and were hospitalised. The Husband contended that he “sustained serious injuries”. After the accident the Husband was also diagnosed with hepatitis B. The Wife had not been aware prior to this that the Husband had hepatitis B.
The Husband commenced proceedings in the County Court of Victoria against TAC for a serious injury certificate. The Husband’s only entitlement to any common law damages arising from the motor vehicle accident arose if he was found to have a 30 per cent or more impairment from the accident: see s 93 of the Transport Accident Act 1986 (Vic). The proceedings in the County Court were pending at the time of the hearing of the property settlement applications and judgment.
The Federal Magistrate observed at [214] that as a result of the accident the Husband received TAC payments of $375.84 per week until late 2008. The parties had the benefit of weekly TAC payments for two years after the accident. In her affidavit filed on 11 August 2008 the Wife gave evidence that both parties received payments from TAC and she attached a copy of a letter dated 24 March 2006 from TAC disclosing that the payments reflected combined incomes from the business of $15,905.00 for the Husband and $4,550.00 for the Wife.
The Wife’s parents came to Australia at the time of the accident to assist her as she was seven months pregnant.
In February 2006 the child was born. The Federal Magistrate at [28] was of the view that the Wife’s parents “played an active and, I am satisfied, the major role in caring for the child”.
The Wife contended that the Husband received the “baby bonus” of $3,539.97 and other Centrelink payments and this was denied by the Husband. During cross-examination of the Wife it was put to her that the amounts were not received by the Husband (Transcript, 21 July 2009, pp 98 to 99). In her affidavit filed on 11 June 2010 the Wife deposed that since the conclusion of the trial she found the Husband’s bank statements which detail his receipt of these payments and she annexed to the affidavit a copy of a statement of Bendigo Bank (Account number: …) for the period 1 February 2006 to 30 June 2006. Then, in his affidavit of 2 July 2010, the Husband admitted that in respect of the baby bonus, the funds were received into the account with the Bendigo Bank.

In February 2006 the Wife’s father lent her $20,000.00. This was corroborated by the Wife’s father in his affidavit of 11 August 2008.
In July 2006 the business was sold for $65,000.00. I observe that in cross-examination it was put to the Wife that the contract for the sale of the business was prepared by the Wife’s mother, who was an accountant (Transcript, 21 July 2009, pp 99 to 100).
In relation to the proceeds of sale of the business the Federal Magistrate observed at [29] that the “proceeds were used by the husband to reduce the mortgage over the former matrimonial home and repay debt, including debts to his family”. In paragraph 23 of his affidavit filed on 24 July 2008 the Husband contended that the proceeds of sale were deposited to the “Westpac mortgage account in respect of [property B]”. The Husband gave no evidence about any portion of the funds being paid to his family. I also observe that it was put to the Wife in cross-examination that on 31 May 2006 an amount of $62,500.00 was “put onto the mortgage of [property B]” (Transcript, 21 July 2009, p 92).
In January 2007 the maternal grandparents took the child to China to live and according to the Federal Magistrate remained there for 13 months. The Federal Magistrate observed at [30] that “the husband did not agree with this”. Around this time the Wife commenced paid employment as a child care worker and as a Chinese language teacher.
The Husband contended in his affidavit filed on 24 July 2008, that by March 2007 the mortgage debt secured on the title of the former matrimonial home was reduced to approximately $260,000.00 and the parties refinanced the mortgage “to have a draw down facility”. The Husband contended that the parties “refinanced with Colonial on or about 15 March 2007 in the amount of $305,000.00 and the additional funds borrowed were placed into an adjoining MISA account in the amount of $44,463.00 which we earmarked as a partial sum to be repaid to my parents in respect of the monies they had loaned me”.
The Federal Magistrate observed at [32] that by mid-2007 the Husband sought to reduce his debts and repay the money he owed to his sister and that he sold property X and with the balance of the proceeds of sale, reduced the loan secured on the title of the former matrimonial home.
In September 2007 property X was sold for $285,000.00. The Husband deposed in his affidavit filed on 24 July 2008 that an estimated $192,000.00 was paid to discharge the mortgage debt with AIMS and the net proceeds, after taking out fees, was “about $80,000.00”. The Husband deposed that he then repaid the principle amount that was owing to his sister. These monies were allegedly used to repay the Husband’s sister in two transactions being $40,000.00 on 16 April 2008 and $40,000.00 on 6 June 2008. The Wife submitted that the reason for two transactions was never explained and the method of repayment to the Husband’s sister was not particularized in any way. In his affidavit the Husband also sought repayment to his sister of accumulated interest on the loan in the sum of $35,000.00; however, this claim was abandoned at the trial.
In summary, the contention of the Husband was that the amount he borrowed from his sister had increased from $25,000.00 to $80,000.00 and that on completion of the sale of property X in October 2007 this debt was still due and was not repaid until April and June 2008.
In September 2007 the parties separated after an incident in the former matrimonial home which the police attended. On 18 October 2007 mutual intervention orders were made.
After separation the Husband resided at the rear of the business premises. The Wife remained living in the former matrimonial home with the child. The Federal Magistrate observed at [34] that the Wife “has been meeting the mortgage and other outgoings”.
The Federal Magistrate observed at [36] that despite there being orders for him to do so, the Husband had not spent time with the child since January 2007. His Honour also said that there had been arrangements for the parties to enrol at Gordoncare to facilitate the child spending time with the Husband. However, difficulties meant that it did not occur and by the time of the final hearing, Gordoncare had advised the parties they could not facilitate supervised time as both parties could not speak English and they did not have the facilities to accommodate non-English speaking families.
On 4 February 2008 the Husband commenced proceedings in the Federal Magistrates Court.
In February 2008 the Wife’s father lent $30,000.00 to the Wife. This was corroborated by the Wife’s father in his affidavit of 11 August 2008.
The Federal Magistrate observed at [5] that on 17 March 2008 “there were orders made programming the matter for final hearing on 21 August 2008”.
In May 2008 the Husband sold shares for $57,171.32 and, as I have already observed, he gave evidence that he gave the funds, together with an amount of $2,000.00, to a friend of “who took the money back to China” (Transcript, 30 April 2009, pp 59 & 65). The Husband allegedly added $2,000.00 from an unexplained source. The friend did not give evidence.
As I have observed, the Husband contended he borrowed $85,000.00 from his parents and his sister in 2001. The Husband also contended that he borrowed money from his sister to assist with payment of the mortgage debt to AIMS secured on the title of property X, however, he provided no evidence as to how much he obtained and in what manner. Excluding any amounts paid from the proceeds of sale of the business, as found by the Federal Magistrate at [29], the Husband contended that he made the following payments to his family:
·       16 April 2008   $40,000.00
·       13 May 2008  $59,171.32
·       6 June 2008  $40,000.00
Total  $139,171.32
There was no evidence of loans of approximately $140,000.00.
I observe that in the written outline of case document filed on behalf of the Husband for the purposes of the hearing before the Federal Magistrate, the Husband identified the “Material relied upon” which included his “Trial affidavit” filed on 24 July 2008 and he did not identify a financial statement. In the list of documents that the Wife provided for the purposes of the appeal she identified a financial statement filed by the Husband on 4 February 2008. I have not ascertained if this financial statement was before his Honour although no objection was taken at the hearing before me to the document. I also observe that on 30 April 2009, during examination in chief of the Husband, the Husband was referred to something he said in his financial statement of 4 February 2008 about his income (Transcript, 30 April 2009, p 42). In the financial statement the Husband did not disclose any amounts owing to his father or to his sister. In the financial statement the Husband only disclosed a joint debt with the Wife of $260,000.00.
The parties came before the Federal Magistrates Court in August 2008 and both parties were represented. However, the matter was not ready to proceed for reasons including that an application for parenting orders for the child was filed by the Husband after the matter had been set down for hearing and as a result a family report was required.
The Federal Magistrate observed at [7] that as both parties were represented, and in an effort to narrow the issues, there was agreement on some issues and agreement on the way others would be decided. The matter was adjourned to 17 December 2008 and interim orders were made.
The Husband contended that in December 2008 he commenced to receive Centrelink benefits
The Federal Magistrate observed at [8] that by 17 December 2008 the Wife was no longer represented. On that day the Wife made an application for an adjournment. The Wife wanted to have legal representation at the final hearing. The matter was adjourned to allow the Wife the opportunity to get that representation.
The Federal Magistrate observed at [9] that after the Wife had the benefit of advice from the duty lawyer, and given the child had been returned to Australia, it was agreed there needed to be interim parenting orders made if the matter was to be adjourned. Pursuant to the orders made in August 2008, a family report had been prepared which made recommendations for supervised time between the Husband and the child. Interim orders were then made.
The Federal Magistrate observed at [10] that at a mention on 20 February 2009 the Wife appeared and she still did not have legal representation. His Honour said the Wife acknowledged through the duty lawyer that there was time for her to get legal representation before the final hearing. His Honour observed that the Legal Aid duty lawyer who assisted the Wife, made clear that the Wife understood that the final hearing listed on 29 April 2009 would proceed and she still had time to get legal representation for that hearing. Arrangements were also confirmed to facilitate the parties’ enrolment at Gordoncare for supervised time between the Husband and the child.
The hearing commenced on 29 April 2009.
At the hearing the Husband sought that the Wife transfer her interest in the former matrimonial home to the Husband and the Wife receive the sum of $44,463.00 being the monies in the Colonial MISA Account. The Husband sought other relief which I will later refer to.
The Wife sought the following order which was set out in her response filed on 4 March 2008:
4.     That the funds currently invested with Colonial in the Colonial MISA Account being Account Number [ … ] be forthwith applied in reduction of the Colonial Standard Variable Home Loan being account Number [ … ].
5.     That the husband transfer to the wife all of his right, title and interest in the former matrimonial home situate and known as [property B] and do so free of encumbrance.
6.     That the husband pay to the wife such sum by way of adjustment of property and capitalised spousal maintenance as this Honourable Court deems just and equitable in the circumstances.
7.     That there be such further or other adjustment of property as between the husband and the wife as this Honourable Court deems just and equitable.
The Federal Magistrate observed at [11] that at the commencement of the hearing the matter was stood down as the Wife appeared unrepresented and she was again given an opportunity to get advice from the duty lawyer. The Wife returned to court after lunch on the first day and made an application for an adjournment so she could obtain legal representation. The application was refused.
The Federal Magistrate observed at [12] that he then explained to the Wife “the purpose of the final hearing, the process that would be followed, the factors [he] would have regard to on the parenting and property matters, the role of the family report and the evidence of the report writer, that she would have an opportunity to put her case about what orders the Court should make, that she would be able to ask questions of the husband and anyone else called to give evidence”. His Honour observed that the Wife “understood she would be required to give evidence, be cross examined and make submissions”.
I observe that during the hearing on 29 April 2009, during a discussion with the Wife, the Federal Magistrate observed: “Her statements show a complete misunderstanding of what this process is involved and a completely unrealistic expectation as to what orders the court would make” (Transcript, 29 April 2009, p 14).
The Federal Magistrate observed at [13] that the parties identified the material they relied on and a number of the witnesses whose affidavits the Wife wished to rely on were not available and their evidence could not be relied on over objection. I have considered what was said during the hearing on 29 April 2009 and I was unable to locate where counsel for the Husband identified a financial statement of the Husband (Transcript, 29 April 2009, pp 18 to 39).
The Federal Magistrate observed at [14] that the Husband gave evidence and was cross-examined. The Wife then gave evidence and at the end of the second day on 30 April 2009, the hearing was then adjourned part-heard to 4 June 2009. His Honour said: “As cross examination of the wife had not concluded and the Court was told by Counsel for the husband she expected cross examination would occupy at least another day, this was the next date the adjourned hearing could be accommodated”.
On 14 May 2009 the Wife filed an application in a case seeking that the hearing be further adjourned to a date to be fixed so that her father, who was in China, could be available to give evidence. This application was heard on 29 May 2009 and, for the reasons given at the time, the final hearing was adjourned so the Wife would have that opportunity, but only to 20 July 2009.
On 19 June 2009 orders were made in the County Court in the TAC claim proceedings and the application of the Husband was listed for hearing on 9 December 2009. I will later deal with these orders.
By 20 July 2009 the Husband had changed counsel and the Wife’s father had returned to Australia and was available to give evidence.
The Husband contended in his affidavit filed on 2 July 2010 that on 20 July 2009, his legal representative advised the Federal Magistrate that his application for a serious injury certificate was listed in December 2009 in the County Court. The transcript reveals that on 20 July 2009, counsel for the Husband told his Honour that the application was “for mention in December” 2009 (Transcript, 20 July 2009, p 37).
On 21 July 2009, after the completion of cross-examination of the Wife, the Federal Magistrate had a brief discussion with counsel for the Husband about cross-examination of the Wife’s father (Transcript, 21 July 2009, p 113). There was then a brief exchange with the Wife and also her father. The Wife’s father was not cross-examined.
As I have already observed, on 8 October 2009, the Federal Magistrate then made final parenting and property settlement orders. As I have also observed, the Wife filed a notice of appeal on 4 November 2009. On 18 December 2009 the Chief Justice made an order pursuant to s 94AA(3) of the Act that it was appropriate for the jurisdiction of the Family Court in relation to the appeal to be exercised by a singe Judge.
The Wife contended in her affidavit filed on 11 June 2010 that the Husband’s family law solicitors, Robinson Gill Lawyers, failed to respond to enquiries made by her solicitors on 2 December 2009, 22 December 2009, 24 February 2010, 11 March 2010 and 23 March 2010 as to the Husband’s TAC claim.
On 24 February 2010, the TAC made an offer of compromise to the Husband to resolve the motor vehicle compensation proceedings and the Husband accepted the offer of $225,000.00. The Husband contended in his affidavit filed on 2 July 2010 that from the sum of $225,000.00, he made a payment of $17,946.00 to Centrelink, a payment of $40,000.00 to Mr C in respect of his legal fees, and a payment of $67,000.00 to Robinson Gill Lawyers in respect of family law legal fees.
The Husband deposed that in respect of the sum repayable to Centrelink, the offer of compromise was conditional upon the Husband repaying the sum he had received during a preclusion period commencing 24 December 2008 and concluding on 13 December 2011. In addition to repaying the sum of $17,946.00, he is ineligible from receiving any income support during the preclusion period. In respect of his family law legal fees, the Husband deposed that the total amount owing was $73,531.93. The Husband deposed that the balance of monies he received from his TAC settlement was $100,053.56.
On 23 February 2010 the appeal was listed before me for a directions hearing and I made an order that the Wife file an amended notice of appeal. On 16 April 2010 the Wife filed an amended notice of appeal.
On 4 May 2010 the Husband’s solicitors verbally informed the Wife’s solicitors that the Husband’s TAC claim had been settled and that he had received approximately $104,000.00.
On 4 May 2010 the matter was again listed before me for directions and I made various orders.
On 17 May 2010 the Husband’s solicitors wrote to the Wife’s solicitors advising that the Husband had received $259,736.74 in settlement of his TAC claim.
On 21 May 2010 the Wife’s solicitors sent to my associate, by facsimile transmission, a letter requesting an extension of time to file documents the Wife was relying upon for the upcoming appeal. On the same day the Husband’s solicitors sent to my associate a copy of their reply to the Wife’s solicitor’s letter and objected to an extension of time being granted to the Wife to file her material.
On 24 May 2010 my associate wrote to the parties by email advising that I would be prepared to grant the Wife an extension of two weeks in order to file her material if there was no objection by the Husband’s solicitors and, inter alia, the Husband would be granted a further two weeks to file his material. The Husband’s solicitors replied on 24 May 2010 that they accepted what I proposed and I made orders accordingly.
On 11 June 2010 the Wife filed a further amended notice of appeal, a summary of argument, a list of authorities, a procedural chronology, a list of 19 documents relied upon and transcription references.
On 11 June 2010 the Wife also filed the application seeking leave to adduce further evidence. On 11 June 2010 the Wife swore an affidavit in support of the application. On 11 June 2010 an affidavit was also filed by Mr Q on behalf of the Wife. Mr Q is a NAATI interpreter in both the Chinese and English languages. Mr Q translated documents in relation to the ownership of the Shanghai property. The title of the document states “Shanghai Certificate of Real Estate Ownership” and it is dated 17 October 2003. In the translation it says: “This certificate is proof of the ownership rights to the real estate on Stated-owned land lot” and states “Rights owner: [Ms Tian], [Mr T]”.
On 2 July 2010 the Husband filed a summary of argument, a list of authorities and a list of transcription references that he sought to rely upon. The Husband also filed a response to the Wife’s application in an appeal. The Husband sought that the amended notice of appeal of the Wife filed on 16 April 2010 be dismissed and also that the application to adduce further evidence filed on 11 June 2010 be dismissed. The Husband filed an affidavit on 2 July 2010 in support of his response.

The Reasons Of The Federal Magistrate

Given that a great deal of what the Federal Magistrate said in his reasons related to the parenting proceedings I do not propose to consider all of what his Honour said.
The Federal Magistrate at [1] and [2] provided a brief introduction and from [3] to [16] provided a procedural background since the filing of the Husband’s application in February 2008.
From [17] to [38] the Federal Magistrate set out some of the background facts that I have identified above. At [39] to [41] his Honour outlined the material relied upon by each of the Husband and the Wife. At [42] to [44] his Honour outlined the orders sought by the Husband and at [45] to [49] the orders sought by the Wife.
The Federal Magistrate at [55] to [65] discussed the “Evidence of the parties”.
The Federal Magistrate from [66] to [71] summarised the “Evidence of the Husband” and quoted extensively from the Husband’s affidavit filed on 24 July 2008, which outlined the financial position of the parties before and during the relationship as deposed by the Husband. The Federal Magistrate stated at [69] that in relation to the evidence of the Husband, “overall his evidence on the issues relevant to these proceedings was consistent and substantiated by documentary evidence” (emphasis added) and at [70] that the “questions the husband was asked in cross examination and the answers he gave simply corroborated his position”.
From [72] to [85] the Federal Magistrate discussed the “Evidence of the wife”. At [74] his Honour made a finding that he proposed to include the Wife’s interest in the Shanghai property in the net assets of the parties.

The Federal Magistrate at [75] and [76] repeated some of what the Wife said in her affidavits filed on 4 March and 11 August 2008.
The Federal Magistrate then observed at [77] that the Wife also raised allegations of family violence. The Federal Magistrate said that the Wife’s position was “she became increasingly disillusioned not because her financial expectations of the marriage were not met but because of what she claimed was the husband’s violence” and concluded at [78] that “the wife gave no evidence that the conduct she claimed occurred impacted on her ability to contribute as a homemaker, parent or wage earner or to her future needs”.
The Federal Magistrate at [86] to [89] dealt with the evidence of Mr C. Mr C was the solicitor acting on behalf of the Husband in the proceedings he was pursuing for common law damages. Mr C swore an affidavit filed on 29 October 2008 and also gave evidence on 30 April 2009. The Federal Magistrate set out what Mr C said at paragraph 4 of his affidavit.
The Federal Magistrate observed at [88] that attached to the affidavit of Mr C were 14 different medical reports and that the “most recent medical opinion attached was to the effect that the ‘major component of [the husband’s] persisting level of symptoms is his psychological reaction to his situation with his physical injuries being relatively minor’ ” (italics in original).
The Federal Magistrate observed at [89] that: “[Mr C] could offer no firm indication to the Court as to when the husband’s claim for a serious injury certificate would be dealt with nor, (even if it was successful) when any claim he might have would be heard, let alone determined” (emphasis in original).
The Federal Magistrate then at [90] to [95] dealt with the “Wife’s father’s evidence”.
The Federal Magistrate at [93] made a finding in relation to whether the Wife owed $50,000.00 to her parents and in so doing, made clear that he accepted that the Husband successfully established that he had obtained loans from his family.
At [94] the Federal Magistrate returned to the Shanghai property and confirmed what he had made clear at [74], namely that he proposed to include the property. However, his Honour also found that the evidence of the Wife’s father “only served to confirm the wife had a legal interest in that property”.
Then, after dealing with the parenting proceedings from [96] to [177], the Federal Magistrate returned to the property settlement proceedings at [178] and after reference at [178] and [179] to the approach taken to determine an application under s 79 of the Act, as suggested by the Full Court in Hickey and Hickey and Attorney-General for the Commonwealth of Australia (2003) FLC 93-143 as the ‘four-step process’, dealt with what he described as issues with respect to property.
The Federal Magistrate set out at [180] what was in a joint statement of net assets contended for by each party, namely:
Assets & liabilities  Husband’s value   Wife’s value
Former Matrimonial Home [Property B]                $545,000          $545,000
Less mortgage  -$293,061         -$293,061
Equity  $251,939          $251,939
Funds in Colonial MISA account  $44,463            $44,463
Husband 1985 Ford motor vehicle  $1,000              $1,000
[The Shanghai property]  $130,000   Nil
Family Tax benefit payments retained by husband,
February 2006 and July 2007   Nil            $10,000
TAC lump sum payment retained by husband in July
207 [sic] to the exclusion of the wife  Nil               $6000
Husband’s AMP superannuation  $5,000              $5,000
ought be ignored
Wife’s HESTA Superannuation  $245                  $245
ought be ignored
Wife’s Social security entitlement   $4,000              $4,000
ought be ignored
Proceeds of sale of [property X] sold
September 2007 and distributed  Nil            $80,000
Proceeds of sale of shares sold in May 2008 and
distributed to the husband’s father in July 2008
in repayment of loan to husband in 2001  Nil            $60,000
TAC Claim  Not known         Not known
TOTAL ASSETS  $427,402          $458,647
Other Liabilities  Husband                  Wife
Husband’s outstanding loan from his parents  Nil   Nil
Husband’s outstanding loan from his sister  Nil   Nil
Wife’s loan outstanding from her parents  Nil            $50,000
TOTAL LIABILITIES  Nil            $50,000
TOTAL POOL  $427,402          $408,647
The Federal Magistrate said at [181] that it would be “necessary to make findings in order to determine the parties’ assets and liabilities”.
The Federal Magistrate then from [182] to [188] dealt with the TAC claim. His Honour said:
183. The evidence was that whilst the husband was still pursuing his common law damages claim he needed a serious injury certificate to do so. The medical evidence before this Court was that the husband did not appear to meet the requirements for such a certificate however when and if that was to be determined is not known.
184. A right to sue for damages for personal injury is a private not a proprietary right (see Mullane (1995) FLC 91-303). However any award of damages can be taken into account under s.79 (see Williams (1995) FLC 91-628).
185. In the particular circumstances of this matter it was suggested the Court should consider adjourning the property proceeding pursuant to s.79(5) of the Act to allow time for the personal injury claim to be finalised.
186. Counsel for the husband even posited a form of orders that provided for the contingency that the husband received an award of damages at some point in the future.
187. In my view, in light of the evidence before the Court such an approach is unnecessary as I am not satisfied given the material before the Court it is necessary to do justice between the parties. Indeed further delaying the determination of the property proceedings on the basis that at some unknown point in the future the husband may be able to pursue a claim (and I can put it no higher than that) would not be just and equitable between the parties and could risk depleting the property pool whilst leaving the parties in a most unsatisfactory position with no determination of their competing claims or so far as practicable finalisation of the financial relationship between them.
188. In short, on what is before me I cannot be satisfied that this is a matter where it is more likely than not, that an award from TAC could form part of the property of the parties to be divided under s.79 or that there is likely to be a significant change in the financial circumstances of the parties in such a time as to make it reasonable to adjourn the proceedings or only make interim orders and it will not stand in the way of final orders being made. (emphasis added)
The Federal Magistrate at [189] dealt with the Shanghai property and found that at the time of the initial hearing in August 2008, the parties had agreed that the Wife’s interest in the property should be included and that interest would be valued at $130,000.00.
The Federal Magistrate then dealt with “Loans from family” and said at [190]: “I have already referred to the wife’s position on this issue and the evidence of the husband on the loans he received from his family. I have not included the loan liability referred to by the wife for the reasons referred to earlier”. Presumably his Honour was referring to what he had said at [93].
The Federal Magistrate then dealt with “Other issues” and said:
191. As is clear from the above table there were a number of other items which given their value Counsel for the husband contended ought be ignored. The wife had an opportunity to get legal advice on these issues and did not oppose this. Neither party sought orders regarding superannuation and each proposed keeping what other property they had in their possession. Accordingly, that will be excluded and the parties will otherwise keep what they’ve got.
192. The wife had also contended there were other amounts that ought be included. However, as the evidence transpired it was clear those amounts had either been expended during the relationship on reducing the parties debt, did not exist, or were based on the wife’s misunderstanding or lack of information about what happened to them. There was no suggestion they should be added back or had been wasted and they will not be included.
The Federal Magistrate then turned to the ‘four-step process’. At [193] his Honour dealt with the first step and calculated the parties’ net asset pool as being $427,402.00 which comprised:
·       Property B  $545,000.00
·       Less mortgage   ($293,061.00)
·       Equity  $251,939.00
·       Funds in Colonial MISA account  $44,463.00
·       Husband 1985 Ford motor vehicle  $1,000.00
·       The Shanghai property  $130,000.00
At [194] to [196] Federal Magistrate dealt with the second step, namely an assessment of the parties’ contribution within the context of s 79(4)(a) to (c) of the Act, and at the outset said: “I am satisfied the parties only cohabited between March 2005 and September 2007”. His Honour then said:
195.   In opening Counsel for the husband also identified the date of cohabitation her client contended for and the scope of the dispute between the parties on this issue.
196.   Ultimately the evidence made clear and I am satisfied the parties only cohabited between March 2005 and September 2007.
197.   In opening Counsel for the husband identified the position of the parties at the start of cohabitation. As the evidence transpired the wife brought with her to Australia a container filled with various chattels and had an interest in a property in Shanghai.
198.   The husband submitted and on the evidence I am satisfied that at the commencement of cohabitation the husband owned [property X] which had equity of approximately $155,000. The husband also operated and owned [the business]. Subsequent to the parties marriage, but prior to cohabitation the husband gave the wife money (at least $10,000) to ensure that she could purchase a wedding ring and whitegoods and to cover her relocating costs to Australia. Once the wife arrived in Australia the husband opened a bank account for the wife and gave her $500 to meet her expenses.
199.   The husband submitted and on the evidence I am satisfied that throughout the marriage he met the wife’s financial needs, paid for her language tuition, funded the wife’s parent’s airfaires to Australia and provided for the wife to meet her private and personal expenditure.
200.   The husband submitted that prior to separation the wife made no capital financial contribution to the acquisition, maintenance and improvement of the assets of the marriage. However I have also taken into account as a contribution the interest in the property in China albeit, it appears it was never contemplated (at least during the relationship) they would deal with it.
201.   The husband submitted that during the marriage the wife did not work and spent much of her time learning to read, write and speak English. Following the birth of the child the wife was occupied caring for the child until the child moved back to China to reside with the maternal grandparents in January 2007. On the evidence I am satisfied that’s the case.
202.   As to the husband’s initial contributions the weight to be attributed to initial contributions and other contributions is not required to be a mathematical or a counting exercise. In Crick & Crick [2008] FamCA FC 172, the Full Court said:
“We accept that the task to be undertaken by a trial judge in assessing weight to be attached to initial contributions, and other contributions, is not always an easy one and not discharged by a strict accounting exercise…”
203. The wife gave no evidence before the Court relevant to her claims regarding the husband’s violence and whether, and if so how, it made her contributions more difficult or how it affected a consideration of s.75(2) factors to which I will turn to next. Accordingly I am unable to take it into account.
204.   Counsel for the husband submitted the parties lived together for only 18 months. It was submitted at the commencement of the relationship the husband had $50,000 in shares, a [takeaway shop] (which was sold within 2 months for $65,000) and $165,000 in equity in [property X]. Counsel for the husband correctly summarised the evidence before the Court that these initial contributions by the husband was the foundation for all of the subsequent wealth these parties had in Australia.
205.   The husband made significant initial contributions. The evidence is that the monies from these assets had been used as the basis for the deposit on the former matrimonial home, to support the parties and meet their expenses during cohabitation and in particular after the car accident and to reduce the mortgage over the former matrimonial home.
206.   In summary, the evidence is such that during the period of cohabitation the wife made no capital or financial contribution to the purchase, acquisition, conservation or maintenance or improvement of the assets save for the interest in the property in Shanghai which was never used by the parties and which she considered separate to that of the marriage.
207.   The wife made non financial contributions during cohabitation as a parent and homemaker between February 2006 and September 2007 although the child was taken from Australia by the maternal grandparents in January 2007. At this stage there should also be recognition of the wife’s contributions post separation to the upkeep of the former matrimonial home and the payment of the mortgage.
208.   In conclusion I am satisfied the husband’s contributions before and during the marriage exceeded those of the wife. In particular I am satisfied it was the husband’s initial contributions that formed the basis for the subsequent wealth these parties had in Australia.
209.   Doing the best I can on the information before me I consider that balancing all the calculations an adjustment of at least 10% in the husband’s favour is appropriate and now turn to consider the parties future needs. (italics in original)
The Federal Magistrate then proceeded to deal with the third step, namely whether there should be an adjustment having regard to the matters in s 75(2) of and said at the outset that “the Court is not obliged to make an adjustment as a result of the consideration of s.75(2) factors unless it is just and equitable to do so”. His Honour then dealt with the matters in s 75(2)(a), (b), (c), (d), (e), (f), (g), (k), (l), (na) and (o).
The first factor the Federal Magistrate considered was the effect of any proposed order on the earning capacity of either party to the marriage. He said at [212]: “There was no submission made that this was a relevant factor and I am satisfied this is the case”.
The Federal Magistrate then dealt with the age and state of health of each party and said at [213]: “The husband, as mentioned previously is aged 50. He suffers from depression and hepatitis B and on the medical evidence will face difficulties working again if at all. It certainly appears he has convinced himself he can’t work again. The wife is 37 and is in good health and it appears will have many years ahead of her in the workforce”.
The Federal Magistrate then dealt with 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. He observed:
214. Following a motor vehicle accident in December 2005, the husband sustained serious injuries and he is unfit for ongoing employment. The husband received TAC payments of $375.84 per week until late 2008 and whilst the Court was asked to consider allowing him to refinance the mortgage provided no documentation he had pre-approval to get such finance.
215. The wife is employed as a casual child care worker with [Council Z] and teaches Chinese on the weekends. The wife led no evidence to satisfy the Court she could refinance the mortgage.
The Federal Magistrate then dealt with whether either party has the care or control of a child of the marriage who has not attained the age of 18 years and said at [216] that: “As is clear from the discussion earlier the wife will have sole responsibility for the child who will continue to live with her”.
The Federal Magistrate then dealt with the commitments of each of the parties that are necessary to enable the parties to support themselves, a child or another person that the party has a duty to maintain and said at [217]: “On the material before the Court, neither party has re-partnered. The husband does have another child from a previous relationship but he does not financially assist that child”.
The Federal Magistrate then dealt with the responsibility of either party to support any other person and said at [218]: “There was no submission made that this was a relevant factor and on the material before the Court I am satisfied it isn’t relevant”.
The Federal Magistrate then dealt with the eligibility of either party for a pension, allowance or benefit and said at [219]: “There was no submission made this was a relevant factor and no evidence led regarding the husband’s entitlement to disability benefits under a pension”.
The Federal Magistrate then dealt with the parties’ standard of living post separation. At [220] the Federal Magistrate observed that the Wife “resided in the former matrimonial home with the child and her maternal grandparents” and at [221], that the Husband is “currently boarding in a room at the rear of the shop” and that the Husband submitted that his accommodation is not satisfactory given his injuries from the accident. His Honour also observed at [222] that both parties “assert that their standard of living has decreased post separation”.
The Federal Magistrate then dealt with the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration. His Honour said at [223]: “The parties’ marriage was short and the period of cohabitation even shorter. Neither party at the final hearing told the Court they sought an order for maintenance”.
The Federal Magistrate then dealt with the need to protect a party who wishes to continue that party’s role as a parent and said at [224]: “The wife will shoulder almost all of the burden for caring for the child assuming she doesn’t continue to rely on her parents (if their visas allow them to remain) to continue to care for the child”.
The Federal Magistrate then dealt with any child support 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. His Honour said at [225]: “This was a source of concern to the wife but there was no evidence to suggest the husband wasn’t paying what he was required to by law and would continue to do so”.
Finally, the Federal Magistrate dealt with any fact or circumstance which, in the opinion of the Court, the justice of the case requires to be taken into account. His Honour said at [226]: “Other than the factors set out above it was not suggested by either party that there were any facts or circumstances which the justice of the case required be taken into account”.
The Federal Magistrate then assessed the factors for consideration pursuant to s 75(2) of the Act and observed at [227] that the Wife has “2 jobs, is only 37 years of age, has a higher income and whilst she has the primary care of the child this has not and, it was submitted, would not preclude her from getting and maintaining employment in the future”. In contrast his Honour said at [228] that “the husband is significantly older than the wife and is not able to continue to work … and faced the future with little prospect of a successful common law claim, little money and increasing needs into the future” (emphasis added). His Honour at [229] observed the Husband’s position to be that “at this stage the factors going to the future needs of the parties effectively cancelled each other out and there should be no adjustment”. His Honour then concluded at [230]:
230. I have considered the matter carefully and I am satisfied that is the case. In coming to that view I have carefully considered the issue of whether the wife will receive financial assistance from the husband for the child in the future and have also weighed in the process the adjustment already made on the basis of contributions at the second stage and the other s.75(2) factors. However, on balance, I am of the view that there should be no adjustment for s.75(2) factors in favour of either party.

The remaining assets were valued at $297,402.00 and comprised the former matrimonial home, in which the equity was $251,939.00, the funds in the Colonial MISA account of $44,463.00 and a motor vehicle of $1,000.00. The former matrimonial home, which was valued at $545,000.00, was purchased for $410,000.00 and with the exception of the amount of perhaps $20,000.00 which the Wife contended she contributed, all of the funds to pay the cost of purchase were borrowed. The amount of $44,463.00, which the Wife received, only represented approximately 15 per cent of these assets.
I also observe that the Federal Magistrate did not deal with the evidence of the Wife and her father that the Wife’s parents reside in the Shanghai property. This was relevant to his Honour’s inclusion of this property in the 40 per cent entitlement of the Wife and her future economic needs, including responsibility for the support and accommodation of the child.
The Federal Magistrate included the Shanghai property because he observed:
189. At the time of the initial hearing in August 2008 the parties had agreed for the purposes of the property pool that the wife’s interest in the property in Shanghai should be included and that interest would be valued at $130,000. At the time the wife was represented and as my findings referred to earlier make clear I am satisfied it should be included in the pool and treated as a contribution by the wife.
Earlier in his reasons the Federal Magistrate had observed:
74. When the wife was represented, it had been agreed the wife’s interest in the Shanghai property would be included in the pool. At the final hearing the wife repeatedly sought to claim that property should not be considered as an asset of the parties to the marriage. Despite affecting a bewildered and confused presentation when she was unrepresented the Court is satisfied the wife knew what was happening. The wife had ample opportunity to obtain advice not only on the Court process but on the likely success of her claim that property ought not be included in the pool. Given the material before the Court, there was no evidence capable of persuading the Court it should not be included.
…
94. In relation to the wife’s interest in the property in Shanghai the wife’s father’s evidence, in my view, only served to confirm the wife had a legal interest in that property. That interest had been quantified and agreed to when the wife was represented and this was noted in the consent orders made in August 2008. Notwithstanding the wife’s subsequent claims it shouldn’t be included and the evidence of her father, I am satisfied it is property that should be included. There was no application made to the Court by any other party claiming an equitable interest in that property and I am left with the conclusion it should be taken into account as property of the wife.
Pursuant to orders made on 21 August 2008, the Court noted the following: “The parties have agreed that the value of the property in Shanghai referred to in paragraph 15 of the husband’s affidavit filed 24 July 20008 [sic] is $130,000.00 (AUD)”. There was an error in the notation in that the paragraph referred to should have been “16” and this was corrected (Transcript, 21 July 2009, p 95). The value referred to in the notation was confirmed during the hearing (Transcript, 17 December 2008, p 11).
My first observation is that the Federal Magistrate was in error in finding that by the above notation the parties had agreed that the Wife’s interest in the property in Shanghai should be included in the net assets of the parties. All that is recorded in the notation is that it was agreed that the value of the property was $130,000.00 and nothing was said about whether the Wife had an interest. I observe that during the hearing there was an unfortunate exchange between the Wife and his Honour about the interpretation of the notation (Transcript, 30 April 2009, pp 94 to 95).
I also observe that during the hearing counsel for the Husband raised in discussion with the Federal Magistrate that, on the basis it was demonstrated the Shanghai property was in the joint names of the Wife and her father, it was not clear if the notation purported to record the value of the Wife’s one half interest or the value of the property (Transcript, 21 July 2009, pp 94 to 96). Again, I observe that the notation recorded that the value of the property was $130,000.00 and did not record that the value of the Wife’s interest in the property was $130,000.00.
Counsel for the Husband submitted that annexed to the Husband’s affidavit was a valuer’s certificate that the Shanghai property was worth an estimated $205,000.00 (AUD) and thus the amount of $130,000.00 was the value of a one half interest. I do not accept this contention. First, it was acknowledged at the hearing before the Federal Magistrate by counsel for the Husband that the notation did not make this clear. Second, one half of $205,000.00 is $105,000.00. Third, the notation was made after the Husband’s affidavit was prepared.
I observe that given what his Honour said at [74], [94] and [187], it may be that he adopted the interpretation of the notation that $130,000.00 was the value of a one half interest of the property because at [94] he observed that the evidence of the Wife’s father “only served to confirm the wife had a legal interest in that property. That interest had been quantified and agreed to when the wife was represented and this was noted in the consent orders made in August 2008”. The Wife only had a one half legal interest in the property.
In the result, what was in the notation could not be taken as an admission by the Wife that she had any interest in the Shanghai property. It then becomes necessary to consider what the evidence established. In his affidavit filed on 11 August 2008 the Wife’s father deposed to his ownership of the Shanghai property. He explained how the Wife came to be registered as a proprietor and made no contribution towards the property at all.
On being advised that he was required for cross-examination, the Wife’s father travelled to Australia from China bringing with him documents evidencing his acquisition of the Shanghai property and the registration of joint names and his ownership.
On 21 July 2009 there was the following exchange (Transcript, 21 July 2009, pp 101 to 102):
THE INTERPRETER:   Yes, I agree too. This property’s owner is my father and I. But this house with - my father paid off before I even knew he’d .....
MS VORA:   All right. Here is the original for you, okay, and there are two people listed on this title: you, as proprietor; your father as joint owner.
THE INTERPRETER:   Yes. My father put my name and his name on the documents. But I never made any contribution towards this property. This property is inherited from my father’s - I just clarify her father’s whom. From my grandfather. He inherited from my grandfather in [ … ].   My grandparents gave this property to my father.
MS VORA:   What is the address of the - - -
THE INTERPRETER:   When the property was demolished, then they gave my father a lump sum.   My father used that money to buy this flat. All the money was - my father gave to paid. I have real evidence from my father’s bank account statement the money drew from his bank.
MS VORA:   Well, we will get to evidence, [Ms Tian].
THE INTERPRETER:   I have no contribution whatsoever towards this property.
MS VORA:   [Ms Tian] - - -
HIS HONOUR:   No, [Ms Tian], stop, please.
MS VORA:   [Ms Tian], I have said this once before - I said it to you yesterday - if you just answer my question instead of making speeches, it will be quicker, okay?
THE INTERPRETER:   I did answer your question.
MS VORA:   On that document that you have before you, you are listed as the first person, the proprietor, the owner, of that property, are not you?
THE INTERPRETER:   I don’t know how he got this document.
HIS HONOUR:   Look, Ms Vora, [Ms Tian] has had every opportunity throughout these proceedings to get some advice and assistance. I can well understand how confronting she could find the fact that what property she thought belonged to her father morally may be at issue in property proceedings in Australia and could be the subject of order of this court and I can imagine that she would find that distressing. But her evidence to date has been characterised by a marked level of disingenuousness, a refusal to acknowledge irrefutable facts, a transparent attempt to feign ignorance in the face of matters which she no doubt finds difficult to answer because they do not support what she believes should be the outcome.   Now, she has an interest in property in China. It is in the pool at a particular value. I realise you want to dot the I’s and cross the T’s. I want to make the best use of the time today but to say that [the Wife]’s credibility has been damaged by your cross-examination would be a gross understatement.
MS VORA:   Thank you, your Honour. If your Honour is not assisted, I will move on.
HIS HONOUR:   Yes.
MS VORA:   And we have the notation. One way or another it is either $130,000 or less.
HIS HONOUR:   Yes.
(emphasis added)
On 21 July 2009, after the completion of cross-examination of the Wife, the Federal Magistrate had a brief discussion with counsel for the Husband during which there was the following exchange (Transcript, 21 July 2009, p 113):
HIS HONOUR: Given the way the evidence has unfolded, do you want to call the father?
MS VORA: Your Honour, I’m content with, your Honour, relying on that notation to the extent that it indicates that the wife has an interest in property in Shanghai.
HIS HONOUR: Yes.
MS VORA: I do not know if she – and, indeed, with respect to the property registration form which is annexed to my clients affidavit.
HIS HONOUR: yes.
MS VORA: I’m content with that, your Honour, unless the wife has anything else she needs her father for.
There was then a brief exchange with the Wife and then the Wife’s father came into court and there was the following exchange between the Federal Magistrate and the Wife’s father:
THE INTERPRETER: [Mr T] said, can I ask a question?
HIS HONOUR: He says, taking his heart in his mouth. Yes, could you ask him what the question is?
THE INTERPRETER: I do have some other documents evidence. Can I submit these documents?
HIS HONOUR: It is not [Mr T]’s case to run, unfortunately, so the answer to that question is no. Could you explain to [Mr T] perhaps if his daughter had had a lawyer throughout these proceedings, things might have been done differently.
THE INTERPRETER: Is that relevant to my property in Shanghai?
HIS HONOUR: the evidence before the court is that [the Wife], the daughter, has an interest in property in Shanghai and a particular amount and that interest in part of the whole of the pool before this court and, yes, that would impact on the property in Shanghai. The proposal at this stage is that your daughter would keep that interest in Shanghai.
THE INTERPRETER: Because [the Wife] has no contribution towards that property whatsoever. That is ---
HIS HONOUR: I understand that that is [the Wife]’s position, but she still has an interest in that property.
(emphasis added)
There was no further discussion with the Wife’s father or with the Wife about what had happened. The Federal Magistrate did not explain to the Wife that, notwithstanding her father was not required for cross-examination, she would have the opportunity to adduce evidence from him in relation to any documents he had which corroborated what he said in his affidavit. His Honour did not even enquire of the Wife’s father as to documents that he sought to produce on point. The Wife annexed to her affidavit of further evidence copies of bank records in her father’s name which she contended detail withdrawals of money from her father’s account to purchase the Shanghai property and a registration document (translated into English) with respect to the ownership of the Shanghai property dated 17 October 2003.
The Husband had been given a very significant indulgence by the Federal Magistrate in relation to his evidence in chief, including the provision of documents. It was submitted by the Wife that the approach of his Honour to the reliance on documents not previously filed or subpoenaed was inconsistent and unfair in terms of dealing with a litigant in person. Previously in the proceedings, his Honour had permitted the Husband’s counsel to tender additional evidence. However, his Honour did not fairly allow the Wife the same opportunity in terms of her father’s documents. Further, his Honour did not know what documents the Wife’s father had in his possession and whether such documents could have assisted his Honour in terms of the issue of ownership of the Shanghai property. No assistance was provided to the Wife on this point nor was any suggestion made as to her right to make an application to rely on such documents. I accept these submissions.
In summary, at the hearing, the Husband’s legal representatives did not take the opportunity to cross-examine the Wife’s father and the Federal Magistrate refused her request that her father’s documents evidencing the purchase and acquisition of the Shanghai property be admitted into evidence.
In my view, the failure to cross-examine the Wife’s father was significant. I am not going to repeat all of the submissions made to me by both parties on this issue. It is sufficient to observe that I am satisfied, in the circumstances of this case, the Federal Magistrate wrongly failed to acknowledge any adverse inference that could be drawn from the failure to cross-examine the Wife’s father. The Wife’s father was given no opportunity to respond to allegations, explain any contradictions or respond to any attack. Further, he was not given the opportunity to rely on corroborative evidence (documentary evidence) or otherwise contradict any inference(s): see Browne v Dunn (1893) 6 R 67.
There was nothing unreasonable about the Wife’s father’s evidence. What he was saying was inherently probable, however, by election, it remained untested. Furthermore, the Federal Magistrate failed or neglected to deal with such uncontradicted evidence in his reasons. I accept that it would have been reasonable for the Wife, as a litigant in person, to expect that his Honour would give her father’s evidence some weight given his comments.
It was also submitted by the Wife that to support his conclusion about why the Shanghai property was included in the net assets of the parties the Federal Magistrate observed that: “There was no application made to the Court by any other party claiming an equitable interest in that property and I am left with the conclusion it should be taken into account as property of the wife”. The Wife submitted that it was open on the evidence to conclude that her father had an equitable interest in the property; or alternatively, her share was held on trust for her father. It was submitted that there was no need for any third party to make any application in respect of the Shanghai property, as his Honour was not making any orders in respect of the property per se and therefore not affecting anyone’s interest. I accept these submissions.
In conclusion, I am of the view it has been established that the Federal Magistrate was in error by including the Shanghai property as an asset of the parties. His Honour also failed to give any or any adequate reasons as to his treatment of evidence to justify including the Shanghai property in the net assets of the parties. His Honour made a number of errors of fact and law.

Loans from family

The Wife complains about how the Federal Magistrate dealt with two categories of loans. First, the failure by the Federal Magistrate to include the amount of approximately $140,000.00 that the Husband contended he paid to his father and sister during 2008. Second, the failure by the Federal Magistrate to include the amount of $50,000.00 that the Wife owes to her parents.
The Federal Magistrate observed at [93] that both parties had “relied on claims they had loans from relatives” and that “each bore the onus of satisfying the Court it was more likely than not that this was the case”. His Honour said that: “Unlike the husband’s case, there was no corroborating evidence beyond the wife’s father on this issue. The Court is not satisfied that there was a loan/s in the amounts claimed by the wife”. His Honour observed that: “There was no documentary evidence of any loan and what evidence there was failed to disclose the indicia reflective of a loan. The Court was not taken to any bank records evidencing the loans contended for and I am not satisfied they should be included” (emphasis in original).
So far as the amounts paid by the Husband to his father and his sister are concerned, it was submitted by the Wife that there was inadequate evidentiary proof to satisfy a Court, on the balance of probabilities that the alleged loans existed. Further, the Federal Magistrate failed to address the issue of the Husband’s lack of documentary proof as to the alleged loans. It was submitted that the paucity of evidence produced by the Husband amounted to retrospective financial planning or evidence largely provided by the Husband viva voce designed to accord with a few financial documents of little consequence, in order to satisfy the Court. It was submitted that source documents as to the loans were absent and there was no documentary evidence as to the source of funds. Further, the lenders were not present to give evidence for the Husband and no affidavits were filed by them. As well, no bank records or receipts were produced by the Husband or the Wife: see Jones v Dunkel (1959) 101 CLR 298 at 321.
On behalf of the Husband it was submitted that “for a man like the husband who never earned much, the only way he could build equity in assets in Australia may well be with the assistance of loans from family”. In other words, it was conceded that there was no corroborating evidence that the Husband borrowed funds from his family. As to the absence of evidence from the Husband’s father, it was contended that he is in hospital with dementia. As to the absence of the Husband’s sister, it was simply stated that she is in China and it cannot be said that she was reasonably available to be called.
In my view, the Federal Magistrate was in error in finding that there was corroborating evidence of the loans the Husband obtained from members of his family, that there was documentary evidence of such loans and that there was evidence indicative of loans. His Honour never identified the corroborating evidence be it documents or otherwise. In fact, there was no corroborating evidence of loans to the Husband from his family. It is also relevant that the Husband’s sister, who was said to have lent $25,000.00 to the Husband in 2001 and subsequently $55,000.00, did not give evidence. There are other aspects of the evidence that his Honour failed to consider such as what the Husband deposed in his financial statement filed on 4 February 2008.
In contrast, the Wife’s father travelled from overseas to attend Court and to give evidence inter alia about his loan to the Wife of $50,000.00. The Wife’s father attended Court on the adjourned date, armed with documents that were not called upon or permitted for use in the proceedings.
On behalf of the Husband it was submitted that the Federal Magistrate made findings adverse to the credit of the Wife, that she was cross-examined about her disbursement of the loan of $20,000.00 and her evidence was contradicted.
In my view, the evidence of the Wife’s father was wrongly disregarded by the Federal Magistrate, without proper or adequate reason. I accept that his Honour was prepared to accept the Husband’s version in terms of his alleged loans without applying like considerations to the Wife and his reason for doing so is not apparent.

In my view, the Federal Magistrate made various errors of principle in relation to his acceptance of the loans to the Husband by members of his family and his failure to accept that the Wife owes $55,000.00 to her parents. His Honour failed to have proper regard to the evidence. His Honour failed to have regard to the consequences of the absence of cross-examination of the Wife’s father. His Honour failed to have regard to the absence of evidence from the Husband’s sister. His Honour also failed to give any or any adequate reasons for his finding that the payment by the Husband of approximately $140,000.00 to his father and his sister was in repayment of loans and therefore should be excluded from the net assets. His Honour also failed to give any or any adequate reasons for his finding that the loans to the Wife should be excluded.

Conclusion

For reasons I have given I am going to allow the appeal and remit the application to the Federal Magistrates Court for redetermination. I also propose to admit the further evidence.
As to costs, I will make directions for the filing of any application and evidence in support. However, given that within a short period of time I will not be available to hear any proceedings I propose to deal with any applications for costs as soon as possible.

I certify that the preceding two hundred and thirty-six (236) paragraphs are a true copy of the reasons for judgment of the Honourable Justice O’Ryan delivered on 15 December 2010.

Associate:

Date: 15 December 2010