Zhai and Juan
[2012] FamCAFC 50
•29 March 2012
FAMILY COURT OF AUSTRALIA
| ZHAI & JUAN | [2012] FamCAFC 50 |
| FAMILY LAW – APPEAL – Appeal from the decision of the Federal Magistrate dismissing the husband’s application for property settlement – Whether his Honour erred in his credibility findings concerning the husband and the wife – Whether the Federal Magistrate erred in finding that the parties made equal financial contributions – Whether his Honour erred in placing weight on some evidence and excluding other evidence – No merit found in any of the complaints – Appeal dismissed. |
| Evidence Act 2005 (Cth) Family Law Act 1975 (Cth) |
| CDJ v VAJ (1998) 197 CLR 172 SSHontestroom v SS Sagaporack [1927] AC 37 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others (1999) 160 ALR 588 Weir and Weir [1993] FLC 92-338 |
| APPELLANT: | Mr Zhai |
| RESPONDENT: | Ms Juan |
| FILE NUMBER: | SYC | 5092 | of | 2007 |
| APPEAL NUMBER: | EA | 62 | of | 2010 |
| DATE DELIVERED: | 29 March 2012 |
| PLACE DELIVERED: | Perth |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Finn, May and Thackray JJ |
| HEARING DATE: | 21 September 2011 and written supplementary submissions received 27 September and 27 October 2011 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 19 April 2010 |
| LOWER COURT MNC: | [2010] FMCAfam 373 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | In person |
| SOLICITOR FOR THE APPELLANT: | Self-represented litigant |
| COUNSEL FOR THE RESPONDENT: | Ms Reynolds |
| SOLICITOR FOR THE RESPONDENT: | Monaco Lawyers |
Orders
The husband’s appeal against the orders of Federal Magistrate Altobelli made on 19 April 2010 be dismissed.
The husband’s application in an appeal filed on 16 August 2010 be dismissed.
The wife’s application for costs be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Zhai & Juan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 62 of 2010
File Number: SYC 5092 of 2007
| Mr Zhai |
Appellant
And
| Ms Juan |
Respondent
REASONS FOR JUDGMENT
Introduction
The husband has appealed against the order of Federal Magistrate Altobelli made on 19 April 2010 dismissing his property settlement application.
The Federal Magistrate found he could not make an order altering interests in property, nor could he make an order dismissing an application seeking such relief, unless he was satisfied the order was just and equitable. He decided the only order that satisfied the test was one dismissing the application.
His Honour reasoned that he could not make an order altering property interests because neither party had told him what had “really happened in a financial sense”, both during and after their relationship. He nevertheless considered he could make the order dismissing the husband’s application because the wife’s evidence was more reliable than that of the husband. He found those parts of her evidence which could be believed were sufficient to establish that the dismissal of the application brought about a just and equitable outcome.
The husband challenges these crucial credibility findings. He claims that if all the evidence had been properly assessed, his Honour should have realised the wife’s case was a “fabrication”. The husband says the Full Court should rectify matters by making orders similar to those he sought at trial, as well as others aimed at punishing the wife and bringing the Federal Magistrate to account.
Brief background
The husband was born in October 1966 and the wife was born in May 1972. The husband claimed to be unemployed. The wife was a homemaker.
The Federal Magistrate found the parties probably commenced living together in China in 1993 or 1994. They were married in Shanghai in December 1996.
In 1996 the wife migrated to Australia, returning to China from time to time. The husband joined the wife in Australia in 1999.
The parties were living in Melbourne at the time of the final separation, which occurred in about October 2000. They were divorced in February 2002.
The wife purchased a home in Melbourne in 2001 (“the B property”), which she said was acquired with her then de facto husband, although the property was registered in her name alone.
The husband was given leave to commence property settlement proceedings, and his application was filed in 2007. The matter proceeded to trial in March 2010. The order challenged by this appeal was made on 19 April 2010.
The orders sought at trial
In summary, the husband sought orders at trial that:
·the wife reimburse him the monies he claimed the wife had received during the separation totalling $99,127 (plus interest);
·the wife pay to him $35,606 for “share of the benefit of increased property value” of the B property;
·the wife pay him back a further amount of US $6,500; and
·the wife and her new husband “be sentenced…for the crime of bigamy”.
The wife sought only that the husband’s application be dismissed.
The Shanghai property
It will assist understanding if we mention at the outset that much of the controversy concerned two adjoining flats in Shanghai, known as Room 1 and Room 2. The Federal Magistrate found that Room 2 was purchased in the husband’s name in 1997. His Honour inferred that Room 1 was acquired in the husband’s name at some later time. The flats were treated by his Honour as being property of the husband.
In these reasons we will refer to the two flats as “the Shanghai property”.
The Federal Magistrate’s reasons
The importance the Federal Magistrate placed on credibility can be seen by the fact that the opening four paragraphs of his reasons were devoted to that topic. In these paragraphs his Honour found neither party had been “impressive in their evidence” and that almost all factual issues had been “hotly disputed”.
The Federal Magistrate recorded that whilst the husband was “intelligent and articulate and demonstrated an impressive knowledge of family law and procedure”, he had shown “an appalling inability to present his evidence objectively, cogently and in a form that was of assistance to the court”. His Honour found that the husband had “no sense of responsibility to present all relevant evidence” and he concluded that the husband treated the truth as a disposable commodity.
The Federal Magistrate recorded that the wife’s case had also changed “to meet the ebb and flow of the evidence”. His Honour found that although her affidavit evidence had “drifted several times”, at least it was “for the most part, cogent and relevant”. He nevertheless found it “very hard to consistently accept the veracity of [the wife’s] evidence”.
The Federal Magistrate concluded his opening observations on credit by recording that he had been “left with the profound feeling that the truth was out there somewhere, but it was certainly not to be found in the courtroom”.
His Honour then set out the relevant background, some of which we have recorded above. In doing so, his Honour noted that “much additional complexity” had been created because nearly a decade had elapsed since the parties separated, and because both parties had relied on translations of “Chinese documents”, the authenticity of which was questioned by the other party.
Having set out the issues he considered needed to be determined, the Federal Magistrate then stated the applicable law. In doing so, his Honour referred to authorities dealing with non-disclosure, and cited from the decision of this Court in Weir and Weir [1993] FLC 92-338, including the following passage:
It seems to us that once it has been established that there has been a deliberate non-disclosure, which follows from his Honour’s findings in this case, then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature…
The Federal Magistrate then returned to assessment of the parties’ credibility. He said he found the husband to be “an unimpressive witness [who] was frequently unresponsive, evasive and argumentative in cross-examination”. In particular, he recorded that the husband’s evidence about the ownership of the Shanghai property was “simply incredible”. His Honour also found the husband’s memory to be “selectively deficient at times but remarkable at other times”.
The Federal Magistrate also expressed “real concerns” about the accuracy of the husband’s financial statement. His Honour concluded that all of the husband’s evidence needed “to be carefully assessed having regard to documents and other objective evidence”. Importantly, he found that, where their evidence conflicted, the evidence of the wife was to be preferred, although he noted there were “many exceptions” to this general proposition.
The Federal Magistrate then turned to the wife’s evidence. His Honour again recorded he had concerns about her evidence, but not nearly to the same extent as he did with that of the husband. He recorded that his main concerns were “inconsistencies between [the wife’s] oral and written evidence and occasional inconsistency between the case that she put to the husband in cross-examination and the wife’s own evidence”. This led his Honour to conclude that the concerns about the wife’s credibility were “situational rather than systemic”. Whilst finding that “a close scrutiny of [the wife’s] evidence is required where there is a seeming inconsistency”, his Honour repeated that he preferred the wife’s evidence to that of the husband.
The Federal Magistrate then briefly referred to the evidence of Ms Y, who is the sister of Mr Y, the wife’s new husband. The wife had relied upon an affidavit by Ms Y in support of her case. The transcript reveals that Ms Y was busy serving customers and attending to deliveries in some commercial enterprise whilst being cross-examined over the telephone. (Transcript, 3 March 2010, page 45 et seq). His Honour was clearly not impressed, saying:
I completely reject her evidence. She was unresponsive and argumentative bordering on contemptuous. Given the very limited scope of her evidence I found her behaviour in giving evidence by telephone quite astounding.
His Honour next noted that “curiously the husband did not cross-examine Mr [D] or Mr [Y]”, and he said he therefore accepted the evidence of both those witnesses. His Honour did not record what Mr D had said in his affidavit, but he referred in some detail to the evidence of Mr Y. His Honour described Mr Y as the wife’s de facto husband, but the evidence indicates they were, by that time, legally married. (Appeal Book 7:511 and see also transcript, 2 March 2010, page 93).
His Honour recorded that Mr Y had deposed to the following facts concerning the B property:
·Mr Y and the wife purchased the property in 2001, but had deliberately chosen to put the property in the wife’s name;
·the wife contributed only $7,000 (being the first home owner’s grant) towards the purchase of the property;
·Mr Y had contributed the remainder of the deposit of $23,600 from his own savings;
·the balance was borrowed from Mr Y’s sister and from a financier; and
·the mortgage payments on the property had come from “combined family income including Centrelink benefits” and Mr Y’s income.
The Federal Magistrate observed that Mr Y’s unchallenged testimony “substantially corroborates the wife’s evidence”, and that it made the husband’s case “that assets belonging to the husband and wife at separation went into [the B property] almost impossible to prove”.
His Honour then set out a table containing what he described as “the potential pool of assets and liabilities”. The Shanghai property was included, with the value stated as “not known”. The B property was included at $475,000, with a mortgage of $90,000 and a loan of $100,000 from Ms Y. (Although his Honour said he completely rejected Ms Y’s evidence, it is apparent he accepted she had advanced $100,000 toward the purchase of the B property.)
The Federal Magistrate then recorded that he intended to disregard some modest assets and minor liabilities on the basis that almost 10 years had elapsed since separation, and that their inclusion would “complicate the assessment of contribution, and distract the determination of already unnecessarily complex litigation”. His Honour said he would nevertheless have regard to these assets and liabilities “in a general sense when determining whether orders I make are just and equitable”.
Having discussed other items in the table that have no direct relevance to this appeal, the Federal Magistrate turned to consider what he described as “the major issue for determination”, which related to the Shanghai property.
The Federal Magistrate recorded that the husband appeared to have given no evidence in his affidavit about having an interest in the Shanghai property. His Honour further recorded that, prior to trial, the husband’s case “was resolutely that he had no interest” in that property, and that the husband had gone to “considerable expense” in obtaining a report from a document examiner to support his contention that it was not his signature on the document recording the purchase of Room 2.
Having referred to the report prepared by the document examiner, his Honour then cited an extract from the cross-examination of the husband in which the husband agreed that a Chinese court had found that the husband’s mother had made a gift of Room 2 to him.
The extract from the cross-examination contains an acknowledgement by the husband that he had “provided certain documents” to the court in China to prove that his mother was the “full beneficial owner” of Room 2. The husband further claimed, in this part of his cross-examination, that he had only found out a “couple of days before the end of June last year” that his mother had provided funds towards the acquisition of Room 2. In response to questions about why he had not made any disclosure of this fact prior to the second day of the trial, the husband said that “today is the right time to do that. And before that, I think this issue is not relevant to this proceeding”. He continued to deny the proposition put to him that he had “known all along that Room [2] was in [his] name”.
On the basis of the husband’s cross-examination, “together with the totality of the evidence”, his Honour made findings expressed as follows:
i)The husband agrees that Room [2] was a gift to him by his mother;
ii)It may well be the case that the purchase was funded in part or in whole by the husband’s mother;
iii)Room [2] is held in the name of the husband;
iv)He was aware of this since at least June 2009 and probably before that date;
v)The totality of the evidence indicates that the husband’s mother actually occupied this property for some time;
vi)The totality of the evidence indicates that Rooms [1] and [2] are actually part of a single residential flat;
vii)The husband’s insistence that he is not the [Mr Zhai] on the title to the property is manifestly absurd;
viii)The husband was under a clear duty to disclose to the court since at least June 2009 that he had an interest in Room [2], even if as trustee, but failed to do so.
Having concluded that he did not accept the husband’s evidence about the Shanghai property, his Honour then noted the wife’s evidence that moneys provided to her and to the husband by members of her family had been applied towards the purchase of Room 2 in April 1997. His Honour further noted that the wife had annexed to her affidavit copies of translated documents, which she asserted established the husband’s ownership not only of Room 2 but also of Room 1.
His Honour then discussed the documents attached to the wife’s affidavit, but concluded that he should not place any weight on some of them, and that whilst some others were admissible, the weight to be given to them was “reduced” for reasons he gave. However, his Honour noted there was “ample other evidence” to reach the same conclusion as had been made by the Chinese court.
His Honour next commented that “one confusing aspect” of the wife’s case was that, despite the evidence the wife had given about the Shanghai property having been purchased with money from her family, the cross-examination of the husband proceeded on the basis of acceptance of the fact that the money used to acquire Room 2 came from the husband’s mother. His Honour observed, however, that when the wife was cross-examined about Room 2 she continued to assert that the funds advanced by her family had been used to purchase the property. However, his Honour noted that, shortly afterwards in her cross-examination, the wife had said that she knew about Room 2, but had never been told who was the owner, and it was only after the separation that she began to realise the husband was the “true owner” of Room 2.
The Federal Magistrate next noted the husband’s reliance upon an affidavit sworn by the wife in March 2006 in which she referred to a property settlement agreement between the parties that had made no mention of the Shanghai property. His Honour commented that the conflict in the way the wife’s case had been presented left him “with the impression that even she is not entirely clear about the husband’s precise interest in Room [1] and [2]”. He continued by saying there was “little clear evidence advanced by the wife in relation to the acquisition of Room [1]”, and that an inference could be drawn that it was “acquired at a later date” and that there was a “suggestion from possibly unreliable documents that the two rooms had been consolidated into one apartment”.
His Honour then made the following crucial findings in relation to the Shanghai property:
44.The state of the evidence about Rooms [1] and [2] on Shanghai is unclear. What the Court is confident about, however, is that the husband knows far more that [sic] he has disclosed to the court. It does not necessarily follow that the wife made the contributions to the acquisition, maintenance and improvement of the property that she asserts. This will be discussed in the context of assessing contribution.
45.The court finds that the husband has failed to discharge his duty of disclosure to the court about his true interest in these properties. He repeatedly asserted that the onus of proof was on the wife to establish the husband’s interest in these properties. In the circumstances of this case, and in the context of the husband’s non-disclosure, the onus shifted to him. He did not call the one witness who could have supported his version of events – his mother. He chose not to read her affidavit as she was not available for cross-examination. I had intimated that I was open to an application for her to give evidence by telephone. An inference is available that her evidence would not have assisted his case about the ownership of these properties.
46.The properties known as Rooms [1] and [2] Shanghai should be included on the pool of asserts [sic] as assets owned by the husband. There is no reliable evidence as to value. In the wife’s case outline she asserts that each has a value of $85,000. In closing submissions her counsel said $35,000 each. I place no weight on any Chinese evidence about value. The Court does not know what the value of these properties is. It was the husband’s duty to disclose this information, and he has failed to do so.
His Honour then found the pool of assets comprised the following:
Property
Ownership
Value
1. [B property]
W
$475,000
2. A/c [Mr Y] ITF wife
W
$37,400
3. Room [1] Shanghai
H
Not known
4. Room [2] Shanghai
H
Not known
Liabilities
Ownership
Value
5. Mortgage [B property]
W
$90,000
6. Loan from Ms [Y]
W
$100,000
7. HECS debt
H
$29,000
The Federal Magistrate then turned to assess the respective contributions. He noted it seemed to be the husband’s evidence that the parties had no, or minimal, assets at the time of cohabitation. His Honour accepted the husband’s assertion that by the time the husband arrived in Australia in 1999 he had savings of US $18,000, which were deposited into accounts in the names of the husband and the wife.
His Honour next noted that the husband seemed to be saying that that before he had arrived in Australia, and certainly by December 2008, he had sent or caused to be sent to Australia a further AUD $60,000, but by the time of separation in 2000 he had only $45,000 remaining, the rest having been used for living expenses in the period after the arrival in Australia of both parties. His Honour indicated he was inclined to accept that evidence.
His Honour next noted that the husband had asserted in cross-examination that he had also brought Deutschmarks and Hong Kong dollars with him when he came to Australia in 1999. His Honour found this was a fabrication and noted the husband’s affidavits contained no mention of these additional funds.
The Federal Magistrate next noted it was common ground there was a term deposit of 250,000 RMB[1] at the time of separation. His Honour commented:
Each party has a different version about how this fund was created, who held it, what happened to it and why, but the fact is that each agrees it should be included in the balance sheet. For this reason there is no need to go into this hugely contentious territory.
[1]The Renminbi (RMB) is the official Chinese currency, the primary unit of which is the yuan. The wife’s evidence at trial was that 250,000 RMB was the equivalent of AUD $55,555.
The Federal Magistrate then noted that, as he understood the husband’s case, the husband had contributed all of the funds mentioned, but all he had obtained on separation was his motor vehicle and some furniture, while the wife used the funds available at separation to purchase the B property.
His Honour then turned to consider the wife’s evidence about contributions, noting there was little in common with the husband’s evidence, other than that she agreed neither party had any assets of significance at the time of cohabitation, and that the husband had worked throughout the entire period from cohabitation until he came to Australia.
The Federal Magistrate also noted that the wife had set out her working history in her affidavit and he indicated he accepted her evidence in that regard, “not necessarily because of the Chinese documents which she annexes to her affidavit, but because the court prefers her evidence to that of the husband”.
His Honour next mentioned, but rejected, the wife’s assertion that her mother had provided the parties with free accommodation from late 1993 until the wife left for Australia in 1996 and the husband left for Australia in 1999.
His Honour then turned to the wife’s contention that her family had made substantial contributions for the benefit of the parties between 1993 and 1996. In summary, it was contended that, in that period, the wife had “contributed through the generosity of her family 228,000 yuan and US $15,000”.
His Honour noted the wife’s contention that:
·all of these funds had been given to the husband;
·the husband had, in 1997, used 77,000 yuan to purchase Room 2 which had cost 140,000 yuan in total; and
·the balance of the purchase price of Room 2 was obtained on the security of a mortgage, which was paid off during the marriage.
His Honour then set out a table depicting the wife’s assertions about what she said was the agreed distribution of assets at the time of separation. The wife claimed all she received was the 250,000 RMB, which she said was worth $55,555. She said the husband retained Rooms 1 and 2, which she valued at $44,450 each, and in addition she claimed the husband retained other assets to a value of $69,163.
His Honour recorded the wife’s explanation why she had been prepared to receive much less in the settlement than the husband received. His Honour described her explanation as being “simply implausible”. He said that even hypothesising “about the role that guilt might have played, the wife’s actions do not have the ring of truth about them”.
His Honour then made the following observations about the wife’s assertions concerning contributions made by her family (which had been detailed in paragraphs 28 to 31 of the wife’s affidavit):
63.There are a number of concerns in relation to the contribution alleged by the wife through her family. It is strenuously denied by the husband. It is uncorroborated. And yet some part of it is probably true. For example it is more likely than not that when the parties were married in December 1996 cash wedding gifts were received. Moreover, the court accepts that Room [2] was in fact purchased in the name of the husband in 1997, despite his contrary assertions. What is unknown on the evidence is the precise role that the husband’s mother played in the financing and acquisition of Rooms [1] and [2]. It is more likely than not, the court finds, that some joint funds (including, possibly, some or all of the monies referred to at paragraphs 28-31 of the wife’s affidavit) were applied towards the purchase price of Room [2]. The circumstances of the acquisition of Room [1] are unknown. The Court accepts the wife’s evidence that Rooms [1] and [2] were joined to provide the husband’s mother with a safe and comfortable place for her to live.
His Honour then made important findings relating to the assessment of contributions. This key paragraph of his Honour’s reasons is set out below.
64.Making a precise assessment of contribution in this case is almost impossible because the court is not satisfied that either party is being truthful about the contribution they made or which was made though [sic] them. The court must simply do the best it can in unsatisfactory circumstances. Making fine distinctions is difficult, but it seems that both worked when they were in China, and contributed equally. Both worked and studied during the relatively short period they were together in Australia, and contributed equally. During the period 1996-1999 the husband was in full time work but otherwise dependent on him. [sic] In a broad sense, any greater financial contribution made by the wife through the generosity of her family (unquantifiable as it is) weighs in the metaphorical balance as equal to the greater financial contribution made by the husband when the wife was in Australia. Whilst a conclusion of equality of contribution is nothing more than an educated guess on the facts of this case, it is the conclusion necessitated by the poor state of the evidence, and the unreliability of the parties.
It will be observed that the sentence in this citation which reads “During the period 1996-1999 the husband was in full time work but otherwise dependent on him” is grammatically defective. We are satisfied this is the result of a typing error, and that the sentence was intended to read, “During the period 1996-1999 the husband was in full time work and the wife was dependent on him”. We note the husband implicitly acknowledged there was an error, as he rendered the relevant sentence (at paragraph 303 of his “Oral Submissions”) as follows:
…during the period 1996-1999 the husband was in full time work but the wife otherwise [sic] dependent on him.
His Honour then recorded that he did not accept the wife’s evidence about the distribution of the assets at the time of separation. He found that “the most likely scenario” was that the husband had retained whatever interest he had in the Shanghai property, his furniture and his car, while the wife retained cash of about $50,000 and the RMB 250,000 investment. His Honour observed that on the basis of the wife’s evidence about the value of the assets at separation, his finding about the way in which the assets had been distributed indicated that each party had kept about one half of the value of the assets.
His Honour then stated that whilst he accepted it was “possible” the wife had used the money she retained following separation to purchase the B property, a finding to that effect was not open in view of the wife’s evidence denying that fact, which was corroborated by the unchallenged evidence of her husband. His Honour commented, however, that nothing turned on this fact because of matters to which he would refer later.
The Federal Magistrate found that contributions needed to be assessed as at the date of the hearing, which he again stressed was “nearly a decade after separation”. However, his Honour went on to record that neither party had submitted they had made post-separation contributions. He then (at paragraph 70) made the very important observation to which we have earlier referred, namely that he had “a real sense that the court has not been appraised by either party of what really happened in a financial sense during their cohabitation, marriage, separation and subsequently”.
His Honour then posed a crucial question, and answered it as follows:
71.In view of these findings the court asks itself the question – should any orders be made under s. 79? Section 79(1) states that the court “may make such order” as it considers appropriate. The discretionary nature of a s.79 order is again emphasised in s.79(4) where it states that in “considering what order (if any) should be made”. Any order the court makes must be just and equitable: s.79(2). On the facts of this case the only order the court makes is one dismissing the husband’s application. This is the order sought by the wife. She does not ask the court to make any declaration under s.78, or any order that each party keep what they have. In these circumstances no further order will be made.
The Federal Magistrate concluded his judgment with three paragraphs under a heading “Just and Equitable?”. We set out this part of the reasons in full, since it is pivotal to understanding the basis upon which his Honour decided the application should be dismissed (emphasis in the original):
72.Is the order dismissing the husband’s application just and equitable? In Ferguson & Ferguson (1978) FLC 90-500 at 77,516 the Full Court stated:
… the main purpose of s.79(2) is to ensure the Court will not alter the property rights of the parties, unless justice requires it to do so, and that if the Court decides that it is requisite to make any order under the section, the Court must be satisfied that the alterations so ordered will go no further than the justice of the matter demands. Whether it is just and equitable in all the circumstances to make any and what order, involves a consideration of the matters which the Court is required to take into account under s.79(4), because that subsection expressly enumerates the kind of matters which the legislature considered relevant in determination of a claim for alteration of interests in property…
73.This statement was approved by the Full Court in Beneke & Beneke (1996) FLC 92-698.
74.Clearly what is just and equitable depends on how s.79(4) is applied to the facts of each case. In this case the great difficulty confronting the court is the unreliable state of the evidence, and the real credit issues that permeate the evidence of both husband and wife. The court has found that the husband has not been frank about his disclosure in relation to his true interest in the properties at Room [1] and [2] Shanghai. It is highly likely that both parties, for their own reasons, have presented to the court a highly subjective and fragmented version of the contributions they have made, and their financial circumstances at all relevant times including the present. In these circumstances the court can only do the best it can on the available evidence. A finding that contribution was equal leads, in the court’s view, to a finding that the distribution of assets at separation as noted in these reasons, is also just and equitable. This is the best the court can do under the circumstances. True it is that, based on what the husband has disclosed to the court, he will be left with liabilities to a forensic document examiner, a HECS debt and to his mother. This does not change the court’s finding about justice and equity on the facts of this case. The HECS debt arose, for the most part, after separation. Having regard to the husband’s evidence in cross examination, the forensic documents examiner’s report was unnecessary. The alleged loan from his mother is not established on the evidence, and in any event some of it arises after separation. Accordingly the proposed order is just and equitable.
The grounds of appeal and submissions made on appeal
The husband amended his grounds twice before the hearing of the appeal and, since there was no objection, we allowed him to amend a third time at the commencement of oral argument. The grounds we will address are those set out in the document called “NOTICE OF APPEAL (Amended 4)”.
The husband filed a 25 page summary of argument on 16 December 2010, which set out the 21 orders he considered should be made by the Full Court. Essentially these were in similar terms to those sought by him at trial. A rehearing was not sought in the event appellable error was identified.
On 14 September 2011, the husband filed an Application in an Appeal in which he sought to rely on a document entitled “Record of Oral Submissions”. This document ran to 69 pages. At the commencement of the oral hearing, the husband sought to hand up a replacement document of similar length, this time entitled “Oral Submissions” and dated 20 September 2011.
We were informed by counsel for the wife that she had not received a copy of the “Record of Oral Submissions”, but helpfully volunteered she would be able to provide a written submission later if she found anything in the husband’s “Oral Submissions” that warranted comment. Given the husband was self-represented, and that English is not his first language, we allowed him to rely on the “Oral Submissions”.
The wife’s counsel provided a concise written summary of argument. At the conclusion of the oral hearing, we gave her leave to file further submissions, which were received on 27 September 2011. We also gave leave to the husband to file submissions in response, which were received on 27 October 2011.
Application to adduce further evidence
Before considering the Grounds of Appeal it is necessary to rule on the husband’s Application in an Appeal, filed on 16 August 2010, seeking leave to rely upon a number of documents by way of further evidence. The husband described these documents as the “key” evidence in the appeal.
The principles relating to the introduction of further evidence on appeal were discussed in CDJ v VAJ (1998) 197 CLR 172 where the majority of the High Court (McHugh, Gummow and Callinan JJ) said at 200 [104]:
In the exercise of the discretion [to admit further evidence on the hearing of an appeal]… the critical factor is the subject matter of the proceedings with which the appeal is concerned. This is because the purpose of the power to admit further evidence is to ensure that the proceedings do not miscarry. …
Their Honours went on to say (our emphasis):
109.One consideration in construing [the statutory provision which allows the introduction of further evidence] is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures. …
…
111.…The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
…
114.No doubt the Full Court will readily admit further evidence which is not in dispute and which the Court is able to evaluate and take into account in considering the appeal without the necessity to have the proceedings re-heard. Further evidence of this kind is particularly likely to be admitted where the evidence relates to events occurring after trial. …
Importantly, their Honours then discussed the significance of failure of a party to adduce evidence which was available at the date of the trial (our emphasis):
116.The failure to have adduced the evidence before the primary judge will be a variable factor, the weight of which will depend upon all the other factors pertinent to the case. Where the evidence has been deliberately withheld, the failure to call it will ordinarily weigh heavily in the exercise of the discretion. In other cases, the failure to call the evidence even if it could have been discovered by the exercise of reasonable diligence may be of little significance. No invariable rule concerning the failure to call the evidence can or should be laid down in view of the wide discretion conferred on the court by the section.
Personal diary and family letters
The first set of documents the husband sought to introduce as further evidence were translations of extracts from the wife’s personal diary and “family letters”. The husband submitted that these documents would demonstrate error in the findings concerning the income earned by the wife when she was in China.
Before considering the documents, it will be useful to record relevant findings made by the Federal Magistrate concerning this topic:
·“both parties worked, it would seem, between cohabitation and 1996 in the case of the wife…”; (Reasons, paragraph 9);
·after the wife came to Australia in 1996 she returned to China from time to time; (Reasons, paragraph 9); and
·the wife’s evidence about her working history had been detailed in paragraph 18 of the wife’s affidavit, which his Honour accepted, “not necessarily because of the Chinese documents which she annexes to her affidavit, but because the court prefers her evidence to that of the husband”; (Reasons, paragraph 54).
In order to provide context for the last of these findings, it is necessary to recite what the wife said in paragraph 18 of her affidavit, sworn 8 February 2010, concerning her employment history, both before she same to Australia in 1996 and when she returned to China from time to time in the years following.
18. My working history is as follows:
(a) From late 1993 until June 1994, a part time fashion designer at [C Studio], Shanghai;
(b)From April 1993 until December 1995, fashion and pattern designer with [D Company], earning 6,000 yuan every month plus annual bonus;
(c) From January 1995 to February 1996, as a part time fashion designer with [J Company], earning 1,000 yuan per month;
(d) From January 1996 until August 1998, I earned consultancy fees of about 170,000 yuan from [Y Company] when I returned to China for different periods from Australia.
…
To bolster these assertions, the wife annexed to her affidavit, inter alia, two documents purporting to be English translations of documents said to have been provided by her Chinese employers. The first (“Annexure A”) certified that the wife had worked as a senior administrator for D Company from 1993 to 1995 and that her monthly income was “RMB 6,000 yuan”. The second (“Annexure B”) certified that the wife had been appointed by Y Company as a design consultant from 1996 to 1998, during which period she had been paid a total of “RMB 170,000 yuan”.
The husband’s case is that both these annexures are fabrications. He submitted that the further evidence upon which he wishes to rely would establish that the wife was, in fact, an unemployed student from 1993 until July 1999. He claims the further evidence would show how the wife “financially depended and relied” on him from October 1995, which is when the husband claimed the wife first knew him.
In his affidavit in support of his application to introduce further evidence, the husband said that the wife’s diary:
…was not available at the time of the trial, it was in China and I did not known [sic] exact location where it was. After the judgment based on the perjury was delivered, it then became necessary to look for it…
The husband claimed that “the diary was reliable and cogent evidence” and “faithfully disclosed the truth”.
Attached to the husband’s affidavit in support of his further evidence application were photocopies of what were said to be pages from the wife’s diary, written in Chinese, together with a purported translation of various extracts from the dairy, along with translations of extracts from what were said to be letters sent by the wife to the husband in 1998. There was no certificate or affidavit of a translator to confirm the accuracy of the translations.
Counsel for the wife opposed the introduction of this material, noting that the “diary entries are extracts only, and in a foreign script, so this court is unable to be satisfied of dates or to compare handwriting, and to be satisfied it would affect the original finding”. It was further submitted that some dates are noted as “‘inferred’ in regards to the year”.
Counsel for the wife in her oral submissions also drew attention to the fact that the husband had, in fact, cross-examined the wife at trial on one entry in her diary. Indeed, we note it was the first matter on which the wife was cross-examined. (Transcript, 2 March 2010, page 74).
In the course of the cross-examination of the wife, an issue arose as to the year in which the diary entry had been made. The wife said she thought the entry was from 1992. The husband said “actually, I have previous couple of pages. It is in serie [sic] – it started from 1995”. The Federal Magistrate then suggested to the husband, “well you better put that to the witness” – to which the husband responded, “I think – is it possible I bring in tomorrow…original. I only take out one page. I did not expect that she said it’s 1992”.
His Honour then said, “well, you better bring the whole diary in tomorrow”, to which the husband responded “okay”. A little later the husband said, “so I need to bring whole lot tomorrow”.
The cross-examination of the wife on the date of the entry in the diary then proceeded. It was again put to her that the entry she was being shown was from 1995, but she again insisted it was from 1992. She also volunteered:
If there’s really a year in that diary that – to be produced, I won’t be certain whether that is fabricated by someone else, or it is really my handwriting.
The husband did not produce the balance of the wife’s diary on the next day of the trial, and the wife was not further cross-examined on its contents.
In his oral submissions on appeal, the husband claimed that, in the heat of the moment of the trial, he had forgotten that the rest of the diary was, in fact, in his mother’s possession. He acknowledged he had failed to provide any disclosure of the diary, claiming he was not aware of its “evidential value”. None of these matters were referred to in the husband’s affidavit in support of his application for the introduction of the diary into evidence.
We are not prepared to receive the diary, nor the purported translation of selected excerpts from it. In arriving at our decision, we note the Federal Magistrate found the husband had been deliberately selective in his presentation of evidence at trial. We have no way of determining whether the husband may have engaged in a similar process in taking extracts from the wife’s diary. Nor could we accept at face value the husband’s (unsworn) assertion that he did not have the whole diary available at the trial, given that he led the Federal Magistrate to believe it was. Furthermore, the fact the husband chose to cross-examine the wife on one part of the diary demonstrates he was aware of the forensic value of a diary and yet, even on his own version, appears to have made no attempt to obtain the balance of the diary from his mother prior to the trial.
The husband also provided no explanation in his affidavit why he had not cross-examined the wife concerning the letters on which he now seeks to rely. As best we understood him, he did not assert that his mother had those letters in her possession. The husband had sought to rely at trial on extracts from other letters and a card sent by the wife (as to which see the discussion of Ground 1 below). In his Oral Submissions the husband asserted that he:
…honestly believed that family letters tendered already for the trial were self-evident and sufficient to prove the fact that the wife had been financially dependent on the Husband…It was unnecessary to over build the case in terms of costs v benefits.
There is no principled basis upon which this additional material should be received into evidence. Apart from the uncertainties associated with the provenance of the documents, they could only be introduced without prejudice to the wife by allowing her to be cross-examined on their content. This could only be done at a rehearing, to which both parties are opposed. In any event, we are not persuaded the further evidence would lead to a different result.
Wife’s civil appeal petition
The husband also sought to introduce a document called “civil appeal petition” dated 4 February 2010, which the wife apparently filed in the proceedings in China relating to the Shanghai property. The husband claimed this document was not available to him at the time of the trial because it was served on 12 August 2010. The husband asserts that the document would show the falsity of the wife’s assertions about the way in which the purchase of the Shanghai property was funded.
In considering this part of the husband’s application, we should record that examination of the documents might suggest that Chinese law provides for a community property regime, the effect of which is that only certain categories of assets are available for distribution between parties following the breakdown of a relationship. Property acquired before marriage or after divorce appears to be excluded from consideration, as is property given to a party by their family. On the other hand, property acquired during marriage appears to be available for distribution, regardless of which party contributed to its acquisition.
Our examination of the translation of the civil appeal petition suggests that the Chinese court had found the purchase price for Room 2 had been contributed by the husband’s mother. The court also found this was a “personal gift to her children and a purchase gift to the [husband] and the benefit gained from the presentation should belong to the [husband] himself”.
It is in this context that we need to consider the husband’s reliance on the statement made on behalf of the wife in the civil appeal petition, namely that “it is highly likely that this sum of 98000 yuan was paid by the [husband]”. In other words, the wife was putting in issue the finding of the trial court in China that the funds to acquire Room 2 had come from the husband’s mother.
We do not see the assertion made in the wife’s civil appeal petition to be inconsistent with the case she presented in her affidavit sworn 8 February 2010. Although the wife claimed in that affidavit that her family had provided the funds which were used to acquire Room 2, she never asserted the funds had been paid directly toward the purchase. Her case was that all of these funds had been received by the husband, who had then used the money to buy the Shanghai property.
The receipt of the civil appeal petition into evidence would therefore not demonstrate that the decision of the Federal Magistrate was erroneous.
Affidavit of the husband’s mother
The next document upon which the husband seeks to rely is an affidavit sworn by his mother in the Chinese proceedings. The husband provided a translation of only parts of the affidavit.
As the Federal Magistrate recorded in his reasons, the husband chose not to rely at trial on an affidavit that had been sworn by his mother, notwithstanding that his Honour had told the husband he was “open to an application for [the husband’s mother] to give evidence by telephone”.
In circumstances where the husband elected not to rely upon an affidavit sworn by his mother in the proceedings in Australia, there can be no basis upon which this Court would receive as further evidence selected excerpts of an apparently controversial affidavit said to have been sworn by her in foreign proceedings.
The judgment of the Chinese court
The final document upon which the husband seeks to rely is the judgment of the Chinese court relating to the ownership of the Shanghai property.
The translation of two, brief, excerpts from the judgment indicates the Chinese court found that the husband’s mother had contributed 98,000 yuan to acquire the Shanghai property. The judgment was delivered on 30 November 2009. If there was any basis upon which this document could have been relied upon in the proceedings in Australia, the time for the husband to seek to have it received into evidence was at the time of the trial. As we will later discuss, the husband strongly opposed the introduction of this document into evidence at trial.
For this, and all the other reasons we have given, we will dismiss the husband’s application for the introduction of further evidence.
Grounds of appeal – overview
The grounds of appeal take issue with many aspects of the Federal Magistrate’s decision. However, unless we are persuaded that his Honour erred in his damning assessment of the husband’s credibility, we consider the appeal must fail.
The importance of the credibility findings can be gauged by the fact that the Federal Magistrate repeatedly came back to the issue of credit, with the introductory and concluding paragraphs of his reasons being almost entirely given over to that topic. His Honour stressed, time after time, that he could not rely upon the husband’s evidence, and that he was also dubious about the wife’s evidence, which led him to conclude that “there is a real sense that the court has not been appraised by either party of what really happened in a financial sense during their cohabitation, marriage, separation and subsequently”.
It is not coincidental that, immediately after making the last of these pejorative findings, the Federal Magistrate observed that the power to make an order for adjustment of property interests is discretionary. Importantly, his Honour also recorded that the legislation provides that the order must be “just and equitable”. He concluded that on the “facts of this case the only order the court makes is one dismissing the husband’s application”. His Honour noted this was the order sought by the wife. Importantly, however, he also recorded that the wife was not seeking a declaration of ownership of property, nor an order that each party keep the property they already had.
It was the husband who wanted the Court to make an order altering existing property interests (some 10 years after the final separation). The Federal Magistrate properly determined that it was the husband who bore the onus of satisfying the Court that such an order was just and equitable. Provided he was justified in determining that the husband had no credibility, we consider his Honour was entitled to proceed on the basis that the onus had not been discharged, and, consequently, to dismiss the husband’s application.
If his Honour had concluded his judgment at this point in his reasoning process (i.e. at paragraph 71 of his reasons) it would have been clear that the only basis upon which he made his decision was the failure of the husband (and the wife) to satisfy him about “what really happened in a financial sense”, since without that information it would be impossible to satisfy the requirement that any order be “just and equitable”. However, his Honour did not end his judgment there. Instead, he went on, in the concluding part of his reasons, to pose the rhetorical question, “Is the order dismissing the husband’s application just and equitable?”. After reviewing his earlier findings, his Honour made a positive finding that the order was indeed just and equitable.
In finding that it was just and equitable to dismiss the husband’s application, his Honour relied on the somewhat greater credibility of the wife; however, we infer that he also relied on the principle he cited from Weir and Weir (1993) FLC 92-338, namely that “once it has been established that there has been a deliberate non-disclosure…then the Court should not be unduly cautious about making findings in favour of the innocent party”. We acknowledge that treating the wife as the “innocent party” does not sit well with the adverse findings made about her credit, but it is clear his Honour regarded the unsatisfactory nature of the wife’s evidence to fall into a different category to that of the husband.
It is in the context of this overview of the husband’s appeal that we now turn to consider his many complaints. We will address the grounds in the jumbled order in which they appeared in the “NOTICE OF APPEAL (Amended 4)”.
Ground 1 – error in finding of equal financial contributions
This lengthy ground seeks to impugn the findings about the wife’s credibility in order to demonstrate error in the Federal Magistrate’s finding that the parties made equal financial contributions.
The ground was difficult to follow, as were the highly repetitive submissions, but it seems the husband takes issue with what he says was:
·the Federal Magistrate’s failure to exclude Annexures A and B (which it will be remembered were certificates provided by Chinese companies to corroborate the wife’s assertions about her employment and income);
·the Federal Magistrate’s reliance on Annexures A and B in accepting the wife’s evidence about her income, and his failure to accept the husband’s case that the wife “was virtually unemployed and dependant [sic] on and maintained by the [husband] in China and in Australia between 1993 and 1998”;
·the Federal Magistrate’s failure to recognise the conflict between the content of the two annexures and what the wife said in her letters and diary; and
·the Federal Magistrate’s failure to recognise that admissions the wife allegedly made in response to the husband’s Notice to Admit Facts were inconsistent with her own evidence about the date the parties first met and the wife’s assertions about her contributions.
It is unclear to what extent the husband sought to support these complaints by reference to the letters and diary which were the subject of his application for the introduction of further evidence. However, it follows from our earlier ruling in relation to that application that we will address this ground only by reference to material that was before the Federal Magistrate.
Our own examination of the transcript reveals that the husband did object to the acceptance of Annexures A and B into evidence on the basis that there was no way to verify their authenticity, and by reference to the Evidence Act 2005 (Cth) (“the Evidence Act”). The Federal Magistrate overruled the husband’s objection, saying that he proposed to “allow both in, subject to weight”. His Honour went on to explain, “When I say ‘subject to weight’, it means that I will take it into account, but the weight that I will give to it will be influenced by the fact that it - that you have concerns about the authenticity of these documents”. (Transcript, 2 March 2010, page 16). His Honour also advised the husband that he should cross-examine the wife on the assertions contained in Annexures A and B. The husband said he proposed to do so. (Transcript, 2 March 2010, page 17).
With respect to the Federal Magistrate, we have difficulty in accepting that the two annexures could have properly been received in evidence. They were both dated March 2008 (shortly after a hearing on 25 February 2008) and the clear inference is they were prepared for use in this litigation. Even if the documents could properly be described as “business records”, which we doubt, they could not be admitted because of s 69(3)(a) of the Evidence Act which excludes from the operation of the “business records” provisions any document “prepared or obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding”.
The husband was entitled to require the makers of the statements to swear to or affirm the truth of the assertions contained in the annexures, and he was entitled to cross-examine the makers of the statements. We further note that the translations were not verified other than by stamps suggesting the translations had been undertaken by a person with appropriate accreditation.
The Federal Magistrate did make reference to Annexures A and B (at paragraph 54 of his reasons) when recording his acceptance of the wife’s evidence of her working history. Importantly, however, his Honour made clear that his acceptance of the wife’s claims was “not necessarily because of the Chinese documents which she annexes to her affidavit, but because the court prefers her evidence to that of the husband”. Whilst this might suggest his Honour placed at least some weight on the two annexures, it is clear that he primarily relied upon the wife’s own evidence about her working history. In these circumstances, contrary to the husband’s submission, this case does not fall within the category of cases discussed in State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others (1999) 160 ALR 588, where Kirby J held that if a credibility finding can be seen to be based on evidence which was wrongly admitted “the foundation for the credibility finding may then be knocked away” (at 621 [93]).
In further support of this ground, the husband drew attention to parts of the reasons where his Honour rejected specific aspects of the wife’s evidence. The husband submitted that, in light of these findings, “the [wife’s] assertions were so overwhelming and systematic that they went to the root of the credibility of the [wife] and knocked out the basis of the Magistrate’s credibility preference in the first place”.
The husband’s submission fails to appreciate that it is open to a judicial officer to accept parts of the evidence of a witness notwithstanding other parts of their evidence have been rejected. The husband has failed to persuade us that the credibility findings made by the Federal Magistrate were not open to him. The judicial officer who sees and hears all the witnesses, and who has read and considered all of the material, enjoys an important advantage over the members of an appellate tribunal. Appellate courts in Australia, including the High Court, have repeatedly accepted the wisdom of the following observations of Lord Sumner in SSHontestroom v SS Sagaporack [1927] AC 37 (at 47):
…not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial judge, and, unless it can be shown that he has failed to use or has palpably misused his advantage, the higher Court ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case. The course of the trial and the whole substance of the judgment must be looked at, and the matter does not depend on the question whether a witness has been cross-examined to credit or has been pronounced by the judge in terms to be unworthy of it. If his estimate of the man forms any substantial part of his reasons for his judgment the trial judge’s conclusions of fact should, as I understand the decisions, be let alone.
The husband’s submissions went on to assert, in effect, that the Federal Magistrate should have evaluated the wife’s evidence about her working history by reference to what she had allegedly said in letters she had written to the husband at the relevant time. The husband’s argument was that the wife’s own letters contradicted the claims she made in her affidavit.
The husband sought to bring the contents of the wife’s correspondence to the attention of the Federal Magistrate by annexing to his affidavit of 19 September 2008 purported translations of snippets from letters and a card sent by the wife to the husband in the period September 1996 to May 1998. The issue of the admissibility of this material was discussed at the trial, prior to either party giving evidence. Counsel for the wife made clear she objected to the introduction of the translated extracts.
The Federal Magistrate advised the husband that attaching such documents to an affidavit did not make them evidence, and it would be necessary for him to produce the original documents and to cross-examine the wife on their content in order to ensure they were received into evidence. The husband said he had the originals available. The Federal Magistrate then advised him in these terms, “Now, I know…you say these are important to your case, so you mustn’t forget to do this later on”. (Transcript, 2 March 2010, page 3).
The husband did not take us to any part of the transcript in which any of these documents were put to the wife in cross-examination. In these circumstances we are not satisfied the documents were properly in evidence. If they were not in evidence, they could not be given any weight.
The husband also sought, in his Oral Submissions, to rely upon a Notice to Admit Facts he delivered to the wife in June 2008 in order to establish that she had made no financial contribution to the acquisition of the Shanghai property; however, we were not taken to any part of the transcript in which the husband asked the Federal Magistrate to rely upon the Notice. Our own research has ascertained that oblique reference was made to the existence of the document (transcript, 2 March 2010, page 50), but this was in connection with an unrelated issue. As far as we can ascertain, no other mention was made of the Notice to Admit Facts in the course of the trial. It was also not a document relied upon by the husband in his Case Outline.
For these reasons we find no merit in this ground.
Ground 2 – failure to exclude documents
This ground also complains about his Honour’s treatment of Annexures A and B to the wife’s affidavit of 8 February 2010. On the one hand, the ground argues that his Honour “mistakenly failed to evaluate” the documents, but on the other hand complains that he “failed to exclude them as inadmissible hearsay”. The ground went on to assert that his Honour “erroneously took them for granted”.
It follows from what we have already said that we do not accept the Federal Magistrate took these documents “for granted”. We accept there did not appear to be any basis on which they could be accepted in evidence, but his Honour’s failure to exclude them is not fatal, for the reasons we have given.
Ground 3 – obtaining judgment by fraud
This ground asserts that the judgment was obtained by fraud, but in support of this claim the husband again seeks to rely on his Honour’s treatment of Annexures A and B.
For reasons already given we do not consider there is any merit in this ground.
Ground 5 – error relating to Shanghai property
This ground seeks to challenge the Federal Magistrate’s findings regarding the Shanghai property. The ground claims that Room 2 was “a third party’s property” and that Room 1 is “an unknown party’s property”.
The ground contained five particulars. We will deal briefly with each.
Date of acquisition of Room 2
This part of the complaint asserts that the Federal Magistrate disregarded the fact that the husband’s mother had not obtained ownership of Room 2 until she was granted “the certificate of property title” in November 2002. The complaint goes on to assert that the husband’s mother therefore “had nothing to gift at the time of divorce” in March 2002.
This complaint is based on the husband’s misconception, which can be seen at a number of points in his submissions, that property acquired after the date of divorce could not be considered in property settlement proceedings in Australia. The issue of importance was not the date on which ownership of the property was formally acquired, but rather who now owns the property and who made the contributions to acquire it.
Husband’s knowledge of ownership of Room 2
This complaint asserts that the Federal Magistrate disregarded “the unchallenged fact” that the husband’s mother had not let him know about her acquisition of Room 2 in his name until May 2009.
The Federal Magistrate made no finding as to when the husband learned that a person with the same name as him had become the owner of Room 2. Given the affidavit of the husband’s mother was not relied upon, and given the trial Judge clearly placed no weight at all on the husband’s own assertions, it cannot be suggested it was “an unchallenged fact” that the husband was unaware of the acquisition of the property in his name until 2009.
The fact the husband had not accepted the gift
The husband has clearly undertaken much research into the law concerning the way in which a gift is “perfected” and how such a gift may be rejected. As we understand his argument, the husband contends that the gift of Room 2 had not been perfected and/or that he had rejected it.
Once again, it was only the husband and his mother who could depose to facts relevant to this “gift”, since they were the only parties to whatever transactions may have occurred. For the reasons already explained, there was no basis upon which the Federal Magistrate could accept anything said by the husband on this topic. And the husband’s mother did not give evidence.
It was also submitted that the Federal Magistrate was in error in finding that the husband had agreed his mother had gifted Room 2 to him. The husband referred in particular to the following passage of transcript, which we infer the husband considered provided the basis for the finding made by the Federal Magistrate:
Do you know there was a court case in China, about Room [2] - - -?---Yes.
- - - last year? And the court gave a decision in November, last year – on 30 November. Did you know about that?---Yes.
Did you read the court’s decision about that?---Yes.
And part of what the court said was that Room [2] was a gift to you by your mother. Do you agree with that?---I guess I agree with that.
And the court said your mother told the court that - that she intended that property be a gift to you?---That’s your fabrication. (Transcript, 2 March 2010, pages 29 – 30)
The husband submitted that all he was agreeing with in this passage was the proposition that the court in China had found his mother had gifted the property to him, not that he agreed that she had actually done so. Counsel for the mother properly conceded that this was the proper interpretation of what the husband had said in cross-examination.
We are not satisfied anything turned on this error on the part of the Federal Magistrate. His Honour’s essential finding about the Shanghai property was that he could not safely make any findings because the husband’s evidence was unreliable and because the husband’s mother had not given evidence.
Absence of evidence of ownership of Room 1
The husband accepted that Room 2 was registered in the name of a person whose name was identical to his, but he claimed there were many other people in Shanghai of the same name. He therefore appeared to be asserting that the property could have been owned by someone other than him, notwithstanding it was also part of his case that his mother had purchased the property. In any event, the point apparently being made by the husband is that whilst there may have been evidence that Room 2 was registered in his name, there was no evidence that Room 1 was also registered in his name.
We note that amongst the many affidavits on which the husband sought to rely at trial was one sworn by him on 1 September 2008. The body of the affidavit contained no averment of fact, but there were two documents annexed to it. The first was an English translation of an “Investigation Record” prepared for the Chinese court. The document purports to be a verbatim record of a conversation in April 2008 between the “sheriff” of the court and a representative of a property management company. The document recorded that the representative of the property management company informed the sheriff that both Room 1 and Room 2 were held in the name of “Mr Zhai”. The representative noted that Mr Zhai was overseas and that his mother usually resides in the property and pays the management fee, although she too had gone overseas in 2007 and the rooms were currently empty.
It is difficult to see how the husband can assert both rooms are not registered in his name when he himself led or attempted to lead evidence which established that fact.
Relevance of Chinese court proceedings
The husband also complains that the Federal Magistrate disregarded “the unchallenged fact that the [wife] has elected the alleged the matter be heard by Chinese Court prior to the trial in Australia and was estoppel from re-litigating the same matter in Australia” [sic].
We accept, prima facie, it is unsatisfactory that there were proceedings in both China and Australia in relation to the Shanghai property. It is not clear to us, however, the precise purpose of the wife’s involvement in the proceedings in China. It may be she was merely seeking to agitate issues in those proceedings in aid of her case in Australia, for example by seeking the equivalent of a declaration that it was the husband, and not his mother, who owned the Shanghai property.
However, for present purposes, all that need be said is that we were not taken to any part of the transcript to demonstrate that the husband complained at trial about the fact that the wife was involved in proceedings in China or that he suggested she was estopped from raising issues concerning the Shanghai property.
We conclude our discussion of this ground by noting that in the course of making submissions in support of it, the husband claimed he had not been notified that the wife intended to rely upon the evidence of Mr Y. This complaint does not seem to relate to the ground, but for convenience we will deal with it here.
Mr Y had sworn an affidavit in the proceedings on 3 September 2008. There was no indication in the wife’s Case Outline concerning the affidavits upon which she intended to rely; however, it was made clear on the first day of trial (1 March 2010) that she was relying on Mr Y’s affidavit. (Transcript, 1 March 2010, pages 11 – 13). When the husband was asked on the third day of trial whether he intended to cross-examine Mr Y, he dismissed the idea, saying his evidence was “not important” and that he “never” wanted to cross-examine him. (Transcript, 3 March 2010, pages 6 – 7).
There is no substance in any of the complaints relating to this ground.
Grounds 4 and 7 – miscellaneous complaints
The first part of this ground (Part A) asserts that the decision of the Federal Magistrate was “completely invalid by its significant inherently self-contradicted conclusions on financial contribution by the [wife] and distribution of the assets at the time of separation”. The self-contradictory conclusions said to have been made were not stated. The ground then went on (Part B) to assert five specific errors. Part C asserted that a specific finding was contrary to the evidence. Part D complained about failure to make two specific orders.
Parts A and B
The first part of these complaints relates to the alleged failure by the Federal Magistrate “to give a single reason” concerning various matters.
The wife’s income and contributions
It was claimed that the Federal Magistrate had left “the critical issues undecided concerning [the wife’s] significant assertions” in her affidavit of 8 February 2010 about the funds she was said to have given to the husband and the support that she provided financially.
The short answer to this complaint is that his Honour did not leave these issues undecided. He accepted the wife’s evidence where it conflicted with that of the husband.
The next complaint asserted that his Honour did not give reasons as to why he regarded the wife’s “working incomes same as her financial contribution to the family concerning the Annexure D”. We presume that “Annexure D” is that attached to the wife’s affidavit of 8 February 2010, namely the wife’s group certificates for 2000, which we might say are almost illegible.
We are not persuaded that the Federal Magistrate expressly treated the wife’s income as being the same as her financial contributions, but if he did so, no error would be demonstrated, given the absence of any finding that the wife spent her income on anything other than appropriate purposes.
Term Deposit
The husband complains about the failure of the Federal Magistrate to leave “undecided” the “undisputed matter” relating to the return to the husband of funds held by him in a term deposit.
The husband’s case at trial involved pleas for the return to him of various amounts said to have been paid to the wife or received by the wife in the period of separation. The husband’s approach misapprehends the basis upon which a court determines an application for property settlement. It was not necessary for the Federal Magistrate to deal with each and every one of the husband’s requests for the reimbursement of funds.
Litigation costs in China
The husband complains about the Federal Magistrate having left “undecided…the undisputed litigation costs”, which he incurred in responding to the litigation in China about the Shanghai property, which “could have been heard by Australian Court as well”.
We are not persuaded it was the Federal Magistrate’s task to enforce costs orders made in foreign proceedings. Furthermore, we were not taken to any part of the transcript in which a request was made for him to do so.
Bigamy
The husband complains about the Federal Magistrate’s failure to make a decision about “the matter of bigamy”.
There was no application before the Court for a decree of nullity. In those circumstances it was unnecessary for the Federal Magistrate to determine any issue concerning bigamy.
Part C
The husband alleges an error of fact by the Federal Magistrate concerning his finding about $15,000 having been spent between May 1999 and the time of separation.
The husband took us to the transcript to demonstrate error on the part of the Federal Magistrate in making this finding. Our reading of the transcript indicates that the Federal Magistrate may have misinterpreted the evidence regarding this matter, but we do not see that anything of substance turns on it. In particular it does nothing to overcome the fact that the Federal Magistrate found the state of the evidence was such that he could not determine what had really happened during the marriage and following separation.
Part D
The final aspect of this complaint was the Federal Magistrate’s failure “to award profit of $10,000 from sharing [sic] trading and failed to award forensic test costs”.
This ground arises out of the fact that the wife made a profit of $10,000 on the share market, using as capital the sum of $20,000 the husband says he gave to her. The husband claims the wife kept the profit and he wants it back. He asserted that the wife made this very good profit “by purely luck not by her skills or business acumen”.
The husband advanced no basis upon which it could be said the Federal Magistrate erred in refusing to order the wife to return this sum of money, let alone as “part of compensatory and aggravated damages”, which is the basis upon which the proposition was put to us.
In support of the latter part of this ground it was asserted that the husband had no knowledge of the transaction by which his name was registered as the owner of the Shanghai property and that he needed to establish he had not been a party to the transaction. He submitted it was therefore reasonable for him to have engaged the document examiner to show he was not party to the transaction. Although the husband complains about the Federal Magistrate’s failure to order the wife to pay the costs of the preparation of the examiner’s report, he made no logical submission to establish there was a foundation for such an order to be made.
We can see no basis upon which the wife ought to have been ordered to pay the substantial costs which the husband incurred in engaging a handwriting expert. The evidence was ultimately inconclusive and appeared, originally at least, designed to establish that the husband had no connection at all with the Shanghai property. The real issue was not whether the property was registered in the husband’s name, but rather who had contributed to its acquisition. The document examiner was not able to shed any light on that topic.
Ground 6 – failure to make the orders sought
By this ground it was asserted that the Federal Magistrate “failed to consider material features of the marriage” and failed to order the wife to make “the full refund of the monies that the husband was seeking in the litigation”.
This ground expresses nothing more than the husband’s dissatisfaction with the ultimate outcome and fails to identify in what way his Honour erred in reaching his decision. It therefore does not merit further consideration.
Costs
The wife sought costs in the event the appeal was dismissed, but her counsel acknowledged she did not anticipate that she would ever be successful in recovering any costs that might be awarded.
There is an obvious basis for ordering the husband to pay costs, given that the appeal was not only entirely unsuccessful, but also presented in such a fashion as to cause great inconvenience and expense to the wife.
Nevertheless, taking into account the respective financial positions of the parties (at least as we understand them), and the wife’s concession that she would be unlikely to recover any costs ordered, we have determined there will be no order as to costs.
I certify that the preceding one hundred and sixty nine (169) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Finn, May and Thackray JJ) delivered on 29 March 2012.
Associate:
Date: 29 March 2012