Anderson & Senior [2013] FamCAFC 61; (19 April 2013)

Last Updated: 26 April 2013

FAMILY COURT OF AUSTRALIA

ANDERSON & SENIOR

[ 2013] FamCAFC 61

FAMILY LAW – APPEAL – PROPERTY – appeal from orders for property settlement – where final orders made for property settlement following a determination by the Full Court that a financial agreement was not binding – where a significant matter for determination was whether or not there was an agreement between the husband and his siblings the effect of which was that the husband held 85 per cent of two real properties forming the bulk of the property pool on trust for his siblings – where the trial Judge rejected that contention – where the husband appeals that finding – where the husband also contends that the trial Judge made various errors of fact – whether the trial Judge did err – where many of the challenges made by the husband are challenges to weight, rather than challenges to findings of fact – where the findings challenged were open to the trial Judge – where no error demonstrated – appeal dismissed – husband ordered to pay the wife’s costs.

Family Law Act 1975 (Cth)

Australian Securities and Investments Commission v Rich [2009] NSWSC 1229; (2009) 236 FLR 1 Ho v Powell [2001] NSWCA 168; (2001) 51 NSWLR 572 Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 Senior & Anderson [2011] FamCAFC 129; (2011) FLC 93-470 Shalhoub v Buchanan [2004] NSWSC 99 J D Heydon, Cross on Evidence (LexisNexis Butterworths, 9th ed, 2013)

APPELLANT:

Mr Anderson

RESPONDENT:

Ms Senior

FILE NUMBER:

MLC

9546

of

2008

APPEAL NUMBER:

SOA

58

of

2012

DATE DELIVERED:

19 April 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Melbourne

JUDGMENT OF:

Thackray, Murphy and Macmillan JJ

HEARING DATE:

6 March 2013

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

16 July 2012

LOWER COURT MNC:

[2012] FamCA 540

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms Smallwood

SOLICITOR FOR THE RESPONDENT:

Coote Family Lawyers

ORDERS

(1) The appeal be dismissed.
(2) The husband pay the wife’s costs of and incidental to this appeal in an amount agreed to in writing between the parties within 21 days of the date of these Orders, or failing agreement, as assessed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym
Anderson & Senior 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 MELBOURNE

Appeal Number: SOA 58 of 2012
File Number: MLC 9546 of 2008

Mr Anderson

Appellant

And

Ms Senior

Respondent

REASONS FOR JUDGMENT

1. On 16 July 2012 Young J made orders effecting a settlement of property between the husband and wife pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”).
2. At the trial before his Honour, the wife contended for an equal division of the property. The husband contended that her entitlement was limited to her retaining $28,000 which is the amount paid to her pursuant to a purportedly binding financial agreement. After a process of litigation, including an appeal to this Court, the financial agreement was ultimately found to be not binding within the meaning of the Act[1].
3. The legal and equitable interests in property to which s 79 orders are directed, consisted essentially of two pieces of real property in Melbourne, with agreed values of $850,000 and $640,000 respectively. One property was encumbered – a mortgage being owed to the National Australia Bank in the agreed sum of $20,000. The husband had an agreed HECS debt of $8,000.
4. The crucial issues before his Honour centred, in large part, upon amounts allegedly owed by the husband to his five siblings (or their estates). Those amounts were said to be owed pursuant to what was described by his Honour as an “Investment Partnership Contract” and totalled, according to the husband, $1,286,614. The husband claimed that the contract governed the payment of monies to him by his family which were to be invested by him in the two properties to which reference has been made together with a small retail business. The small retail business was sold at a loss. The husband did not bring to account that loss in determining amounts said to be owing to his siblings pursuant to the contract.
5. His Honour rejected the husband’s claim that the monies were owed to his family as the husband alleged. His Honour ordered that the property of the parties or either of them should be adjusted such that the husband received 60 per cent of the value thereof and the wife 40 per cent.[2]
6. The husband appeals those orders.

THE APPELLANT HUSBAND’S POSITION

7. The husband represented himself on this appeal and did so at the trial. The trial Judge described the husband as having “ably represented himself in these proceedings” (reasons at [115]). The husband’s first language is not English. Despite this, the trial Judge observed that “[h]is understanding and command of the English language is excellent” (reasons at [115]). We consider, with respect, that each such description aptly describes the appellant husband’s self representation and command of English in his appearance before this Court.
8. Those matters notwithstanding, the husband was, nevertheless, granted significant indulgences by us.
9. First, without objection from the wife, the husband was permitted to rely upon written submissions (comprising some eight pages) additional to the lengthy written submissions filed in the appeal. Secondly, when the husband appeared without a copy of any of the appeal books he was lent the Court’s copies.
10. Notwithstanding this, the husband was unable to assist the Court with references to any passages from the appeal books, in particular the transcript, despite making a number of statements in oral submissions which, he asserted, were supported by transcript references. As a result, the husband was afforded the further indulgence of being permitted to forward yet further written submissions consisting of references to the appeal books which, he asserted, supported his submissions and/or his grounds of appeal. That document, comprising some 24 pages, was later received.
11. None of the contentions raised by the husband in oral argument which he asserted were supported by references in the appeal books and, particularly, the transcript, were in fact so supported.

THE GROUNDS OF APPEAL

12. It is important in this case to set out the grounds of appeal as they appear in the husband’s Amended Notice of Appeal filed 1 November 2012:
    1. The learned trial Judge erred in finding that my ex wife was working longer and harder than me, His Honour should have found that I was the driving force of the business and I was the one who was working longer and harder than my ex wife.
    2. The learned trial Judge erred in finding that my ex wife knew nothing about my financial position and the legal obligation that I had with my family through a written contract, his Honour should have found that my ex wife knew about all our savings and about our financial situation. My ex wife was well aware of the financial contributions made by my family.
    3. The learned trial judge erred in not accepting the contract as valid and enforceable between myself and my family, his Honour should have found that I am under a legal obligation within this contract, and legally committed with its legal terms to my family.
    4. The learned trial judge erred in deciding not to add the flat in Egypt to the assets pool. His Honour should have decided to include this flat to the assets pool.
    5. The learned trial judge erred in finding that my debts to my brother in-law not be included as liabilities in my balance sheet. His Honour should have found that the debts to my brother in law should have been included.
    6. The learned trial judge erred in not to exercise the provision of s. 75(2) regarding the husband’s state of health and not to rely on the husband’s assertion of his poor health to make further adjustment, his Honour should have exercised the provision of s. 75(2) to make further adjustment.
    7. The learned trial judge erred in finding that the loss of the [small retail] business had to be declared in my balance sheet and also that all the tax assessments of the [small retail business] were unhelpful. His honour should have found that the loss of the [small retail] business should not have to be declared in the balance sheet for any reason and that all of the tax assessments were very helpful.
    8. The learned trial judge erred in finding that the family agreement which I drafted and was signed by my ex wife and myself is forged his Honour should have found that, the agreement was not forged and was the real agreement based on in trust at that time before my ex wife changed her attitude to benefit her legal financial position in this proceeding.
    9. The learned trial judge erred in finding that I was using the Islamic divorce to let my ex wife transfer the title of the properties in my sole name, his Honour should have found that my ex wife did that by her own free will for one reason only which is, my ex wife knew our own little financial contribution to the properties.
    10. The learned trial judge erred in finding that two affidavits supported only that the money which I had received from my family. His Honour should have found that these affidavits were strongly supporting the money that I received from my family that was to be invested according to the legal written contract between us.
    11. The learned trial judge erred in finding that it was very important for me to bring one of my sisters to be a witness in this proceeding, his Honour should have found that it was not really required for me to bring one of my sisters here to witness in that proceeding.
    12. The learned trial judge erred in determining a just and equitable division of assets and his Honour had regard the financial benefit and degree of comfort that the husband has had available to him in his occupation of the home and the wife’s cost of accommodating herself elsewhere. His Honour should have realised the difference in the incomes when making this decision.

THE OUTCOME OF THE APPEAL

13. We are of the view that there is no merit in any of the grounds of appeal.
14. The short written Summary of Argument prepared on behalf of the respondent contends that the Amended Notice of Appeal “does not include any proper ground of appeal” and that the Summary of Argument filed by the appellant does not further develop any point as a ground of appeal. We agree. The respondent also contends that the appellant’s summary “seeks to introduce new argument or comment, and refer to matters not in evidence in the first instance.” Again, we agree.
15. For the most part, the grounds of appeal are a recitation of what the husband would contend are “facts” which the trial Judge should have found in preference to the facts as found by his Honour. No error is particularised in respect of the findings of fact made by his Honour. To the extent that the grounds might be reframed by us to assert errors of fact, nothing to which we have been taken by the appellant husband, nor anything which we ourselves have seen within his Honour’s reasons or the appeal books, points to any error on the part of the trial Judge.
16. Otherwise, the grounds might be seen to attack the weight which his Honour attached (or did not attach) to aspects of the evidence. The appellant husband did not elucidate in either the totality of his written submissions or in oral submissions any matter which persuades us of any error by his Honour.
17. Our reasons for the conclusions just summarised shall be brief.
18. Although the husband dealt with each ground sequentially, it can be seen that many relate to the agreement between the husband and his family members for which the husband contended at trial and which was said by him to result in very significant indebtedness to those family members with the result that the net value of the property susceptible to s 79 orders was dramatically reduced. That contention by the husband occupied the central place in the trial and differing aspects of it are dealt with comprehensively in the trial Judge’s reasons. It is convenient to deal with the grounds by reference to those different aspects.

FAMILY FINANCIAL ARRANGEMENTS – GROUNDS 2, 3, 5 AND 11

The “Investment Partnership Contract” – Grounds 2 and 3

19. Grounds 2 and 3 relate, in essence, to the central finding, adverse to the husband’s case at trial, that money which his Honour accepted had been given to the husband by various family members was not required to be repaid to them by the husband.
20. The husband contended at trial that money he had received from his five siblings in 1983 was subject to a legally binding agreement. During the hearing of the appeal, the husband likened his position to that of a trustee; in effect, he contended that the money was loaned to him to invest in Australia with the fruits of the investment to be divided amongst him and his siblings. The husband contends that the contract provided that his siblings would receive 85 per cent and he would receive the remaining 15 per cent of the “profits” of the investment. Although expressed that way, in truth the contention was that those percentages should apply to the value of the assets into which the allegedly lent monies were invested. As has already been mentioned, the husband alleged at trial that, as a result of that calculation, $1,286,614 was owing to his siblings.
21. But for that alleged debt, the net value of the property of the parties or either of them as found by his Honour and not challenged on this appeal is $1,450,000.
22. We reiterate that no ground of appeal nor any written or oral argument by the husband elucidates any error asserted to have been made by his Honour. We consider it fair to the husband to reframe the grounds as an assertion that there is error by reason of there being no evidentiary foundation for the relevant findings made by his Honour in respect of the “Investment Partnership Contract”.
23. It is important to appreciate in respect of these and other grounds that his Honour made a number of findings adverse to the credit of he husband. Each and all such findings were, in our view, well open to his Honour.
24. Against that background, his Honour found (reasons at [248]) that there was no “form of valid and enforceable contract requiring the apportionment of 85% of [the] net assets to the husband’s overseas family and beneficiaries.” In our view there was ample evidentiary foundation for that ultimate finding. In particular the following findings, which underpin his Honour’s ultimate finding, were each and all well open to his Honour on the evidence before him:
    1. The husband has never “been bound by or acted in accordance with the terms of [the] contract ...” (reasons at [237]);
    2. The contract had “not been satisfactorily proved ...” (reasons at [242]);
    100. “[T]here are many unanswered questions as to the execution, intent and meaning and enforceability of the document” (reasons at [242]);
    4. The husband had not provided any real “level of information, reporting and updating of any investments to one or any of the members of the [family] ...” (reasons at [242]) and he never “advised his siblings of their financial status [or] investments in Australia ...” (reasons at [245]);
    5. The husband “simply used all of the monies that he received in Egypt and brought or transferred to Australia for his own or the parties [sic] investment purposes, lifestyle and financial support” (reasons at [242]);
    6. There was “no evidence from the husband, during the term of the marriage from 1989 until 2006 that he ever disclosed this Contract to the wife ...” (reasons at [245]);
    7. The husband had never “declared any interest to the Australian Taxation Office or other authorities that he held only (a maximum) of 15% equity in both [the Melbourne real properties]” (reasons at [245]).
25. It should be mentioned that while finding that there was no contract (or, indeed, arrangement to repay money) as the husband alleged, his Honour was plainly (and, with respect, properly) aware that the monies brought to this lengthy relationship by the husband from Egypt and the use to which they were put were important contributions by the husband:

I have therefore given proper weight to those significant financial contributions and monies introduced by the husband into the marriage and which were very much the foundation upon which the real properties and the [small retail] business were purchased.

(Reasons at [248]).

26. In written submissions in respect of this ground, the husband contended that his Honour erred in finding at [222] that the husband:

emphasised that each of the five siblings, and thereafter his name or signature, were witnessed by both gentlemen who are signatories to that document and who have filed a purported joint affidavit made under Egyptian law.

(Emphasis added).

27. His Honour had earlier described annexure “B3” to the husband’s trial affidavit (which contained the joint affidavit referred to in [222]) as having been “purportedly sworn by the two witnesses to the original Investment Partnership Contract ...” (reasons at [204]).
28. It seems that his Honour conflated the two signatories to that joint affidavit with the original witnesses to the “Investment Partnership Contract” and has erred in so doing. An inspection of annexure “B3” and, specifically, the translation of the affidavit referred to in [204] and [222] contained therein, together with the translation of the “Investment Partnership Contract” reveals that whilst the translation of the joint affidavit contains the names of the deponents, the translation of the “Investment Partnership Contract” does not specify the names of the witnesses. It does not appear that the husband clarified who the witnesses to the “Investment Partnership Contract” were during oral evidence save to state that they were colleagues of his father who worked at the Ministry of Irrigation in Egypt. In written submissions, the husband stated that the “witnesses” to the joint affidavit “are equivalent to a Justice of the Peace [in Australia]” whilst the witnesses to the “Investment Partnership Contract” “died more than ten years ago.” Whilst noting that no such evidence was put before his Honour during the trial, a consideration of the evidence that was before his Honour – and, in particular, annexure “B3” and the translation of the “Investment Partnership Contract – satisfies us that his Honour was not correct in stating that the affidavit was “purportedly sworn by the two witnesses to the original Investment Partnership Contract ...”.
29. Counsel for the respondent submits that whilst it would seem that his Honour did in fact make a factual error in the manner just described, it has no bearing on the ultimate findings made by his Honour, either in respect of the “Investment Partnership Contract” or more generally, and has no impact upon his Honour’s ultimate decision as to the respective entitlements of the parties.
30. We agree with that submission and can discern for ourselves no impact upon either the findings made by his Honour in respect of the contract, or in the ultimate decision reached by his Honour.

The Husband’s Allegation of an “Initial Contract” and a “Main Contract”

31. When deficiencies in the alleged contract as found by his Honour were highlighted to the husband by us in the course of argument, the husband made reference to the agreement being an “initial” contract and indicated that there was a separate “main contract”.
32. Nothing to which we have been referred by the husband, or anything which we have ourselves seen in the appeal books, reveals that any such contention has previously been made, or inferred, by the husband.
33. The contention is entirely inconsistent with the evidence given by the husband during the trial. Indeed, on the second day of the hearing, the husband indicated that he had a copy of the “original” contract signed by the husband and his siblings, which he subsequently provided to the Court on the third day of proceedings (see, Exhibit W4). The husband at no time indicated that there was a separate agreement. Further, the husband’s oral evidence, when referring to the contract, was always referenced to the singular “a written agreement” and “the written contract” (emphasis added).
34. As we have earlier said, the husband was afforded the opportunity to provide further references to the transcript and appeal books subsequent to the hearing of the appeal. None of the references contained in the 24-page document reveal evidence by the husband that the contract put before the Court and considered by his Honour was “collateral” or otherwise separate to a “main contract”.

Money Allegedly Owing to the Husband’s Brother-in-Law – Ground 5

35. In addition to the contract just referred to, the husband contended at trial that he owed his brother-in-law approximately $75,000 as a result of his brother-in-law having given him various amounts of money since 1983. The husband submitted that his Honour ought to have included that amount as “[l]iabilities in my balance sheet.”
36. His Honour found that the husband’s brother-in-law had given the husband $40,000 in 1989. However, his Honour rejected the husband’s contention that he owed his brother-in-law a further $33,583.
37. It was open to his Honour to entirely reject the evidence of the brother-in-law; as his Honour, with respect correctly, observed, his affidavit did not “validly [comply] with the requirements of Australian law”. Yet, favourably to the husband, his Honour nevertheless accepted the evidence “as a statement of his provision of this sum of money [being the $40,000] to the husband in 1989.” However, his Honour went on to find that the money was not “required to be repaid by the husband” (reasons at [210]).
38. No error has been demonstrated in his Honour arriving at that finding. We consider, with respect, that the finding was well open to his Honour, and all the more so when regard is had to the evidentiary context in which allegations of money being owed by the husband were made, the findings made in respect of the alleged contract, and the trial Judge’s findings in respect of the husband’s credit, all of which were, in our respectful view, clearly open on the evidence before his Honour.

The Failure to Call Witnesses – Ground 11

39. Although not apparent on its face, this ground too relates to the issue of money allegedly owed by the husband to his family members.
40. In oral submissions in support of ground 11, the husband referred to a number of matters all of which pertained to his two sisters travelling to Australia to give oral evidence. He referred to difficulties in translation given that each are non-English speakers and referred (as he did in his written submissions) to an earlier order of the trial Judge. On 25 January 2012, his Honour made various procedural orders in anticipation of the pending trial. Included within those orders were the following notations:
    1. THAT the husband has advised the Court that he may have other family witnesses, who are currently residing in Egypt and who have some difficulties with the English language, who might file affidavits. He has been advised that he should make every endeavour to obtain appropriate affidavits in support of his orders sought and that they must be translated into the English language and filed pursuant to the timetable in these orders.

...

4. THAT it is not anticipated that any interpreters will be required in the proceedings, subject to what overseas witnesses may give evidence on behalf of the husband and, if so, the issue of their attendance in Australia to give such evidence and be cross examined.

41. The husband contends that those notations had the effect that his “family would not have to come [to Australia to give evidence] ...” They say no such thing. The notations plainly reveal that the husband was informed that any affidavits sought to be relied upon by him from family members in Egypt would need to be translated into English and filed in accordance with the orders. There is nothing in the notations, or the orders more generally, absolving the husband of his responsibility to put before the Court evidence to support his claim that there was a valid agreement between him and his siblings to which he was legally bound.
42. The husband also misrepresents the trial Judge’s finding; his Honour said that his sisters “should have been witnesses and should have travelled to Australia for the purposes of this hearing or provided properly translated and admissible affidavit evidence” (reasons at [246]. Emphasis added).
43. Further, however, the ground, and the husband’s submissions, focus on the issue of his sisters not being physically present in Australia whereas, as might be expected, his Honour’s reasons plainly reveal a broader concern, namely that he would “have been greatly assisted by the husband calling one of his sisters to have given evidence in the proceedings ...” (reasons at [246]). Counsel for the wife submitted that the husband “should have but did not involve his family members in this case” and, as has been seen, his Honour found that the husband’s sisters “should have been witnesses”.
44. As reference to the trial Judge’s comprehensive reasons makes clear, his Honour was of the view, with respect correctly, as it seems to us, that in circumstances where the husband well knew that the wife alleged that the contract was either a forgery or a concoction, he could not have failed to know the potential importance of their evidence. Indeed, the very order to which the husband refers plainly flags as much.
45. The trial Judge drew inferences “against the husband’s case in respect of [the] Investment Partnership Contract by his failure to call witnesses or better prove his case ...” by reference to findings made at [87] of the reasons (reasons at [88]). Those findings follow from an analysis of the authorities and Cross on Evidence. No challenge is made to the legal principles applied to his Honour.
46. The assertion by the husband that there were substantial liabilities owing to his siblings or their estates pursuant to a contract, the validity of which was challenged by the wife, was a central component (probably the central component) of the husband’s case at trial.
47. The “rule in Jones v Dunkel” “permits an inference, not that evidence not called by a party would have been adverse to the party, but that it would not have assisted the party” (Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361 at [64]). But, the “rule in Jones v Dunkel” can be seen as “a particular application” of a wider rule that “applies where a person bearing the onus of proof does not give or call evidence which that person is plainly in a position to give or call; and unless some explanation is given of that failure, the tribunal of fact is entitled to infer that this evidence would not have assisted that person’s case ...” (Ho v Powell [2001] NSWCA 168; (2001) 51 NSWLR 572 at [16], per Hodgson JA with Beazley JA agreeing).
48. The principle can be seen as wider than the “rule in Jones v Dunkel” “because it is also available against the person bearing the onus of proof, where that person does not adduce evidence that he or she was plainly in a position to adduce” (Australian Securities and Investments Commission v Rich [2009] NSWSC 1229; (2009) 236 FLR 1 per Austin J at [439]). Further, the:

failure of a party who bears an onus of proof to call an available witness who could cast light on some matter in dispute can be taken into account in deciding whether that onus is discharged, in circumstances where such evidence as has been called does not itself clearly discharge the onus. This is an application of [the rule in Blatch v Archer] ...

(Rich at [440] citing Shalhoub v Buchanan [2004] NSWSC 99 at [71] per Campbell J).

49. Applications pursuant to s 79 often involve each of the parties seeking to prove different matters relevant to the provisions of that section. There is, in that sense, no single onus of proof. Rather, “the burden of proof upon the different issues may be variously distributed between the parties ...” (J D Heydon, Cross on Evidence (LexisNexis Butterworths, 9th ed, 2013) at [7005]). In s 79 cases, it can be particularly important to consider what inferences, if any, might be drawn against the interests of a party who fails to call evidence which they are “plainly in a position to give or call” and which is crucial to an issue on which they bear an evidentiary burden. Failure to call that evidence may, in appropriate circumstances, be taken into account “in deciding whether that onus is discharged ...” (see Ho and Rich and, generally, Cross on Evidence at [1215] and [7015]).
50. Each of the parties is required to put before the Court all such evidence as each is willing and able to bring in support of the findings contended for and, in this Court, that is usually done by exchange of properly sworn or affirmed affidavits ahead of the trial. The discussion of evidentiary burdens rendered operative by the establishment of a prima facie case in courts where evidence is given viva voce and not disclosed prior to the trial becomes almost moot; such findings as each party contends for have (or should have) their evidentiary bases in evidence sworn or affirmed ahead of the trial.
51. It seems to us that, by reason of the processes of the trial division of this Court, the principle just discussed has the potential to have considerable importance in cases such as the present where independent evidence is scant, where documentary evidence adduced by one party is open to serious challenge, and where a challenge is made to the veracity of that evidence and, more generally, to the veracity of the party seeking to adduce it. The application of that principle (see, for example, Ho cited in Rich at [438]) can be seen to have parallels in the three conditions that must be met for the “rule in Jones v Dunkel” to apply: “the missing witness [or evidence] would be expected to be called by one party rather than the other (which implies that the witness must be available to give evidence)”; the “evidence would elucidate a particular matter, which is a live matter at the trial”; and, the “absence [of the evidence] is unexplained” (Rich at [449]. Citations omitted).
52. Here, his Honour found, by reference to “the Jones v Dunkel rule”, that each of the matters just referred to pertained (see, reasons at [86]-[87]). His Honour considered that he would have been “greatly assisted” by admissible evidence from one or more of the husband’s sisters regarding who was present when the “Investment Partnership Contract” was entered into in 1983 (see, reasons at [246]). It is, with respect, perfectly plain why that is so.

THE WIFE’S FLAT IN EGYPT – GROUND 4

53. Significant confusion attended the argument by the husband in respect of this ground.
54. The husband’s written submissions are confined solely to a “flat” in Egypt owned by the wife which she says was purchased post-separation using, in part, the $28,000 she received pursuant to the (non-binding) financial agreement. In oral submissions, however, the husband appeared to refer to another flat asserted by him to have been “inherited” by the wife from her mother. No evidence suggests that the wife has inherited any such flat. However, the wife did give evidence during the trial of the prospect of a future inheritance from her mother’s estate which includes a number of flats in Egypt. Further confusion is added by the husband referring in his written submissions on this appeal to the wife’s flat having been “given to her” in 1994 (the wife’s mother died in about 2007). We have been taken to no evidence to that effect save for the husband’s bald assertion.
55. His Honour plainly accepted the wife’s evidence which detailed how her flat was purchased by her post-separation, including by using the $28,000 obtained pursuant to the financial agreement subsequently held to be not binding and borrowings (see, reasons at [69]). Even if the husband’s grounds should be taken as (impliedly) challenging that finding, it is a finding that was plainly open to his Honour; indeed, the husband offered only speculation and bald assertion in contending to the contrary.
56. The specific challenge the subject of ground 4 is to his Honour’s finding that it was not just and equitable to “add back” the $28,000 utilised post separation by the wife in purchasing the flat. His Honour correctly applied the relevant principles and, arrived at his decision by, correctly, as it respectfully seems to us, weighing the justice and equity of “adding back” this sum as against “adding back” other sums forwarded to Egypt by the husband post-separation. (see reasons at [69], [70] and [312]).
57. No argument of the husband and nothing to which we have otherwise been taken by him or seen for ourselves persuades us of any error by the trial Judge. There is no merit in ground 4.

“FORGERY” OF “THE AGREEMENT” – GROUND 8

58. This “ground” can be answered simply: the terms of the ground and the written submissions which underpin it are each contrary to the husband’s own evidence when being cross-examined and, in particular, when being asked questions by his Honour. We think it convenient to quote each.
59. In written submissions in support of this ground, the husband contends:

I drafted this agreement by myself on scratch paper and before I wrote it on the computer, my ex wife had read it and understood the contents of it. After I wrote it on the computer I printed the first copy of this family agreement, my ex wife signed the first copy, but the first copy was fading and defaulted copy, that was due to the ink of the printer was dried, so I said to my ex wife we had to wait until I would buy a new ink, my ex wife said to me I would sign for you the blank papers on this specific spot which would be the perfected signature spot, so you could do it when you had the time. I left this agreement on the computer for a long time, when my ex wife had changed her attitude after we signed the financial agreement on 27 July 2009, I printed the document to remind her of our agreement before and we should have adhered on that ...

60. It is important to note that the “agreement” there referred to by the husband, and the subject of the challenged findings of his Honour, is different to the (non-binding) financial agreement. The husband deposed to him and the wife having “decided to resolve all financial matters between us. To avoid legal costs I personally decided to draft documents to evidence the settlement we had reached.” The transcript records that the husband conceded that he had directed the wife to sign 10 blank sheets of paper (see, transcript of proceedings, 19 June 2012 at p 311, line 43-p 312, line 4). His Honour took this issue up with the husband (transcript of proceedings, 19 June 2012 at p 313, line 11-p 314, line 2):

HIS HONOUR: ... [The wife] signed a blank sheet of paper?

[THE HUSBAND]: Yes, your Honour.

HIS HONOUR: And she signed 10 blank sheets of paper?

[THE HUSBAND]: Yes.

HIS HONOUR: And then you went away and typed up this agreement?

[THE HUSBAND]: Yes.

HIS HONOUR: With her signature already on the document?

[THE HUSBAND]: On the document.

HIS HONOUR: So she signed - - -?

[THE HUSBAND]: A blank paper.

HIS HONOUR: ...And when she signed three times, was it always blank?

[THE HUSBAND]: Blank, yes.

...

HIS HONOUR: So if it was a blank document every time she signed it, when did you actually type in all of the lines, the content of the document?

[THE HUSBAND]: When she went to the court.

HIS HONOUR: All right. And why did you date it 6 January 2001?

[THE HUSBAND]: Because this is the actual time when we finished between us and this is the first time she signed it for me.

61. His Honour found (reasons at [334]):

The husband, upon being cross examined, admitted that he demanded that the wife sign approximately ten blank sheets of paper and she did so, in his presence, on the kitchen table at [the former matrimonial home] in early 2006 before separation. The husband thereafter concocted what he thought to be an appropriate settlement agreement, including the supposed payments of $45,000 to the wife in two instalments. He drafted these documents, with or without assistance I cannot determine, and then had the audacity to somehow have each of them verified as original documents and then annex them to his affidavits and rely upon them as being validly entered into by the wife, of her own free will and knowledge...

62. Ultimately, his Honour found that the husband’s “admissions of the forgery related to these documents are significant and do poorly reflect upon his personal behaviour and his credit” (reasons at [334]).
63. There is no merit in the husband’s challenge to his Honour’s finding.

ISLAMIC DIVORCE – GROUND 9

64. During oral submissions, the husband confirmed that this ground is based on what his Honour said at [334] and [338] of the reasons which, relevantly, provide:

[The husband] drafted these documents, with or without assistance I cannot determine, and then had the audacity to somehow have each of them verified as original documents and then annex them to his affidavits and rely upon them as being validly entered into by the wife, of her own free will and knowledge. The husband’s explanation was that his wife had said to him that he was free to do whatever he liked about the settlement provided she was able to obtain a civil and religious divorce and return to Egypt to live.

...

The explanation of the husband as to the preparation of the confession document was that it accorded with his wife’s instructions which were that he could write whatever he liked subject to the granting of both divorces and her being able to return to her homeland.

(Emphasis added).

65. The reference to “the husband” emphasised in each of the quoted paragraphs is an error. The husband submitted orally before us, correctly, that the explanation attributed to him was not his evidence but, rather, was the wife’s account (see, the wife’s affidavit of evidence in chief filed 15 March 2012 at [9]-[11] and transcript of proceedings, 14 June 2012, p 48, line 39-p 49, line 26). The reference to “the confession document” is a document which, like the agreement the subject of ground 8, was a blank piece of paper signed by the wife upon which the husband later printed the “confession”.
66. The wife’s affidavit evidence in that respect was not challenged in cross-examination by the husband. Importantly, her evidence in cross-examination just referred to was given not in the context of questions regarding the “agreement” or “the confession” but, rather, in the context of questions by the husband regarding the wife’s alleged agreement to assist him, post-separation, in locating a surrogate so he could have a child. The husband’s cross-examination of her in respect of the relevance of Islamic divorce was confined to that issue.
67. In a judgment of some 377 paragraphs, his Honour appears to have made a factual error in the paragraphs of the reasons just referred to. No submission made by the husband refers to how that error infects the ultimate findings made by his Honour. In particular, the terms of ground 9 related the error to a failure to find that the wife signed the agreement “by her own free will”. That suggestion embraces the circumstances and manner in which the agreement was made and signed which, as discussed above in relation to ground 8, are the subject of what we consider to be entirely correct findings.
68. We are unable to see how the erroneous reference to “the husband” in [334] and [338] of the reasons infects his Honour’s findings, whether with respect to the specific issue of the agreement (or “the confession”) or more broadly. In particular, the finding by his Honour that the two documents were “forgeries” in the sense outlined by the trial Judge was entirely open to him.
69. Ground 9 fails.

THE REMAINING GROUNDS – GROUNDS 1, 6, 7, 10 AND 12

70. Grounds 1, 6, 10 and 12 amount, effectively, to an assertion that his Honour ought to have attached greater weight to some aspects of the evidence and attached too little weight to other aspects. The difficulties facing an appellant relying upon such a ground are familiar and have been referred to in many decisions of this Court. They do not need repeating. The fact that other findings may have been open to the trial Judge does not render the findings made erroneous.
71. We also repeat in this context that his Honour made a number of findings adverse to the credit of the husband and, in our view, each and all of those findings were well open to his Honour.
72. In respect of the specific matter the subject of ground 1, the husband, in response to our request, could not take us to any evidence (either contained in the affidavit material or in the transcript) which he contends his Honour failed to take into account. As noted earlier, the husband was afforded the opportunity following the hearing of the appeal to provide a document containing further references to the evidence before his Honour which, he asserts, support the various grounds.
73. In respect of ground 1, that document merely refers to aspects of the husband’s trial affidavit together with a short segment of transcript of the husband’s cross-examination by counsel for the wife during which the husband denies the wife’s claim that she worked at the small retail business alone. His Honour ultimately accepted the wife’s evidence in respect of her role in running the small retail business (reasons at [102] and [103]). In terms of the husband’s contributions to the small retail business, his Honour stated “I accept [the husband] had an active involvement, though less than that of the wife, for some 11½ years” (reasons at [116]).
74. Those findings were open to his Honour. No error is demonstrated. There is no merit in ground 1.
75. Nothing to which we have been taken nor any argument by the husband persuades us that his Honour’s findings the subject of ground 10 were other than entirely open to him.
76. Grounds 6 and 12 pertain to findings made by his Honour regarding various s 75(2) factors. His Honour’s finding in respect of the husband’s health (ground 6) is based on a rejection of the husband’s evidence and was entirely open to his Honour (reasons at [365]). The specific findings made by his Honour underpinning the respective post-separation financial positions of the parties which is the subject of challenge in ground 12 (see, for example, reasons at [93], [127], [132], [134]-[136] and [366]) were each well open to his Honour. No error is demonstrated by reference to these grounds.
77. We should mention for the sake of completeness that the husband raised a further point during oral submissions which was not included in the grounds of appeal in his written submissions in respect of ground 12; the husband contended that his Honour erred in not making an order for spousal maintenance in his favour. No such order was sought by the husband at trial. It is obviously not open to the husband to raise this issue now before this Court.
78. Ground 7 alleges an error on the part of the trial Judge “in finding that the loss of the [small retail] business had to be declared in my balance sheet and also that all the tax assessments of the [small retail business] were unhelpful.” Instead, the husband contends that his Honour ought to have “found that the loss of the [small retail business] business should not have to be declared in the balance sheet for any reason and that all of the tax assessments were very helpful.”
79. The husband’s written submissions do not refer to any particular aspect of the trial Judge’s reasons or to the transcripts or affidavit evidence in support of ground 7, nor does the document subsequently provided by the husband contain any such references.
80. The husband asserted at trial that he and his siblings were “partners” and thus they had “an interest” in the two properties comprising the bulk of the property pool. Despite this, the husband did not apportion any of the loss suffered upon the sale of the small retail business (which the husband claimed was an investment on the part of the alleged “partnership”) to any of his siblings (or their estates, as the case may be). Nor did he alter the alleged liability to them by reference to that loss.
81. The observations made in this respect by his Honour (reasons at [13], [229] and [301]) were not, as suggested by the husband, based upon a mistaken apprehension of the husband’s reporting obligations to the Australian Tax Office. Rather, they were observations made in the context of a claim by the husband that his siblings were entitled, in essence, to 85 per cent of two real properties forming the bulk of the pool available for distribution. It was well open to his Honour to observe the peculiarity inherent in the husband’s contention that he and his siblings were “partners” in circumstances where the husband did not apportion any of the loss stemming from what was allegedly an “investment” on the part of that partnership to any of his siblings.
82. The reference to the “helpfulness” of the husband’s tax returns, is a reference to [191] of the reasons. His Honour said there:

[The husband] could and should have produced his personal taxation returns and in that regard he annexed to his trial affidavit, annexure “C4” selective pages from his 1991, 1995, 1996 and 1998 tax returns, or some profit and loss statements. They were wholly unhelpful. They simply raised more questions than they answered and most likely highlighted his secrecy in his financial transactions and his lack of proper disclosure to authorities.

83. That finding, too, was well open to his Honour.
84. There is no merit in ground 7.

COSTS

85. At the conclusion of the hearing of this appeal each of the parties was invited to make submissions in respect of costs in the event that the appeal either succeeded or failed.
86. The appellant has been wholly unsuccessful. The appeal had little merit from the outset. The wife has been put to the expense of defending the appeal and is not legally aided. The husband submitted that he could not meet an order for costs as he is not working. However, as a consequence of the orders of the trial Judge, the husband has retained an unencumbered real property valued at $640,000 and, upon sale of a further property, is due to receive a further cash sum.
87. The circumstances are such to warrant an order that the husband pay the wife’s costs of and incidental to the appeal in an amount to be agreed in writing within 21 days of the order of this Court or, failing agreement, to be assessed.

I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Thackray, Murphy and Macmillan JJ) delivered on 19 April 2013.

Associate:
Date: 19 April 2013

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[1] Senior & Anderson [2011] FamCAFC 129; (2011) FLC 93-470.
[2] During the hearing of this appeal, an anomaly emerged. The Orders and reasons for judgment as delivered and handed to the parties on 16 July 2012 each record the percentages referred to above. Orders and reasons recorded on the Court’s website differ; they record that the husband is to receive 58 per cent and the wife 42 per cent. This Court explained to the parties that, in the event that either or both of them wished to address this anomaly, application should be made to the trial Judge. Nothing turns on the anomaly for the purposes of this appeal.