Interests arising under the Family Law Act or in equity
26 The appellant submitted that the Tribunal's finding that the parties had no joint assets was inconsistent with the operation of the provisions of the Family Law Act and with the equitable rights and obligations which would have existed between the parties. It was suggested that the circumstances derived from the evidence before the Tribunal were such that Mr Nguyen had an equitable interest in the property of the matrimonial home or that he had an interest in it by reason of the Family Law Act. This, it was said, arose from the fact that Mr Nguyen and Ms Tran lived in her house and, whilst she paid the mortgage, he used his wages for their joint living expenses.
27 In support of this submission Mr Boccabella relied on the decision of the High Court in Thorne v Kennedy (2017) 263 CLR 85. However, that decision concerned the consequences of unconscionable conduct or undue influence on a person under a special disadvantage, the effect of which was to vitiate a pre-nuptial agreement entered into shortly prior to a wedding. The relevance of this case to the circumstances before the Tribunal was not made especially clear. It was accepted that there was no undue influence or duress. Reference was made to paragraph [74] of the reasons of Nettle J where it was said:
The equitable doctrine of unconscionable conduct is not restricted to unlawful means. Equity may intervene to relieve against the consequences of a party taking unconscientious advantage of another party's position of special disadvantage regardless of whether the conduct is otherwise lawful. And while this case might better be conceived of as one involving illegitimate pressure, it is also capable of resolution in terms of Mr Kennedy having taken unconscientious advantage of Ms Thorne's position of special disadvantage. In effect, it was a position of special disadvantage which he created by bringing her to this country, keeping her here for many months in a state of belief that he would marry her, allowing preparations for the wedding to proceed, and only then, when she had ceased for all practical purposes to have any other option, subjecting her to the pressure of refusing to marry her unless she agreed to the terms of the first agreement. It was thus also a position of special disadvantage of which Mr Kennedy was aware, or at least of which a reasonable person in his position would have conceived as a real possibility. (footnotes omitted)
28 Mr Boccabella submitted that the appellant was under a special disadvantage because he was in Australia on a student visa and because he contributed to the household expenses. However, being in Australia on a student visa is not something which puts a person under a special disadvantage vis-à-vis another person with whom they might have a relationship. Certainly, it does not put them in such a position in relation to the acquisition of interests in land acquired in a personal relationship. No circumstances were identified to suggest otherwise. The argument must fail for that reason alone. Moreover, none of this was suggested to the Tribunal as being pertinent or germane to the alleged spousal relationship and nor did the suggestion of the appellant having an equitable interest in the property where he resided necessarily arise from the circumstances of the case. Whether the special disadvantage exists is a matter which arises in all the circumstances of the particular case. Without that issue being raised, it is apparent that all relevant circumstances which are germane to it were not considered or investigated by the Tribunal. It is not possible, after the Tribunal has performed its task, to suggest some additional claim or integer of a claim, not previously mentioned or advanced, was relevant and then complain that it was not considered. The scope of the obligation of a Tribunal in considering an application was identified in NABE at [62] and [68]. The Tribunal must deal with every integer of a claim which is expressly advanced and, although it is not obliged to consider a case not made to it, it is required to deal with a claim that clearly arises or emerges from the material before it. Although NABE (No 2) concerned applications for protection visas, the same principle applies to other applications. Here, the suggestion that Mr Nguyen had an equitable interest in the land was not raised and did not clearly arise or emerge.
29 It might also be observed that the evidence before the Tribunal was to the effect that Ms Tran considered that the house where Mr Nguyen and she resided was hers. The appellant was present in the Tribunal when that evidence was given and there was no demur from him to that assertion.
30 It was also submitted by Ms Wheatley for the Minister that the existence of a constructive trust would be suggestive of the relationship having broken down and Ms Tran unconscientiously denying Mr Nguyen's alleged interest. Here, the appellant's claim was that the relationship was ongoing. That being so, on the assumption that the imposition of a constructive trust of this nature is remedial rather than institutional, it is right that no equitable interest in the residence could have arisen at this point in time.
31 It appeared that the appellant's submissions may have been directed to identifying the existence of a constructive trust of the type recognised in Baumgartner v Baumgartner (1987) 164 CLR 137. That case concerned the identification of a constructive trust over the property of persons who lived in a de facto marriage relationship on the basis that it would be unconscionable to allow one party to assert sole title to a family home. The circumstances of this case, as they appear from the evidence, do not come close to those which might give rise to the recognition of a constructive trust of that nature. There was no suggestion that the parties were engaged in a joint endeavour to make the home of the sponsor their joint home. Indeed, the financial circumstances of the parties suggested that the sponsor intended to keep her property separate. It may well have been that they intended to purchase a house together in the future but, as the parties themselves acknowledge, no steps were taken towards that goal.
32 The suggestion that the appellant had an interest in Ms Tran's house by reason of the Family Law Act was equally vague. No particular sections of that Act were referred to and how the alleged interest arose was not explained. Whilst it may be that, if the parties were separating, an order of the Family Court could be made requiring one to pay money to the other or to transfer specific property, there was no suggestion that the circumstances for the making of such an order existed in this case. Certainly, none were suggested to the Tribunal and, as the issue was not raised, there was no investigation of whether such circumstances existed. Whether, if the parties divorced, the Family Court would give Mr Nguyen any right in relation to the residence, even though it was paid for by Ms Tran who has a daughter to support, is a matter of speculation. Again, there is nothing to suggest that at the time of the Tribunal's decision the appellant had an interest in Ms Tran's home by reason of the operation of the Family Law Act.
33 It follows that the Tribunal committed no error by failing to take into account the alleged interest which it is now said Mr Nguyen claims he has in Ms Tran's home.