Ament and Ament
[2010] FMCAfam 1344
•8 December 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| AMENT & AMENT | [2010] FMCAfam 1344 |
| FAMILY LAW – Property – death of party to proceedings. |
| Family Law Act 1975 (Cth), ss.75(2), 79(4), 75(8) & 117 Evidence Act 1995 (New South Wales) & (Cth), s.63 |
| Weir and Weir (1993) FLC 92-338 Allan & Allan (1987) FLC 91-824 Bourke & Bourke (1998) FamCA 69 Cornell & Stokes (2008) FMCAFam 774 Fisher & Fisher (1986) 161 CLR 438 Doyle &Doyle (1989) FLC 92-027 Mason & Mason (1994) FLC 92-446 Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervenor) (2003) FLC 93-143 Re NHC and RCH (2004) FLC 93-204 Kennon & Kennon (1997) FamCA 27 |
| Applicant: | MS AMENT |
| Respondent: | MR AMENT |
| File Number: | ADC 1010 of 2009 |
| Judgment of: | Cole FM |
| Hearing dates: | 2 & 3 August 2010 |
| Date of Last Submission: | 7 September 2010 |
| Delivered at: | Adelaide |
| Delivered on: | 8 December 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms Dickson |
| Solicitors for the Applicant: | R G Eckermann & Co. |
| The Respondent: | Self-represented |
ORDERS
The husband pay the applicant’s costs in the sum of $11,020.88.
That as and by way of property settlement:
(a)That the respondent transfer to the applicant the Kia motor vehicle currently in the applicant’s possession.
(b)The applicant be appointed trustee for the sale of the property situated at Property H in the State of South Australia (“the property”).
(c)The property be listed for sale forthwith at such price as is recommended by the real estate agent, such price to be not less than $290,000.00.
(d)The proceeds of the sale of the property be disbursed as follows:
(i)in payment of the costs and commission associated with the sale;
(ii)in payment of the outstanding mortgage secured against the property;
(iii)in payment of the sum of $11,020.88 to the applicant by way of payment of costs pursuant to paragraph (1) of these orders; and
(iv)in payment of the remainder to the applicant.
(e)Any interest the applicant may have in:
(i)the sum of $85,000 withdrawn by the husband;
(ii)the Ford motor vehicle registered in the respondent’s name;
(iii)the husband’s superannuation;
(iv)the husband’s savings; and
(v)the [omitted] business;
vest in the husband absolutely.
(f)Any interest the husband may have in:
(i)the wife’s superannuation; and
(ii)any funds received by the applicant by way of compensation for the wife’s death;
vest in the applicant absolutely.
(g)The husband indemnify the applicant and keep her indemnified in respect of any liabilities arising from the assets remaining in his possession.
The applications of the parties be otherwise dismissed.
There be liberty to apply as to consequential orders.
IT IS NOTED that publication of this judgment under the pseudonym Ament & Ament is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADC 1010 of 2009
| MS AMENT |
Applicant
And
| MR AMENT |
Respondent
REASONS FOR JUDGMENT
Introduction
On 22 March 2010 the wife in these proceedings died from multiple stab wounds. The husband is currently in [omitted] Prison on remand facing charges in respect of this matter.
These proceedings now concern the competing claims of the husband and the estate of the wife for the division of the matrimonial assets.
Orders were made on 12 April 2010 that the parties’ daughter
Ms Ament (aged 24) be substituted for the wife, being the administratrix of the wife’s estate.
On 28 June 2010 orders were made that:
a)the child [X] born [in] 1997 live with the applicant;
b)the applicant have sole parental responsibility for the child.
The orders noted that no order for the father to spend time with the child [X] is sought. It was therefore considered the children’s issues were resolved and the trial was to continue in respect of financial issues only.
Background
The husband was born [in] 1955 and the wife was born [in] 1966.
It is common ground that the parties married in 1984/85 although due to their circumstances, they are unable to produce a marriage certificate.
There are three children of the relationship namely, Ms Ament born [in] 1986 (the substituted applicant in these proceedings), Mr A born [in] 1987 and [X] born [in] 1997.
The evidence of the adult children and the wife is they were born in Afghanistan and moved between Afghanistan and Iran.
The parties came to Australia from Iran arriving here on 9 September 1997.
The family obtained Australian Citizenship in 1999.
The parties separated in 2000. On 15 May 2003 the husband became the registered proprietor of the property at Property H.
It is alleged by the wife and the adult children that the parties reconciled in mid 2003 and finally separated on 23 February 2009. Proceedings were commenced in early 2009.
On 23 November 2009 the matter was listed for trial in March 2010.
On 2 March 2010 the husband filed an Application in a Case seeking to vacate the trial on 18 and 19 March 2010. His primary argument for vacating the matter was that the wife had failed to disclose a property that she allegedly owned in Iran.
The husband had alleged at paragraph 33 of his Affidavit sworn on
18 April 2009 and filed in support of his Application that:
There is a property in Iran which was purchased by me during the marriage having sold a property I previously owned in Iran but held in the name of a friend of my father because I was not an Iranian citizen, I was not allowed to own property in my name in that country. As a result the property purchased prior to marriage was placed in the name of the wife and remains in the name of the wife.
At paragraph 34 he says:
In addition there is rental income earned on that property and that rental income has been directed to the wife since separation, and I have had no benefit from that property at all.
In the husband’s Affidavit in support of the Application to vacate the trial sworn on 1 March 2010 he stated that:
3.The purpose of my travel to Iran is to obtain a copy of the title for a property held in Iran in the name of the wife that I seek to be included in the matrimonial pool of assets.
4.The wife has denied ownership of the said property and I seek to provide evidence of its existence, the registered title and valuation.
9.I believe the Property Title Register in Iran is not computerised and it is necessary to attend the Title Office and provide cadastral registration plot numbers and major and minor plaques in order to identify the title of the property and ownership.
10.I believe I can ascertain the necessary information from an agent in [omitted].
The wife in her Response swore an Affidavit on 5 March 2010 in which she stated at paragraph 10:
10.I say that I was born in Afghanistan and have not at any time been an Iranian citizen…
11.I say that if there is a property in Iran registered in my name then I know nothing about it.
12.I say that there is no evidence to support the husband’s assertion that there is in fact a property in Iran registered in my name.
The trial in the matter was listed for 18 and 19 March 2010 at 10.00am.
Without making any finding in respect of the husband’s allegation, it was ordered that the trial currently listed for 18 and 19 March 2010 at 10.00am be vacated.
The matter was further listed for trial on 2 and 3 August 2010 at 10.00am in respect of children’s and financial issues.
In view of the late application made by the husband, it was ordered that the husband pay the wife’s costs thrown away as agreed or failing agreement as ordered by the Court in relation to the husband’s Application in a Case filed on 2 March 2010.
The husband was then given the opportunity of travelling to Iran as sought.
On 22 March 2010 it is alleged the husband attacked and stabbed the wife. She died from the injuries received. The husband was arrested and is now in remand at [omitted] Prison.
He was unable to travel to Iran to seek the evidence to support his allegation that the wife was the registered proprietor of property in that country. I will refer to this issue when considering the matrimonial asset pool.
On 12 April 2010 an order was made that Ms Ament be substituted as the applicant in these proceedings.
The matter was programmed for trial in August. In the course of proceeding to trial the matter came before the Court on a further six occasions. As late as 8 July the husband was represented by Counsel. Even then, he did not comply with the orders made for the filing of Affidavits, amongst other things.
On the trial date the husband appeared in person, with the assistance of an interpreter to proceed with the trial. Whilst there had been non-compliance with respect to the orders made by the Court, the husband had previously filed material with the Court to enable the Court to understand and deal with his case.
The applicant sought to proceed on an undefended basis. The application was declined.
Counsel for the applicant submitted that the husband had repeatedly failed to comply with the orders of the Court for the preparation of and filing trial documents in that:
a)he had failed to comply with an order of 23 November 2009 for Trial Affidavits to be filed on 23 February 2010;
b)the husband also failed to comply with an order of 26 May 2010 to file Trial Affidavits on 12 July 2010.
For the purposes of according the husband procedural fairness, it was decided that in all the circumstances, the trial should proceed with the husband being permitted to cross-examine the witnesses called on behalf of the estate and to rely on the material filed with the Court.
It was noted that the husband had in the course of these proceedings been represented by three legal firms, his last solicitor withdrawing in July 2010.
The major issues appeared to be whether:
a)the parties separated in 2000 or 2009;
b)the Property H residence should be included in the asset pool; and
c)the wife owned property in Iran and if so whether that should be included, and at what value.
The evidence
The applicant sought to rely on:
a)the substituted applicant’s Further Amended Application filed on the 8 July 2010;
b)the amended Financial Statement of the wife filed on 25 February 2010;
c)the Affidavit of the wife filed on 25 February 2010;
d)the further Affidavit of the wife filed on 9 March 2010;
e)the Affidavits of Ms Ament filed on 25 February and the 7th of July 2010;
f)the Affidavit of Mr A filed on 25 February 2010;
g)the Affidavit of Ms H (valuer) filed on 25 February 2010, and her subsequent updated valuation.
Ms Ament and Mr A, the daughter and son of the deceased wife gave evidence and were cross-examined by the husband.
The husband relied on his documents filed with the Court being:
a)his Response filed on 17 April 2009;
b)his Affidavit filed on 15 April 2009;
c)his Affidavit filed on 2 March 2010; and
d)his Financial Statement filed on 17 April 2009.
Counsel for the estate also had admitted into evidence
a)Exhibit “A”- letter dated the 26 July from Gaetjens Real Estate;
b)Exhibit”B”- letter dated 21st July from [H] Superannuation Fund re fund in the name of the husband;
c)Exhibit”C”- letter dated 7th July from [H] Superannuation Fund re fund in the name of the wife; and
d)Exhibit “D”- schedule as to costs sought by the applicant.
The husband gave evidence and was cross-examined by Counsel for the applicant.
Wife’s evidence
Section 63 of the Evidence Act 1995 (Commonwealth) states that:
(i) this section applies in a civil proceeding if a person who made a previous representation is not available to give evidence about an asserted fact.
(ii) the hearsay rule does not apply to:
(a)evidence of the representation that is given by a person who saw, heard or otherwise perceived the representation being made, or
(b)a document so far as it contains the representation, or another representation to which it is reasonably necessary to refer in order to understand the representation.
In the circumstances of the wife’s death, the Affidavits filed by the wife were accepted into evidence.
Husband’s evidence
An examination of the history of these proceedings shows the frequent attempts of the applicant’s solicitors to obtain information from the husband and his solicitors. Examples of this include the repeated attempts to have the husband provide disclosure of relevant bank statements (which were in the husband’s possession and control) and the eventual filing of subpoenas to obtain information that should have ordinarily been provided in the course of this litigation.
Counsel for the applicant refers me to a number of authorities addressing the issue of the failure to provide full and frank disclosure such as Weir and Weir (1993) FLC 92-338 which states:
Once it has been established that there has been a deliberate non-disclosure the Court should not be unduly cautious about making findings in favour of the innocent party.
It is clear that the husband has not complied with his obligation to provide full and frank disclosure and I accept the submission of the applicant’s Counsel.
The law
These are proceedings between the estate of the late wife and the husband.
Section 79(8) of the Family Law Act allows for proceedings to be continued by or against as the case may be the legal personal representative of the deceased where before property settlement proceedings are completed, a party to the marriage dies.
Section 79(8)(b) says:
If the Court is of the opinion:
(i)that it would have made an order with respect to property if the deceased party had not died; and
(ii)that it is still appropriate to make an order with respect to property,
the Court may make such order as it considers appropriate with respect to:
(iii)any of the property of the parties to the marriage or either of them; or …
This matter was not raised by Counsel for the applicant or the husband. Nevertheless, s.79(8)(b)(i) requires the Court to be of the opinion that it would have made an order had the applicant not died. It is not required to work out precisely what order it would have made (Allan & Allan (1987) FLC 91-824).
If the wife had not died, I am satisfied that the wife had a good cause of action for an order pursuant to s.79 of the Family Law Act (Bourke & Bourke 1998 FamCA 69). The consideration of the matters set out in s.79(4) of the Family Law Act as set out below in these Reasons canvasses those matters which save for her death existed in March 2010.
Section 79(8)(b)(ii) requires the Court to consider whether it is still appropriate to make the order. I have had regard to the discussion of the relevant law in this matter by Federal Magistrate Wilson in the matter of Cornell & Stokes (2008) FMCAfam 774. At paragraph 8 of his judgment His Honour notes the decision of Fisher & Fisher (1986) 161 CLR 438 at 457-8 where Brennan J said:
The death of a spouse will not always extinguish or satisfy the moral claims of the surviving spouse and children to which effect would have been given if the proceedings had been completed. Section 79(8) empowers the Family Court to give effect to the moral claims in respect to the property of the spouses which was made available to answer those claims by the commencement of the proceedings, provided “it is still appropriate to make an order with respect to property”: Section 79(8)(b)(ii). That qualification on the power, coupled with paragraph (ca)(i) of the definition of “matrimonial cause”, ensure that the jurisdiction is exercised only in cases where the moral obligations arising out of the marriage remain unsatisfied.
Section 79(8) provides machinery for the discharge of those moral obligations in priority to any rights in the property of a party to a marriage which arise by testamentary disposition of that party’s property or by any other devolution of that property on that party’s death.
His Honour went on to consider the subsequent judgments of the Full Court amongst other things. He concluded in paragraph 23 of his judgment that:
…(d)having determined that it would have made an order in the deceased party’s favour had he or she survived, the Court must then consider whether it is still appropriate to make an order;
(e)in that regard the Court’s discretion should not be exercised lightly, and should only be exercised in limited circumstances, so as to satisfy moral obligations that remain unsatisfied;
(f)the deceased party to the marriage has a prima facie moral entitlement to his or her contributions based entitlements to the matrimonial property;
(g)the size of the pool and the needs of the surviving spouse, including section 75(2) factors must be taken into account in formulating any orders.
Taking into account the contributions of the wife to which I refer to below and the moral obligations that remain unsatisfied, I consider it still appropriate to make an order.
In so saying I note the judgment of His Honour of Justice Lindenmeyer in the matter of Doyle &Doyle (1989) FLC 92-027 where His Honour said:
When the legislature gives the Court an unfettered discretion, the Court should not seek to limit that discretion by imposing upon itself rules for the exercise of it. All the Court is required to do in exercising that discretion is to act judicially and not arbitrarily or capriciously.
In determining what orders should be made for the division of the matrimonial assets, I am required to take an approach that involves four inter-related steps which are to:
a)identify and value of the property, liabilities and financial resources of the parties at the date of hearing (“the Asset Pool”);
b)identify and assess the contributions of the parties within the meaning of s.79(4)(a), (b) and (c) of the Family Law Act 1975 (Cth) (“the Act”) and determine the contribution-based entitlements of the parties expressed as a percentage of the net value of the property of the parties (“Contributions”);
c)identify and assess the relevant matters referred to in s.79(4)(d), (e), (f) and (g), including the matters referred to in s.75(2) of the Act so far as they are relevant, and determine the adjustment (if any) that should be made to the contribution-based entitlements of the parties established at step 2 (“Financial Resources and Needs”); and
d)consider the effect of these findings and determinations and resolve what order is just and equitable in all the circumstances of the case (“Review of Outcome”).
See Hickey & Hickey & Attorney General for the Commonwealth of Australia (Intervenor) (2003) FLC 93-143.
I will now consider those matters.
Matrimonial asset pool
Counsel for the applicant submitted that the matrimonial asset pool comprised of:
a)Property H residence - $290,000 (value agreed, however the husband submits as the property was acquired post-separation, this item should not be included);
b)Kia motor vehicle in the wife’s possession - $4,000 (husband’s value $6000);
c)Ford Falcon motor vehicle in the husband’s possession - $4,000; and
d)the husband’s superannuation which husband estimated at $13,000 in April 2009 but which exhibit “B” being the letter from the [H] Fund is shown to be $18,358.08 at the 21/07/2010;
e)the wife’s superannuation (exhibit “C” $38.65);
f)[omitted] business – value not known; and
g)savings (husband) $5136.41 (agreed in evidence)
There was no major dispute regarding the value of any of the above assets.
The liabilities were:
a)the mortgage secured against the Property H property being $113,124.78.
The husband says there may be a liability for the [business]. There is however, no evidence to corroborate the allegation that a debt exists and if so, for how much. The available evidence is the business was purchased by the husband, it no longer appears to be operating and the husband and/or his family have all the relevant documents. The applicant does not seek this asset. The husband has produced nothing, and neither party attributes a value to it. I therefore do not propose to give it a value.
Counsel for the applicant submits that the issues for the Court to determine are:
a)the alleged property in Iran;
b)whether the Property H property should be included in the pool; and
c)the mortgage secured against the Property H property and whether the husband’s withdrawal of funds from that account ($85,000).
Counsel for the applicant submitted that the sum of $85,000 should be added back to the asset pool being the funds drawn down by the husband from the mortgage between 2 and 11 March. This was not agreed.
The husband submitted that the wife owned a property in Iran which should be brought to account. This was not agreed.
The husband further submitted that the parties separated in 2000 and did not reconcile. This will be addressed when considering the contributions of the parties. As part of that argument he submits that the Property H property should be excluded from the asset pool. That will be addressed below.
The Iran property
The husband’s argument which has been touched on previously in these Reasons is that:
a)he was born in Afghanistan and is not an Iranian citizen;
b)he was unable to own property in Iran; and
c)the wife has Iranian citizenship and holds a property that was purchased during the marriage in her name.
The husband argues that he had previously owned a property in Iran which was held in the name of a friend of his father because he (the husband) was not an Iranian citizen. That property was sold.
The husband says he then purchased another property and placed it in the name of the wife and it is his case that it remains in her name.
The husband alleges that the parties (namely the wife) received rental income from that property which was directed to the wife since separation. He claims there is a book showing the rent received. This was not produced at any stage in the course of these proceedings nor annexed to the Affidavits filed by the husband.
I have referred to the husband’s evidence presented to the Court in March 2010 that despite the issue of the identity and ownership of the property in Iran being on foot since the commencement of these proceedings in March 2009, he had been unable to travel to Iran as he did not have any funds, his income being occupied paying rent and expenses in respect of the [omitted] business.
His evidence was that he had negotiated with his employer to take three months leave of absence from his employment in order to travel to Iran.
He said he would be financing his travel with the assistance of money borrowed from family and friends. He did not say why he could not do this (borrow the funds) before. Nevertheless, the opportunity for him to do this was given to him with the vacating of the trial and the relisting of the matter for August. It was an opportunity that the husband chose not to take.
The evidence of the wife prior to her death was clear.
She swore that:
a)she was a citizen of the Islamic Republic of Afghanistan by birth and was not an Iranian citizen;
b)she annexed copies of identity cards issues by the Islamic Government of Afghanistan Ministry of Interior, Herat Registry Office to corroborate her Afghan citizenship;
c)she gave evidence that all Afghan citizens received an identity card which is the closest equivalent they have to a birth certificate;
d)the Application for Migration to Australia signed by the husband on 21 July 1996 provides the place of birth for the two children and the wife as Herat, Afghanistan (the husband confirmed in evidence he was instrumental in filling out this and the character assessment form);
e)the personal particulars for character assessments signed by the husband on 10 December 1996 describes the wife as Afghan “since the date of birth” (the husband’s evidence is that his English was better than the wife’s and he understood what they were signing);
f)the wife’s Australian passport, again annexed to the Affidavit sworn on 25 February 2010 notes the wife’s place of birth as Herat, Afghanistan; and
g)the passport confirms that when she travelled to Iran in 2004 and 2007 she required a Tourist Entry Visa to the Islamic Republic of Iran.
There is more than one example of the husband signing a document that says the wife was born in Afghanistan. He either says she was doing it to get an advantage or that the people helping him were to blame. I do not accept this.
It is common ground that only Iranian citizens are eligible to own property in Iran.
I am unable to find that the wife is an Iranian citizen; all available evidence pointing to the fact that she was born in [omitted], Afghanistan.
The evidence of the late wife was that she does not own property in Iran and is unaware of any property that may be owned by the husband.
The husband attempted to counter this by providing copies of photos that allegedly showed the children at school in Iran. If this is accurate (which it may well be) then it is consistent with the evidence of the parties that they moved between the Afghanistan and Iran and resided in both countries.
I am unable to find, save for the unsubstantiated allegations of the husband, any significant evidence to support his allegation that there is any property in Iran.
The adult children were questioned about this. They were unaware of any property or rental income being received. Their evidence did not assist the husband.
I am therefore left with an unsubstantiated allegation for which I can find no support from the evidence before me. I accept the evidence of the late wife that she does not own property in Iran and is unaware of any property that may be owned by the husband.
I therefore cannot find on the evidence before me that there is an Iranian property which must be included in the asset pool.
Property H
It is alleged by the husband that the parties separated in 2000.
The parties had been residing in a house owned by the husband’s brother. The wife continued to reside in that house until she was asked to leave by the brother whilst the husband remained living with another brother.
In or about 2003, the husband purchased the property at Property H. He alleged that he was using money he had saved since separation.
The evidence is:
a)the cost of the purchase of the property (including stamp duty etc) $182,379.50
b)the cost of the purchase funded by:
i)mortgage NAB $150,000.00
ii)First Home Owner’s Grant $ 7,000.00
iii)remaining sum from Flexi Account $ 25,379.50.
The husband’s evidence was that the funds from his Flexi Account were a mix of his savings and a loan from his family. In providing oral evidence, he was unable to be precise about the exact amount, at one stage suggesting the family lent him between $10,000 and $15,000. I note however, in his Affidavit sworn on 16 April 2009 that he says on two separate occasions in the document that he borrowed $15,000 from his family. There were no documents to support this claim.
I have difficulty accepting his evidence as to the origin of these funds save that they came from his Flexi Account. There were no Affidavits filed by family members and there was the opportunity to do so.
His evidence is that the balance of the purchase monies was obtained through a mortgage.
It was the wife’s evidence that subsequent to the purchase of the Property H property, the husband asked the wife and children to move in there to be with him so that the parties could live together as a family.
Her evidence in her Affidavit filed on 25 February 2010 is that to the best of her recollection, they moved into the property in mid 2003 with the husband. The parties then recommenced sharing a bedroom and having a sexual relationship.
The husband denies asking the wife to reconcile. He states he offered to allow the wife and the children to live in that property and that the wife agreed to pay him rent to do so. She was given the first few months rent free to assist her financially as the children remained living with her. In spite of this she did not make any rental payment throughout the entire period she lived in the house.
The husband therefore submits that the property was purchased by him, the wife did not contribute to it and it should be excluded from the matrimonial asset pool.
I have difficulty accepting the husband’s evidence in respect of this matter and will comment further when considering the parties’ contributions.
In any event, if the husband is right then it would mean that he was able on a relatively modest income to save sufficient funds to pay the deposit and associated costs of purchase such as stamp duty while living apart from the wife.
There is little or no evidence to show that he was supporting the wife and children in this period (2000 - 2003). There is therefore some cause for concern that that husband was able to obtain this asset at the expense of the wife and children meaning that the wife post separation continued to contribute to the welfare of the family whilst the husband’s contributions post separation were applied for his own purposes.
If the husband is right about the date of separation (2000) then I do not see why this asset acquired post-separation should be excluded when it appears on the evidence to have been acquired at the expense of the wife and the children.
The husband alleges that he paid child support by direct payments of cash to the wife. This is not the evidence of the late wife.
In her Affidavit sworn on 25 February 2010, when referring to the separation in 2000, the wife at paragraphs 28, 29, 30, 31 and 32 recounts how the separation occurred after she had been assaulted by the husband when he attempted to strangle her with his hands until she feared she would lose consciousness.
She sets out how he dragged her across the floor by her hair, dragged her to her feet and pushed her right hand through a window pane, shattering the glass and slashing the outside of her right hand (paragraph 29).
At paragraph 32 she states:
The husband then vacated the Property M residence and presumably went to live with friends or family. He removed his personal effects and some furniture. The husband then ceased to provide any support whatsoever for the children and I. To the best of my recollection, the husband and I were both in receipt of Centrelink benefits at this time. I continued to receive benefits for the children and I and I alone paid the rent to my brother-in-law and paid all other living expenses. The husband did not pay to me any child support.
The husband provides no records in support of his claim that he paid funds to the wife during this period of time. His evidence provided during the course of the trial would imply that he did not consider this necessary. When asked about the wife’s contribution to the welfare of the children for example, he responded that she was receiving a benefit from Centrelink to look after the children. A similar response was prompted when discussing the support for his youngest daughter where he acknowledged he was not in a position to make money to support her and then said that Social Security was supporting her.
It needs to be noted that when he was asked what financial support should be available for [X], he responded should they be unable to look after her then they could give her back and he would pass her on to some people who could look after her. He then went on to say that “if they really needed, I will pay them some of the money.
It is not disputed that the husband’s taxable income in 2003 was $19,295. It is difficult to accept that the husband’s income was greater in 2002 and 2001. The husband has not produced any documents to support this.
It is therefore difficult to accept that the husband was able to save at least $10,000 in this period and pay child support for the family at the same time. It is more probable that child support was paid.
It is for these reasons, in addition to my discussion of the date of separation under the Contributions heading, that I find the Property H residence should be included in the matrimonial asset pool.
Add backs
In considering the husband’s evidence, the submission of Counsel for the applicant needs to be borne in mind. That is:
a)the husband has failed to provide full and frank disclosure as repeatedly requested by the wife’s solicitors; and
b)the husband has failed to comply with the orders of this Court for full and proper disclosure.
At the date the wife says the parties separated being 23 February 2009, the mortgage balance for the Property H property was $36,618 (see annexures ZA25 to the wife’s Trial Affidavit). This contrasts with paragraph 32 of the husband’s Affidavit sworn on 16 April 2009 which suggests it was $120,000 and makes no reference to the withdrawal of $85,000.In the period from 2 March to 11 March 2009, the husband unilaterally withdrew the sum of $85,000 from this account (this amount is not disputed). It is not in issue that the withdrawals were made without the knowledge or consent of the wife.
An urgent application to restrain the husband from dealing with the Property H property was made and orders accordingly granted.
Subsequent to the orders being made, the husband transferred a further $3,300 from the NAB Home Loan Account to his personal account on 8 April 2009, the orders being made on 25 March 2009.
The husband’s evidence under cross-examination was that he immediately repaid the monies ($3,300).
The bank statements for the relevant period, annexed to the wife’s Affidavit (annexure ZA25) do not support this evidence. There is no indication that an amount of $3,300 was deposited back into this account by the husband.
The wife filed an Application in a Case on 21 August 2009 seeking an order that the husband provide copies of documents in his list of discoverable documents and copies of the home loan statements for the period 1 May 2009 to present. The applicant alleges, and it is not disputed, that those documents have not been forthcoming.
The husband, having drawn down a significant sum against the line of credit and then in breach of the order withdrawn a further $3,300, did not file any document that explained his actions.
It was only under cross-examination at trial that he alleged (for the first time) that the sum of $85,000 had been used to repay debts.
His evidence on this matter was unsatisfactory in that the Court was in effect, asked to accept his assurances that these funds had gone to pay debts to persons unknown.
There is some evidence of deposits being made to the accounts. At paragraph 152 of the Trial Affidavit, the wife sets out some deposits that were made to the husband’s savings account over the period from 3 June 2002 to 4 February 2008 totalling a sum of $41,601.
The husband’s evidence in respect of this is that these were funds that were borrowed from family and friends to deposit on the home loan to reduce the amount outstanding on the mortgage. Save for his assurance, there is nothing to support this.
When pressed he stated he was unable to identify which deposits came from where let alone the terms and conditions on which the money was provided.
His evidence was that the $85,000 withdrawn by him over the seven day period was simply a repayment of funds to those that had lent him money. He suggested that in his culture, informal arrangements in respect of finance such as these where people informally lent money and were repaid in due course, were not uncommon.
The difficulty I have with this explanation is that when someone comes from a background where money is an essential means of survival, and having reached Australia, is not earning a significant income on his own evidence, then where and when money is received and where and when it should be repaid would be critical issues that a person would remember.
The husband’s complete lack of particulars in respect of the amounts he alleged were borrowed and repaid, is simply not credible. Furthermore, his allegation that he replaced the money, namely $3,300 that he had drawn down in breach of the Court orders, again is not acceptable.
The wife through her solicitors was pressing for documents in relation to this issue for some time. He has not been taken by surprise.
The wife submits that the husband:
a)has not provided any proof of any debts at any time during the proceedings;
b)has not called any corroborative evidence;
c)has not undertaken any third party discovery confirming where the funds were directed and to whom;
d)has not particularised the alleged debts setting out to whom they were owed, for what amount, what the debt was for and when it was incurred,
are all valid points.
The proceedings (initiated by the husband) have been before this Court since March 2009. There have been numerous requests for disclosure of documents. Those requests were not met.
I am not satisfied that the removal of funds from the account is not a unilateral action on the part of the husband that in effect provided him with a premature distribution of the matrimonial assets which he applied for his own purposes.
In Re NHC and RCH (2004) FLC 93-204 the Full Court summarised earlier Full Court authorities on the issue and said:
56. In summary, we consider that the above mentioned decisions of the Full Court establish that, while the treatment of funds used to pay legal costs remains ultimately a matter for the discretion of the trial Judge, in determining how to exercise that discretion, regard should be had to the source of the funds.
57. If the funds used existed at separation, and are such that both parties can be seen as having an interest in them (on account, for example, of contributions), then such funds should be added back as a notional asset of the party, who has had the Benefit of them.
58. If funds used to pay legal fees have been generated by a party post-separation from his or her own endeavours or received in his or her own right (for example, by way of gift or inheritance), they would generally not be added back as a notional asset; nor would any borrowing undertaken by a party post-separation to pay legal fees be taken into account as a liability in the calculation of the net property of the parties. Funds generated from assets or businesses to which the other party had made a significant contribution or has an actual legal entitlement may need to be looked at differently from other post-separation income or acquisitions.
59. Outstanding legal fees themselves are generally not taken into account as a liability.
60. If in the exercise of the discretion, it is determined that legal fees already paid should be taken into account as a notional asset, then normally any liability associated with the acquisition of the monies used to pay the legal fees should also be taken into account.
These were funds drawn against a line of credit secured against a matrimonial asset. I do not accept these funds were used to repay debt as alleged by the husband. It is open to me and I conclude he has in one way or another had the benefit of these funds. In the circumstances, I would add back the sum of $85,000 sought by Counsel for the applicant.
The asset pool
The asset pool would therefore be as follows:
Property H residence
$290,000.00
Kia motor vehicle
$4,000.00
Ford motor vehicle
$4,000.00
Husband’s superannuation
$18,358.00
Money added back
$85,000.00
Wife’s superannuation
$38.65
[omitted] business (no longer operating)
Not known
Husband’s savings
$5,136.41
SUB-TOTAL
$406,533.06
Less Liabilities
Property H mortgage
$113,124.78
NET VALUE POOL TOTAL
$293,408.28
Contributions
There is no evidence to support that either party had any assets of significance at the commencement of cohabitation when the parties married in 1985. The husband suggests he had some gold, amongst other things, in his submissions however, this is not supported by evidence.
It has been noted that the parties came to Australia in 1997 and separated in the year 2000.
I do not accept the husband’s evidence that the parties remained separate and apart.
I would find that the parties reconciled in 2003 and will refer to the document filed with Centrelink in 2005 as corroborative evidence of this fact.
The evidence would suggest this is clearly a relationship where there are power and control issues, some of which was evidenced by the allegations of violence made against the husband.
In the course of cross-examination it was pointed out to him that all bank statements were addressed to the Property H property address.
The husband alleged that he had given the bank a post office box number on several occasions however they had ignored this.
On further cross-examination it was conceded that the only time that the bank statements went to the [omitted] address were on 18 April 2009 and 18 May 2009 after the wife claims that the parties separated in February 2009.
In respect to the 2005 variation of Centrelink payments he alleged that Centrelink had found that the wife was dealing in [omitted] and they stopped her benefits. There was nothing to support this allegation.
He conceded signing the document and conceded that he signed everything as the true version of events. He then suggested he did not read all of the documents and he did not know exactly what it meant. I have difficulty accepting this.
It is noted that the parties subsequently signed another declaration with Centrelink to advise of their separation. I have concerns about this when it is placed in the context of the allegations of violence to which I will refer later.[1]
[1] See paragraphs 49-57 of the wife’s Affidavit sworn on 25 February 2010
I also note his evidence that he:
a)sent the wife to Iran in 2004 and 2007 to sell the house she allegedly owned;
b)purchased the [omitted] business for the wife in 2008;
c)was responsible for the maintenance and upkeep of the Property H property, including payment of the mortgage;
d)purchased a Kia motor vehicle for use in the business and by the family;
e)failed to extract any concessions from Ms Ament or Mr A in respect of the alleged separation.
I have difficulty when all of the matters are considered, that the husband’s submission that the parties separated in 2000 is correct. On his evidence, his involvement with the family remained significant, attending the home daily, amongst other things.
Separation in a context of a marriage is more than the physical act of living separately and apart. To effect a separation, the intention to separate and live separately and apart on the basis of the marriage irretrievably breaking down must be communicated clearly. Once it has been communicated, it should be acted upon.
At its highest, the husband’s case is that he was living in two houses at this time.
I cannot however find that he communicated the breakdown of the matrimonial relationship and clearly acted upon it until such time as the wife effected the separation on 23 February 2009.
In the circumstances, I again consider it appropriate that the Property H property be included in the asset pool.
It appears to be common ground that:
a)throughout the marriage the wife predominantly undertook all domestic duties including the primary care of the three children of the marriage; and
b)the husband worked and provided financial support for the family save and except for the period from 2000 to 2003.
It is evident that throughout the period of the relationship, the wife made the primary contribution to the welfare of the family.
It is also evident that the husband financially supported the family, save and except for the period of 2000 to 2003.
I do not credit the husband with any financial contribution to the purchase of the Property H property, noting that the funds were accumulated during a period where the wife and children were left without any financial support.
Save for the Kennon adjustment sought by Counsel for the applicant, I do not make any particular finding in respect to the non-financial contributions of the parties.
It is argued that the wife’s non-financial contribution to the marriage was made more onerous by virtue of the husband’s conduct towards the wife and children particularly during the period from 2000 to March 2010 as set out in the Trial Affidavits of the wife and her witnesses.
On the basis of this, it is argued that there should be a further adjustment of the property in favour of the applicant based on the authority of Kennon & Kennon (1997) FLC 92-757.
It is necessary to show that the conduct occurred during the course of the marriage and had a discernable impact on the contributions of the other party.
An example of the conduct complained of is the allegation that the husband put the wife’s hand through a window causing severe lacerations. The husband says the wife did this, not him, to make a point. His evidence was that she was constantly trying to “light the fire”, wanting to dominate him. I have difficulty accepting this explanation.
The wife from the moment these proceedings began was consistent in her complaints about the husband’s conduct to her and the children. Ms Ament and Mr A did not resile from this position (the husband’s position being that the children tell lies, which I do not accept). The wife’s demise may be seen as a conclusion of this course of conduct. It is open to me and I find that the conduct occurred and its effect was to make the wife’s contributions more arduous (as opposed to a consideration of any compensation factors that arise from the facts of this case). It is difficult however, without the direct evidence of the wife, to gauge exactly what effect it had. I would therefore take a conservative approach in adjusting the wife’s contributions by 5 per cent in favour of the applicant.
In the circumstances, it is open to me and I find that the parties have equally contributed to the acquisition, conservation and improvement of the matrimonial assets, save that there should be a further adjustment of 5 per cent to allow for the effect of the husband’s conduct on the wife.
Financial resources and needs
It is submitted that the husband is currently incarcerated at [omitted] Prison on a charge of murder. As at the date of trial, the husband was yet to enter a plea.
The husband in his evidence indicated that if convicted, he is unlikely to be released before his seventieth birthday.
This in effect would mean that the child [X] would be without any support from the father prior to [X] obtaining the age of eighteen years.
I have already noted that in the course of cross-examination, the husband suggested that the receipt of Centrelink benefits would be sufficient for the adult children to support [X]. This is clearly not appropriate.
I further note that the husband offered to have [X] cared for by other members of his family in the event that the adult children were unable to do so. The suggestion in view of the charges faced by the husband is a matter of concern when considering the level of insight the husband may have into the ramifications of his actions upon family members.
The evidence is that both adult children have stepped out of their education and are currently earning modest incomes in their current employment. I note that just prior to her mother’s death, Ms Ament was studying for a [omitted] degree.
To their credit, they have stepped up to the role of caring for the infant child of this relationship, their sister [X]. They would however, seek the opportunity to return to their studies if possible.
The difficulty when considering the issues set out in s.75(2) is that the section refers to the needs of the parties (being the parties to the marriage) and one of the parties is dead. Nevertheless, the discretion of the Court is “largely unfettered” (Doyle & Doyle (1989) FLC 92-027) and the Court should not seek to limit that discretion by imposing upon itself rules for the exercise of it (see also Mason & Mason 1994 FLC 92-446).
Having said that, I consider it appropriate that I have regard, pursuant to the provisions of s.75(2)(na) to the fact that the husband is unlikely to be able to provide any child support for [X] over the years of her dependency.
I also consider it appropriate when pursuant to s.75(2)(o) which requires me to consider any other fact or circumstances that I note that the two adult children will be unable to rely on any support from their father to complete their tertiary education.
The husband submits that he too has the need for financial support, particularly in his current situation. I have difficulties with the submission in that the husband’s current situation arises from a course of action the husband took in March 2010, so could be said to be self-imposed. More importantly, it suggests that his needs be granted equal weight to that of two adult children who would like to conclude their study and one infant child who is aged 10 years.
Having regard to all of the factors set out in s.75(2) of the Family Law Act and in particular, the lack of support that [X] can expect to receive from her father, I consider it appropriate that there be an adjustment of 5 per cent in favour of the applicant.
[H] death entitlement
The applicant advised the Court that the Estate is currently in the process of claiming a death benefit for the late wife. The likely amount is to be $94,000. The Trustee of the fund has yet to confirm that payment will in fact be made.
Counsel for the applicant submitted that it would not be appropriate to include this in the asset pool because:
a)the husband should not benefit from his alleged wrongful act;
b)the payment could not be made to the wife in her own right; and
c)the payment could only be made to the dependants of the deceased.
In the circumstances she submitted that this was not an asset nor could it be considered a resource.
I accept the submission that the fund, if paid, should not be included in the asset pool.
There is no evidence that the fund has been paid to date. Nevertheless, if paid, it will have an impact on the financial needs of the children.
Having said that, I consider the impact to be minimal, in that the payment has not been received, the payment is for the death of a parent and to bring it to account in full would, as submitted by Counsel for the applicant, risk the respondent receiving a benefit namely an increased proportion of the asset pool, as a consequence of the events that led to the mother’s death.
Costs
The applicant seeks to bring to account the costs incurred as set out in Exhibit D. Reference is made and I have regard to the provisions of s.117(2A) of the Family Law Act. Of particular importance in consideration of these claims is my findings in respect of the husband’s conduct and his failure to comply with the orders of the Court (s.117(2A)(c) and (d)).
The amounts sought are as follows:
a)10 March 2010
An order was made that the respondent pay the applicant’s costs thrown away due to the vacating of the trial date on the husband’s application to travel to Iran. The applicant had filed a significant amount of material and was ready to proceed. The amount sought is $3,524.25, being solicitors’ costs of $2,451.75 and Counsel fees of $1,072.50. Considering the material on the Court file, I consider the claim to be reasonable and would allow it.
b)21 April 2010
An order was made reserving costs in favour of the substituted party. This arose out of the Application seeking, amongst other things, copies of the husband’s bank statements and details of the leasing arrangements for the Property H residence. The applicant was successful and orders made. The applicant seeks $634.72 solicitors’ costs and $557.50 for Counsel fees. The costs sought are reasonable and will be allowed.
c)2 June 2010
The respondent did not comply with the orders and liberty was sought to issue subpoenas. They were accordingly issued and costs of $3,312.41 were incurred being solicitors’ costs of $2,762.41, Counsel fees of $440 and process server fees of $110. Having regard to the provisions of s.117 of the Family Law Act and in particular s.117(2A)(c) being the conduct of the husband in failing to comply with the orders, I consider it appropriate that he pay costs in the sum sought, namely $3,312.41 on this issue.
d)8 July 2010
The respondent did not take steps to renew the insurance on the property. Failure to do so would affect the mortgage secured against the property. An Application was filed and orders were made that either directed the husband to sign the renewal or in the event of him failing to do so, the renewal could be signed in default. He had notice of the need to attend to this and he did not do so. The applicant’s costs were reserved. Costs are now claimed for $2,991.98 being solicitors’ fees of $2,491.48, Counsel fees of $412.50 and process server fees of $88. Having regard to the provisions of s.117 of the Family Law Act and in particular s.117(2A)(c) and the conduct of the husband, I consider the husband should pay the costs in the amount sought.
The effect of this is that there will be an order that the husband pay the applicant’s costs arising from the events referred to above in the sum of $11,020.88 being the total of the costs sought. This sum is to be paid initially from any funds received by the husband from the sale of the house. I say this to attempt to minimise any efforts the applicant may make to otherwise recover these funds.
Just and equitable
For the reasons set out above, I have found the net value of the asset pool to be $293,408.28. The division of the assets is to be 60 per cent to the applicant and 40 per cent to the husband. This means that the husband would receive $117,363.31 comprising:
Add backs
$85,000.00
Ford motor vehicle
$4,000.00
Superannuation
$18,358.00
Savings
$5,136.41
[omitted] business
No value attributed
Proceeds of sale of house
$4,868.90
The husband is required to pay the applicant’s costs in the sum of $11,020.08. Those costs can be set off against the husband’s share of the proceeds of sale.
I have commented on the effect of the possible payment of the Death Benefit of $94,000. In view of the events surrounding the wife’s death in March 2010 and the comments I have previously made, I do not think a further adjustment is required.
For the reasons that I have set out when considering the possible payment of the death benefit of $94,000, that should the children or the estate receive any Victims of Crime payment, then they should also be treated in a similar fashion. In other words, they should not be included in the pool and should not prompt an adjustment of the division of the matrimonial assets.
In the circumstances, I do not consider it necessary, when reviewing the division of the assets on just and equitable principles to adjust the division of the assets.
I do consider it appropriate for the applicant to have the control of the sale of the Property H property as I have difficulty accepting that the parties will be able to co-operate over the arrangements for the sale of the asset. I have therefore framed the orders accordingly.
The children’s issues were resolved when orders were made in respect of the living arrangements for [X] in June 2010. The husband was represented at the time. The husband at the trial of this matter sought in his written submissions to have some time with [X]. No specific proposals were made. It is not appropriate that this be dealt with and should the husband wish to pursue that matter, he will need to file an Application setting out his proposals and providing an Affidavit in support.
I would therefore make the orders as set out at the commencement of these Reasons.
I certify that the preceding one hundred and eighty-five (185) paragraphs are a true copy of the reasons for judgment of Cole FM
Date: 8 December 2010
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