Asgar & Farhat
[2021] FedCFamC2F 239
•29 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Asgar & Farhat [2021] FedCFamC2F 239
File number(s): SYC 7419 of 2018 Judgment of: JUDGE BOYLE Date of judgment: 29 October 2021 Catchwords: FAMILY LAW – Property – Non-disclosure – Date of Separation – Financial Contribution Legislation: Family Law Act1975 (Cth) Division: Division 2 Family Law Number of paragraphs: 56 Date of hearing: 18 August 2021 Place: Sydney Counsel for the Applicant: Applicant appeared in person Counsel for the Respondent: Respondent appeared in person ORDERS
SYC 7419 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ASGAR
Applicant
AND: MS FARHAT
Respondent
ORDER MADE BY:
JUDGE BOYLE
DATE OF ORDER:
29 OCTOBER 2021
THE COURT ORDERS THAT:
1.The Husband’s application filed 7 June 2019 is dismissed.
2.Within 28 days the husband shall do all acts and things to remove the caveats placed over the properties at:
(a)B Street, Suburb C, NSW; and
(b)D Street, Suburb E, NSW.
3.The Wife shall be and hereby is declared to be solely entitled to the property situated at and known as B Street, Suburb C, NSW and the Wife shall indemnify and keep indemnified the Husband in relation to all liabilities in respect of the property, whenever and however arising.
4.The Wife shall be and hereby is declared to be solely entitled to the property situated at and known as D Street, Suburb E, NSW and the Wife shall indemnify and keep indemnified the Husband in relation to all liabilities in respect of the property, whenever and however arising.
5.That, except as otherwise provided herein, the Husband shall retain, to the exclusion of the Wife, all of his right, title and interest in:
(a)All accounts with all financial institutions held in the sole name of the Husband;
(b)All shares held in any public or private companies;
(c)All furniture, jewellery and other chattels currently in his possession, custody or control;
(d)All and any motor vehicles registered in his name;
(e)All interest in life insurance policies;
(f)The Husband's superannuation entitlements;
(g)All other property of whatsoever nature and kind in the possession of the Husband at the date of these Orders or to which he is or may become entitled.
6.That except as otherwise provided herein, the Wife shall retain, to the exclusion of the Husband, all her right, title and interest in:
(a)All accounts with financial institutions held in the sole name of the Wife;
(b)All furniture, jewellery and other chattels currently in her possession, custody or control;
(c)All and any motor vehicles registered in her name;
(d)All interests in life insurance policies;
(e)All shares held in any public or private companies;
(f)The Wife's superannuation entitlements; and
(g)All other property of whatsoever nature and kind in the possession of the Wife at the date of these Orders or to which she is or may become entitled.
7.That except as specifically provided for by any paragraph comprising these Orders to the contrary:
(a)The Wife hereby indemnifies the Husband from and in respect of all liabilities, actions, claims, suits and demands as may be made against the Husband in relation to all liabilities in the name of the Wife, including but not limited to:
(i)Any credit card liabilities;
(ii)All personal income tax liabilities of the Wife which are unpaid at the time of the making of these Orders;
(iii)All and any future taxation liabilities of the Wife;
(iv)All liabilities of, and in relation to, the Wife personally arising in connection with and/or as a result of the Wife being, and/or having been, a director, secretary and/or shareholder of any entity whenever and however arising, including but not limited to all taxation liabilities of those entities or either party personally arising in connection with any interest, loan account, office or employment in relation to that entity; and
(v)Any and all other liabilities in the Wife's sole name or jointly with any other person.
(b)The Husband hereby indemnifies the Wife from and in respect of all liabilities, actions, claims, suits and demands as may be made against the Wife in relation to all liabilities in the name of the Husband, including but not limited to:
(i)Any credit card liabilities;
(ii)All personal income tax liabilities of the Husband which are unpaid at the time of the making of these Orders;
(iii)All and any future taxation liabilities of the Husband;
(iv)All liabilities of, and in relation to, the Husband personally arising in connection with and/or as a result of the Husband being, and/or having been, a director, secretary and/or shareholder of any entity whenever and however arising, including but not limited to all taxation liabilities of those entities or either party personally arising in connection with any interest, loan account, office or employment in relation to that entity; and
(v)Any and all other liabilities in the Husband's sole name or jointly with any other person;
8.That in the event either party refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these orders, then the Registrar of the Court shall be appointed pursuant to Section 106A of the Family Law Act to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Asgar & Farhat has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BOYLE
These are property proceedings between the parties. The parties married in 1995 in Country F. They migrated to Australia in 2009. The wife says they separated in 2011, and the husband on 13 September 2016.
The husband graduated with a medical degree in Country F. He purchased a commercial property in 2002 from which he ran a medical practice. He leased part of the premises to other businesses.
The wife was initially engaged in study. She holds a number of degrees from a university in Country F.
Prior to the move to Australia, both parties worked in Country F. The wife’s evidence is that she was employed by an engineering company, and the husband ran the practice. The wife was paid a base salary each month, with cash bonuses. Her evidence is that she gave most of her pay to the husband. He made loan repayments on the commercial property, and paid for daycare for their daughter, and other household expenses.
The parties migrated to Australia on the basis of the wife’s application as a skilled worker in 2009. She studied to improve her English skills to ensure her eligibility. After arriving in Australia she undertook completed a Masters at University between 2010 and 2011. The parties arrived with savings which were utilised for rent and living expenses before the wife secured employment. Towards the end of 2011 she was employed by Employer G.
The husband did not undertake the further study required for him to practice as a health care professional. The husband commenced work as a taxi driver.
The wife alleges family violence perpetrated by the husband. He left the home pursuant to an AVO taken against him by the Police for the protection of the wife. Police were called to the home by the parties’ daughter in August 2016. The final AVO was made on 28 November 2016.
ISSUES
The issues for determination are:
(a)The date of separation, and whether the parties resided separately under the one roof;
(b)Whether a property in Country F was transferred by the husband to the wife.
(c)Whether the husband made contributions to the wife’s purchases of property in Australia.
(d)What the current assets and liabilities are, to the extent the evidence may permit findings
ISSUES WITH RESPECT TO THE HUSBAND’S NON-DISCLOSURE
The parties were both self-represented at the hearing. The husband has been directed on a number of occasions to file evidence in support of various contentions made by him.
On 20 November 2018 the husband field a Financial Statement suggesting he was a student/ unemployed. He refers to receiving $300 each week from Newstart, and paying $100 per week to Housing NSW. He sets out $10,000 worth of household contents and, in contradiction, that the total value of his property is $500. He refers to other expenses of $200 per week.
On the first occasion the matter was before the Court on 25 March 2019 the husband was directed to file and serve an amended application, financial statement and affidavit setting out his assets, the values of properties in Country F, details of all his bank accounts and a report from his treating medical health practitioner by 17 May 2019. This did not occur.
On 7 June 2019 the husband filed a Financial Statement which set out his income at $270 per week, and Part N expenses as $270 per week. He referred to shares as a financial resource to the value of $500. Otherwise the document is blank.
On 26 November 2019 the husband was directed to file and serve an affidavit annexing his tax returns and tax assessments, a translation of the document which he says evidences the transfer of Country F property to the wife, evidence of rental income he received from the Country F property from 2010 to 2016, and bank statements in support of his alleged financial contributions to the B Street, Suburb C and D Street, Suburb E properties. This did not occur.
The Court has attempted to direct the husband to provide relevant material in these proceedings. Notwithstanding various attempts to engage the husband during the course of the litigation, he has not filed documents in support of his case.
I did not permit the wife to rely on an affidavit filed by her 16 August 2021, days before the hearing. Directions were made for her affidavit to be filed by 30 June 2021.
The husband seeks orders in accordance with the amended initiating application filed 7 June 2019, that he receive 50 per cent of the assets as listed in that application. He relied on affidavits filed 20 November 2018, 7 June 2019, and 15 February 2021. In addition, he relied on a financial statement filed 16 August 2021, which he was permitted to rely on in circumstances that I shall come to shortly.
The wife sought orders in accordance with her response filed 25 May 2019, that the husband’s application be dismissed. She relied on affidavits filed 25 March 2019, 30 October 2019, and financial statement filed 25 March 2019. She updated the valuations of the two properties in her evidence-in-chief.
Both parties provided balance sheets at exhibit W1 and H1. The husband’s financial statement is blank, other than at paragraphs 35 and 36. Those refer to the properties at B Street, Suburb C and D Street, Suburb E, and assert a 50 per cent registered ownership. No value is attributed to either property, and the document is otherwise blank. There was no prejudice to the wife in the husband being permitted to rely on the document.
The financial statement exemplifies the difficulties in dealing with this matter. The husband has failed to comply with even the most basic requirement for disclosure. He is prepared to make broad assertions that the wife is a liar, without any evidence in support.
The balance sheet tendered by the husband lists assets of a used car at $11,000, shares at $1,200 and savings of $1,000 as assets, and liabilities of an “education loan” of $15,700. I have no information about the acquisition of any of the assets or loan. The document is otherwise blank.
I accept that the wife has attempted to put before the Court relevant material, and to address relevant issues. Despite directions made, the husband did not deal with the matters on the balance sheet provided to him by the wife. Instead, he set out his current financial position, as he described it. That is marked as exhibit H1. As I explained to him on a number of occasions, a balance sheet is not evidence, and provides no information about the supporting facts. I invited him to put relevant evidence before me. No evidence was forthcoming of his current financial situation.
Neither party was able to effectively cross-examine the other, as is often the case when people are self-represented. In order to ascertain disputed facts, I look to documentary evidence provided and whether it supports the party’s version of events.
The hearing was conducted during the pandemic, and the parties appeared through Microsoft Teams. Court staff assisted the father with use of the system on his device, so that he could both hear and see to participate in the proceedings.
The obligation on parties is to provide full and frank disclosure and where there is clear evidence of non-disclosure, the Court should not be unduly cautious in making findings in favour of the innocent party.[1] I am satisfied that the husband has failed to make full and frank financial disclosure. Amongst other things, this is particularly pertinent to the property in Country F, and his engagement in share trading.
[1] Black & Kellner (1992) 106 FLR 154.
The wife has referred to a potential inheritance of the husband of a share in a property in Country F. There is no evidence about the inheritance property, and I do not propose including it as a financial resource of the husband. I otherwise accept the balance sheet set out by the wife. I note that it is supported by her evidence contained in her affidavits, and supporting documents.
Balance Sheet:
Ownership Description Value ASSETS
1 Respondent Residential property @ B Street, Suburb C, $1,200,000 2 Respondent Investment property @
D Street, Suburb E,
$950,000 3 Respondent Car 1(Motor Vehicle 1) $17,000 4 Respondent Car 2 (Motor Vehicle 2) $36,000 5 Applicant Commercial property in Country F $400,000 6 Applicant Share market Stocks NK Total $ 2,603,000
LIABILITIES
7 Respondent Residential home loan $741,000 8 Respondent Investment home loan
$640,000 9 Respondent Car loan (1 & 2) $40,000 10 Respondent Credit card $30,000 Total $ 1,451,000
SUPERANNUATION
Member Name of Fund Type of Interest Applicants value Respondents value 11 Respondent Super Fund H High Growth $190,000 12 Applicant N.K N.K 13 Total $ 190,000
NET TOTAL ASSETS (including Superannuation)
$ 1,342,000
The date of separation, and whether the parties resided separately under the one roof
The wife has asserted in these proceedings that the parties separated in 2011. The application for divorce is annexed to the wife’s affidavit of 30 October 2019. The wife asserted a date of separation of 27 November 2013 in the divorce application.
The mortgage applications made by the wife, for example on 15 December 2012[2] are consistent with her assertions in these proceedings with respect to separation. She solely applied for the mortgage. The loan application refers to her marital status as separated. The application refers only to her employment and income.
[2] Annexed to wife affidavit 15 October 2019.
She made a further mortgage application to ANZ on 21 August 2015 to purchase the investment property. Again, she was the sole applicant. The application lists her marital status as separated. Both mortgage applications pre-date the husband’s date of separation in 2016.
The wife says that the date of separation in her application for divorce is different to her current assertion because separation and divorce in her culture is a taboo. She did not tell friends or extended family until November 2013 that she was separated. She said that she did this in response to questioning about where her husband was, and why they were not out together or entertaining at home together.
The Loan Applications are compelling evidence that she was separated at the time of making applications in 2012 and 2015. There was no challenge to the wife over the difference between the date asserted by her in these proceedings, and on the divorce application. The husband maintained separation did not occur until he left the home in 2016. I accept the evidence of the wife that the parties separated in 2011. This view is bolstered by the wife’s efforts in court to deal with matters in a direct and straightforward manner.
Whether the property in Country F was transferred by the husband to the wife.
The husband asserts that whilst he was visiting Country F he was served with an application for an Country F divorce by a lawyer on the wife’s behalf. He suggests that as part of those proceedings the Country F property was transferred into the wife’s name. Elsewhere in his affidavit evidence he says the wife “seized my property in Country F”, and that the wife’s mother will be selling the property on the wife’s behalf. He provides nothing in support of this contention, and it is denied by the wife.
The wife’s evidence is that the property was purchased by the husband, and remains in his name. The husband had an income from leasing part of the property when the parties resided in Country F. He otherwise conducted a business from the property. The wife is unaware of what has occurred with respect to the rental income, as he has not provided any documentation relating to that. I accept the wife’s contentions in that regard.
Whether the husband made contributions to the purchases of property in Australia
The husband gives no evidence of any direct financial contribution by him to the acquisition of the two properties, nor to the mortgages. He asserts that he and the wife’s brother opened a joint bank account into which “all rents and money were deposited” and sent to Australia[3]. There is no evidence from him of what became of those funds, nor the amount.
[3] Husband’s affidavit sworn 8 December 2000.
The parties have one child who is now an adult. She is studying, and financially assisted by her mother with whom she lives. There is no evidence of financial support provided by the husband.
The husband asserts that he paid “all my income to her rather than the TAX office to keep her calm and happy”, and suggests that he has a debt to the Australian Taxation Office. There are no specifics of any debt provided. He says that he paid household expenses, including dental and other expenses for the parties’ child, prior to 2016. That is disputed by the wife. He refers to working as a taxi driver after arriving in Australia. He was a qualified health care professional in Country F.
The husband provides no current evidence of his income from any source, before or after separation. He says he is currently living in shared accommodation. He does not explain how he pays rent for that accommodation. He has previously referred to receiving Newstart allowance.
The wife tendered Bank J statements[4] for an account in the husband’s name for the period 30 June 2018 to 31 December 2018. The statements demonstrate share trading over that period. The total debits on the account are $103,799, and the total credits, $103,786.
[4] Annexed to wife’s affidavit of 25 March 2019.
The husband gives no evidence about share trading. One financial statement refers to shares to the value of $500. He did not provide his bank statements by way of disclosure. He was directed to provide details of his accounts by way of orders made 12 July 2019. He did not do so. As a result of his non-disclosure it is impossible to assess his current income, or more generally his financial situation.
The wife purchased a residential property in B Street, Suburb C in 2012, and an investment property in D Street, Suburb E in 2015. The purchases of the properties were funded by mortgages from ANZ bank of $628,008 and $636,171.46 respectively. The wife has met weekly mortgage repayments, which are directly debited from her bank account. The mortgages are currently standing at $741,000 on the B Street, Suburb C property, and $640,000 on the D Street, Suburb E property following her re-financing the properties in 2017.
The wife has provided detailed evidence of her obtaining mortgages to purchase the two properties, and meeting repayments. Her own evidence is supported by documents she relies on from ANZ Bank. She has been employed since arriving in Australia. She utilised her income to meet the mortgage payments, and supported herself and the parties’ daughter. I accept her evidence. It supports the proposition that following separation she purchased the properties utilising her financial resources, and has maintained the properties since.
The husband had the benefit of residing at B Street, Suburb C for 4 years post separation. There is no evidence he made any contributions to the benefit of the household over that period. The husband asserts that he arrived from Country F with savings of some $40,000. He provides no evidence in support of this, nor of how those funds were expended.
The husband has travelled to Country F on at least one occasion for his father’s funeral. There is no evidence of how he paid for that, nor how long he was there.
The husband has provided no evidence of any direct, or significant indirect, contributions to the properties in B Street, Suburb C and D Street, Suburb E. I find that the wife has solely contributed to the acquisition and maintenance of the two properties in Sydney.
The wife is the sole proprietor of the two properties, and is solely responsible for mortgage payments. She has met all costs for the properties since purchase. She has retained all income from the investment property since purchase. The purchases took place after separation, when the parties were living separated under the one roof.
The court is required to consider whether it would be just and equitable to make an order altering her interest in those properties[5]. In the circumstances of the wife having met all costs associated with the acquisition and maintenance of those properties post separation, I do not find that it would be just or equitable to alter her legal title to the properties.
[5] Stanford v Stanford (2012) HCA 52.
The parties do not own any property jointly. The husband has a commercial property in his sole name in Country F. The wife estimated the value of that property at $400,000. No valuation was provided. It is a commercial building that the husband operated a business from, with space leased to other commercial enterprises. I have no evidence about the purchase of that property, where funds came from, whether there was a loan, nor how any loan was paid. It is an agreed fact that part of the property was leased prior to their move to Australia. There is no evidence of use of rental income before the move to Australia, nor after. I accept that property remains in the husband’s sole name. That property shall remain the property of the husband.
In terms of percentage division the husband retains the whole of the only asset that existed prior to separation. The wife retains the properties acquired by her post separation. She commenced employment around the time of separation. She did not commence accumulating superannuation until around the time of separation. I am not satisfied that it would be just and equitable to make any order affecting the wife’s superannuation entitlement.
Future needs
The wife is in reasonable health. She is aged 45 years. She works as a Manager, and earns $4,383 per week. She has superannuation of $190,000.
The wife has been responsible for the financial support of the parties’ daughter, who is now an adult. She is engaged in tertiary education, and lives with the wife.
The husband is 59 years old. I do not know anything of his current financial situation. He has provided no evidence about income he derived, or still derives, from share trading. He has provided no evidence of use of rental income from the Country F property, nor anything else to do with that property. I accept that property is retained by him, and has previously provided an income.
I have little evidence of the husband’s state of health. He asserts that he has pain in his hips. He annexed to an affidavit a report from K Imaging to Dr L at M Hospital Rheumatology Department. I assume it is a report of a radiologist. The report refers to mild degenerative fraying of the anterosuperior labrum. It refers to “no cartilage wear elsewhere”. The report then refers to “there appears to be a small fat containing right indirect inguinal hernia”; no other issues are observed. I have no evidence of what that may mean for him in terms of diagnosis, or prognosis. There is no evidence on how those matters may impact on his capacity to work.
The husband claims he has depression and memory issues as a consequence of the stress the wife has put him under. There is no medical evidence placed before me in support of those contentions.
The husband’s lack of evidence has made it impossible to properly assess his future needs. I do not know what, if any, resources he may have at his disposal. I accept that he has a property in Country F, which was sufficient to provide him premises to run a business from, and to provide an income stream from leasing part of the building.
In the circumstances of this matter I do not regard the evidence as supporting an adjustment to the husband on the basis of his future needs.
The husband’s application is dismissed and I order the removal of the caveats on the B Street, Suburb C and D Street, Suburb E properties.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Boyle. Associate:
Dated: 29 October 2021
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