Bhullar v Minister for Immigration
[2013] FMCA 79
•15 February 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SAMPSON & BLOOM & ANOR | [2013] FMCAfam 79 |
| FAMILY LAW – Property settlement – marital relationship – alleged loans from husband’s father – alleged repayments of loans – dissipation of asset pool – domestic violence. |
| Family Law Act 1975, ss.75(2), 79(2), 79(4) |
| Hickey v Hickey (2003) 30 Fam LR 355; (2003) FLC 93-143; [2003] FamCA 395 In the marriage of Kennon (1997) 139 FLR 118; (1997) 22 Fam LR 1; [1997] FLC 92-757 Jones v Dunkel (1959) 101 CLR 298; (1959) 32 ALRJ 395; [1959] ALR 367 Stanford v Stanford (2012) 293 ALR 70; (2012) 47 Fam LR 481; [2012] HCA 52 |
| Applicant: | MS SAMPSON |
| First Respondent: | MR R BLOOM |
| Second Respondent: | MR BLOOM |
| File Number: | MLC 3131 of 2011 |
| Judgment of: | Riley FM |
| Hearing dates: | 11, 12, 13, 14 and 19 December 2012 |
| Date of Last Submission: | 19 December 2012 |
| Delivered at: | Melbourne |
| Delivered on: | 15 February 2013 |
REPRESENTATION
| Advocate for the Applicant: | Kimani Adil Boden |
| Solicitors for the Applicant: | Starnet Legal Pty Ltd |
| Counsel for the First Respondent: | Emmanuel T. Samios |
| Solicitors for the First Respondent: | Altona Legal |
| Counsel for the Second Respondent: | Emmanuel T. Samios |
| Solicitors for the Second Respondent: | Altona Legal |
DECLARATION
The husband and wife have no debt to the second respondent.
ORDERS
Within 21 days, the husband pay $9,000 to the wife on trust for their daughter, [X] born [in] 2010.
The wife be permitted to receive from her solicitor and retain for her own benefit the $75,832 held by her solicitor on trust for the husband and wife.
Within 21 days, the second respondent pay:
(a)$66,676.79 to the wife; and
(b)$31,105.21 to the husband.
The husband and wife each retain for his or her own benefit respectively:
(a)all superannuation standing in his or her name; and
(b)all chattels, choses in action and other property in his or her possession.
Each of the husband and wife be responsible for and indemnify the other in respect of any liability in his or her name.
IT IS NOTED that publication of this judgment under the pseudonym Sampson & Bloom & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 3131 of 2011
| MS SAMPSON |
Applicant
And
| MR R BLOOM |
First Respondent
And
| MR BLOOM |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This is an application for the alteration of interests in property following the cessation of a marital relationship. The applicant is the wife. The first respondent is the husband. The second respondent is the husband’s father.
The second respondent claims that he lent the husband and wife money, only some of which has been repaid. He seeks to recover the outstanding balance from the husband and wife. The wife disputes that the second respondent lent her and the husband any money at all. She says that the money that the husband paid to the second respondent, purportedly as the repayment of loans, had never been borrowed. She seeks that the second respondent repay to the husband and wife the money the husband “repaid” to the second respondent.
The husband and wife were married [in] 2006. The separated on 25 or 29 November 2010. There is one child of their relationship, a daughter, [X], who was born [in] 2010.
Apart from the alleged loans from the second respondent, the principal issue in the proceeding is the wife’s allegation that the husband was so violent and abusive towards her that it made her contributions during the marriage significantly more onerous. The husband denies that he was violent or abusive.
The legislation
Section 79 of the Family Law Act1975 (“the Act”) gives the court power to alter the interests of the parties to a marriage in the property of the parties to that marriage. Sub-section 79(2) of the Act provides that:
The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
Section 79(4) of the Act sets out the matters the court must take into account when considering what orders, if any, should be made for the alteration of the interests of the parties in property. Those matters are:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
The matters to be taken into account under s.75(2) of the Act are as follows:
(a)the age and state of health of each of the parties; and
(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and
(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and
(d)commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain; and
(e)the responsibilities of either party to support any other person; and
(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i)any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party; and
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and
(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and
(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor’s debt, so far as that effect is relevant; and
(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and
(l)the need to protect a party who wishes to continue that party’s role as a parent; and
(m)if either party is cohabiting with another person—the financial circumstances relating to the cohabitation; and
(n)the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii)vested bankruptcy property in relation to a bankrupt party; and
(naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:
(i)a party to the marriage; or
(ii)a person who is a party to a de facto relationship with a party to the marriage; or
(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or
(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and
(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and
(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and
(p)the terms of any financial agreement that is binding on the parties to the marriage; and
(q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.
The approach to applications under s.79
In Stanford v Stanford (2012) 293 ALR 70; (2012) 47 Fam LR 481; [2012] HCA 52, the High Court explained the proper approach to an application under s.79 as follows:
37.First, it is necessary to begin consideration of whether it is just and equitable to make a property settlement order by identifying, according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property. … The question posed by s 79(2) is thus whether, having regard to those existing interests, the court is satisfied that it is just and equitable to make a property settlement order.
38.Second, although s 79 confers a broad power on a court exercising jurisdiction under the Act to make a property settlement order, it is not a power that is to be exercised according to an unguided judicial discretion. In Wirth v Wirth, Dixon CJ observed that a power to make such order with respect to property and costs "as [the judge] thinks fit", in any question between husband and wife as to the title to or possession of property, is a power which "rests upon the law and not upon judicial discretion". …
39.Because the power to make a property settlement order is not to be exercised in an unprincipled fashion, whether it is "just and equitable" to make the order is not to be answered by assuming that the parties' rights to or interests in marital property are or should be different from those that then exist. All the more is that so when it is recognised that s 79 of the Act must be applied keeping in mind that "[c]ommunity of ownership arising from marriage has no place in the common law". Questions between husband and wife about the ownership of property that may be then, or may have been in the past, enjoyed in common are to be "decided according to the same scheme of legal titles and equitable principles as govern the rights of any two persons who are not spouses”. The question presented by s 79 is whether those rights and interests should be altered.
40.Third, whether making a property settlement order is "just and equitable" is not to be answered by beginning from the assumption that one or other party has the right to have the property of the parties divided between them or has the right to an interest in marital property which is fixed by reference to the various matters (including financial and other contributions) set out in s 79(4). The power to make a property settlement order must be exercised "in accordance with legal principles, including the principles which the Act itself lays down”. To conclude that making an order is "just and equitable" only because of and by reference to various matters in s 79(4), without a separate consideration of s 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act. (citations omitted)
In Hickey v Hickey (2003) 30 Fam LR 355; (2003) FLC 93-143; [2003] FamCA 395 at [39], the Full Court of the Family Court described the preferred four step approach in property matters as follows:
The case law reveals that there is a preferred approach to the determination of an application brought pursuant to the provisions of s.79. That approach involves four inter-related steps. First, the court should make findings as to the identity and value of the property, liabilities and financial resources of the parties at the date of the hearing. Second, the court should identify and assess the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c) and determine the contribution based entitlements of the parties expressed as a percentage of the net value of the property of the parties. Third, the court should identify and assess the relevant matters referred to in ss.79(4)(d), (e), (f) and (g), ("the other factors") including, because of s.79(4)(e), the matters referred to in s.75(2) 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 two. Fourth, the court should consider the effect of those findings and determination and resolve what order is just and equitable in all the circumstances of the case ….
In the light of the High Court’s decision in Stanford, it seems that the basic steps stated in Hickey v Hickey remain correct. That is, the court is required to:
a)identify the assets owned by the parties, jointly or separately, and the liabilities to which the parties are subject, jointly or separately;
b)take into account the contributions made by each party;
c)take into account the so called “future factors”; and then
d)determine what order, if any is just and equitable.
However, following Stanford, it is no longer appropriate to think of “contribution based entitlements” or the “adjustment” based on future factors. Rather, the court is required to take into account all the relevant matters and then determine what order, if any, is just and equitable.
STEP 1: The assets and liabilities
The parties agreed that their assets and liabilities at the time of trial included the following:
ASSETS
VALUE
Proceeds of sale of Property H
(held by the wife’s solicitor on trust for the husband and wife; $20,000 has already been distributed to each of the husband and the wife)
$75,832.00
Husband’s ING account
$461.00
Husband’s car
$6,000.00
SUPERANNUATION
Wife’s superannuation (R Super)
$11,598.00
Husband’s superannuation
$36,414.90
In addition, the wife alleged that:
a)the husband has used for himself about $9,000 in an account held on trust for [X];
b)the husband has retained the wife’s jewellery which was worth about $10,000 to $15,000; and
c)the husband paid his father $137,607.96 which ought to be repaid by the husband’s father to the husband and wife.
In addition, the husband alleged that:
a)the wife has jewellery worth about $25,000;
b)the wife has about $25,000 in undisclosed cash;
c)the wife has household chattels worth about $6,000;
d)the husband has household chattels worth about $600;
e)the wife sold additional household contents for $6,000 for which she has not accounted;
f)the wife has superannuation she has not disclosed;
g)the husband’s father provided loans to the husband alone and to the husband and wife jointly of about $170,000 of which $31,095 remains outstanding;
h)the husband had a Visa card debt of $1,470 at marriage and $0 at separation which has now grown to $12,157;
i)the husband had a Mastercard debt of $500 at marriage and $1,325 at separation which has now grown to $16,043; and
j)the husband had a loan immediately after separation of $10,000 which has now been reduced to $6,600.
Money held on trust for the daughter
The husband disclosed on the second day of the trial a bank statement for an account held by him on trust for [X] (exhibit 23). The account number was [0]. At separation, the account had about $2,000 in it. The husband conceded that he closed that account and used the money for himself. He said he needed it for living expenses after he was excluded from the former matrimonial home.
The husband was then asked about the account into which the family bonus was paid for [X]. The husband said that it was the same account. He was shown a statement for ANZ account number [9]. That account at about the time of separation had about $7,000 in it. When it was put to the husband that he had not disclosed that account, he said he had disclosed it to his lawyers. He agreed that he had not heard his barrister mention that account when the parties were asked to tell the court the outline of their cases.
The husband conceded that he had also closed the second account and used the $7,000 in it for his own purposes after separation. In total, the husband used for his own purposes about $9,000 that he held on trust for [X].
The facts that:
a)the husband failed to disclose the account containing the $2,000 until the second day of the trial;
b)he attempted to persuade the court that the family payment of $7,000 was paid into the account containing the $2,000; and
c)he used for his own purposes $9,000 that he held on trust for [X],
indicate that the husband is financially dishonest and his evidence is not reliable.
The wife did not seek any orders in relation to the $9,000. The respondents sought an order that $5,000 be placed on trust for [X]. The husband did not explain why only $5,000 should be placed on trust for [X] rather than the $9,000 that he has taken from her. This fact also goes to the husband’s honesty.
I consider that it is proper that the husband be required to provide $9,000 on trust for [X] within 21 days. As the husband has proved himself to be a dishonest trustee, he should give that sum to the wife on trust for [X]. There will be an order to that effect.
The husband’s bank debts
The husband’s counsel said at the commencement of the hearing that the husband’s Visa card was $6,800 in debit at the time of separation. However, after the matter was stood down twice for the disclosure of bank records, the husband conceded that his Visa card debt had been discharged in full at the time of separation. The debt has since grown to $12,157. The husband’s counsel said that it was his mistake that the court was told that the Visa card debt stood at $6,800 at the time of separation.
The wife submitted that these circumstances also went to the husband’s credibility. I accept that submission. Although the husband’s counsel said that it was his mistake that the court was erroneously told that the Visa card debt stood at $6,800 as at the date of separation, the husband was under an obligation to disclose his financial records long before the first day of the hearing. If he had done so, I dare say that his counsel would not have made the mistake that he did.
The amount that has accrued on the husband’s visa card since separation is his personal liability. It should not be included in the pool as a liability of the marriage.
The husband said he had a Mastercard debt of $500 at marriage, $1,325 at separation and $16,043 now. The amount of the debt that accrued during the marriage is $825. That amount should be included in the pool. The remainder should be excluded as it is not a debt of the marriage.
The husband also said that he had a bank loan of $10,000 just after separation but which has now been reduced to $6,600. That was not a debt of the marriage. It should also be excluded from the pool.
Household contents
The husband said in his affidavit affirmed on 12 March 2012 that the wife had kept all of the household contents except some of the husband’s clothes that he was able to recover with the assistance of the police. The husband said the household contents kept by the wife were worth about $6,000. He said:
I have not been able to obtain possession of any item.
At the commencement of the hearing, counsel for the husband conceded that, in fact, the husband had taken about $600 worth of chattels and the wife had retained the rest.
The wife said in cross examination that, on 18 January 2011, the household contents had been divided equally between the husband and the wife, with more than half of the furniture, cutlery and linen going to the husband. She said that most of the chattels she had received were in the garage at her brother’s house.
In re-examination, the wife produced:
a)a letter from her solicitor to the husband’s solicitor proposing that the husband send a friend to collect certain nominated items; and
b)a partly typed, partly handwritten, signed acknowledgement dated 18 January 2011 that certain items had been collected by a Mr G.
In her re-examination, the wife said that Mr G is the husband’s friend who collected the household contents on behalf of the husband. The wife estimated that the husband received chattels worth about $2,000 to $2,500 and she retained chattels worth about $2,000 to $2,500.
In cross examination, it was put to the husband that he had lied in his affidavit about the household items. He said his affidavit was not one hundred per cent correct. It was put to the husband that his affidavit on the point now in issue was totally false. The husband said that he had not received fifty per cent of the household items. When pressed about the affidavit being false, the husband said that the affidavit was wrong when it said he had not received “any item”.
The husband conceded that his barrister had purported to correct his affidavit by saying that the husband had received $600 worth of personal possessions. The husband himself, notwithstanding that event, said at the outset of his oral evidence that his affidavit was true and correct and he did not wish to change anything in it. The husband conceded that his barrister had not told the court about the list of household items collected by his friend.
When asked whether he disputed that his friend had collected the items on the list, the husband said he had not seen the list, which had been tendered the previous day. When shown the list, the husband confirmed that Mr G was his friend. When asked whether the listed items were collected by Mr G on 18 January 2011, the husband said:
I’ve never seen this item but I don’t recollect it, yes.
When asked what he meant by:
I’ve never seen this item
the husband said that he had never seen the letter before and Mr G had never mentioned it to him. However, he then went on to say:
These items were delivered. I can say that now.
The husband made a false accusation against the wife in his affidavit about the possession of household chattels. He made a minimal correction to that accusation through his counsel. When given the opportunity to completely correct his evidence, his answers were evasive. Only when the husband was shown documentary evidence that contradicted his accusation, and only after he was pressed and pressed again, did the husband concede that he had actually received the items in the list. On this point also, the husband has shown that he is financially dishonest and not a reliable witness.
The husband did not pursue his opening allegation that the wife had sold about $6,000 worth of chattels and failed to account for the proceeds. In any event, there was no evidence in support of that allegation. I do not accept it.
There was no expert evidence before the court about the value of the household chattels. As the wife’s credibility was not effectively undermined, and the husband’s was, I accept the wife’s evidence in relation to the household items. That is, I accept that the husband and wife have each received about half of their household items. In the absence of expert evidence, it is not possible for the court to attribute a value to the household items. In these circumstances, the household items will be excluded from the asset pool.
The wife’s superannuation
The wife said that she had $11,598 in superannuation with R Super. The husband claimed that all of that money came from her present employer, [G]. The husband claimed that the wife had superannuation from two previous employers that she had failed to disclose. The wife produced a statement of her superannuation with R Super. That statement contained two rollover amounts. The wife said that the rollovers were her superannuation from her previous employers.
The husband said that the wife admitted in cross examination that she had not sought superannuation statements from her two previous employers. The husband also said that the wife admitted in cross examination that, contrary to the orders of 31 May 2012, she had not provided three consecutive pay slips from her previous two employers. In fact, the orders required her to provide three consecutive payslips from her current employer, [G], and one previous employer, [D]. The wife conceded that she had not obtained pay slips from [D]. The husband implied that these failures were evidence of dishonesty.
The wife’s statement from R Super shows that her account was credited with a rollover of $1,300.78 on 17 November 2009 and another rollover of $2,803.54 on 14 January 2010. That is a total of $4,104.32 in rollovers. It was agreed that her total current superannuation with
R Super is about $11,600. So about one third of the wife’s total superannuation consists of rollovers.
The wife came to Australia in 2005. She undertook a [qualification omitted]. There was not a great deal of evidence about the wife’s employment. However, it seems that, after her marriage in August 2006, she worked part time and studied. Her bank statements for late 2006 to mid 2007 show that she was paid by [employer omitted]. She seems to have been paid in most weeks. Her pay varied between about $100 per week and about $500 per week, but probably averaged about $250 per week. The wife has worked for [G], and her employer has contributed on her behalf to R Super, since 2008. She had time off work when [X] was born [in] 2010.
In these circumstances, it seems to me to be entirely plausible that the rollovers to R Super were the amounts of superannuation that the wife had accrued with her previous employers. I see no proper basis for inferring that the wife has failed to disclose any amount of superannuation. There will be no addback for any undisclosed superannuation.
The alleged $25,000 savings not disclosed by the wife
The husband said in his affidavit affirmed on 12 March 2012 that the wife accumulated savings of $25,000 during the marriage. The husband said that the wife had refused to disclose bank statements relating to those savings. The wife disclosed a bank statement for her Commonwealth Bank account number [1] on 13 March 2012, about nine months before the final hearing. She denied having any other accounts, apart from those held jointly with the husband. Counsel for the husband acknowledged that the withdrawals from the wife’s account marked “Salary Adelaide” were payments from the wife to the parties’ mortgage with AFG. However, the husband said that the wife had other unexplained withdrawals from her account which totalled $27,500.
The wife said that, with the consent of the husband, during the marriage, she had repaid her brother perhaps $7,000 for her tuition fees. She said she also transferred some money to her husband at his request. She said that she was only able to transfer money to her husband and her brother. She said her brother had paid $30,000 for her wedding and associated costs. She said she transferred money to her husband perhaps once every two months.
The husband’s counsel only took the wife to two debits from her account. They were both marked “NETBANK TFR deposit”. One was on 18 September 2009 for $700 and the other was on 15 October 2009 for $600. The wife was not sure what these amounts were for. She thought she might have transferred those amounts to her brother or her husband but she was not sure.
Counsel for the husband conceded that the wife had made a few payments to the husband. However, he did not take the court to the particular payments that he conceded or state the dates or amounts of those payments.
I have looked through the wife’s entire account statement that was tendered to the court. As far as I can tell, the unidentified netbank transfer debits have the following dates, descriptions and amounts:
a)29 September 2008 Commbank $2,000
b)29 September 2008 Commbank $2,000
c)28 October 2008 Repayment $500
d)27 November 2008 Deposit $800
e)24 December 2008 Deposit $1,500
f)8 January 2009 Deposit $500
g)16 February 2009 Deposit $500
h)5 March 2009 Deposit $400
i)20 March 2008 Deposit $400
j)2 April 2008 $250
k)16 April 2008 D $300
l)5 May 2009 Deposit $300
m)18 May 2009 Deposit $300
n)28 May 2009 Deposit $400
o)15 June 2009 Deposit $400
p)25 June 2009 Deposit $600
q)24 August 2009 Deposit $1,500
r)31 August 2009 Deposit $800
s)4 September 2009 Deposit $400
t)18 September 2009 Deposit $700
u)15 October 2009 Deposit $600
v)29 October 2009 Deposit $400
w)1 December 2009 Deposit $500
x)10 December 2009 Deposit $300
y)11 January 2010 G $120
z)4 February 2010 Deposit $300
aa)25 March 2010 Withdrawl (sic) $700
bb)15 April 2010 pay $500
cc)27 May 2010 Pay back $1,500
TOTAL $19,470
These withdrawals were all netbank transfers. As I understand it, they must have gone to another account. The absence of an informative description of the transfers, and the absence of any explanation for the bulk of the transfers, raise a suspicion that the wife was indeed transferring money to a secret account for her own purposes.
However, the court does not make findings on the basis of suspicion. The court only makes findings in civil cases such as this when the court is satisfied of the relevant matters on the balance of probabilities. Having said that, where a party in a family law case has failed to disclose relevant aspects of his or her financial affairs, the court need not be reluctant to make adverse findings against that person. I do not consider that the wife’s non-disclosures in relation to her pay slips and old superannuation rise to a level which would warrant adverse findings being made against her.
Moreover, the wife was not taken to each of transfers and asked to explain them. If she had been shown the date and amount of each of the transfers, it may have jogged her memory, and she may have been able to provide a plausible explanation for the transfers. It would be a denial of procedural fairness to make findings against her in respect of each transaction when she was not given reasonable notice of what was alleged in relation to each transaction and a reasonable opportunity to explain each transaction.
Additionally, the husband had access to the wife’s bank statements for nine months before the final hearing. He could have sought a subpoena to the Commonwealth Bank for records showing details of each transaction, including where the money went. A party who has not availed himself of the appropriate court procedures for the ascertainment of facts should not ask the court to make damning findings of fraud based on mere suspicion and speculation.
In cross examination, the husband eventually agreed that the fees for the wife’s course totalled $24,000. It may be that the unexplained withdrawals from the wife’s account were for her course fees. If that is the case, it would have been helpful if her transactions descriptions had given some indication of that.
Be that as it may, I accept that the wife’s netbank transfers reasonably raise suspicions. However, I am not persuaded to the requisite standard that the wife has placed $25,000, or the $19,470 that I have referred to above, or any other amount, in a secret account for her own purposes. Neither the $25,000, or any part thereof, will be added back to the asset pool.
The jewellery
The parties agreed that the wife at one time had a quantity of jewellery. The wife said it was worth about $10,000 to $15,000. The husband said it was worth about $25,000. The wife said that the husband now has the jewellery and the husband said that the wife now has the jewellery.
The wife said that the husband had insisted that she leave the jewellery with him when she went to India on 23 August 2010. She said that they separated a few days after her return on 23 November 2010 and she had not seen the jewellery since before her trip. The husband said that the wife took the jewellery to India with her and probably left it there with relatives or, alternatively, sent it back to India with her mother on 21 August 2010.
Because each party said the other had the jewellery, there was no valuation evidence. The husband’s father tendered receipts that he said were for the jewellery he had given the wife. The prices were in Indian rupees. Counsel for the respondent said that the exchange rate was such that the jewellery given to the wife by the husband’s father was worth about $13,000. On the wife’s own evidence, her family had given her more jewellery. The husband argued that, consequently, the wife’s jewellery must have been worth at least $26,000.
However, that does not follow. The father’s husband may have paid more for the jewellery than it was actually worth. The wife’s family may have given her jewellery that was greater in quantity but not in value than the jewellery given to her by the husband’s father.
Additionally, the wife said that most of the jewellery referred to in the receipts was not given to her. She said one of the chains referred to in the receipts was given by the second respondent to [X] and one was given by the wife’s family to the husband. She accepted that the husband’s father bought some other items mentioned in the receipts but she said he gave most of the items to the husband’s sister and aunt.
The husband’s father said in cross examination that he had bought the jewellery from his next door neighbour in India. He said that he signed the receipt dated 12 June 2006 on 12 June 2006 in India. However, he said in his affidavit affirmed on 26 August 2011 that he was in Australia between 6 May 2006 and 8 August 2006. When asked to explain how he could have signed a receipt in India on 12 June 2006 when he was in Australia on that date, he said that he actually signed the receipt in August 2006 after he returned to India from Australia, even though he had paid for the jewellery in full before leaving India.
The husband’s father changed his oral evidence in the space of a few minutes about the date when he signed the receipt dated 12 June 2006. He initially said that he signed the receipt on 12 June 2006 in India. When it was pointed out that he could not have signed the receipt in India on 12 June 2006 because he was in Australia on that date, he said that he actually signed the receipt in August 2006.
I do not consider the evidence of the husband’s father in relation to the receipt dated 12 June 2006 and the jewellery generally to be at all reliable. The wife’s credibility was not effectively undermined. It is entirely plausible, as the wife suggested, that the husband’s father gave at least some of the jewellery mentioned in the receipts to the husband’s sister or aunt.
Consequently, on the balance of probabilities, I accept the wife’s evidence in relation to the jewellery. That is, I accept that the husband’s father did not give her most of the jewellery shown in the photographs or mentioned in the receipts. Rather, I consider that most of the jewellery shown in the photographs belonged to other people, as the wife claimed.
In any event, the wife conceded that she previously had jewellery worth between $10,000 and $15,000. In the absence of valuation evidence, it seems to me to be proper to accept the lower of those two values. Consequently, I accept that the wife’s jewellery is worth $10,000.
For reasons explained elsewhere in these reasons for judgment, I consider the husband to be an unreliable witness. Consequently, I prefer the wife’s evidence to the husband’s about the whereabouts of the jewellery. That is, I consider that the husband in currently in possession of the wife’s jewellery which is worth about $10,000. That figure should be included as an asset held by the husband.
The monies allegedly lent by the husband’s father
The husband’s father retired in 2005 but had previously been a [occupation omitted] in India. The wife conceded that the husband came from a wealthier family than she did.
The husband’s father said in his affidavit affirmed on 26 August 2011 that:
a)he lent money to the husband and wife to assist in the purchase, construction and improvement of their former matrimonial home in Property H;
b)he lent additional funds to the husband for the purchase and development of an investment property in Property P;
c)he lent various sums at various times depending on how much he had available;
d)sometimes he deposited money into the husband’s bank account from overseas and sometimes he was in Australia and deposited the money in cash into the husband’s account;
e)he lent the following amounts on the following dates:
i)30 May 2006 $10,348.62
ii)2 October 2006 $6,220.00
iii)24 October 2006 $7,742.40
iv)25 January 2007 $28,561.00
v)26 March 2007 $4,000.00
vi)12 June 2007 $8,600.00
vii)21 December 2007 $5,000.00
viii)26 August 2009 $4,000.00
ix)21 September 2009 $3,123.00
Total $77,595.02
The husband’s father said in his affidavit affirmed on 26 August 2011 that he exhibited his bank statement. However, the bank statement was not actually exhibited to the affidavit filed with the court or served on the wife. The husband’s father did not produce his bank statement until he was ordered to do so after four days of the hearing. In view of the matters going to the credibility of the husband and his father that are discussed elsewhere in these reasons, I do not consider this to have been an innocent mistake.
In his affidavit affirmed on 26 August 2011, the only documentary evidence that the husband’s father provided to substantiate his claim that he had lent the $77,595.02 to the husband and wife was the husband’s own bank statements. The husband’s bank statements showed deposits of the amounts the husband’s father claimed to have lent. However, the transaction descriptions did not provide any link to the husband’s father.
The husband’s father was in Australia, on his own evidence, on only one of the occasions when he said he lent money to the husband and wife. That occasion was 30 May 2006 when the husband’s father said he lent the husband and the wife $10,348.62. The wife in cross examination conceded that it was possible that this amount was paid by the husband’s father, but said that it was a wedding gift.
In cross examination, the husband’s father said that the $10,348.62 was deposited in his son’s ANZ Access account a few days before the wedding between the husband and the wife. He said that, at that time, the $10,348.62 was not a loan. He said it became a loan at later time. He denied that the $10,348.62 was a wedding gift.
In re-examination, the husband’s father said that he initially gave the $10,348 to his son and daughter-in-law. However, shortly afterwards, they asked for money to build a house. He said that he would not be able to give them money but he would lend them money. He said that everyone agreed. He said that the amounts asked for and the amounts provided were all recorded in a diary. He said that, later, a solicitor prepared a draft agreement.
The husband claimed that his diary, which recorded all the transactions between he and his father, was in the possession of the wife. She denied ever having had it. The wife consented to an order on 31 May 2012 requiring her to make the diary available for inspection if it was in her possession. She did not do so, saying that it was not in her possession. The husband said that she would not have consented to the order if she did not have the diary. That submission misinterprets the order. For reasons discussed elsewhere in these reasons, I do consider the husband and his father to be truthful witnesses. I do not accept that the wife ever had the diary.
The husband’s father said in his affidavit affirmed on 26 August 2011 that, in 2008, after the completion of the former matrimonial home, two loan agreements were prepared. They were both dated
22 December 2009. The first agreement concerned the $77,595.02 mentioned above and purported to be an agreement between the husband and wife and the husband’s father. It was signed by the husband and his father but not by the wife. It concerned funds that had allegedly been lent between 30 May 2006 and 21 September 2009, well before the date of the agreement.
The second agreement purported to be between the husband and his father. It was signed by both of them. It was said to be for monies advanced by the husband’s father for an investment property in 2008, well before the date of the agreement.
The husband’s father did not exhibit the loan agreements to his affidavit affirmed on 26 August 2011. However, he did exhibit them to his affidavit affirmed on 10 December 2012, being one day before the commencement of the hearing. Although the loan agreements were only produced one day before the hearing commenced, and the wife did not have an opportunity to respond on affidavit, the loan agreements were not put to the wife in cross examination.
The wife denied in her affidavit affirmed on 4 June 2012 that she and the husband had ever owed any money to the husband’s father. She said that any monies paid by the husband to his father were interim distributions of property and should be returned to the property pool. She said that the husband’s father did put some money into the husband’s bank accounts, but it was a gift, or for the husband’s father’s own purposes, such as to pay money to his daughter who was living in Australia, or to pay for the husband’s father’s own visa application.
Apart from the $10,348.62, the deposits comprising the $77,595.02 were all, on the husband’s father’s evidence, made while he was overseas. In his affidavit affirmed on 26 August 2011, the only documentary evidence provided by the husband’s father to substantiate the alleged loan of the $77,595.02 was the husband’s own bank statements. Those statements showed deposits in the relevant amounts, but did not contain anything to suggest that the funds originated with the husband’s father.
The $6,220 was deposited in the husband’s Commonwealth Bank account number [6] on 2 October 2006. The transaction details in the husband’s bank statement for that deposit is “Mr R Bloom”. That is the husband’s own name. There was nothing in the affidavit affirmed by the husband’s father on 26 August 2011 to tie that deposit to the husband’s father. However, on the first day of the hearing, the matter was stood down to allow the parties to exchange and inspect documents. Amongst those documents, I understand, was a bundle of documents that was put to the wife in cross examination on the second day of the hearing. They were marked “MFI-2” and were tendered by the husband’s father as exhibit 41 on the last day of the hearing.
The originals of some of the documents in that bundle, being the Karnataka Bank documents, were tendered by the husband on the second day of the trial (exhibit 17). Amongst the Karnataka Bank documents was a foreign bills transaction advice dated 29 September 2006 for $6,230 from the Karnataka Bank Ltd in [L] India. It states the foreign party’s name as “Mr R Bloom”, and it is addressed to “Mr R Bloom”. That is the husband. The husband’s father’s name is Mr B Bloom. The foreign bills transaction advice does not mention the name of the husband’s father.
The wife in cross examination conceded that it was possible that the $6,230 came from the husband’s father (transcript page 108). However, that does not mean that the court should accept, on the balance of probabilities, that the $6,230 did come from the husband’s father. For a start, the wife was not given an adequate opportunity to inspect the Karnataka Bank documents or other documents tendered in the proceeding.
The so called disclosure by the husband consisted of showing large numbers of financial records and bank statements to the wife and her solicitor while the matter was stood down during the hearing. Photocopies were not provided. It was not possible for the wife’s solicitor to carefully analyse and compare the various documents or think about what they signified. It was disclosure in name only.
As the matter stands, there is no documentary evidence to tie the foreign exchange in question to the husband’s father. On the contrary, it appears that the husband has transferred money from his own account in India to his Commonwealth Bank account in Australia on
2 October 2006.
Moreover, the husband withdrew $6,200 from his ANZ Access account about one week earlier, on 25 September 2006. The account statement does not indicate what the husband did with those funds. It seems quite possible that he withdrew funds from his ANZ Access account in Australia, sent them to India and then sent them to his Commonwealth account in Australia.
The documents tendered to the court include only two pages of bank statements for the husband’s Commonwealth Bank account. It is unclear whether the balance of the statements were not disclosed, or simply not tendered.
The deposit into the husband’s Commonwealth Bank account on
24 October 2006 of $7,742.40 has the transaction description in the husband’s bank statement of “[omitted]”. There was no evidence about what those numbers mean. The wife conceded in cross examination that it was an international transfer. The husband, who gave oral evidence after the wife, produced in his re-examination exhibit 37. That document is an advice to the husband from the Commonwealth Bank of a direct deposit into his Commonwealth Bank account of $7,742.40 on 24 October 2006. The document indicates that the money was sent in US dollars and that the sender of the money was:
MR S
[address omitted]
That appears to be a US address. The husband said in re-examination that Mr S is his father’s cousin in the UK. He said that his father had asked his cousin to transfer the money to the husband. However, the husband’s father never said that himself. He made no mention of payments via a cousin in his affidavit of 26 August 2011 or in his oral evidence. Also, the advice from the Commonwealth Bank indicates that the sender was in Kent, Washington State, in the United States of America, not Kent in the United Kingdom. The husband appears to have no idea who Mr S actually is. In any event, there is no documentary evidence to tie that deposit to the husband’s father.
In the husband’s bank statement for his ANZ Access account, the deposit on 25 January 2007 of $28,561.00 has the description “Domestic Telegraphic Transfer Received [number omitted]”. There was no explanation of why or how the husband’s father, while he was in India, would or could send the husband money by domestic telegraphic transfer rather than international telegraphic transfer. However, the word “Domestic” may have been a misdescription by the bank.
In any event, included in the bundle of Karnataka Bank documents is another foreign bills transaction advice. It is dated 24 January 2007 and is for $28,571.00. It is from the Karnataka Bank Ltd in [L] India. It states the foreign party’s name as “Mr R Bloom”, and it is addressed to “Mr R Bloom”. That seems to be the husband. The husband’s father’s name is Mr B Bloom. There is no documentary evidence to tie the deposit in question to the husband’s father. On the contrary, it appears that the husband has transferred money from his own account in India to himself in Australia. The wife said that she knew nothing about this transaction.
In the husband’s bank statement for his ANZ Access account, the deposit on 26 March 2007 of $4,000.00 had the transaction description “Card entry at [S] Branch”. The wife in cross examination said that she knew nothing about this transaction or those discussed below.
In cross examination, the husband’s father agreed that the deposit of $4,000 on 26 March 2007 was made in cash at a time when he was not in Australia. The husband’s father said that he had sent the $4,000 to an unidentified old friend who had deposited it in the husband’s account. The “old friend” has not sworn an affidavit in this proceeding. No explanation was provided to the court for that absence. There was no explanation for the husband’s father sending money to a friend to deposit in the husband’s account, rather than sending that money to the son’s account directly, as the husband’s father claimed to do on a number of occasions. The claim about the “old friend” was contrary to the husband’s father’s affidavit sworn on 26 August 2011 in which the husband’s father said that he deposited the sums himself by cash if he was in Australia or sent them “directly” to his son’s account if he was overseas. There is no documentary evidence to tie the deposit of $4,000 on 26 March 2007 to the husband’s father.
In the husband’s Commonwealth Bank statement, the deposit on
12 June 2007 of $8,600.00 had the transaction description “Mr R Bloom”. Included in the bundle of Karnataka Bank documents is another foreign bills transaction advice. It is dated 8 June 2007 and is for $8,610.00. It is from the Karnataka Bank Ltd in [L] India. It states the foreign party’s name as “Mr R Bloom”, and it is addressed to
“Mr R Bloom”. The husband’s father’s name is Mr B Bloom. There is no documentary evidence to tie the deposit in question to the husband’s father. On the contrary, it appears that the husband has transferred money from his own account in India to himself in Australia.
In the husband’s bank statement for his ANZ Access account, the deposit on 21 December 2007 of $5,000.00 had the transaction description “Card entry at [H] Branch”. In cross examination, the husband’s father agreed that the deposit was made in cash when he was not in Australia. The husband’s father said that he had given the $5,000.00 to the husband while the husband was in India, and the husband had deposited it in cash when he returned to Australia. There is no documentary evidence to tie that deposit to the husband’s father. There was also no evidence about whether the cash was in Australian dollars or Indian rupees. If the former, it would be a surprising amount of Australian dollars to access in India. If the latter, no bank record of a foreign exchange transaction was provided to the court.
In the husband’s bank statement for his ANZ Access account, the deposit on 26 August 2009 of $4,000.00 had the transaction description “Transfer from [number omitted]”. In cross examination, the husband’s father said that this was a cash deposit made while he was in India from his term deposit in Australia. There was no documentary evidence that the husband’s father ever had a term deposit in Australia. There was no documentary evidence of any instruction by the husband’s father to his bank in Australia to transfer the $4,000.00 to the husband’s account.
The husband’s father gave evidence that he opened an account with the ANZ in Australia in 2008. In his affidavit affirmed on 26 August 2011, the husband’s father said that he exhibited to his affidavit a copy of the statement for that account. However, as discussed above, the exhibit consisting of the bank statement was missing from the affidavit filed in the court and the copy served on the wife. Pursuant to a request from the wife during his cross examination, and an order of the court made on 14 December 2012, the husband’s father provided a copy of the missing bank statement in an affidavit filed and served on
16 December 2012. There is nothing in that bank statement that suggests that the husband’s father had a term deposit. All in all, there is no documentary evidence to tie the deposit of $4,000.00 on 26 August 2009 to the husband’s father.
In the husband’s bank statement for his ANZ Access account, the deposit on 21 September 2009 of $3,123.00 has the transaction description, “Deposit”. The husband’s father was not in Australia at the time of this deposit. On his own evidence, the deposit must have been made from India directly into the husband’s account by electronic transfer. There was no evidence of any such transfer. There is nothing in the bank statement of the husband’s father to indicate that the money came from his Australian bank account. There is no documentary evidence to tie this deposit to the husband’s father.
As well as the $77,595.02 discussed above, the husband’s father claimed in his affidavit affirmed on 26 August 2011 that he lent the husband $91,107.96 for his investment property in Property P in the following instalments:
a)$30,500.00 on 8 July 2008;
b)$49,545.61 on 24 November 2008; and
c)$11,062.35 on 23 October 2008.
The documentary evidence provided in the husband’s father’s affidavit affirmed on 26 August 2011 for the payment of $30,500 was a receipt from a real estate company for that sum dated 8 July 2008 made out to Mr R Bloom. There is no documentary evidence tying the payment of $30,500 to the husband’s father. His bank statement for his Australian bank account at that time gives no indication that the husband’s father had that amount of money to lend. There is no foreign exchange or other record relating to a sum of $30,500.
On the other hand, the husband’s own bank statement for his ANZ Access account number [3] shows a withdrawal of $35,510.00 on 8 July 2008. The husband agreed in cross examination (Transcript page 222) that he used part of the $35,510 to fund the deposit of $30,500 on the investment property. The credits that led to the $35,510 being available to withdraw accrued over a couple of weeks. None of them contain any indication that they came from the husband’s father.
The credits were:
a)$19,000 on 27 June 2008;
b)$10,000 on 3 July 2008; and
c)$8,010.62 on 7 July 2008.
The transaction description for the $19,000 transfer into the husband’s ANZ Access account number [3] says “from Mr R Bloom.” That is, the transaction description indicates that the $19,000 deposit came from the husband’s own account. Statement number 19 for the husband’s and wife’s home loan with AFG for the matrimonial home (account number [omitted]) shows a withdrawal of $19,000 on 27 June 2008. Based on this information, I conclude that the husband transferred $19,000 from the AFG mortgage account to his own ANZ Access account.
It needs to be said that the husband purported to provide copies of the AFG bank statements. However, he failed to provide a copy of statement 19, which contains the critical entry for the withdrawal of $19,000 on 27 June 2008. When statement number 19 was provided to him in the witness box, the husband attempted to slip it into the bundle of AFG statements that had already been made an exhibit. This constituted tampering with evidence. However, I accept that the husband probably did not understand the significance of his actions.
I have been unable to identify any exhibits that relate to the $10,000 deposited in the husband’s ANZ Access account on 3 July 2008.
Regarding the $8,010.62 deposited in the husband’s ANZ Access account on 7 July 2008, the husband put to the wife in cross examination an ANZ Record of Investment dated 19 May 2008. That document shows that the husband’s mother, Mrs B, had a term deposit with the ANZ of $8,000.00. It was deposited on 19 May 2008 and was due to mature on 19 December 2008. It has a hand written note on it saying “7/7/08”. The wife conceded in cross examination that the documents appeared to show that the $8,010.62 deposited in the husband’s ANZ account on 7 July 2008 had come from the husband’s mother.
That concession is supported by the fact that the husband’s ANZ Access account shows that the $8010.62 deposit came from account number [omitted], being the husband’s mother’s term deposit. I accept that the $8,010.62 deposited in the husband’s ANZ Access account on 7 July 2008 came from his mother’s term deposit.
However, the husband appears to have sometimes moved money between his own accounts and the accounts of other members of his family. In addition to the examples mentioned elsewhere, the husband said that he had used $2,000 in a trust account for [X] for his personal expenses. He may well have done that, but beforehand, he transferred the $2,000.00 to his father’s ANZ account.
The documentary evidence provided in the husband’s father’s affidavit affirmed on 26 August 2011 for the payment of $49,545.61 was a statement of the moneys to be provided by the husband for the settlement of the purchase of his investment property. It says that he is required to pay $49,395.61. There is no documentary evidence to tie the payment of this amount to the husband’s father.
The documentary evidence provided in the husband’s father’s affidavit affirmed on 26 August 2011 for the payment of $11,062.35 on
6 October 2008 was a tax invoice for that amount addressed to Mr R Bloom. As mentioned previously, the husband’s name is Mr R Bloom. His father’s name is Mr B Bloom. There is no documentary evidence tying the payment of $11,062.35 to the husband’s father.
On the other hand, there is a withdrawal of $11,072.35 from the husband’s ANZ Access account on 23 October 2008. The tax invoice has a hand written notation saying that it was paid by cheque on
23 October 2008.
There is no evidence that the $11,072.35 withdrawn from the husband’s ANZ Access account on 23 October 2008 was originally derived from the husband’s father. The immediately preceding deposit to the husband’s ANZ Access account (apart from salary) was $29,075.00 on 2 October 2008. The husband’s father did not claim to have lent that sum to the husband. Indeed, it is obvious from the documents that the husband transferred approximately that sum to himself from his own account in India. The first document in the bundle of Karnataka Bank documents (exhibit 17) is a record of a telegraphic transfer from the husband’s account in India with the Karnataka Bank to his ANZ account in Australia for the amount of Rs11,00,000. The husband’s counsel conceded that the exchange for Rs11,00,000 at the time was $29,075.00.
The husband’s father said in his affidavit affirmed on 26 August 2011 that all but $31,095.02 of the money he had lent to the husband and wife and all of the money he had lent to the husband alone had been repaid. As mentioned previously, the wife said that any monies paid by the husband to his father were interim property distributions that should be returned to the asset pool.
The husband’s father said that the husband repaid him the total of $91,107.96 in two instalments after the sale of the investment property, being $5,000 on 31 May 2010 and $86,107.96 on 2 June 2010. The husband’s father’s statement for his Australian bank account shows those amounts being credited on those days.
It will be recalled that the husband’s father said in his affidavit affirmed on 26 August 2011 that the bank statement was exhibited to that affidavit. However, it was not. The bank statement was not provided until 16 December 2012, pursuant to an order of the court. The bank statement shows, and the husband’s father confirmed in cross examination that his bank statement shows, that he:
a)withdrew $5,000.00 in cash on 18 June 2010;
b)withdrew two lots of $5,000.00 in cash on 5 July 2010;
c)withdrew $10,000 and $25,000 in cash on 12 July 2010; and
d)transferred $40,000 back to the husband on 12 July 2010.
The husband’s father transferred the $40,000.00 to the husband’s ANZ Online account number [7] on 12 July 2010. No bank statements for that account were tendered to the court. However, the statements for the husband’s ANZ Access account number [3] show that the husband transferred $37,500 on 27 July 2010 from his ANZ Online account number [7] to his ANZ Access account number [3] and then withdrew $37,520 from the ANZ Access account on 2 August 2010. There is no documentary evidence of where that money eventually went.
The husband’s father was asked in re-examination about the transfer back to the husband of the $40,000. His response was unintelligible. There was no evidence about what the husband’s father did with his cash withdrawals totalling $50,000 which he made between 18 June 2010 and 12 July 2010.
In relation to the alleged loan of $77,595.02, the husband’s father said that the husband repaid him $46,500 in two instalments, being $19,000 on 27 June 2008 (being surplus funds not required for the former matrimonial home) and $27,500 on 27 July 2010 (after the sale of the investment property).
The husband’s father’s bank statement, which was provided to the court on the last day of the hearing, does not show a deposit of $19,000 on 27 June 2008, even though the bank statement started on 19 May 2008. On the other hand, the husband’s ANZ Access bank statement number 26 does show a deposit on 27 June 2008 of $19,000. The transaction description is “Mr R Bloom”. That is the husband’s own name. The husband conceded in cross examination that he had transferred the $19,000 from his AFG mortgage offset account into his ANZ Access account.
That concession was only made after the husband was shown statement number 19 for his AFG mortgage account. The husband had failed to disclose statement number 19, with the critical deposit in it, when he provided the balance of his AFG statements.
The husband’s father’s bank statement, which was provided to the court on the last day of the hearing, does not show a deposit of $27,500 on 27 July 2010. In relation to this matter, the husband initially said in his affidavit affirmed on 23 May 2011 that he had repaid his father $37,600 from the proceeds of sale of his Property P investment property. However, in his affidavit affirmed on 12 March 2012, the husband said instead that he had repaid his father $27,500 from the proceeds of sale. The husband did not say in the second affidavit that he was correcting his earlier affidavit. He simply gave two different figures in the two affidavits.
In his affidavit affirmed on 12 March 2012, the husband referred to and relied on his father’s affidavit sworn on 26 August 2011. The husband agreed in cross examination that he had made some calculations on a hand written document that indicated that, after a bank loan and other amounts, he had a shortfall of about $15,000 for the purchase and construction of the former matrimonial home. When asked why he would have borrowed $77,000 from his father when all he needed was $15,000, he said that it was just an initial estimate.
In cross examination, the husband agreed that he had accounts with the ANZ, the Commonwealth Bank, ING and a mortgage offset account with AFG. The full statements for the Commonwealth Bank account and the ING account were not tendered to the court.
When he was asked about a deposit of $36,000 into his ANZ Access account on 1 May 2009, the husband said he was not sure what it was for or where it had come from. He thought it would either have come from his parents or he would have transferred it from one of his other accounts.
Having examined the husband’s father’s ANZ Bank account that was exhibited to his affidavit filed on 16 December 2012, it seems that the husband’s father withdrew $36,000 from his account on 1 May 2009. That tends to suggest that it was the husband’s father who deposited the $36,000.00 in the husband’s ANZ Access account on 1 May 2009. However, the sum of $30,197.84 was deposited in the husband’s father’s account on 20 April 2009 from account number [omitted]. The court was not told anything about that account. Given the inadequacies relating to disclosures by the husband, and given that he clearly transferred money between his own accounts, it is by no means apparent that the $36,000.00 deposited in the husband’s ANZ Access account on 1 May 2009 originated with his father.
The husband was also asked about a withdrawal of $41,368.20 from his ANZ Access account on 17 August 2009. He said that the $41,368.20 was his father’s money, that had been placed in the husband’s account. He said that the withdrawal was at his father’s instruction and the money was provided to the husband’s sister for her to purchase a property. The husband said that his father put money in the husband’s account because it was a high interest saving account. (At this time, the husband’s father had his own ANZ account in Australia.)
The husband in summary said that he moved money around between his different accounts because he and his father were taking advantage of the husband’s high interest saver account, which I understand to be the ING account. The husband said, in effect, that some of the money in his accounts was his, some was money his father had lent him and some was money his father had or would lend his sister. The various transactions that the court was taken to in the husband’s bank statements do not have transaction descriptions that distinguish between the husband’s money and his father’s money.
The husband’s father said in cross examination that he had provided $40,000 or thereabouts to his daughter to purchase a property in August 2009. He said that it was a loan. He said he had a written loan agreement with his daughter. He was unable to produce the loan agreement.
The husband’s father was asked why he had not sent the money directly to his daughter’s account, rather than sending it to the husband’s account. He said that she was not in Melbourne. Apparently, she lives in Sydney with her husband. The husband’s father did not explain to the court why the fact that his daughter lives in Sydney rather than Melbourne would have any impact on how money could be sent to her from overseas.
The respondents’ counsel submitted that the timing of the deposits to the husband’s accounts between 2 October 2007 and 21 December 2008 was consistent with the time of purchase and construction of the Property H property. However, for the reasons given, mere consistency in timing is not sufficient to overcome the numerous deficiencies in the evidence that has been provided.
The husband’s father said in his affidavit affirmed on 26 August 2011 that, after the wife declined to sign the loan agreement, he instructed his solicitors to lodge a caveat. He said that occurred before the parties separated. It was submitted that that timeline bolstered the argument that the husband’s father did in fact advance money by way of loan to the husband and wife.
However, the caveat was not provided to the court. It is not clear when the caveat was lodged. The parties finally separated in November 2010. The loan agreements are dated December 2009. Consequently, on the husband’s father’s evidence, the caveat must have been lodged in or after December 2009. However, exhibit 24 is a letter from the husband’s solicitor to the wife in which it is asserted, on the husband’s instructions, that the husband and wife had not lived together as husband and wife since November 2009. As a result, the timing of the caveat does not bolster the claim that the husband’s father advanced loans to the husband and wife.
Taking into account all of the evidence in the case, and taking into account the demeanour of the witnesses when giving evidence, I am not persuaded that the husband’s father lent any money at all to the husband alone or the husband and wife jointly.
I find that the purported loan agreements are a fabrication. The alleged loan agreements were only produced on the day before the trial commenced. If they had been genuine, it is reasonable to expect that they would have been produced in the affidavit affirmed by the husband’s father on 26 August 2011.
The wife did not sign the alleged loan agreement for the loan to which she was alleged to be a party. The alleged loan agreements were created after the monies were allegedly advanced. The husband’s father attempted to explain this by saying that it was not known how much would ultimately be lent. However, that is implausible. For obvious reasons, it is customary to prepare and sign loan agreements before the funds are advanced.
The husband’s father said that he had borrowed money from a friend but they did not feel it necessary to have a written loan agreement, because the transaction was between friends. However, in the case of family, the husband’s father suggested that a written loan agreement was necessary. I find this evidence implausible.
There are no bank or other records that actually demonstrate any of the alleged loan amounts originating with the husband’s father. While some of the amounts were alleged to have been paid in cash, the husband’s father’s source of income was said to be a government pension. All of the husband’s father’s earnings from the government could have been expected to have been in bank accounts at some point, so there ought to have been bank records showing the relevant withdrawals at around the relevant times. No such records were provided to the court. Alternatively, it is theoretically possible that the husband’s father acquired large amounts of cash through corrupt activities. However, there was no evidence to that effect, so I disregard that possibility.
The husband’s father contradicted his own affidavit evidence that he had deposited money directly in the husband’s account from overseas by saying orally that he sent money to an old friend who deposited it in cash in the husband’s account and by saying he had given money in cash to the husband in India and the husband had later deposited it in his own account. He also claimed to have transferred money from his term deposit but did not provide any documentary evidence about that term deposit. Nor did the husband or his father call evidence from the so called “old friend”. I draw a Jones v Dunkel inference against the respondents. This husband’s father made no mention of the supposed cousin, Mr S, mentioned by the husband.
The documentary evidence that exists about the relevant transfers in some cases seems to indicate that the husband transferred money from his own accounts in India and Australia to himself in Australia. The husband acknowledged money being moved from one of his accounts to another. He also acknowledged, consistently with the wife’s case, that some of the money in the husband’s accounts was actually his father’s money that was intended for the husband’s sister.
I do not accept that the husband kept a diary in which he recorded the loan amounts and dates. The wife’s evidence on this, as in other matters, was not effectively undermined. I consider that the husband has made up his claims about a diary.
The husband did not make disclosure of numerous highly relevant documents until the hearing commenced. This meant that valuable hearing time was wasted, and the wife was not given an adequate opportunity to inspect and consider the documents. Disclosure in this manner goes to the husband’s credibility.
I also take into account in assessing the truth of the claims about the loans that the husband has demonstrably been financially dishonest in relation to other matters that have been addressed elsewhere in these reasons.
I have not conducted a complete audit of all of the financial documents that have been provided to the court. It is not my role to do so. It would have been impossible for me to conduct a complete audit in any event because the complete bank statements for the husband’s Commonwealth Bank account and ING account were not provided to the court. I am not sure whether the husband disclosed those statements to the wife. If he did provided disclosure of those statements, it was late. If the husband had provided disclosure in a timely manner, the wife’s solicitors may have been able to check and cross check the various deposits and withdrawals from the various accounts and traced money back to its source. It may be that the husband provided disclosure so late to prevent such an investigation being undertaken.
Be that as it may, I am not satisfied on the balance of probabilities that the husband’s father provided any money by way of loan to the husband alone or the husband and wife jointly. The movement of funds in this case is so complicated, and the documentary evidence is so incomplete, that it is not possible to be satisfied, on the balance of probabilities, that any particular sum was lent by the husband’s father. I accept that there is clear evidence that $8,010.62 was deposited into the husband’s account from his mother’s term deposit. However, I have no confidence that the money in that term deposit was really the husband’s mother’s money, rather than his own.
The husband’s counsel essentially submitted that the amounts claimed to have been lent must have come from the husband’s father, because there was no where else they could have come from. I am unable to accept that argument, in circumstances where the husband and his father are demonstrably dishonest and the husband’s financial transactions are extraordinarily complicated, with large sums of money flowing into and out of accounts without any adequate explanation.[1]
[1]For example, the husband withdrew $8,000 from the AFG account on 4 February 2008 and deposited that sum into his ANZ Access account on the same date. He then made two withdrawals of $4,000 each on 6 February 2008. There appears to be no record of the whereabouts of the husband’s two withdrawals of $4,000 on 6 February 2008.
I suspect that any money that the husband’s father provided to the husband and wife was a gift to them. However, on the evidence as it stands, and in view of the husband and his father not being witnesses of truth, I am not able to determine the amount that might have been paid by way of gifts.
On the other hand, there are concessions from the husband and his father that the husband paid his father:
a)$19,000.00 on 27 June 2008; and
b)$27,500.00 on 27 July 2010;
and clear, documentary evidence and concessions that the husband paid his father:
c)$5,000.00 on 31 May 2010; and
d)$86,107.96 on 2 June 2010.
Those sums total $137,607.96. However, it is also clear from the bank statement of the husband’s father, and from his oral evidence, that he repaid $40,000 to the husband on 12 July 2010. As mentioned above, the explanation given by the husband’s father for the $40,000 repayment was unintelligible. The reason for the money going back and forth is unknown. However, I accept that it happened. Therefore, I consider that the $40,000 should be deducted from the $137,607.96, to leave $97,607.96.
The concession from the husband and his father that the husband paid his father $19,000 on 27 June 2008 is somewhat perplexing given that the $19,000 the husband withdrew from the AFG account on that date was paid on the same date into his ANZ Access account. I can only assume that the $19,000 that the husband claims to have paid his father on 27 June 2008 came from one of the husband’s accounts in respect of which the court was not given complete statements, such as the husband’s Commonwealth Bank account or his ING account.
The husband has paid his father the sum of $97,607.96. The husband and his father have offered no rational explanation for that, given that I do not accept that the husband’s father lent the husband any money. Consequently, I can only conclude that the husband has paid the $97,607.96 to his father to remove it from the asset pool. The sum of $97,607.96 will be added back to the pool.
The net asset pool
Taking into account all of the matters discussed above, the net asset pool is:
ASSETS
VALUE
Proceeds of sale of Property H (held by the wife’s solicitor on trust for the husband and wife; $20,000 has already been distributed to each of the husband and the wife)
$75,832.00
Husband’s ING account
$461.00
Husband’s car $6,000.00
$97,607.96 $97,607.96
Addback (husband)
$97,607.96
Jewellery (husband)
$10,000.00
TOTAL ASSETS
$189,900.96
LIABILITIES
Husband’s Mastercard
$825.00
TOTAL ASSETS LESS LIABILITIES
$189,075.96
SUPERANNUATION
Wife’s superannuation (R Super)
$11,598.00
Husband’s superannuation
$36,414.90
TOTAL SUPERANNUATION
$48,012.90
NET ASSETS PLUS SUPER
$237,088.86
Financial resources of the parties
There was no submission that the husband or wife had financial resources other than their assets and incomes which are discussed elsewhere in these reasons.
STEP 2: Contributions
Initial contributions
The husband claimed that he had about $10,000 in savings at the commencement of the relationship. This was supported by his bank statements. I accept that claim.
The wife claimed that her parents gave her a wedding gift of $15,000 in cash. The wife provided a photograph of her parents handing over an envelope at the wedding. There is no documentary evidence of how much was in the envelope. For example, the wife did not produce a bank statement showing a cash deposit at about that time, or a receipt for expenditure of about that amount at that time. Nevertheless, because I have not formed an adverse view of the wife’s credibility, I accept her oral evidence on this matter.
The wife said that the $10,348.62 referred to above was a gift from the husband’s father to the husband and wife. The husband and his father denied that, saying it was a loan. The husband’s father attempted to clarify the situation, saying that initially it was a gift, but it later became a loan. For the reasons given above, I do not accept that it was a loan. It seems to me to be proper to treat it as a gift, and as a contribution on the husband’s account.
Contributions during the marriage
The husband and wife both worked during the marriage, although the wife was also a student for a time and had some time off when [X] was born. The wife was [X]’s primary carer. The husband and wife also travelled during the marriage to India, and the husband travelled to Europe.
The husband claimed that his father gave the husband and wife loans which provided a springboard for the acquisition of property. However, for the reasons discussed above, I do not accept that the husband’s father provided loans to the husband and wife. The husband did not claim that his father gave any money to the husband and wife during the marriage as an outright gift. Consequently, except for the $10,348.62 mentioned above, I do not include any of the alleged loans as gifts.
The husband’s earnings were somewhat greater than the wife’s. He put money, time and effort into acquiring the investment property in Property P, which was eventually sold at a profit.
The main issue in relation to contributions was the wife’s claim that the husband was violent and abusive towards her during the marriage. To be relevant in a property application, the wife would need to show that the violence and abuse made her contributions significantly more arduous. The wife relied on the decision of the Full Family Court in In the Marriage of Kennon (1997) 139 FLR 118; (1997) 22 Fam LR 1; [1997] FLC 92-757. In that case, Fogarty and Lindenmayer JJ said at FLR 134 to 140:
Early cases in this Court appear to have rejected the relevance of domestic violence to a s 79 claim (except in cases where it was seen to have a direct financial consequence). However, in more recent times there has been a significant re-agitation of this issue both in decisions of this Court and in a number of learned articles: … .
…
It is only in more recent times that the pervasiveness and destructiveness of domestic violence have been at least partly acknowledged in Australia. Whilst there is no reason to suggest that domestic violence is more prevalent in society now than it was in previous generations, until recently both the law and society generally cast a veil of silence over it, preferring to proceed on the basis that either it did not exist or that it was inappropriate for society or the law to intervene in disputes within the "private" sphere of the home.
…
… The question raised in this case was whether and if so to what extent domestic violence was relevant in the exercise of the discretion under s 79 of the Family Law Act. If it is relevant, that should be clearly acknowledged. If it is not, then a dis-service is done by attempting to apply the section to circumstances which are not within its ambit. Change is then a matter for the legislature.
Other major considerations which need to be taken into account in any such discussion include whether the well-established earlier authorities should now be reconsidered, and whether domestic violence can be legitimately included within the scope of s 79 without at the same time reintroducing conduct generally as a component of that section. That latter prospect would, we think, be inconsistent with s 79 and its history.
When divorce legislation was first introduced into the United Kingdom and into the Australian colonies in the second half of the 19th Century, conduct was an integral part of its social and legal underpinnings. Not only were the grounds of divorce entirely fault-based (although with little recognition that domestic violence fell within them) but the right to obtain financial orders either by way of property settlement or maintenance was inextricably linked with the establishment of relevant conduct.
…
However, in the years leading up to the enactment of the Family Law Act there was increasing dissatisfaction with the essential connection between property settlement and conduct. It was increasingly considered to be artificial, unfair and out of step with social realities. In discussions leading up to that legislation great emphasis was placed upon the removal of fault (at least in the divorce context) and the requirement that principal relief and ancillary relief be heard at the same time. (emphasis added)
Section 79 replaced the previous s 86. It made no explicit reference to conduct one way or the other but it did include the rather enigmatic provision in s 75(2)(o) that the court take into account "any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account".
The early decisions of this Court were quick to adopt the view that "conduct" was no longer a relevant matter under s 79. In pre 1975 legislation, conduct as such was relevant to the determination of property proceedings and, to an extent, those orders were seen to represent social and judicial disapproval of that conduct. It seems to us that in the post-1975 cases the change was to exclude what were otherwise relevant factors under s.79 because they had their origin in conduct. That is, there may have been a failure to recognise that whilst conduct as such was not relevant to s 79, matters which were otherwise relevant within the s 79 exercise remained relevant notwithstanding that they were based in conduct. The correct position may be that such matters are relevant within s 79 not because they are based in conduct, rather despite that and because they are otherwise part of the legitimate s 79 exercise.
…
Put shortly, our view is that where there is a course of violent conduct by one party towards the other during the marriage which is demonstrated to have had a significant adverse impact upon that party's contributions to the marriage, or, put the other way, to have made his or her contributions significantly more arduous than they ought to have been, that is a fact which a trial judge is entitled to take into account in assessing the parties' respective contributions within s 79. We prefer this approach to the concept of "negative contributions" which is sometimes referred to in this discussion.
Baker J came to substantially the same conclusion at FLR 186:
The incidence of domestic violence in a marriage would generally be a relevant factor when the Court comes to assess contributions pursuant to the provisions of s 79 for the reason that the contributions made by a party who has suffered domestic violence at the hands of the other party may be all the more onerous because of that violence and therefore attract additional weight.
The wife gave extensive evidence in her affidavits about domestic violence that she suffered at the hands of the husband. He denied perpetrating domestic violence in his affidavit evidence but he did not challenge the wife’s evidence in cross examination. He said in closing submissions that the wife’s claims about domestic violence fell well short of the standard required to affect her contributions, and, as such, her claims about domestic violence were irrelevant.
In her affidavit affirmed on 16 March 2011, the wife said:
a)the husband said to the wife in late 2006 that her first husband committed suicide because she caused him stress (the wife said, and I accept, that he actually died of a brain haemorrhage);
b)the husband refused to pay for the wife’s school fees or her permanent residency;
c)he kept asking for her dowry;
d)in September or October 2007, the husband slapped the wife across the face and told her to get out of the house;
e)during arguments, the husband:
i)yelled at the wife saying, “you’re dumb”, “you’re a whore”, “you’re sleeping with your brothers”;
ii)threw items such as plates, bowls, and a table lamp; and
iii)punched holes in the walls in the kitchen, master bedroom, lounge and spare bedroom;
f)on one occasion, the husband tried to punch the wife, but when she ducked, he punched the refrigerator instead, causing damage to it;
g)the husband became violent when the wife confronted him about having an extramarital affair;
h)on 6 February 2009:
i)the husband dragged the wife by the hair into the alfresco area, slapped her across the face and pulled the straps off her dress so that it fell off;
ii)the husband tried to push the wife out of the house and tried to close the door on her foot;
iii)the wife locked herself in the master bedroom but the husband broke the lock by kicking it;
iv)the husband attempted to strangle the wife;
v)she screamed and the husband walked away;
vi)the police arrived, having apparently been called by neighbours;
vii)the wife was too scared to tell the police what had happened;
viii)the police repeatedly asked the wife about the marks on her neck, asked her what had really happened and asked if she needed help;
i)later, the police arranged for a counsellor to contact the husband to offer him a men’s behavioural change program;
j)in April 2009:
i)the wife was six weeks pregnant;
ii)she overheard the husband speaking on the telephone to a woman;
iii)she told him he should be ashamed of himself because he was about to be a father;
iv)he said that he was not the father, the wife’s father was the father;
v)the husband grabbed the wife by the wrists and pushed her onto the bed;
vi)he said he did not want the baby and the wife should terminate it; and
vii)the wife had a miscarriage;
k)in May 2010:
i)after an argument, the husband asked the wife to leave the house;
ii)he slapped the wife;
iii)the wife tried to telephone the police twice but hung up;
iv)the police telephoned the wife but she said that she had called them by mistake;
v)the police attended;
vi)the wife told the police that everything was fine;
vii)they asked her why she had packed her bags;
viii)she said the husband had asked her to move out; and
ix)the police took the wife to her brother’s house;
l)the wife stayed at her brother’s house for three weeks until the husband asked her to come home;
m)in April 2010, when the wife was nine months pregnant:
i)the husband said he was going to hit the wife with the pan he was holding;
ii)he raised the pan;
iii)the wife became frightened and fell; and
iv)she hit a chair, which has left a scar on her face, and became unconscious;
n)on 29 November 2010:
i)the husband grabbed a painting from the wall and smashed it across the couch;
ii)he pushed the wife while she was holding their daughter; and
iii)both fell backwards and the wife wrists were hurt and the daughter sustained a small cut;
o)the wife attended counselling through the Royal Women’s Hospital for pre-natal depression from December 2009 to June 2010.
That evidence was not challenged by the husband in cross examination. However, he did set out in his affidavit affirmed on 25 May 2011 a detailed response to the wife’s allegations in which he denied any violence and offered different versions of events to those described by the wife. However, in cross examination, the husband, after initially being evasive, conceded that the police attended the house on 6 February 2009 after they were called by the neighbours. The husband also conceded that following that police attendance, he received a letter inviting him to attend an anger management program. He said he did not attend any such program. For the reasons discussed elsewhere in these reasons, I do not consider the husband to be a reliable witness, and the wife’s credibility has not been effectively undermined. Consequently, I accept the wife’s evidence in relation to her allegations of violence.
In addition, in relation to credibility, the husband was asked in cross examination if he had ever told anyone that [X]’s father was the wife’s brother. He said that was a ridiculous allegation. The husband was then reminded of the family report prepared in this matter by Mr A and dated 7 February 2012. At paragraph 34 of that report, Mr A said:
Mr Bloom has made a serious allegation against Ms Sampson – an allegation which he repeated and emphasised in his later interview - that at the time of the interviews she was living in an incestuous relationship with her brother, Mr S, and that in fact [X] is her brother’s child.
The husband said that he had not said that to Mr A, but the wife was telling people that he, the husband, had said that [X]’s father was the wife’s brother. The husband said that Mr A was wrong about what the husband had said.
Because the husband has proved himself to be dishonest and an unreliable witness, I do not accept his claim that Mr A was wrong about the father saying that the wife’s brother is [X]’s father. That is, I accept that the father did make that allegation to Mr A. It is consistent with the wife’s claim in her affidavit affirmed on 16 March 2011 that the husband accused her of sleeping with her brothers.
The wife also included in her affidavit material the reasons for judgment given by the Magistrates’ Court of Victoria on 24 July 2012 in competing applications by the husband and wife for intervention orders. The Magistrate was satisfied of the wife’s claims and rejected the husband’s. In doing so, among other things, the Magistrate said that the husband’s evidence was demonstrably false and given to pervert the course of justice. The Magistrate said that he was referring the husband to the Attorney-General.
I take into account the fact that an intervention order was made against the husband. However, in accordance with general principle, I am not able to and do not take into account the findings made by another court. I do not give any weight to the referral to the Attorney-General because the essence of the referral is that the matter is to be investigated.
In any event, it seems to me that the violence perpetrated by the husband against the wife during the course of the marriage was such as to make her contributions significantly more onerous. It seems to me that, in this marriage, the threat of physical violence and abuse was an ever-present reality. Under such conditions, anyone would find working and homemaking significantly more onerous.
Contributions post separation
The wife has had the primary care of [X]. The husband has paid for his time with [X] to be supervised. The wife remained in the former matrimonial home for about one year after separation. Neither the husband nor the wife paid the mortgage. The husband has accrued substantial debts. The wife and [X] now live with the wife’s brother, and pay rent to him.
STEP 3: the s.79(4)(d), (e), (f) and (g) and the s.75(2) factors
The wife is 33 years old and the husband is 35 years old. The husband did not raise any health issues. The wife claimed to have bursitis and spondylitis in her shoulders. She was not challenged about that and I accept it.
The wife earns wages of about $500 per week, receives parenting payments and Family Tax Benefit Parts A and B of about $400 per week and receives child support of $27.25 per week. The husband earns about $1,000 per week.
The husband has [omitted] qualifications in India but is now working in [omitted]. It was not suggested that his earning capacity is greater than the income he presently receives.
The wife has [omitted] qualifications but is now working in [omitted]. In closing submissions, the husband said that the wife had said in cross examination that she could not work even though she was presently working part time. In fact, she said that she is now working three days per week but it is hard for her because of her health and it would be difficult to work full time because of the additional child care costs and because of her health issues (transcript page 130 ff).
The wife did not adduce any medical evidence about her capacity to work. Given that [X] is only two years old, it does not strike me as unreasonable that the wife is working only three days per week. In the absence of medical evidence about the wife’s ability to work being compromised for health reasons, I do not accept that the wife’s health problems, if any, significantly restrict her ability to work. When [X] is older, the wife could be expected to work full time at much the same rate of pay as she presently receives.
The parties did not identify any financial resources or property other than that described elsewhere in these reasons.
The wife has the primary care of [X] who is only two years old. The husband and wife separated when [X] was about six months old. Immediately before separation, the mother and [X] spent about three months in India. Since separation, [X] has spent time with the husband under the supervision of an independent supervisor. That time has not been consistent, but when it did occur, it was only a couple of hours at a time. Final parenting orders have not yet been made. However, at this stage, it seems likely that the wife will have the predominant care of [X] well into the future.
It was not suggested that either the husband or the wife have any particular commitments that are necessary to enable them to maintain themselves or [X], or that either of them have a responsibility to support any other person.
The wife is in receipt of a parenting payment and Family Tax Benefit Parts A and B, which total about $400 per week. Otherwise, it appears that neither the husband nor the wife are in receipt of a pension, allowance or benefit.
A modest standard of living would be reasonable for both the husband and the wife in all the circumstances of this case.
It was not suggested that any property adjustment in this case would increase the earning capacity of the husband or the wife in any way.
The husband’s father has been found not to be a creditor of the husband and the wife. They have been found to be his creditors. The effect of the order sought by the wife for the husband’s father to repay the amount paid to him back to the husband and wife would have the effect of enabling the husband and wife to recover their debt.
The husband did not contribute significantly to the wife’s earning capacity, because he refused to contribute to the costs of her education. The wife did not contribute significantly to the husband’s earning capacity because he was already in his present type of employment when they married. Otherwise, both the husband and the wife have contributed to the income and property of the other by earning income, buying property, running a household and caring for [X].
The marriage in this case was of about four years duration. It did not significantly affect the income or earning capacity of either the husband or the wife.
It was not suggested that either the husband’s or the wife’s wish to continue his or her role as a parent was a significant factor in this case.
It was not suggested that either the husband or the wife is cohabiting with another person.
The terms of any property order are to be determined in these proceedings.
The husband pays the wife child support of $27.25 per week, although he is required to pay about $85 per week.
There are no facts or circumstances that the justice of the case requires to be taken into account, other than those mentioned elsewhere in these reasons.
It was suggested that the husband’s father is in difficult financial circumstances, and that he has a very real need to have the money he claimed to have lent to the husband and wife repaid to him. However, as explained elsewhere in these reasons, I do not accept that the husband’s father did lend any money to the husband and wife. Because I have found the husband’s father to be an unreliable witness and because he did not provide a financial statement or clear documentary evidence regarding his financial circumstances, I do not accept that he is in difficult financial circumstances.
Other issues
The wife said that she was surprised that the marriage ended almost as soon as she returned from India in November 2010. The husband said that could not have been true. He claimed that his solicitor sent the wife a letter while she was in India saying that there had been problems in the relationship since 2007. The wife said she did not receive that letter. The husband said that could not have been true because the letter was correctly addressed.
However, there was no evidence from the solicitor in question, or any administrative assistant from his office, that the letter had actually been posted, or the date of posting, or the amount of postage paid. Nor was there any evidence about whether the letter had been returned by the postal service unclaimed or undeliverable. Consequently, I cannot be satisfied that the letter was posted or, if posted, that it would have been delivered.
Because I have found the husband’s evidence to be generally unreliable, and the wife’s to be generally reliable, I accept that the wife did not receive the letter, as she claimed, and that she was surprised when the marriage ended in November 2010.
The husband submitted that the wife changed her evidence in cross examination in relation to the loans. He submitted that she said:
a)the husband and wife received no money from the husband’s father; then
b)they may have received money from the husband’s father for the wedding; then
c)the received money from the husband’s father that may have been used on the properties.
In fact, in cross examination, the wife was asked about whether the husband’s father provided any money for the purchase of properties. She said that the husband’s father provided no money to the husband and wife. The wife was then reminded of paragraph 32 of her affidavit affirmed on 4 June 2012, which states that:
The husband’s parents did pay monies to the husband in the early years of our marriage. However this was for the husband to meet expenses of his parents as directed by them. His parents were keen to move to Australia and were actively seeking permanent residency. I was advised by the husband that he was paying for migration advice to effect this and that his parents had provided the money to him.
The wife then said that everything she had said was true. When pressed, she said that, at the beginning of the marriage, the husband and wife received $10,000 as a gift. That is consistent with the wife’s affidavit affirmed on 4 June 2012 in which she said at paragraphs 18 and 31:
18.My family gave the husband at this time $15,000 in cash and I believe his family gave him $10,000 by depositing the same in his bank account. …
31.To the best of my knowledge the $10,348.62 said to have been advanced by the husband’s father on 30 May 2006 was a gift for our marriage as detailed in Para 18 hereof.
In relation to the wife’s claim that the husband’s father put money in the husband’s account for migration advice for the husband’s father, the wife said in cross examination that the husband had told her that his father had paid $50,000 to $60,000 for migration advice. She said the husband occasionally told her that he was going into the city to see the migration agent and she saw various visa application forms at home.
However, the respondents’ counsel then reminded the wife that the husband’s father had filed an affidavit (on the first day of the hearing) in which he said that he had paid for his application for Australian permanent residency in India. He exhibited to his affdavit a photocopy of a cheque for $63,110 issued by the HDFC Bank in [C] India. The cheque said it was drawn on the Hongkong Bank Australia in [omitted], Melbourne.
In the face of that evidence, the wife said that she was not 100 per cent sure that the husband’s father had paid money into the husband’s account for “immigration”, and the money was possibly put into property.
I do not consider that the wife changed her evidence about these matters in a way that goes to her credibility. There is a difference between the fees paid to the Department of Immigration as the lodgement fee for a visa application and the professional fees paid to a migration agent for advice in relation to a visa application. The husband’s father may well have been obliged to lodge his visa application in India, and he may well have paid for it in India. But that does not mean that he did not also obtain immigration advice in Australia that he paid for via his son’s bank account.
The husband’s father provided the evidence that he had paid the visa application fee in India on the first day of the hearing. The wife was cross examined about these matters later that day. In such circumstances, she and her solicitor had little opportunity to recall the distinction between a visa application fee and the fees for professional advice.
Moreover, the wife’s concession that she was not 100 per cent sure that the husband’s father put money into the husband’s account for immigration advice was an honest and frank concession. Her claim in that regard was based on what the husband had told her.
Similarly, her concession that money possibly went into property investments was also frank and honest. The wife did not know with any certainty what happened with the money in the husband’s bank accounts.
The wife’s initial statement that she and the husband had received no money from the husband’s father needs to be seen in the context. She had said consistently that the husband’s family gave the husband and wife about $10,000 shortly before the wedding.
When the wife initially said in cross examination that she and the husband had received no money from the husband’s father, I understand her to have meant that they received no money for their own use, as opposed to the husband’s father’s use, and they received no money during the course of the marriage, as opposed to at the start of the marriage. In view also of English not being the wife’s first language, I do not consider that any credibility issues arise from this evidence.
The husband’s father claimed that he had enough money in India to lend $168,000 to his son in Australia. However, the husband’s father did not provide any bank records or payslips to substantiate that claim. He also changed his evidence about his source of income. In his affidavit evidence, he said he retired in 2005. However, in oral evidence, he said he worked after retirement as a consultant, and earned more per annum than he had before retirement. He also said that he had borrowed the equivalent of $88,000 in India to on-lend to the husband and his sister. This is implausible. For reasons discussed elsewhere in these reasons, I do not accept that the husband’s father was a witness of truth and I do not accept his claim to have had access to $168,000 in India that he was in a position to lend.
The respondents submitted that the court should accept that the monies advanced by the husband’s father were loans rather than gifts because the bulk of the money was repaid before separation with the knowledge of the wife, and without her complaint. However, the wife denied knowledge of the “loan” repayments. I accept her denial. She would not complain about matters she knew nothing about. Moreover, as explained previously, the evidence does not persuade me that any money at all was lent by the husband’s father to the husband and wife. Rather, it appears that, after the event, the respondent’s have simply identified certain transactions in the husband’s accounts and claimed that they were loans.
Another matter going to the respondents’ credibility is that an order was made on 13 March 2012 with the consent of the husband and wife that:
That there be leave to the paternal grandfather MR B BLOOM to be joined as the second respondent upon his filing and serving a Response to the wife’s Amended Application within twenty-eight days of this date.
The husband’s father did not avail himself of that order. However, at the commencement of the hearing, the husband’s counsel announced that he also appeared for the husband’s father, who he maintained had been joined as the second respondent. That was not the case, as he had not filed a response as contemplated by the orders of 13 March 2012. Nevertheless, the husband’s father was joined on the first day of the hearing, in case any orders were made against him. One consequence of the very late joinder, however, was that the husband’s father did not file and serve a financial statement. He did not disclose until the last day of the hearing, for which purpose he was recalled, that he owns an investment property in [Victorian suburb omitted] that he acquired in 2011. Previously in his oral evidence he denied having any property in Australia. He purported to explain the discrepancy by saying that he did not own the property, as such, because it was mortgaged to the bank. This is sheer sophistry. It reinforces the court’s concerns about the honesty of the husband’s father.
The respondents argued that the wife’s evidence was not credible because, among other things, she said in her affidavit affirmed on 16 March 2011 that her access to funds in the AFG mortgage offset account (the joint account) was blocked on 26 October 2010, when she was trying to buy baby food, although she said in re-examination that she had never drawn monies out of that account. The respondents argued that the wife’s evidence was false.
However, there is a difference between drawing monies out of an account, and using the account to buy household purchases. The former implies withdrawing cash, or moving money to another account, while the latter does not.
The respondents also maintained that the wife had said in cross examination that she had no access to the funds in the AFG account. In fact, she said (transcript page 98), when it was put to her that she could use the AFG account for household goods:
“I can count how many times I have used this, but…”
It was then put that, as a couple, the AFG account could be used for household goods. The wife said:
“I was not allowed to. Personally, I was not allowed to.”
I see no inconsistency in the wife’s evidence. She was saying that her husband did not permit her to use the AFG account for household goods, but she did on rare occasions.
The respondents also challenged the wife’s credibility based on her claim in her affidavit affirmed on 4 June 2012 that:
The husband’s income was such that, as I was paying the mortgage, we should have been able to save.
The wife confirmed in cross examination that she paid the mortgage on the Property H property (transcript page 95). However, she also acknowledged, when presented with the AFG statement, that the husband had paid the mortgage in February and March 2007. She said she was not working at that time. The wife then acknowledged that the husband had paid the mortgage in April 2007.
I have examined the AFG statement but not exhaustively. It appears that, in general, the wife made direct regular payments towards the mortgage that more than covered the interest that accrued. The husband made additional payments, some of which were drawn down for various expenses. That is not surprising. It was a mortgage offset account.
However, overall, it seems to me that it was fair for the wife to say that she paid the mortgage, meaning the basic amount that was required to be paid. I do not consider that this evidence detracts substantially from the wife’s credibility.
STEP 4: What order, if any, is just and equitable
The wife proposed orders as follows:
1.An Order that the monies paid to the second respondent in the sum of $137,607.96 be repaid by the second respondent to the Wife.
2.An Order that the wife retains 75% of the monies held in the solicitors trust account together with the monies to be returned under paragraph 1 thereof.
3.Alternatively an Order that the wife be paid the balance in the solicitors trust account as at the date of the Orders and a further Order that the wife be paid by the Husband and 2nd Respondent a further amount of money to bring her entitlement of the monies to 75% as in paragraph 2.
4.An Order that the parties retain their respective superannuation interests and all other property in their possession as at the date of the Orders.
The husband proposed orders as follows:
1.That $31,095 is paid to the second respondent from the funds remaining in trust following the sale of the former matrimonial home.[2]
[2] The applicant wife and first respondent have each received $20,000 by way of an early distribution of the trust funds. Prior to this distribution, the trust funds totalled $115,800.
2. That of the trust funds ($115,800 less $31,095) payments be paid to the applicant wife and the first respondent husband on the basis of 65% to the wife and 35% to the husband, which would result in a payment of:
$55,058 - $20,000 (already received) = $35,058 to the wife; and
$29,647 - $20,000 (already received) = $9,647 to the husband.
3. That the superannuation funds of the applicant and the first respondent be equalised, after first excluding $12,420.55, which represents the superannuation that husband had already earned before the start of the relationship.
Alternatively, if the funds already repaid to the second respondent are added back to create a large pool:
1. That the funds are split on the basis of 25% to the wife and 75% to the husband resulting in a final payment of $31,148 to the wife from the trust monies and the balance of $44,652 to the husband.
2. That of the $44,652 awarded to the husband that $5,000 be deposited on trust for the benefit of the child of the relationship, [X] born [in] 2010.
3. That the superannuation funds of the applicant and the first respondent be equalised, after first excluding $12,420.55, which represents the superannuation that husband had already earned before the start of the relationship.
For both proposals above, the following orders are sought:
Jewellery
If the court decides the wife, or her agent, is in possession of the jewellery, that a further $6,500 be deducted from any payment ordered to the wife, which is half of the purchase price of the jewellery.
Wife's undisclosed funds
If the court decides the wife has failed to disclose funds of up to $25,000, that there be a reduction in the payment of funds from trust to the wife in accordance with what is just and equitable.
I consider that it is just and equitable that the second respondent be ordered to repay to the husband and wife $97,607.96 within 21 days. As explained above, on the evidence before me, the husband has paid that money to his father for no proper reason. It should be returned to the asset pool.
I consider that it is just and equitable that each party retain his or her own superannuation. There is no evidence that procedural fairness has been afforded to the superannuation trustees. In any event, it seems to me that the wife will be more in need of ready money than the husband.
I consider that it is just and equitable that the pool be split 65:35 in the wife’s favour. The principal reasons for that conclusion are:
a)the husband’s financial contributions were somewhat greater than the wife’s;
b)the wife’s role as a parent only began about six months before separation;
c)the wife’s contributions were made significantly more onerous by the husband’s violence against her;
d)the wife could be expected to have the majority care of a very young child; and
e)the husband has a somewhat greater earning capacity than the wife.
The pool is $237,088.86. Sixty-five per cent of that is $154,107.75. Thirty-five per cent is $82,981.11.
To make up those figures, the wife should receive:
a)the total of the amount held on trust from the proceeds of sale of the former matrimonial home, being $75,832;
b)her superannuation of $11,598.96; and
c)$66,676.79 from the husband’s father.
The husband should receive:
a)the wife’s jewellery that he presently holds, worth $10,000;
b)his superannuation of $36,414.90;
c)his ING account of $461.00;
d)his car worth $6,000.00; and
e)$31,105.21 from his father.
There will be orders accordingly.
I certify that the preceding two hundred and twenty four (224) paragraphs are a true copy of the reasons for judgment of Riley FM
Associate:
Date: 15 February 2013
0
4
1