CHANDRA & JOHAL & ANOR

[2020] FCCA 3113

FEDERAL CIRCUIT COURT OF AUSTRALIA

CHANDRA & JOHAL & ANOR [2020] FCCA  3113

Catchwords:
FAMILY LAW – Property case- relatively short marriage of two tranches of 4 years with separation in between – unusual case where parties kept their finances wholly separate and both kept their financial details secret from the other – both alleging squirrelling off and/or retaining of funds – whether husband’s sister should be paid $150,000 from sale of matrimonial home – sister taking over home loan of $150,000 and paying it down to $52,000 – clearly just and equitable sister be reimbursed – remaining proceeds of matrimonial home to be divided 60/40 in favour of the husband.   

Legislation:

Family Law Act 1975 (Cth), ss.75, 106B

Cases cited:

Jones v Dunkel (1959) 101 CLR 298

Kennon & Kennon [1997] FamCA 27

Kowaliw & Kowaliw [1981] FamCA 70

Mallet v Mallet [1984] 156 CLR 605

Pierce v Pierce (1999) FLC 92-844

Stanford & Stanford (2012) 247 CLR 108

Applicant: MS CHANDRA

First Respondent: MR JOHAL

Second Respondent: MS HORA

File Number: DGC 4127 of 2019

Judgment of: Judge Burchardt

Hearing dates: 15, 16 & 22 September 2020

Date of Last Submission: 22 September 2020

Delivered at: Dandenong

Delivered on: 20 November 2020

REPRESENTATION

Counsel for the Applicant: Ms Renwick

Solicitors for the Applicant: Ravi James Lawyers

Counsel for the First Respondent: Mr Qureshi

Solicitors for the First Respondent: Starnet Legal Pty Ltd

Counsel for the Second Respondent: Mr Hancock

Solicitors for the Second Respondent: Ammanah Legal

ORDERS

1. The Husband and Second Respondent forthwith do all acts and sign all documents necessary to forthwith sell the real property situated at B Street, Suburb C, Victoria (“B Street, Suburb C Property”)

2. That the sale of the real property be conducted:

   (a)By an agent as agreed between the parties and failing agreement, as appointed by the President of the Real Institute of Victoria for the time being (“the selling agent”) and the terms of the sales authority with the agent be in accordance with the standard terms;

   (b)At a reserved price agreed between the parties and failing agreement, as determined by the selling agent;

   (c)By public auction unless recommended otherwise by the selling agent.

3. Upon settlement of the sale of the B Street, Suburb C Property, the proceeds be applied as follows:

   (a)first, to pay all agent’s costs, commissions and expenses of the sale;

   (b)secondly, to discharge the mortgage, rates any other encumbrances secured against the property;

   (c)thirdly, to repay to the Second Respondent $142,745

   (d)the remaining fund be distributed

   (i)60% to the Husband; and

   (ii)40% to the Wife.

4. That unless otherwise specified in these Orders and except for the purpose of enforcing payment or compliance with the terms of these Orders:

   (a)The Husband and Wife be solely entitled to the exclusion of the other to all property (including choses-in-action) in their possession as at the date of these Orders;

   (b)The Husband and Wife hereby foregoes any claim they may have to any superannuation benefits or other employment related benefits belonging to or earned by the other;

   (c)All insurance policies to become the sole property of the owner named in the policy;

   (d)The Husband and Wife be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.

IT IS NOTED that publication of this judgment under the pseudonym Chandra & Johal & Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 4127 of 2019

MS CHANDRA

Applicant

And

MR JOHAL

First Respondent

MS HORA

Second Respondent

REASONS FOR JUDGMENT

Introductory

1. This is a property dispute which is bedevilled by the fact that both of the husband and wife, who are of Indian extraction, have not only spent various amounts of time during their relationship in India, but appear to have made multiple transfers of funds which are hard to disaggregate.  In summary, the applicant wife seeks that approximately $150,000 of funds allegedly, in effect, syphoned off back to India during the marriage be added as an add-back.  The husband seeks an add-back as against the wife of approximately $60,000.  All parties, including the second respondent, who is the sister of the husband, seek that the former matrimonial home at B Street, Suburb C, be sold.  The dispute is about what happens to the funds.

2. The husband and his sister seek that the sister be repaid $150,000, being sums allegedly contributed by the latter to the mortgage and other associated payments relating to the matrimonial home.  The husband additionally seeks that the resulting property pool (bearing in mind the dispute as to add-backs) be divided 80/20 in his favour.  The wife, who seeks that the second respondent receive nothing, seeks that there be an equal division of the property pool if the add-backs for which she contends are included and a 65/30 split in her favour if they are not.

3. For the reasons that follow, I am going to order that the property be sold (this is uncontroversial), that the second respondent be repaid the money she seeks and that the resulting property pool, into which I will not include the add-backs sought by either side, be divided 60/40 in favour of the husband. 

Agreed or uncontroversial matters

1. Although there is significant dispute between the parties, much of the background facts are agreed.  The husband was born in 1978 and the wife was born in 1981.  In or around mid 2004, the husband came to Australia to study for his Masters, which at least in part he supported by his own work.  In early 2007, the husband received his permanent residency in Australia and, in 2007, the parties married in India in an arranged marriage.  Although there is some dispute as to who paid for the marriage, in my view it is now immaterial, and furthermore the court is quite unable to say who paid how much for it.

2. The husband returned to Australia and continued working and the wife arrived in Australia in 2008.  The husband has deposed to having $60,000 in savings by this stage.

3. Between 2010 until about 2012, the husband operated a small business, which, following the departure of a former partner, he sold for a net profit he says was $70,000.

4. By late 2009, the husband was in the process of buying the former matrimonial home.  The land was bought and a building was built on it.  It should be noted that by this stage the wife, who commenced employment relatively soon after her arrival, albeit in employment that would not seem to have been overly remunerative, had only been here for about a year.  On any view of the matter, such initial contributions as were made to the purchase of the matrimonial home must have come from the husband, as he asserts.

5. The husband has deposed that the net proceeds of his business, of some $70,000, were, at least as to $50,000, applied to the then extant mortgage on the matrimonial home. 

6. The parties travelled to India from time to time and family members also came to Australia from time to time.  This was the cause of friction between them.  At one point in 2013 the husband’s father died in India and he had to return to India for some months to attend to the sequelae to that unfortunate event. 

7. By early 2017, the relationship was, on any view, under strain and in early 2017 the husband returned to India, in effect, to look after his own mother.  Shortly before he left, the matrimonial home was allegedly sold to his sister through the assistance of the sister’s husband, a Mr D.  The contract of sale has been appended to the affidavit of the sister, Ms Hora, and that discloses an alleged purchase price of $535,000.  It is clear, however, that no such funds were paid to the husband.  Rather, what happened was that the sister and her husband took over the loan on the matrimonial property with a loan from the Commonwealth Bank to Mr D of, near as makes no difference, $150,000. 

8. Both the parties returned to India again (the husband, I think, having returned to Australia in the meantime) in mid 2017, but the wife returned mid 2017 and found that the property appeared to have been divested.

9. In the fullness of time, this has led to the applications before the court.  The position as it presently stands is that the husband lives in India and will remain there and the wife lives in Australia and will remain here.  There are no children of the marriage.  In truth, there are no real assets owned by the parties other than whatever share they may be awarded of the matrimonial home, although I note the wife has some superannuation whereas the husband has virtually none.

The Parties’ Affidavits

1. In effect, almost everything of any real note in the parties’ affidavits has been traversed in the agreed matters above.  There is one area of the affidavit evidence, however, to which it is appropriate to pay slightly keener attention, and that is the basis of the alleged deal whereby the matrimonial home came to be transferred to Mr D and Ms Hora.  In his first affidavit affirmed 25 February 2020, the husband said at paragraphs 56 to 57:

   I then spoke with Mr D (brother-in-law) and asked him whether he wished to purchase my property.  I was informed by Mr D that he would not be able to pay me funds and take over the mortgage.  Hence, between the family, it was decided that Mr D and my sister would discharge the CBA loan on the property and that they would make repayments on the subsequent loan they obtain.

   It was also agreed that when the property would be sold or when I required funds that the property would be sold and we would divide the proceeds of sale.

2. The affidavit went on to note that the mortgage at the time of the sale was $149,881.45.

3. In his trial affidavit affirmed 6 September 2020, exactly the same version of events is set out in terms at paragraphs 56 to 58.

4. In Ms Hora’s affidavit, she deposed at paragraphs 11 to 14:

   In early 2017, my brother (the First Respondent) was in the process of relocating to India to provide full-time care for our Mother, as she was getting too old to travel back and forth between India and Australia.  The first respondent had to relocate to India to care for his mother, because she did not want to return to Australia on account of her being ill-treated by the Applicant. 

   The First Respondent informed me that he had tried to sell his property at B Street, Suburb C, Vic.  However, the market value figures he received we [sic] very low in his opinion, as the property market was down at that point in time.

   The First Respondent met with me and my husband (Mr D) and said that he could not pay the mortgage while not working from overseas, and wanted to know if we wishes to purchase his property. We told my brother that unfortunately, we could not afford to refund him and take over the mortgage as well.  We agreed as family, that my husband and I would discharge the Commonwealth Bank (CBA) loan on the property, subject to the approval of a subsequent loan

   The outstanding loan with the Commonwealth Bank was around $150,000 at the time of sale.  I was approved with a refinancing loan from the Bank of Melbourne for the required amount. The First Respondent made a verbal agreement with my husband and I as family members, that if the property is to be sold in the future, then the amount of $150,000, shall be paid to the bank of Melbourne from whom I repaid the First Respondent’s mortgage at the time of settlement on 9 March 2017.  Because of the deficiency of funds to meet the settlement the first respondent extended a loan of $25,000 to me.  It was also agreed that the remaining balance of the total property price will be transferred back to the First Respondent. 

   A sale of the property was completed, and a transfer effected. Since the transfer, I have been making regular payments pertaining to the current mortgage over the property, and all of the associated expenses relating to the property.  My financial contributions towards the B Street, Suburb C property equates to a total of $142,745.87, which breaks down as follows

5. I will not set out the mortgage payments and the like that constitute this figure.

6. I note that the outstanding mortgage is $51,551, which is surprising given that the mortgage was $150,000 and the total payments have been $81,000, which prima facie would have left a total of $70,000 still to be paid, and that figure itself would have been higher because not all the payments made in respect of the mortgage would have been repayments of capital.  This mystery has at no stage been clarified, although it may be that the $81,000 omits the discrete $25,000 loan advanced by the husband to enable the refinance in 2017.

7. As I have indicated already, the parties have much to say by way of complaint about one another in their affidavit material.  There are allegations of bullying and violence perpetrated by the father and his family, allegedly on the wife, together with countervailing accusations of poor behaviour (including an assault) made against the wife.  In the circumstances, in my view, it is more appropriate to concentrate on what the parties actually said at court. 

The Submissions and Evidence Given at the Court – the Wife

1. What follows is taken from my notes.

2. Counsel opened the case briefly and called the applicant.  She adopted her affidavits and financial statement as true and correct. 

3. In evidence-in-chief, the wife responded to matters in the husband’s trial affidavit.  In response to paragraph 15, she said she was not aware that the husband had paid so much for her visa expenses.  She is now a citizen.  She obtained her permanent residency first. 

4. When asked about paragraph 19 in which the husband had deposed to savings of $60,000 at cohabitation, she said he never disclosed any finances to her. 

5. In response to paragraph 23, she said she had paid more than half of the matrimonial expenses.  She paid for the rent and groceries.

6. In response to paragraph 42, the wife said she moved back into the matrimonial property on 15 November 2013.  On 28 November 2013 she gave the husband $5,000 for a car.  She also contributed $1,000 for furniture and paid groceries.

7. In response to paragraph 52, following the parties’ return to India, she said the husband never said that he was moving there permanently.  He told her that in May, when he came back.  He told her that they had to leave the house and that it would be rented.  They left in June. 

8. In response to paragraph 74, the wife said it was true she had cooked every night.  They did not eat out.  He had not done any housework save mopping every now and again. 

9. When taken to paragraph 80 in which the husband deposed that the wife only contributed $21,066, she did not agree.  She paid more than half the food.  She had put $4,500 towards another property and had given money for the car. 

10. The wife went on to say that the husband never disclosed the amount of the mortgage. 

11. The wife was asked about paragraph 85 of the affidavit in which it was asserted that, between August 2010 and June 2012, the wife transferred $58,000.  She said the transfers were in her current savings account.  She was separated from February to April and had used the funds for rent.  She went on to say that account ...78 was a joint account.  She was not familiar with the $58,000 allegedly withdrawn by her.  She was not sure how much she spent.  They separated in February 2012 and she came back in April 2012.  In June 2012 she went to India and came back in August 2012.  They had reconciled, however, in November 2013.

12. Under cross-examination by counsel for the husband, the wife said she worked throughout the relationship.  In 2008, she worked as a retail assistant.  She did not get much and was paid in cash.  In 2009, she worked for a company and made moneys by way of commission.  She made $1,300 to $1,400.  She did not agree that the husband had $68,000 in savings by late 2008.  She did not know.  When she was taxed with court book (“CB”) 470 showing a payment to E Company of $6,736, the wife said that the husband did not disclose any financial records.  She did not know whether the husband bought the land for $195,000. 

13. The wife was taken to CB-657 showing a loan on the property for $136,135.  She appeared to concede this (although her lack of desire to make any concessions about what seemed to me to be obvious bank records was very striking).  He might have had savings before she came to Australia but she was not aware of this.  She did not accept that she had withdrawn the $58,265 between 2009 and 2012.  She had thought it was a joint account.  His salary went into it.  She travelled by train and buses. 

14. When it was put to her that she had withdrawn about $58,265 between late 2009 and December 2012, the wife said she had.  It was all for her expenses.  Groceries and stuff.  She had disclosed all her bank statements.  The NetBank records were attached to the account she had disclosed.  It was put to her that she still has control or access over funds but she denied this.  When taxed with transferring $26,207 to her savings account, she said this was the time she left for India.  She did not agree that her income was not applied to the family.  She appeared reluctantly to accept that the husband had sold his business for some $74,766.  She accepted the home loan value at $40,909 at CB-506.  She accepted the Gold Saver account had $22,000, NetBank had $120,000 and the home loan was $10,000.

15. The wife was taken to CB-559, which appeared to show transfer of almost $75,000 on 7 January 2013.  She was taken to CB-560 and appeared to accept that $40,909 was applied to the home loan, $22,000 to Gold Saver and $12,000 to NetSaver, with a further $10,000 to the home loan on 10 January 2012. 

16. Following further cross-examination, it seemed to me that she accepted that the moneys transferred to the husband’s sister, Ms Hora, were not from the sale of the business. 

17. The witness was cross-examined about further bank records.  She appeared to suggest that the husband reduced the mortgage by $10,000 on 1 April 2015 and by $54,000 between April 2015 and December 2016.  The mortgage at CB-706 was $150,009 and a record at CB-730 showed a payment towards building the property of $15,000 in 2010.  When taxed with the proposition that the husband had advanced $25,000 to his sister to facilitate purchase of the property by her, the wife said she did not know.  She did not agree that the husband had paid $10,000 to his brother for his father’s funeral.  She said the funeral was in 2012 but then conceded that the grandfather died in 2013. 

18. There was further detailed cross-examination on the various bank records, but I do not propose to traverse it in detail.  The wife generally said she did not know or simply did not accept the propositions put to her about the sources of the funds and the nature of the dealings with them.  She did not accept that Ms Hora had advanced $28,000 for the purchase of a car and did not accept that the balance of funds on that occasion were used in India.  She did not accept that the husband paid $5000 in rent to his sister, including a payment of $6,000 at CB-622.  She did not accept $8,000 at CB-623.  She did not accept $5,000 at CB-627 and did not accept further payments at CB-644.  Put shortly, she did not accept the questions put to her which were designed to show either that the husband had made disbursements to his sister for rent and associated expenses in Australia or for other appropriate expenditure in India.  She did not accept that the husband was spending $190 per week for his mother in India.  She was not clear if he had travelled to Australia seven times since separation and did not accept that he had spent 24 of the last 39 months in Australia.  She did not accept that he lived with his sister when he was in Australia.  She did not accept that he pays her approximately $1,400 per month.    

1. The wife did not accept that the husband’s sister in India looks after the grandmother when he is in Australia and did not accept that the husband pays her $800 per month to do so.  She conceded that the husband was in India from July to November 2013.  They were separated at that time.  The husband’s father died in 2013 and the husband went to India the next day.  She did not, however, accept that he got money from his father-in-law at the time.  She accepted that the grandmother lived with Ms Hora from mid 2014 until late 2016.  She did not accept that the second respondent was to receive expenses for the associated costs.

2. The wife was cross-examined about her NetBank Saver account.  She conceded that in mid 2012 she had transferred $26,000 leaving a zero balance.  She conceded that, by early 2017, her savings had increased to over $60,000 (CB-164).  It was put to her that CB-181-390 showed that she had spent a total of $33,928 on seeking to achieve Country F immigration.  She denied this, but it was clear that the figures were correct.  She accepted there were multiple cash withdrawals. 

3. It was put to her that she had purchased land in 2020 but the wife said this was not under her name.  It was put that there was $22,000 allotted to this purchase.  The wife said that the amount from her account was $9000.  She borrowed $12,000 from her friends.  She was taxed with her September 2020 financial statement and said she had borrowed cash to put towards the fund.  She did not own the land.

4. I would interpolate and say that the wife’s answers on this topic were particularly evasive and wholly unconvincing. 

5. The wife was cross-examined about her qualifications.  She asserted that the husband had forced her not to be a public servant and that it was now too late for her to be a public servant, anyway.  She graduated in 2002 and worked as a public servant in India.  It should be noted in passing that, because of some of the evidence given about the husband’s coercive and controlling behaviour, I asked counsel for the wife if this was being put as a Kennon & Kennon [1997] FamCA 27 (“Kennon”) case and counsel expressly denied that that was so.

6. The wife confirmed that her 2020 income was $44,000.  She has $37,478 with Super Fund G.  She conceded that the husband’s income was $7,931 and in the year ending 30 June 2020 it was $20,502 (CB-819).  She accepted that the husband’s superannuation was minimal. It was put to her that he was only employed while he travels to Australia.  The wife did not accept this.  She said she had chosen to work part time since separation.

7. The wife conceded the mortgage was $149,000 in March 2017 (CB-729).  She did not accept that Ms Hora took out a mortgage and paid for the property.  The husband had not contributed equally to the nonfinancial contributions.  She did not accept that her contributions to the relationship amounted to only $26,000.  She was asked about loans given in July 2019 but said that these were recoverable.

The Wife Under Cross-Examination by Counsel for Ms Hora  

1. The wife conceded that the paternal grandmother came to Australia in mid 2014.  She lived with Ms Hora in City H until mid 2015 and then returned to India.  When it was put to her that the husband paid his sister during this 12-month period, she said she did not know.  She conceded that she travelled to India in early 2016.  The husband returned with the grandmother in mid 2016.  She did not know how much money he had given to his sister. 

2. The husband and the grandmother went back to India in early 2017 but she was not aware of this.  He had returned in mid 2017.  She became aware in mid 2017 that the property had been sold because she conducted a search.  He had not told her even when they went to India in mid 2017.  When it was put to her that there was agreement that the sister would be repaid $150,000, she said she did not know.  She did not know about the mortgage with the Commonwealth Bank.  He had not told her anything about the mortgage.

3. It was put to her that the loan was paid out, that Ms Hora took out a new loan of $125,000 and the husband loaned her the balance of $25,000.  The wife said she came to know this through discovery.  The mortgage had been paid since 2017.  She conceded the amount of the mortgage was down to about $52,000.  She conceded that $81,115 had been paid on the mortgage and $6009 in rates and $2370 in utilities.  She conceded the total paid by the second respondent was $142,745.  She conceded transfers made by the husband to his sister but did not know if they were put into a mortgage offset account.  She did not accept that the transfers were expenses paid by him and did not accept that the moneys were not for the mortgage.

4. I should interpolate and say that the parties are clearly very money-conscious and in some respects appear to have very detailed knowledge of the figures involved.  I note it will be important to remember that the court is not engaged in an accounting exercise and I state this at this point because it is something that occurred to me at the time and I made a note to that effect.

5. The wife denied that the husband did not have a bank account in India and said he did.  She was not aware that transfers to India attract high charges.  She did not think it was that much.  Expenses in India are not as much as the husband said.  It is not true that there are legal costs in India.  The case was dismissed a long time ago.  Her legal costs in India were around four to five thousand dollars and she and her parents paid for them. 

6. He has had cost of travel to India.  She accepts that there are costs associated with staying with his sister in Australia, but not that much.  She did not accept $1,400 per month.  There were costs for the grandfather’s funeral in 2012 (this was erroneous; it was plainly 2013).  There would have been costs for a subsequent celebration but they would be $1,000 at most.  She did not agree this was paid by Ms Hora. 

7. She did not know if a motor vehicle was in the husband’s name.  It had been bought in late 2018 and she paid $5,000 for him to do that.  She did not know whether the husband had transferred $26,000 to his sister in late 2018.  The deposit on the motor vehicle was $1,000.  There had been $26,000 transferred from the husband to the sister.  There was a bank cheque for $24,990 for the motor vehicle and the applicant agreed.  It was put that a payment on 8 January 2019 of $2,650 was to convert to autogas but the wife said she did not know who was paying to whom. 

Re-examination

1. The wife confirmed that she was happier dealing in cash.  The husband gave her no money.  The husband had never told her that he had any loans with his sister-in-law.  When asked how they pay expenses in India, she said she always took cash from Australia.  She does not know what he did.  She said he has a bank account in India and has seen the papers.  When asked about the motor vehicle owned by the husband she said she was not familiar with this.  There was a motor vehicle bought in 2013 to 2014 and she paid for it.  After 2017, she was not aware.  She did not know what happened to the car after she left.

The Evidence of the Respondent Husband

1. Counsel did not make an opening but called his client. 

2. The husband is unemployed.  He confirmed that his affidavit sworn 6 September 2020 is true and correct, although he made a correction to paragraph 6.7.  The figure of $29,000 was not correct and should read $54,798.  He affirmed the correctness of his financial statement.  He had never been told prior to the affidavit of 3 September 2020 about the purchase of property.  He has been to India seven times since separation but been in Australia for 24 months since separation.  He has lived in City H for these 24 months with his sister, dealing with one another as family members.  They always look after each other.  She cooks and does the laundry.  He has two sisters in India.  One lives close to the family home and he always drops his mother to his sister’s place.  He is responsible for his mother after his father’s death.  He gives cash to his sister to look after his mother.

3. Unsurprisingly, counsel for Ms Hora did not choose the cross-examine the husband.

The Husband under Cross-Examination by Counsel for the Wife

1. The husband confirmed that his mother owns the home in India, which she bought in 2011.  He lives there, too (he was giving evidence from it by Microsoft Teams).  It was put to him that the mother was in good health and he said sort of.  She has had a liver infection for two and a half years and has neck pain and a knee issue.  He was giving evidence in India and confirmed that he was on his own.  He had his affidavit in front of him and was giving evidence by his phone.

2. He has no access to ATM.  He used to have a bank account.  I understood him to say that the procedure for non-resident Indians getting a bank account involved problems of verification.  He could reactivate his State Bank and Access account but there would be verification problems.  It has been non-operational for eight to nine years.  He did not use these accounts when he returned to India.  His father had a J Bank account.  It has always been cash when he went to India.  He took sums of up to $9,000.

3. He confirmed that he is a qualified professional with a Master’s degree from K University.  He had worked in communications.  He had his own business.  He has worked as a subcontractor since 2006.  He cannot get a communications job in India.  He can work as a professional but has made no attempts to get a job.  His master’s is not recognised in India.  He confirmed that his affidavits were true and correct and he had not omitted anything from them.

4. He came to Australia in mid 2004 for a master’s course.  The course started in August.  He had savings in India in rupees amounting to some five to six thousand dollars.  It was a two-year course.  He had an international student visa.  The course finished in 2006.  He paid student fees of $8,500 per semester in a total of $34,000.  His parents paid the first year and he paid the second year but with a part-time job.  He then earned $33,000.  His monthly expenses in 2004 to 2005 were about $500.  What he earned in 2006 he saved.  He had $20,000 to $22,000 saved at the end of his studies.  He started at Employer L in 2007.  He was allowed to work by the terms of his bridging visa.  He was paid about $1,500 per week at Employer L before tax.  He worked as a subcontractor.  There was no wage.  It was just per product. 

5. He also transferred money for his wedding.  In 2007, he gave $15,000 for his wedding, giving the money to his parents.  He paid $9,000 for the wife’s visa expenses.  He had received considerable assistance from his father in India.  He returned in early 2008 and did not have $23,000 at that time.  He had $32,000.  He started work and worked for almost eight months and saved about $28,000 to $30,000.  CBA refused to send him documentation and the whole of his savings went to NetBank. 

6. I should interpolate and say that, for all the confusion in this case, having heard the husband’s evidence, I accept that he had savings of about $60,000 by the time the wife had arrived in Australia.

7. The husband conceded the wife started working for Employer M two months after she arrived.  She got a job in early 2009 and he helped with Employer M.  She was not able to work in Australia.  He said it would not be easy to get a job in public service.  He had spoken to the relevant Authority, who told him her application could only be valid if she had qualifications here and, if she was a grade 3 level, she would need a one-year course as well.  He had told the wife to do this.  She said she would prepare for her English exam.  He lost his job two months after she came to Australia but got the same job with a different company.  This was Employer N.  He also worked for Employer O.  His income was $50,000 a year in 2009 and increased slowly.  There were a lot of expenses.

8. He bought a property in 2009.  He asked the wife to contribute and asked for $10,000 to $15,000.  She said she was not interested and had no money.  She had not contributed to the Suburb P property.  Taken to CB-485, he conceded that a deposit of $4,500 came from the wife but it was not for Suburb P.  She was paying $400 per month rent.  He needed the money.  She paid $4,500 but no rent for the next 10 months.  He considered putting the property into joint names, but the bank refused.  The bank wanted her bank statements and tax returns.  The bank wanted the wife to at least have permanent residence to be on title. 

9. He had bought his business in late 2010 with a friend.  His share of the purchase price was $30,000 to $35,000.  These were funds accumulated during the marriage.  He worked 6 or 7 days, not long hours, from 10 till 6 pm.  He was not allowed to work outside the business.  It was mostly Monday to Saturday.  He said the wife was not mainly responsible for home duties, although he conceded she cooked every night.  He said she only cooked at night, although it emerged that she, in fact, cooked his lunch as well.  He got home at 6 to 7 pm and it was he who did the dishwashing.  He always made more money than the wife.  She paid rent from March to October and paid utilities in 2012.  She contributed to landscaping.  He bought a motor vehicle in late 2014 and received $2,000 from the wife. 

10. On 6 January 2017, he told the wife the relationship was over.  He lived with his sister.  He was at home for two days.  He went to India in mid 2017, intending to live there permanently.  He told the wife this in mid 2017.  He told her, “I’m leaving.”  The house had already been sold.  She responded it was none of her business.  She asked him a lot of times about finances and he put the same question to her.  She said she had no place to live and said she would not pay rent.  She paid $350 for bills.  She knew the property was to be sold.  In mid 2017 she said, “It’s not my business.”

11. He had $170,000 in savings which he had gained during the marriage.  He left work in mid 2017.  He had three to five systems outstanding which were paid.  He conceded that, after mid 2017, he received $73,000 which were what he described as “pending amounts”.  He has been an Uber driver since mid 2017.  He drives the motor vehicle.  He contributed $3,000 towards the purchase price of $14,500.  He had an accident in late 2018 which produced a payout in late 2018 of $5,149.  Replacement car was a second-hand motor vehicle 2 with 20,000 kilometres on the clock.  It was a 2016 model bought for $25,000 to $26,000. 

12. He returned to Australia in mid 2017.  The main objective was to leave to India for a long time.  He had not told the wife about the transfers to his sister’s account and did not tell her he was selling to his sister.  He sold the property to his sister.  He would be in India for four to five years.  He had to leave to India.  He had no job.  He asked rhetorically who would pay the mortgage.  Counsel put it to him that the mortgage was $149,000 and he had $173,000 in savings.  He said this was correct.  He said he would not get a sufficient price (for the sale of the property). 

13. It is a three-bedroom house with one guest room.  It could have been rented but he did not want tenants.  The rent would have paid the mortgage.  He had transferred sums to his sister.  He transferred $30,000 in early 2014 for her property in City H.  She owed him money.  He transferred $130,000 to his sister on 20 July.  He was overseas.  He got his money back.  She said she would transfer it to the CBA.  If I understood this confusing tranche of events correctly, the money was supposed to be transferred to India, but this was not possible.  He said this amount was his savings.  He needed to live in India.  He had not established a business in India and it did not work out.  He was thinking of running a business, but that did not work out.  The Bank of Melbourne account was a new account.  Major payments were from him.  

14. He was questioned about the transfer of $60,000 on 7 March 2017.  He agreed this was a lot of money.  There was a $25,000 shortfall in the mortgage and this enabled her to refinance.  She discharged the CBA mortgage.  He said the $60,000 was the $25,000 shortfall and $25,000 he owed her.  I interpolate and say his explanations on this point struck me as being wholly unconvincing.

15. It was put to the husband that he had savings of $80,000 in 2013.  He said he would have paid his sister if there was money owing.  He was unemployed and there were costs of his father’s death.  He had no knowledge why he had transferred $10,000 to his sister in mid 2017.  The $10,000 he transferred in mid 2017 were the divorce costs in 2013.  He transferred a further $20,000 in mid 2017 and a further $40,000 to $50,000 in late 2017.  The $50,000 was being held for him on trust.  He agreed he transferred $5,000 in late 2017.  This was for a three-week trip to India. 

16. The husband has been in India since February 2020.  The COVID restrictions mean there have been no flights.  He has spent 24 months in Australia and worked as an Uber driver.  He was planning to live in India.  There are a lot of expenses there.  He can only earn $400 per month.  He came to Australia for short periods of time and stayed with his sister, who cooks for him.  She had never asked him to pay it but he decided to pay.  He pays $1,250 a month.  He agreed that he took money to India out of the $6000 in early 2018.  He agreed a number of other transfers in mid 2018.  Some of these had been taken to India in cash.  It was put to him that the deposits totalled about $263,000 and he said that was right.  It was not to be held for him and was to pay the mortgage on the property.  He agreed that his mother came to Australia two times.  She came for one year each time because she had a 12-month visa.  The mother did not stay with him and the wife all the time.  His sister had stayed with him a maximum of two days. The wife would not clean and did not like them.

17. In re-examination, the husband confirmed that his sister has a CBA account.  He sought to explain why the money had been transferred between the various accounts.  He knew his sister had opened a new account in 2017.  She needed help to complete settlement.  He had started as an Uber driver in early 2016.  He was asked about withdrawals from another account.  The answers were, I regret to say, incomprehensible but appear to suggest something to do with the purchase of land.  

The Evidence of Ms Hora

1. Ms Hora adopted her affidavit and financial statements as true and correct with the amendment to the payment on her mortgage being $144 weekly. 

2. Ms Hora tendered as exhibit A1 her Bank of Melbourne statements.  She had to open this account to pay the mortgage.  Her brother paid into this mortgage.  It is an offset account which reduces interest.

3. When asked about a deposit of $26,000 from her brother in late 2018, she said her brother transferred that money to her for a new Uber car. 

4. Ms Hora tendered exhibit H1, being a statement of her husband’s bank account.  She said the vehicle was bought and registered in her brother’s name.  The payment of $2,650 on page 5 of the account was to convert the Motor Vehicle 1 to LPG.  Her husband paid for this with his credit card and her brother repaid four to five months later.

5. Ms Hora was taken to CB-22-23, being a letter from Starnet Legal to the solicitors for the wife.  She was familiar with this and agreed with all the explanations contained therein of the various transfers.  She did, however, say that number 7, the $50,000 transfer, was not correct.  It was not for the car but was for expenses in India. 

6. Under cross-examination by counsel for the husband, Ms Hora confirmed that the husband has had seven visits to Australia since separation and lives with her when he does.  Their mother came to Australia in 2014 and stayed with her, and she looked after her for a year.  The husband said it was his duty to support her so he paid her funds for doing so.  The second visit by the grandmother was 11 months.  Since 2017, her brother and sister look after her.

1. Under cross-examination by counsel for the wife about the transfer of the $26,000 to pay the car, Ms Hora said she made a draft from the account for him to buy the car.  Her husband had taken the husband to Suburb Q and her husband paid by credit card and was repaid the $26,000.  She did not remember which account her brother repaid into, but he did repay.

2. She lives in City H in a property bought in 2014.  She has two children.  Their grandmother is in India and her back and neck problems are getting worse.  Since her grandfather died, her mother has got worse.  She is seeking $149,000 on the sale of the property.  She is seeking a discharge of the mortgage.  She is paying the mortgage.  Legally it is hers, but she took over the mortgage. 

3. In 2014, the grandmother came to Australia.  Her own child was one year old.  They were working long hours and her son was in day care for three to four days.  Her mother is not very social and cannot speak English.  She is normally at home because she works on the weekend, although her mother did provide her some help.  Her mother came to Australia because she was distressed and depressed.  She has two sisters in India.  One lives 30 kilometres from the mother and the other is 500 kilometres away.  There is a close relationship between all siblings.  Her brother helped her and her husband with $13,000 to pay the 20 per cent deposit.  She repaid this over two years.  She said that that was why she was helping her brother now, because he had helped her.  She has a poor relationship with the wife, who shows her no respect.  She did not spend much time with the wife in Australia. 

4. Ms Hora was cross-examined about the incident on 6 January 2017.  The husband called her and she was in fact there when the police attended.  The husband told her his relationship with the wife was over and moved to her thereafter.  He spoke with a real estate agent first and then spoke to her about the transfer.  He could not find a buyer at the price he wanted.  He prepared the contract and gave it to her.  She had asked the husband to speak to the wife, but he did not.  He was very upset with the incident.  She was always saying that the house was nothing to do with her.  The husband said he would tell her but she did not know if he did. 

5. She has provided her mortgage account, which she has paid.  She objected to providing the other accounts, which she did not want to show to the wife.  Exhibit A1 is the mortgage account for both mortgages.  She also paid the water for B Street, Suburb C.  This was her way to save for the mortgages.  Her father-in-law had put his savings in, too.  She is still paying the mortgage and she had done what the solicitors said.  She had a Commonwealth Bank account number ...85.  She receives family tax benefit.  Her husband’s account pays most of the living expenses.  She was cross-examined about other bank accounts CBA ...23 and CBA ...91 and said both of these related to both mortgages.  She does not earn that much but tries to save.  

6. Ms Hora was cross-examined about the transfer of $130,000 to the CBA account from the husband in 2017.  She remembered this.  It was in mid 2017.  She had copied his description.  She knew nothing about a business overseas.  She had asked him why there was business overseas and he said it was for his living expenses in India.

7. Ms Hora was cross-examined about payment in mid 2017.  She said that there was $15,000 paid off the mortgage three days later.  That was her money.  It was from her father-in-law in India.  She had asked if he could help and he was happy to help them.  She has no bank account in India. 

8. Ms Hora was asked about a $40,000 transfer in August 2020.  Her brother had asked her if her father-in-law could give this.  She spoke to the father-in-law and he gave them $40,000.  He helps with both mortgages.  Her father-in-law is still helping them.  Her brother is not giving her money. 

Final Submissions by Counsel for Ms Hora

1. Counsel relied on his trial outline. The second respondent was joined because she owns the property. There was a contract of sale in January 2017 and the mortgage of $149,880 was paid out in March. The second respondent took out two loans. It was $125,000 on the mortgage and $25,000 borrowed from the husband. The husband paid the money from his family in India. The husband has paid rent in Australia. The mortgage has been reduced from $125,000 to $52,000 and the rates and utilities have also been paid. A section 106B order to set the transfer aside was no longer sought. The second respondent agrees with the sale of the property but sees the money she has paid. The husband decided to relocate to India in 2017. He had sought to sell the property and failed.

Submissions by Counsel for the Husband

1. Counsel submitted that the assessment of the asset pool depended upon the evidence.  The wife had bought land in July 2020 and this should be included.  Elements of the wife’s claim were double dipping.  The court should not start at an assumption of equal contributions.  The husband and wife are of similar age and both in good health.  The wife still earns the same income but the husband’s income is less.  Hers is more than double the husband’s.  She has $37,000 of superannuation.  The husband has the care of his mother.  There is no dispute with the husband’s financial statement.  The wife had failed in disclosure.  She had denied all other accounts other than ...76.  Then her savings account was subpoenaed.  Her superannuation was not disclosed but was said to be $3,400.  The husband has no accounts in India. 

2. The wife had denied withdrawing funds in 2009 to 2012 but the husband said he had no access to their account. The transfers made by the wife total $79,743. This was a relevant wastage factor pursuant to section 75(2)(o) (counsel further referred to the case of Kowaliw v Kowaliw [1981] FamCA 70 (“Kowaliw”)).  The wife was reckless and negligent.  On 20 June 2012, a transfer by her meant that her balance was nil.  Between mid 2012 and mid 2017, she had saved $65,000.  She could not have been contributing much to the marriage.  

3. The husband says he had savings of $60,000 at the start.  The matrimonial home is the only asset and was bought through his input.  Counsel referred to the case of Pierce v Pierce (1999) FLC 92-844 (“Pierce”) in respect of initial contributions and submitted the husband paid the mortgage. The husband’s contributions to family expenses were overwhelming. The parties were separated for a period of time in 2012 to 2013 but restarted in November 2013. Both parties’ contributions to nonfinancial matters were equal. The husband had mopped the property each fortnight (I interpolate to say that this sort of ridiculous concentration on wholly trivial matters such as this is typical of the parties’ myopia in the conduct of the proceeding).

4. At separation, the wife had savings of $64,000 and the husband had savings of $174,000.  The mortgage was $150,000 at separation and the husband loaned $25,000 to his sister, which has since been repaid.  There is now $53,000 owing.  The husband’s future needs are higher, as he has no employment in India.  The land in Suburb P bought for $4,500 is irrelevant.  The wife had wasted $33,000 on Country F immigration and spent $23,000 on the new property, albeit that there was a query whether twelve and a half thousand dollars of that was borrowed.  The wife had made two loans of $6000 on 5 July 2019 and $2000 on 20 June 2019, which were recoverable and should be included in the pool.

5. Counsel submitted that the parties’ finances were kept independently.  The property should be sold and the second respondent should be paid $142,000.  20 per cent of the remainder should be given to the wife.  The superannuation was amassed during the relationship and should be equalised. 

Final Submissions by Counsel for the Wife 

1. Counsel submitted it was not a large pool. The husband’s case was over-concentrated on detail. If the add-back the wife sought was included there should be an equal division. There was no evidence of the husband’s initial contribution. If it was accepted, it should be given little weight because it was offset by the s 75(2) factors. The wife earns $40,000 and the husband has significant earning capacity. The husband was very detail-oriented. If the add-back was not included, there should be a 65/35 split based on s 75(2)(o), being the husband’s conduct. The husband had $173,000 at separation. A further $73,000 came in.

2. The wife’s evidence was consistent.  There was little trust.  She made concessions.  She corrected her superannuation.  The property in Suburb R is held on trust.  She paid about $21,000 deposit but was unable to finance.  She may lose the deposit. 

3. The husband was an unsatisfactory witness. His affidavits were inconsistent and he had to correct one of them. His answers were longwinded. He was asked if he responded to the wife’s affidavit. He never swore that he told the wife about the transfer. The wife said she was totally unaware. Only in cross-examination was it put that the husband had told the wife in mid 2017. The husband says the wife said it was none of her business and this was implausible. The wife paid $4,500 for the Suburb P property. The husband said she paid rent in advance for one year. The husband sought to alienate the property from the wife. There was no need for a s.106B order.

4. It was submitted that there were three categories of add-backs:  (1) there were legal fees; (2) there was premature distribution of matrimonial assets; and (3) wastage.  The husband transferred the property to his sister.  On 6 January 2017, the police attended.  On 12 January 2017, there was an intervention order hearing.  The husband decided the relationship was over and schemed to divest assets.  On 24 January 2017, the husband and sister signed the contract to transfer the property.  On 16 February 2017, Ms Hora opened a new account. In mid 2017, the husband went to India and deposited $263,000.  This was dealt with separately by Ms Hora.  The offset account was both parties. 

5. Counsel went through the various transfers and withdrawals in considerable detail, which reflect very well upon her application but which, in my view, form merely part of the confusing way in which the parties (by this I mean all of them) dealt with moneys. 

6. Counsel submitted that Mr D was not on affidavit and invited the court to draw a Jones v Dunkel (1959) 101 CLR 298 (“Jones v Dunkel”) inference.  Ms Hora holds money for the husband.  $50,000 was paid to Ms Hora in August 2017.  This was first said to be for a car.  In fact, it was held on trust, like all funds advanced by the husband.  The add-backs should occur.  If there was no add-back, the wife should get more.  The second respondent’s evidence was the same as the husband and they were clearly aligned.  She was clearly aligned with her brother and admitted a poor relationship with the wife. 

7. Counsel emphasised the authority of the High Court in Mallet v Mallet [1984] 156 CLR 605 (“Mallet”) as to the role of the homemaker. Section 75(2) factors favour the wife. The court should look at the totality of the contributions. All funds were accumulated during the relationship. The wife’s assets at the start were nominal. The matrimonial home was bought two years into the relationship. The husband was unemployed for six months of this. He was earning a lot in late 2009, just before the property was bought. It was put that it was not to the point that the husband earned more. The wife was unable to be requalified as a public servant. The wife was dependent on the husband for her visa and also financially. She had used cash in Australia but they both lived frugally. She cooked at night and did the housework. Both are young and healthy. He lives with his mother. He pays $190 a week but lives rent free. The wife works at a call centre. The husband is business savvy. His qualifications are recognised in Australia and India. He had not looked for communications work in India. He had $170,000 in his account when the property was transferred with a mortgage of $150,000. Counsel queried why it was not paid out or why not rented out. The husband said that tenants would damage it. There is wastage by the husband because the property was not rented and has been vacant for the last three years.

Some Brief Observations About Credit

1. It is always regrettable to make findings that may be discourteous and/or distressing to parties and/or witnesses.  This is, however, yet another case in which it is not possible to dispose of the matters before the court without being, at least in part, critical of the quality of the evidence that was given.  I regret to say that neither the wife nor the husband impressed me particularly as witnesses.  I should make it clear, however, that both of them had what seemed to me to be a quite remarkable degree of memory of detailed financial issues that had arisen up to quite some considerable time before.  They readily and without prompting recalled the amounts and dates of various transfers. 

2. The clear picture I got, and this was reflected in the way that counsel on their instructions ran their submissions, was that both these two primary players have an absolute obsession with money.  They both want as much of it as they can possibly get.  That is not a matter, of course, that involves any kind of moral obloquy and I do not suggest that it does.  Nonetheless, the clear picture that emerged to me is that both these people are extremely grasping and very concerned in this proceeding, and more probably I suspect generally, to get every last dollar they can keep their hands on.  This desire, in my view, explains on the one hand their apparently impressive recall of detail and also their vague, evasive and unsatisfactory answers where the march of events (including documents) was against them. 

3. By contrast, however, Ms Hora was an excellent witness.  While clearly she loves her brother (and she made no attempt to deny this), she was a good and responsive witness who, in my view, responded directly and credibly to the questions put to her.  I found her evidence of greater assistance than either of the other two primary players.  I should make it clear that I do not propose to draw a Jones & Dunkel inference against the absence of Mr D, her husband.  The evidence given by the wife was all within her own direct knowledge and was sufficiently broad to canvass the matters the court was being asked to determine.  There was no need to call Mr D given Ms Hora’s evidence and I draw no adverse inference accordingly.

Stanford & Stanford (2012) 247 CLR 108 (“Stanford”)

1. The High Court has made it clear in Stanford that the court’s first task is to ascertain the legal and equitable interests of the parties and determine whether a property distribution is appropriate.  In this case, however, as in so many cases (and as was foreseen by the High Court in Stanford), the basis upon which the parties conducted their financial affairs as a couple has, at least arguably, radically altered.  More to the point, both parties actively seek a property division and it is plainly just and equitable in the overall circumstances in which they find themselves that there should be one. 

The Pool

1. The only significant asset is the former matrimonial home, legally owned by Ms Hora and subject to a mortgage of $52,000 or thereabouts.  All parties agree that it should be sold. 

2. Both of the husband and the wife have bank accounts but, in my view, in circumstances where they separated, in effect, in mid 2017, over three and a half years ago, and the amounts are not all that great and in my view, far more probably than otherwise, reflect post-separation activity, it is inappropriate to include them in the pool.

3. The husband has a motor vehicle with which he has performed Uber work and may possibly perform more in the future.  It is clear, however, that this car was bought, essentially, out of funds provided by the husband and/or related members of his extended family.  It is wholly inappropriate that it be included in the pool.  The wife has superannuation in excess of $37,000 and the husband has virtually none.  The wife did not initially disclose her superannuation and, while the husband puts this as sinister, the fact is that it has been disclosed now.  The husband seeks an equalisation on the footing that most of it must have been garnered during the relationship.  That may be true at one level of analysis, although there is no figure for the amount at separation.  For reasons I shall come to, however, it is wholly inappropriate that there be an equalisation. 

4. This brings us, then, to the question of the add-backs for which the parties contend.  The wife seeks to add back some $150,000 of moneys allegedly transferred to Ms Hora and, additionally, to seek $60,000 of funds held in Ms Hora’s Bank of Melbourne account on trust for the husband.  The husband, by way of contrast, appears to seek add-backs for some $58,000 of sums transferred to an undisclosed account between August 2010 and June 2012, a further $58,000 allegedly withdrawn in cash between late 2009 and December 2012 and a further wastage of funds in excess of $152,000 between 2013 and 2019 (see husband’s written case outline part E).  Final submissions did not perhaps clarify which of these matters were really pressed.

5. I do not propose to make any add-backs for any of the claims made by the parties.  In order to understand why, it is probably now appropriate to move to the question of contribution.

Contribution

1. It should be noted, by way of preliminary comment, that it is clear that both of the husband and the wife have a very pronounced capacity to save money.  This might, at one level of analysis, be described as thrift and indeed correctly so, in my view.  That denotation, however, does not exclude another and equally applicable concurrent quality that I have discerned very strongly in both of them, namely, avarice.  As indicated, both of these people have a real obsession with money.  That obsession explains the march of events in a fashion far more probable, in my view, than otherwise. 

2. The one thing I do know is that the wife had nothing of any moment when she first came to Australia.  To her credit, common typically with the qualities I have just described, she started work shortly thereafter, despite language difficulties and despite her qualification not being recognised.  The husband, however, as I have already found and repeat again, had saved $60,000 at the commencement of the relationship.  That sum was thereafter, relatively rapidly, put towards the purchase of the matrimonial home.  This was, of course, a not insignificant contribution, although, as Pierce makes clear, there is no question of erosion.  It is rather, now, a matter of calibrating such weight as that initial contribution should receive given the parties’ ultimate outcome.  Plainly it does, however, stand to the husband’s credit. 

3. I have no doubt that both of these parties kept each dollar that they got their hands on to themselves.  The striking evidence in this case suggests that, unusually as it might seem for a couple who are married, the parties never intermingled their finances in any meaningful way and neither of them told the other anything about how much money they had.  Each of them complains bitterly about the other in this regard, but they are two sides of the same coin. 

4. I have no doubt that the wife dealt with substantial amounts of moneys that she had amassed by 2012 in whatever ways she saw fit.  No meaningful explanation has emerged as to what happened to those funds. 

5. By the same token, the wife continued to earn funds right the way through to 2019, and she has simply kept what she has made and dealt with it as she saw fit.  This finds expression in the purchase of the property which she manifestly failed to disclose, and about which her explanations were vague, prevaricatory and, in my view, totally unsatisfactory. 

1. By the same token, the husband had savings of $174,000 at the time he returned to live in India in mid 2017. The mortgage was only $150,000 and he could have easily paid it out.  No convincing or coherent explanation has been given for why this was not the case.  Furthermore, the contract of sale was plainly a sham.  The sale price of $585,000 was never advanced.  What actually happened was that the sister, no doubt with the assistance of her own husband, refinanced the mortgage.  Of the sum thus refinanced, $125,000 was provided by Ms Hora and $25,000 was provided by the husband out of his $174,000.  I accept her evidence that she did, however, repay him over the next few years. 

2. The relationship between the various siblings is a curious one.  I accept Ms Hora’s evidence that they are generally mutually supportive, and indeed this kind of support appears to extend to her own father-in-law, who has given very considerable amounts of money to her over time.  While, however, they are all prepared to help each other, they appear to want value for money.  The husband pays her rent when he lives in Australia.

3. In the end, this is a curious case that turns entirely on its own very particular facts.  As I find, the husband pays some moneys to his sister by way of board when he lives in Australia.  The proposition that the very substantial financial transfers disclosed in the various accounts all reflect these kinds of expenses together with expenses given to his other sister in India to support his mother are ones I categorically reject.  I have no means of knowing exactly how much money the husband has, nor where it is. 

4. Unfortunately, exactly the same must be said of the wife.  The end result of all this evidence and all these transfers and interrelated dealings is that I am not aware of how much money she has nor, likewise, where it is. 

5. These findings are the inevitable sequelae to the fact that these parties never intermingled their finances at all.  They were, in fact, not married for all that long.  The marriage really commenced with cohabitation in Australia in 2008 and they were separated for a not insubstantial period of time in 2012 to 2013.  The relationship then limped on for another four years, in this kind of arid monetary wasteland where neither gave the other anything much at all, and then was sundered completely.  At a maximum, it was constituted of two tranches of four years with a year off in between. 

6. Both parties condescended to minute detail as to the material contributions to the housekeeping and the like.  The evidence suggests that the husband worked long hours and I accept the evidence that the wife would have done far more by way of housekeeper.  The attempts by the husband to elevate his occasional mopping of the floors to some sort of significant criterion is as regrettable as it is, indeed, risible. 

7. I have no doubt that the wife made the greater contribution to the household and that the husband made far the greater contribution to the payment of the mortgage and the like, albeit, as I repeat, the parties kept their own moneys apart and busily salted them away for their own benefit. 

8. At one level of analysis, this brings us, in a sense, back to the Stanford decision.  This is a case where the overarching need for a property settlement might be thought not to be met.  Where parties who are married, in effect, run their finances for their own gain on a completely separate basis, one which, in fact, has a measure of benefit to both of them which is concealed to the other, one begins to wonder whether any kind of property adjustment is, indeed, appropriate; however, notwithstanding this very unsatisfactory aspect of the contribution argument, it is plain that there ought be a property settlement.  Everybody seeks it, after all.

9. In my opinion, doing the best I can in circumstances where the evidence is not so much incomplete as far too complete and, thereby, incomprehensible, I think that the contributions of the parties should be assessed as 65 per cent in favour of the husband and 35 per cent in favour of the wife.  This calibration does give the wife credit for the homemaker role she played, but the fact is that the parties have only one meaningful asset and it arose entirely out of the husband’s pre-acquired savings.  Furthermore, he had clearly contributed far more to the expenses of the marriage, to the very limited extent that they were joint.  In my view, an adjustment of this order is appropriate. 

10. This finding self-evidently proceeds on the footing that there will be no add-backs as each of the parties have sought. I should make it clear that I am simply not persuaded on the evidence that either side has convinced me that it is more probable than not that the sort of wastage and/or otherwise appropriation of funds by each of the parties has taken place. I have made it clear that I think each of these parties kept as much money as they could but the evidence they gave, together with the murky if not incomprehensible way their finances were all intermingled and/or dealt with, leaves me wholly unpersuaded that the court can make findings with any proper measure of certainty. The parties funds, as they stand, other than those I have included in the pool will simply be retained by them. Doing the best I can, and bearing in mind as I say these are questions of impression, the 65/35 division is in my view just and equitable.

The Section 75(2) factors. 

1. The parties are of roughly similar age.  The husband is 42 and the wife is 35.  She will have that much longer in which to amass further assets, as I have no doubt she will be capable of doing.  Nonetheless, counsel for the husband’s suggestion that the wife’s income was substantially greater than that of the husband needs to be approached with the greatest caution.  Her earnings in Australia will always be modest.  The husband is a qualified professional.  He is also an extremely savvy businessman.  His record in Australia proves this.  While he has not elected to do any work in India thus far, I have no doubt, given his past history, that he will.  I have every confidence that, notwithstanding his slightly greater age, his long-term financial future is far sounder than that of the wife.  Whether he will continue to amass considerable funds by coming back to Australia to work from time to time as an Uber driver or whether – as I think personally, having heard and seen him give his evidence, is more probable – he expands his business interests in India (he has plainly looked at businesses as a possibility and the clear impression I got is that, once this case is over, he will accelerate his business activities) does not matter, as I find his likely earnings will be greater, although possibly not so very much greater, than those of the wife.  Both parties are in unexceptionable health and, in my view, the wife should receive a five per cent loading under this heading so that the overall division between the parties, adjusted, amounts to 60 per cent to the husband and 40 per cent to the wife. 

2. I should finally interpolate and say that, in that 60/40 division, I am conscious that the wife should and will retain her superannuation.  The wife worked as an employee, which is why she has the superannuation she does.  The husband, as a self-employed person making and saving very considerable amounts of money, plainly elected not to make any superannuation contributions and, in my view, to require the wife to give him an equalisation of superannuation in the circumstances of these parties’ finances more generally (i.e. they each kept absolutely everything of their own) would not be just and equitable.  It is a measure of his greed that he has even sought it. 

The Position of Ms Hora

1. I have no hesitation in finding that Ms Hora took over the mortgage to help her brother out when he was unable to sell the property at a price attractive to him in 2017.  She repaid the $25,000 part of the mortgage that he lent her over time.  It should be noted that the mortgage has declined from $150,000 to $52,000 in the last three years.  Plainly, it seems improbable that all these sums were paid by Ms Hora, but there is no means whereby I can quantify exactly how much the husband may have contributed from India or Ms Hora has paid herself.  The husband has said, as so has Ms Hora, that the deal was that she would get paid $150,000 when the property was sold.  In my view, that deal should be given effect.  It reflects in part the payments actually paid by Ms Hora. More particularly, it was the bargain done between the parties at the time. 

2. Even were this not the case, given the amounts Ms Hora has advanced, it is, in any event, just and equitable that she receive the sum that she was promised.  It equates very closely with what she has actually spent.  I do not accept that the absence of rent on this property should be treated as deliberate wastage.  It is certainly strange, but the husband’s evidence that he was concerned about tenant damage is not wholly devoid of force in circumstances where he, as the true beneficial owner of the property, was overseas.  I strongly suspect that the decision not to rent owes as much to cultural background as anything else.  Ms Hora should be repaid the $142,745 that she seeks. I would have been prepared to order that she receive the $150,000 originally agreed but will accept the lower figure as a concession against interest. 

Conclusion

1. This is a case where, yet again, the orthodox four-step methodology for property proceedings does not really achieve the result that is just and equitable.  I have worked through it as best I can in the circumstances because it does give at least some illustration as to where the just and equitable resolution lies.  In the end, however – I think I have said this more than once – this is a case that turns on its very particular facts.  In and amongst the welter of the parties’ confusing financial dealings, and end result that gives Ms Hora her money back and splits the remaining proceeds 60/40 of the matrimonial home, is plainly, in an overarching sense, the just and equitable resolution of the matter. 

2. In saying that, I take into consideration all the relevant other matters.  The wife retains her super (and in terms of the total, like the equity concerned, is probably not an entirely insignificant matter).  The wife is slightly younger than the husband and has more earning years ahead of her.  Her earnings are at least in hard cash in Australian dollars, whereas his may be in rupees (although they may also be in Australian dollars if he works as an Uber driver).  The parties elected to keep their funds wholly separate during their relationship.  I do not accept that this is one of those terribly distressing cases where this forms some form of coercive or dominant controlling behaviour by the husband.  It is just the way he and the wife chose to conduct their affairs.  That decision clearly benefited both of them from time to time. 

3. In a sense, what I am saying now is that they must both, as it were, stand by their bargain, save to the extent that the court overarchingly tries to impose a result that is just and equitable.  I think a 60/40 division of the remainder of the property, once Ms Hora is paid out, is just and equitable and I have drawn orders accordingly.

I certify that the preceding one hundred and thirty (130) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date: 20 November 2020