Dahiya and Mukhi
[2004] FMCAfam 362
•28 July 2004
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DAHIYA & MUKHI | [2004] FMCAfam 362 |
| FAMILY LAW – Property – long marriage – contributions – whether funds withdrawn at separation should be notionally added back – spouse maintenance. |
Family Law Act 1975 (Cth), ss.60, 65, 68, 75, 79
Child Support (Assessment) Act 1989 (Cth)
In the Marriage of Lee Steere and Lee Steere (1985) FLC 91-626
In the Marriage of Ferraro (1993) FLC 92-335
In the Marriage of Clauson (1995) FLC 92-595
Russell and Russell (1999) FLC92-877
Bevan and Bevan (1995) FLC 92-600
Townsend (1995) FLC 92-569
| Applicant: | YAJAN VEER DAHIYA |
| Respondent: | CHANDER MUKHI |
| File No: | PAM4581 of 2003 |
| Delivered on: | 28 July 2004 |
| Delivered at: | Parramatta |
| Hearing date: | 19 July 2004 |
| Judgment of: | Ryan FM |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr R. Greenaway |
| Solicitors for the Respondent: | J Sciglitano & Co |
ORDERS
Within ten (10) days of the date of these orders the wife pay to the husband the sum of eight thousand nine hundred and seventy four dollars ($8,974).
Within ten (10) weeks of the date of these orders the wife shall give the husband a discharge of all mortgages secured against the former matrimonial home as 9 Falkirk Place, Dharruk in registrable form or alternatively a release from the mortgagee whereby the husband is no longer liable to the mortgagee.
Simultaneously upon compliance by the wife with Order (2) the husband shall do all acts and execute all documents as are necessary to transfer to the wife the whole of his right, title and interest in the property situate at and known as 9 Falkirk Place, Dharruk in the State of New South Wales being the whole of the land in Certificate of Title Folio Identifier 386/242358.
In the event the wife fails to comply with Order (1) or (2) above the parties do all such acts and execute all such documents as may be required to effect a sale of the former matrimonial home situate and known as 9 Falkirk, Dharruk in the State of New South Wales to be sold by private treaty at a price agreed upon between the parties and failing such agreement to be determined by the President of the Australian Property Institute of New South Wales or his nominee.
Upon the completion of the sale proceeds of the sale be applied as follows:
(a)To pay all costs, commissions and expenses of the sale and to pay any council and water rates and maintenance levies outstanding in respect of the matrimonial home.
(b)45 per cent to the wife.
(c)Balance then remaining to the husband from which he shall pay the wife $36,319.
In the event that the matrimonial home has not been sold within three (3) months of the order above becoming operative then the husband and the wife shall make all such arrangements and do all such acts and sign all such documents and pay all monies equally necessary to procure a sale by public auction of the matrimonial home upon the following terms:
(a)The auctioneer shall be a real estate agent nominated by the wife;
(b)The reserve price shall, unless agreed upon by the parties, be as proposed by the Auctioneer.
(c)That auction will take place within three months of the wife failing to comply with Orders (1) and (2).
Each party has the right to bid at the auction.
The wife shall immediately sign all such documents and authorities as are necessary to transfer to the husband her interest in all monies held in the joint names of the parties at the Cooperative Bank Modeltown Branch.
Pending compliance with Orders (1) and (2) or any subsequent applicable enforcement orders the wife shall pay all mortgage instalments, rates and utilities levied in relation to the property at
9 Falkirk Avenue, Dharruk as and when they fall due. In the event the wife defaults, such default shall be made good by adjustment pursuant to these orders in the husband’s favour.By way of spouse maintenance the respondent wife shall pay the applicant husband $100 per week. The first payment shall be made by 4 pm 5 August 2004 and each week thereafter. In relation to spouse maintenance the husband shall nominate a bank account into which the wife shall pay the monies due pursuant to this order. The wife’s obligation to pay spouse maintenance pursuant to these orders ends with the last payment made 24 March 2005.
All exhibits tendered in these proceedings shall be returned at the expiration of one calender month unless an appeal is lodged.
All outstanding applications are dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAM4581 of 2003
| YAJAN VEER DAHIYA |
Applicant
And
| CHANDER MUKHI |
Respondent
REASONS FOR JUDGMENT
The proceedings
These are proceedings for adjustment of property pursuant to s.79 of the Family Law Act 1975 and for spouse maintenance.
The application
Yajan Veer Dahiya (“the husband”) started the proceedings when he filed an application for final orders on 28 October 2003. At the same time he filed a form called “application for maintenance” that included an application for “child maintenance allowance” and “other services available for child”. Because the relief sought was unclear, on
5 December 2003 the court directed that the husband file an amended application. Using an information sheet the husband filed a document that he called an amended application on 24 December 2003. In it he sought the sale of jewellery, the former matrimonial home at 9 Falkirk Place, Dharruk and a car registered number SUS 850. Upon the sale of these assets, the husband proposed that the net proceeds would be divided into four equal shares, described as his, his illness share, his son’s share (which would be paid to the husband) and the remaining one-quarter to the wife. At the start of the hearing, the court sought clarification from the husband as to the nature of the relief sought. He indicated that he pressed an application for spouse maintenance, the adjustment of property and also child maintenance.
The Child Support Assessment Act 1989 governs the parties’ circumstances. The husband was unable to confirm whether he had completed an application for change of assessment. Although he has had discussions with the Child Support Agency it appears that he has not made an application for change of assessment. No notice of decision by a Child Support Review Officer was available and there was no suggestion that the husband had completed an objection procedure. The only application filed by the husband concerning child support was the application for maintenance filed 28 October 2003. Nowhere in that document or any subsequently filed, does the husband indicate that he makes a departure application. Unfortunately, the language he used is confusing. The totality of the evidence concerning any potential departure application was insufficient to enable the court to properly determine the issue. The risk that an injustice may occur was too great for the court to exercise its discretion pursuant to s.115(c) of the Child Support Assessment Act 1989 in favour of allowing a departure application to proceed. Thus the child support application was struck out. If the husband wishes to pursue a child support departure he must complete the administrative review procedures available with the Child Support Agency.
Chander Mukhi (“the wife”) filed her response on 20 January 2004. At the hearing she sought orders in accordance with the minute of orders included in her counsel’s case outline document. These are set out below:
1.The husband transfer to the wife the whole of his interest in the former matrimonial home situate at 9 Falkirk Place, Dharruk.
2.The husband, as against the wife, be declared the sole owner of the property situate at plot 1081, Sector – 1 Rohtak, Haryana, India.
3.The parties otherwise retain all items of personalty in their respective possessions together with their respective interests in bank accounts and superannuation entitlements.
4.The wife transfer to the husband the whole of her interest in all bank accounts in India in their joint names, to the husband
The evidence
The husband relied on the following evidence:
·His affidavit filed 29 October 2003 and his oral testimony;
·His financial statement filed 29 October 2003;
·His affidavit filed 10 February 2004;
·His affidavit filed 2 July 2004.
The wife relied on the following evidence:
·Her affidavit filed 20 January 2004 and her oral testimony;
·Her financial statement filed 20 January 2004;
·Affidavit to Simon Azar (valuer) filed 3 May 2004.
·The parties agreed that the value of the former matrimonial home accorded with the valuer’s expert opinion and this witness was not cross-examined. I accept his evidence.
·Her affidavit filed 18 May 2004;
·Her affidavit filed 1 July 2004;
·Affidavit of Joseph Sciglitano filed 2 July 2004.
·Her affidavit filed 14 July 2004.
The wife’s counsel tendered documents that became exhibits.
The principal issues raised in the proceedings
The principal issues raised in the proceedings are these:
·Whether the husband owns a property at Plot 1081, Sector – 1 Rohtak, Haryana, India;
·Whether the wife has been allocated property by the Delhi Development Authority;
·Whether $9,200 withdrawn by the husband at separation should be notionally added back;
·The wife’s capacity to pay spouse maintenance;
·Whether money held at the Central Cooperative Bank Limited is held for either party or both;
·If the husband does own the property at Rohtak whether it is income producing.
Short history
The husband was born on 15 September 1949 in India.
The wife was born on 30 November 1955 in India.
The parties married on 17 July 1975 at Haryana, India. They did not cohabit prior to their marriage.
There are two children of the marriage. Their daughter Kanupriya was born in 1980 and their son Vishra was born on 21 January 1988. Kanupriya is married and resides with her husband in India.
In October 2001 the parties and Vishra arrived in Australia. The husband remained a short time before returning to India. The wife and Vishra remained in Australia living with her sister.
In December 2002 the wife returned to India. The parties returned to Australia on 21 February 2003 and have resided here ever since. Both parties have been granted permanent residence in Australia.
In April 2003 the parties purchased their home at 9 Falkirk Place, Dharruk.
The parties separated on 18 September 2003. Since separation the wife has occupied the former matrimonial home and paid the outgoings associated with it. The husband and son have lived in rented accommodation. Neither party is entitled to receive government benefits until February 2005. The wife works full time and the husband is unemployed. Vishra receives a youth allowance.
Relevant law
The approach to the determination of an application under s.79 is well established by authority: See In the Marriage of Lee Steere (1985) FLC 91-626; In the Marriage of Ferraro (1993) FLC 92-335; In the Marriage of Clauson (1995) FLC 92-593. The process involves a multiple part procedure. Firstly, identifying the property, liabilities and financial resources of the parties at the time of the hearing. Secondly, evaluating the contributions made by the parties as defined in s.79(4)(a) to (c) and the effect of any proposed order upon the earning capacity of either party. The court must then evaluate the matters contained in s.75(2) insofar as they are relevant; any other order made under the Act affecting a party or child; and any child support under the Child Support (Assessment) Act 1989 that a party to the marriage is to provide or might be liable to provide in the future for a child to the marriage.
In determining what order should be made under s.79, the court must be satisfied in all the circumstances that it is just and equitable to do so: s.79(2). It is the justice and equity of the actual orders that the court must consider: See Russell v Russell (1999) FLC 92-877.
One of the important issues concerns the parties’ obligation to make full and frank disclosure, which means that they are required to disclose all material facts. In Weir v Weir (1993) FLC 92-338, the Full Court said at 79,593 “This Court has pointed out in a line of cases leading up to the recent decision of the Full Court in Black v Kellner (1992) FLC 92-287, that it is the duty of a party involved in property proceedings in this jurisdiction to make full and frank disclosure of their financial affairs.” See also Junti (1986) FLC 91-759 and Mezzacappa (1987) FLC 91-853. And further on: “Irrespective of any obligation created by the Family Law Act or the Family Rules that we have identified, in our opinion the obligation of full and frank disclosure applies because of the duty of the Court to consider all of the circumstances of the case. See Jenkins v Livesey (1985) 1 All ER 106. This is particularly important in cases where the financial circumstances of the parties may be relevant. It is not sufficient for a party to simply adhere to the obligations specified by the rules of court. If the relevant rules are deficient in identifying an aspect of a party's financial circumstance then this is not a basis for a plea that there was non-disclosure because the rules did not identify an aspect of a party's circumstances that may be relevant.”
In the matter of Luciano (2000) FamCA 401, O'Ryan J summarised the principles that emerge from these cases as follows.
·“In proceedings in the Family Court in relation to financial matters, there is an obligation of each party to make a full and frank disclosure of his/her financial circumstances and all matters relevant thereto.
·The obligation arises because of the necessity for the court in such proceedings to consider all aspects of the financial circumstances of each party.
·The obligation is not created by the rules or the practice of the court and the rules simply set out the procedure by which that obligation may be fulfilled.
·If there is a deficiency in the practice adopted for the purpose of making such a disclosure, mere compliance with the requirements of the relevant rules if deficient, is not enough.
·If there is non-disclosure in the relevant sense then the failure to disclose undermines the whole process of adjudication of the proceedings in relation to financial matters.
·A finding of non-disclosure may in appropriate cases, depending on the circumstances, result in the other party being granted without more, the relief sought.”
The husband makes an application for spouse maintenance. In Bevan and Bevan (1995) FLC 92-600 the Full Court of the Family Court identified the process for assessing a claim for spouse maintenance. This requires:
"1. a threshold finding under s.72;
2. consideration of s.74 and s.75(2);
3. no fettering principle that pre-separation standard of living must automatically be awarded where the respondent's means permit; and
4. discretion exercised in accordance with the provisions of s.74, with reasonableness in the circumstances" as the guiding principle."
A claim for spouse maintenance that is heard at the same time as an application for property adjustment adds an extra step to the process. The sequence of determining the applications is important and the property application must be determined before the spouse maintenance claim is considered. This is to ensure that the terms of any order made in the property claim are considered in the spouse maintenance application.
Assets and liabilities as at the date of hearing
The parties reached agreement as to the value of most assets, liabilities and financial resources.
I find the assets, liabilities and financial resources of the parties as at the date of hearing are as identified in the following table.
| Non Superannuation Assets as at the date of hearing | $ |
| 9 Falkirk Place, Dharruk (Agreed) | 245,000 |
| 1993 Toyota Corolla (W) | 3,000 |
| St George savings account (W) | 15,498 |
| 1081, Sector 1, Huda Rohtak, India (Agreed) | 100,785 |
| Central Cooperative Bank, India (Agreed) | 5,084 |
| Items of jewellery acquired during the marriage | Minimal |
| TOTAL | 369,367 |
| Superannuation | $ |
| LUCRF Superannuation (W) | 2,088.64 |
| TOTAL SUPERANNUATION | 2,088.64 |
| TOTAL ASSETS | 371,455.64 |
| Liabilities as at the date of hearing | $ |
| National Australia Bank mortgage (Agreed) | 162,700 |
| TOTAL LIABILITIES | 162,700 |
| NETT ASSETS | 208,755[1] |
[1] Rounded down
Unless stated differently, the figures in the above table are taken from the parties’ financial statements or are agreed between the parties.
At separation the wife retained the overwhelming majority of the furniture and personalty. Such limited property as personalty and furniture as the parties owned was acquired in the short time they had been in Australia. The court does not have evidence of its value or concerning the nature of the furniture and personalty. Because the parties had been in Australia only a few months and there is no evidence that they spent significant sums purchasing furniture and personalty, it is probable that the furniture and personalty retained by the wife has minimal value.
Upon marriage, the wife received a modest selection of gold wedding jewellery. The husband claimed that this jewellery was secreted in a locked security box in a private store at Blacktown. At his behest, the court restrained the parties from removing the contents of the safety deposit locker without the prior leave of the court. This was so that the husband could have the jewellery valued and the property remain available for distribution. During the hearing the husband advised that he had been mistaken and that the shop subject to his application and the order was closed. The wife agrees that she has two chains, one bangle, two rings and two pairs of earrings, all of which are 22 or 23 carats and which she wears every day. The jewellery has not been valued however it seems unlikely that it is valuable. Other items of jewellery acquired during the marriage were given to the parties’ daughter when she married.
Approximately two years ago the wife purchased a 1993 Toyota Corolla. The wife borrowed the purchase price, which was between $6,500-7,000 from her sister. That loan has been repaid from either the parties’ savings or the wife’s income. The husband challenges the wife’s claim that the car is worth approximately $3,000. He contends that the court would find that its value has not fallen since its purchase. It is probable that with use and the passage of time the value of the car has fallen. In the absence of evidence of value, the court will treat the wife’s assertion as an admission against interest and find its value accords with her admission.
It was the wife’s contention that the court would notionally add back $9,200 withdrawn by the husband from the parties joint savings at separation. In relation to the savings the wife’s counsel appeared to categorise the withdrawal as a premature disposition of a proportion of the matrimonial assets. Although he did not make reference to it, counsel appeared to rely on the line of authority emanating from Townsend (1995) FLC 92-569. Townsend does not establish a rule of general application that all assets held at separation, if disposed of, must be notionally added back into the asset pool. The husband explained that he had spent this money on day to day living expenses. At separation he needed to obtain rented accommodation and unless he drew down on the money held in India he had no other income. His income stream from India even if used was insufficient to meet the husband and child’s reasonable living expenses. In circumstances where the wife had possession and control of all the Australian assets the court is not persuaded the withdrawn savings should be notionally added back.
The wife’s cash savings, some of which emanated from the parties’ joint savings, have grown since separation. Although it was submitted that these would be excluded from the matrimonial pool there were no submissions made that justified this outcome. The assets are clearly matrimonial assets and issues of acquisition post separation relate to contribution. Merely because assets are acquired post separation does not alter their proper characterisation as assets.
The most contentious issue is whether the parties own a property at plot 1081 Sector – 1, Rohtak, Haryana in India that is registered in the husband’s sole name. The wife contends that the parties purchased this property in 1985 using joint savings. She does not reveal its purchase price. The wife claims that the parties developed the land and built a three-story home with ten bedrooms using borrowed money. The wife does not say how much was borrowed or from whom the money was obtained. She says that the monies borrowed have been repaid and the property is unencumbered. Presently, the wife says that the property is leased to a DAV school, which school she says pays 10,000 rupee’s rent monthly. Attached to the wife’s affidavit filed 14 July 2004 is three photocopy faxed statements apparently sent from the Cooperative Bank, Modeltown Branch, Rohtak to her solicitor. This purports to be bank records of a joint account in the parties’ names into which the DAV school pays rent. The wife says, “I have had no access to this account while I have been in Australia. I did leave blank signed cheques with my daughter I do not know if she has used them”.
The husband denies that he is the registered proprietor of the Rohtak property or that the Cooperative Bank account is his. He claims that the various documents presented by the wife purporting to confirm his interest in the property and bank account are fabricated. The land is registered in the name Yajan Veer. The bank account reveals that it is held on behalf of “Dr Y.S. Dahiya and his wife Smt. C.M. Dahiya”.[2]
[2] Annexure A wife’s affidavit filed 14 July 2004
The wife relied on a report from TC Sharma, an architect, dated 1 April 2004. This report asserts, “Name of the owner: Dr Jayan Veer Dahiya”. After he received this report the husband contacted Mr Sharma. At the husband’s request Mr Sharma inspected the relevant land records and prepared a second report[3]. This report is identical to his first report, subject only to the name of the owner. In his second report Mr Sharma records that the registered owner, sourced from records that he inspected, is Yajan Veer. The husband contends that Yajan Veer is a common name in India and that the wife has relatives with this name. He claims that he has never used this name and that he is uniformly known as Yajan Veer Dahiya. However even in documents that the husband agrees are his, he uses different names. For example on 15 July 2000 the husband wrote[4] to Prime Minister Johan (sic) Howard using the name Dr Yajan Veer Dahiya. In all of his court documents the husband has used the name Yajanveer Dahiya. That is joined together the first two words of his name. His passports use the separated first names. Thus the husband’s claim that he only uses Yajan Veer Dahiya does not withstand scrutiny.
[3] Annexure B husband’s affidavit filed 2 July 2004
[4] Exhibit E
The husband claimed that the wife has never used his surname and has always been known as Chander Mukhi, never Chander Mukhi Dahiya. In documents produced from the Haryana State Council for Child Welfare the wife is referred to as Mrs C.M. Dahiya[5] as Smt.C.M Dahiya[6] and as Mrs Chander Mukhi[7]. These are clearly authentic documents from various government departments. Exhibit C gives further particulars and describes her as w/o (shorthand for wife of) Sh. Yajan Veer. There is nothing apparent from these documents that suggests they are forgeries or belong to somebody else. The documents were in the wife’s possession, appear aged and their subject matter is consistent with the parties evidence of the events they deal with. For these reasons the court is satisfied as to their authenticity. Thus the court is satisfied that the wife uses both her maiden and husband’s family name.
[5] Annexure wife’s affidavit
[6] Exhibit B
[7] Exhibit A
However there are other documents about which the court cannot be so confident. The wife’s counsel tendered an affidavit[8] allegedly sworn by the husband on 30 June 2000 in which the husband refers to himself as “Yajan Veer son of Mr Dabari Lal”. The husband’s father is Dabari Lal. The document purports to confirm marriage to Chander Mukhi on 17 July 1975. The husband says it is a forgery. The wife’s evidence is that this document was executed by the husband as part of the material provided to their migration agent as proof of their marriage. She retrieved this document from a migration agent when their visas permitting travel to Australia were approved. Before the wife had raised any issue about the husband’s identity he swore an affidavit filed in these proceedings concerning his inability to file a marriage certificate. He explained that his marriage certificate was lodged with the Australian consulate in Mumbai. Exhibit G is written quite crudely, using poor grammar and replete with typographical errors. For example it says “That I am married to be held on 17 July, 1975 and the name of my wife is Smt. Chander Mukhi.” The language is nowhere nearly as sophisticated to that which the husband used in his letter to the Prime Minister or in these proceedings. His typewritten documents do not carry the typographical errors that mar exhibit G. Two signatures, both purporting to be the husbands appear to be significantly different to each other and to the signatures on the husband’s court documents. These difficulties detract from the wife’s claim that exhibit G is authentic. For these reasons the court is not satisfied that the document is the husband’s document. This does not mean that the court is persuaded that the document is a forgery, merely that its authenticity has not been established. Thus while it does not assist the wife’s case it does not detract from it either.
[8] Exhibit G
The wife relied upon a duplicate matriculation certificate from Panjab University[9] that certifies that, “Yajan Veer… son of Shri Darbari Lal matriculated in February 1965 in English”. Yajan Veer’s date of birth is 15 September 1949 the same as the husband’s. The husband agreed that he attended Panjab University. He gave numerous dates for matriculation before conceding that he matriculated in English in 1965. Again he claims the document to be false. The document carries a seal and is attested by a notary public from Rohtak district as true copy. The document appears appropriately aged and the wife says she discovered it in the husband’s papers upon separation. I accept her evidence. On the face of it this document appears authentic and its contents are consistent with the husband’s details, subject to the absence of Dahiya in his name. However in an obviously authentic letter from the Harayana State Council for Child Welfare[10] the husband is referred to as “Sh. Yajan Veer”. On balance the court is satisfied that the Panjab University document is authentic and that it relates to the husband, notwithstanding that it does not refer to him as Dahiya.
[9] Exhibit F
[10] Exhibit C
The effect of these findings is that the court is satisfied that the husband is known as Yajanveer Dahiya, Yajan Veer Dahiya and also Yajan Veer. Similarly the court is satisfied that the wife is known as both Chander Mukhi and Chander Mukhi Dahiya. Thus the mere fact that the property at Rohtak is registered in the name of Yajan Veer does not exclude the possibility that the husband owns it.
A central part of the wife’s case is that the husband receives income from the Rohtak property that he has failed to disclose or account for. The bank records referred to earlier corroborate her claim. As with some of the other documents these are not without difficulty. Firstly the wife says she spoke to the bank manager in India and at her request these documents were faxed to her solicitor. The wife’s solicitor swore an affidavit concerning current exchange rates yet makes no mention that he received these statements from India. The document refers to Y.S. Dahiya (my emphasis) an initial that the husband has not used elsewhere. On the second page there is reference to a statement made on 13 November 2004, something that appears to be inexplicably inaccurate. Balanced against this the document appears to comprise a credible running statement, evidencing many transactions over a number of years. There are running totals and rough mathematical calculations determining interest payments. The statement records monthly deposits of 9,500 rupees, a sum close to the wife’s understanding of the rent paid by DAV school. Although the husband was concerned that the pages used different fonts, this is not concerning. As the statement covers at least 2.5 years, such a difference is understandable. The last withdrawal from the account coincides with the parties departure for Australia. At the time they left India the account held 207,490 rupees from which 207,490 was withdrawn. Since then the only activity has been monthly deposits of 9,500 rupees and interest. It is not beyond possibility that this document could be an elaborate fraud. However it seems unlikely that the cessation of withdrawals is merely coincidental with the parties departure from India. On balance the court is satisfied that the bank statements are authentic and the inconsistencies to which the husband drew the courts attention are simple clerking errors. There is sufficient credible material that corroborates the wife’s claim that the husband owns the land and that he receives 9,5000 monthly rent from the identified tenant. This means that the court is satisfied that the Rohtak property and the savings in the Central Cooperative Bank Limited are matrimonial assets. It follows that the court is satisfied that in a material respect the husband has failed to meet his obligation to make full and frank disclosure in these proceedings.
On 12 February 1981 the parties paid 2,000 rupees to the Delhi Development Authority for future land allocation. The wife claims that she has not yet been allocated land by the authority. The husband alleges that the Delhi Development Authority made an allocation this month to the wife. He produced no evidence in support of his allegation. He contends that the land allocated is worth $300,000. During cross-examination the husband was invited to accept the land at $300,000, which proposal he declined with alacrity. The husband’s claim appeared baseless and its value improbable. I accept the wife’s evidence that the parties are yet to receive an allocation from the Delhi Development Authority. As more than twenty years have passed since their 2,000 rupees deposit was paid the prospect that land will be allocated is uncertain. Accordingly it will not be included as a matrimonial asset.
Assessment of contributions and other factors
Section 79(4) requires that the court looks at the entirety of contributions, both financial and non-financial for the welfare of the family as well as the acquisition, conservation and improvement of those assets. Contributions are not required to be tied to the acquisition, conservation or improvement of particular assets and are to be taken into account generally as contributions in a total sense. The court invited the parties to agree that after nearly thirty years marriage during which both parties had made contributions through their own endeavours and absent any special contributions or inheritances, for example, that their contributions were equal. The wife agreed with this approach but the husband did not. He did not accept that the court should value financial as well as non-financial contributions or that the parties’ contribution as a home maker and parent must be recognised in a real way. As to the later the husband appeared to regard this proposition as preposterous.
At the commencement of cohabitation the husband was employed and completing a Ph.D in linguistics. He was awarded a PhD in 1975 and in 1976 started work as a university lecturer at the Panjab University. At the commencement of cohabitation the wife was a student. Neither party had any assets or liabilities of any value. Until he migrated to Australia the husband worked full time in various university posts, eventually accepting appointment as Professor of Sanskrit Maharshi Dayanand University, Rhotak. He held this position until his migration to Australia. Presently he is on leave without pay from his post. Throughout the marriage the husband contributed all of his income to joint matrimonial purposes.
After their marriage the wife was primarily responsible for maintaining the home and after the children’s birth, their care. Between 1983 and February 1987 the wife worked as an instructor at the Haryana State Council for Child Welfare. She worked six days a week until she was appointed as principal. The wife was a principal from 6 February 1987 to 30 June 1993. She earned between 2,000 and 2,300 rupees per month. Using current values this is the equivalent of about $60 per month.
The wife contends that from August 1993 until 30 June 2000 she worked five days a week as a teacher at D.S. Arya High School. The husband denied the wife’s claim that she worked at this school. He said that the wife remained at home and was responsible for the home and family. This school is at Chandigarh, which the husband alleges is 70 kilometres from Rohtak. During cross-examination the wife said that Chandigarh is 35 kilometres from Rohtak and that during the working week she stayed with her parents at Chandigarh or travelled to and from home using public transport. Asked to explain the arrangements for the children’s care during this period, the wife faltered. She appeared uncertain about the children’s ages and their living arrangements. Attached to the wife’s affidavit filed 1 July 2004 is a letter apparently from the headmaster D.S. Ayra High School. Its letterhead does not have a telephone number, telegram details, nor street address. There is no fax or contact number on the face of the letterhead. This document differs considerably to documents produced by the wife from her other employers, all of which carry detailed street addresses and telephone numbers. I have considerable doubts about the authenticity of the letter from D.S. Arya High School and am not satisfied the wife worked at this place. However it is plain that when she was not at work the wife was fully engaged in the children’s care and as home maker.
Although the husband disputed it, the court accepts that the wife also contributed all of her earned income to joint matrimonial purposes. Whether because of cultural morays, opportunity or choice, the parties essentially organised their family along traditional lines. That is the husband was primarily responsible for providing financially for the family and the wife was primarily responsible for the children’s care and as a home maker. These mutually compatible roles worked well in the sense that the husband was free to pursue his career as an academic, which in turn enabled the family to have sufficient income to live on and with which to acquire property. It meant that the children and family benefited from the wife’s primary care. During the years that the wife was in paid employment, the husband took on additional responsibility for the children’s care and between them the parties ensured that the family’s financial and non-financial needs were met. When she worked in paid employment, the wife was unable to earn an income comparable to that which the husband received. Thus, his income provided the source of the 2,000 rupees paid to the Delhi acquisition. Similarly, his income predominantly provided the monies used to purchase the property at Rohtak and in discharge of the loan.
When the parties migrated to Australia they brought with them about $60,000. The wife says that these monies comprised savings and the proceeds of the sale of land in India. The husband says that he bought money from India given or loaned to him by friends. He does not identify the friends, nor in his financial statement does he disclose an obligation to repay any such loan. Upon their arrival in Australia the parties used these funds as though they were their own. There is no evidence that these unidentified friends require repayment of interest or any documents produced evidencing the advances. Consequently, the court is satisfied that these monies represent the parties’ savings. Not long after they arrived, the parties purchased their home at 9 Falkirk Place, Dharruk. They used approximately $40,000 from the monies brought from India and the balance was borrowed from the National Australia Bank. The parties borrowed approximately $165,000. At settlement they transferred the balance of their savings, $13,856.76 to the National Australia Bank. For the period from April 2003 until separation in September 2003, the parties drew from this account the monies needed to make the mortgage repayments. At separation there was $10,046.01 in the joint National Australia Bank account. Without the wife’s consent, on 18 September 2003 the husband withdrew $9,200 which money he has subsequently spent. When the husband completed his financial statement on 28 October 2003 he did not disclose any cash assets or bank savings. It is unlikely that within five weeks he would have spent $9,200. Hence I am satisfied that the husband failed to disclose his cash resources when he initially applied for spouse maintenance and the adjustment of property.
Upon her arrival in Australia, the wife studied at the Liverpool TAFE for approximately three months where she completed a teacher’s bridging course. The wife claimed that having completed her course in November 2002 she obtained casual teaching in Catholic schools, working approximately five to six days in some months and nothing in others. However, she returned to India in December 2002 and upon her return to Australia in early 2003 started work as a customer service operator with Wide-Talk Communications. This means that the wife exaggerated the extend of her casual teaching as, at best, she remained in Australia for only a few weeks after she completed her bridging course. In March 2003 she obtained employment with A C Nielsen in the same field of research and marketing. Whilst with A C Nielsen she took part time employment with another marketing company, Survey Talk. It seems likely that the wife’s salary was the parties’ only income (excluding monies retained in India) from the time they arrived in Australia until separation. After the husband withdrew all but a few dollars from their joint account, the wife opened an account with National Australia Bank in her sole name. She pays her wages into a Commonwealth Bank account and from this account by direct deposit to the National Australia Bank account from where the mortgage instalments are paid. The wife pays child support in accordance with the child support assessment in the approximate sum of $25 per month.
When one stands back and examines nearly three decades of contributions, it is clear that until the parties arrived in Australia the husband earned consistent income and applied it to the betterment of the family. These considerations in conjunction with his contributions as a home maker and parent to the welfare of the family, prior to and since separation are considerable. His contributions must be balanced against the wife’s lesser financial contributions, but significantly greater contributions to the welfare of the family. Comparing financial and non-financial contributions requires analysis and consideration of fundamentally different activities. After nearly three decades, it is apparent that these parties both respected the roles that each took in the family and worked compatibly for the betterment of the family as a whole. Since Ferraro (supra) there is a strong line of authority that directs courts to properly recognise a parties’ contribution to the family as a home maker and parent. Courts are guided to guard against a tendency to undervalue the home maker role. In this family, both parties’ contributions are significant and of equivalent value.
The orders I propose will not affect the earning capacity of either party.
The wife is assessed to pay child support of approximately $25 per month. Vishra is 16 years old and thus the wife is liable for child support for no more than approximately twenty months. Although the wife’s child support is modest, it accords with the parties’ modest financial circumstances.
I find, therefore, the parties’ total contributions and other factors should be assessed as being equal.
Section 75(2)
The husband is 54 years old is indifferent health. He suffers leukemia, for which he has received treatment since his arrival in Australia. The evidence does not enable me to conclude how his illness affects his health. However, leukemia is well known to be a serious illness that can be debilitating, often requiring significant medical intervention.
The wife is 48 years old and apparently in good health.
Since her arrival in Australia the wife has been able to re-train and has been consistently employed. She appears to have established herself as a tele-marketer and is employed with Survey Talk Pty Limited and also A C Nielsen Pty Limited. She says that she earns approximately $600 per week gross from which she pays the expenses identified in her financial statement. The wife has modest savings, few personal effects, her car and superannuation. Although the wife claims that her fixed expenses leave her with $165 per week, she has been able to save approximately $11,000 since separation. In this respect her financial statement is concerning. That is because the wife has saved considerably more than she has available after she has paid her fixed expenses, but without including her daily living expenses. That is items such as food, clothing, petrol and the like. The fixed expenditure claimed is precise and seems reasonable. There is no clear basis upon which the court could conclude that the amounts identified are exaggerated. Either her expenses are exaggerated or the wife earns more than she discloses. The latter appears more likely.
The husband has available the rent received from DAV school in India. He has not brought any of this money to Australia subsequent to the parties’ migration. Presently there is $5,084 sitting in a bank account, which he could draw on. Other than this money and Vishra’s student allowance the husband has no apparent source of income. He claims personal expenses of $760 per week, which includes $190 per week rent. The husband claimed that he receives regular family support from India which, although not corroborated appears to be the only plausible explanation. The wife claimed that the husband continued to receive full pay from his university posting. However, there was no evidence to support her claim and it was clear that her claim is mere speculation.
While he remains in Australia the husband’s future employment prospects appear grim. He has pursued employment in his chosen field, but as yet has not obtained a posting. Unfortunately, at his age, with poor health and an apparently esoteric specialisation it seems unlikely that he will obtain paid employment in Australia. This is where he apparently intends to reside indefinitely. Once the parties have lived in Australia for two years they are eligible for apply for government assistance. From the husband’s perspective, his financial future appears to be dependency on social security benefits once he is eligible to receive them.
Vishra resides with his father and it appears will do so until he reaches his majority. The payment of child support, even when it is adequate, in no way compensates a parent for the loss of opportunity that the full time care of a child involves. However, at 16 years of age, the demands of parenting are unlikely to interfere with the husband’s opportunity for employment. The real relevance of having Vishra’s full time care is that such meagre sums as the husband has must be shared with the parties’ child. The reality appears to be that the husband relies upon Vishra’s student allowance. Not only for Vishra’s, but also his own support. By comparison, the wife resides in the former matrimonial home and excluding the $9,200 retained by the husband at separation she has had exclusive use of the parties’ Australian assets. Her standard of living has been maintained whilst the husband’s has fallen. The wife’s contribution towards Vishra’s costs is manifestly inadequate. She has been able to save money and must have appreciated that the husband needed her to make a meaningful contribution to Vishra’s expenses. I am satisfied that the wife has made it plain that she will not pay more towards Vishra’s costs than the Child Support Agency assesses her as liable to pay.
The court has made findings concerning the contributions phase, as a result of which the parties will have 50 per cent of the matrimonial assets. There is no reason in the circumstances of this case that there should be any further adjustment pursuant to s.75(2)(n).
Having regard to all of the relevant s.75(2) factors it is appropriate that there should be an adjustment in the husband’s favour of 5 per cent. This outcome reflects the cumulative outcome of the findings I have made pursuant to s.75(2). See Tomasetti (2000) FLC 93-023. Any lesser adjustment, given the modest asset tool would be notional.
Section 79(2) is this a just and equitable outcome?
The outcome of s.79(4) and s.75(2) has resulted in a distribution favourable to the husband 55 per cent as compared to the wife’s 45 per cent. This is a just and equitable outcome within the meaning of s.79(2). The reason for that is the s.79 exercise requires that the court gives proper weight to the parties’ financial and non-financial contributions made during nearly three decades of cohabitation. Neither party made a significant initial contribution and throughout this long marriage both contributed to the best of their ability. This is a matter where the financial and non-financial contributions are of comparable significance. The husband’s financial future, having regard to his care of Vishra and his lack of employment prospects is difficult indeed. Whilst the wife’s future employment prospects are far from certain, she is better placed than the husband is for paid employment. This factor must be recognised appropriately.
The nett assets to be distributed are $208,755. The wife seeks the opportunity to acquire the husband’s interest in the family home at Dharruk. The husband does not seek to acquire the wife’s interest in the home and wants it sold. In these circumstances the wife should have the opportunity to acquire the husband’s interest in the home upon condition that she proceeds quickly and that he is released from his liability pursuant to the mortgage. The level of disharmony between these parties is high and it offends the s.81 clean break principle to keep the parties financially intertwined. Both of them need to be free of each other to the greatest extent possible. The husband will retain the property at Rohtak and is entitled to the moneys held in the Cooperative Bank Limited.
The wife has total assets, including the superannuation worth $265,0586. She will have the mortgage of $162,672 leaving her with nett assets of $102,914. Forty five per cent of $208,755 is $93,939.75. Thus, the wife must pay the husband $8,974. She has these monies immediately available and, because of the husband’s obvious need she must pay him within ten days.
The wife will have ten weeks within which to arrange to re-finance the National Australia Bank mortgage so that it is either discharged or the mortgagee formally releases the husband from any liability pursuant to it. This time should be sufficient for the wife to make appropriate inquiries with the National Australian Bank and any other financial institution as well as complete all necessary formalities. If it cannot be completed within ten weeks it seems unlikely that the wife will be able to comply with the orders. In those circumstances the former matrimonial home will be sold. Unless the husband is freed from the mortgage, his capacity to borrow money is potentially compromised. By continuing his financial liability for the mortgage, even if only formally, the husband is likely to be denied any opportunity, given his modest circumstances, to borrow money.
Although the home has an agreed value its actual selling price cannot be known. Excluding the home, the parties have total assets worth $126,455. The husband’s assets are worth $105,869, greater than his 55 per cent share ($69,550). Consequently, from the sale proceeds the husband must make an adjustment to the wife so that the overall distribution 55%-45% in his favour is achieved. The adjusting figure is $105,869 minus $69,550, which is $36,319.
Pending compliance with the orders the wife must make all payments of rates, utilities and mortgage instalments that accrue on the former matrimonial home. This is, in effect, the price of her occupation for it. If she defaults, any default must be made good at settlement.
Spouse maintenance
The husband brings an application under s.74 and s.72 for the payment of spouse maintenance. The wife opposes his application whilst simultaneously acknowledging that she has been able to acquire reasonably significant savings subsequent to separation. The husband has an obvious need for spouse maintenance. He is unemployed and apparently relies on gratuities from friends and family in order to survive. His only income is 9,500 rupees per month, the equivalent of approximately $40 per week. The court has already made findings concerning the husband’s health and lack of employment opportunities. The court is satisfied that by reason of his health and limited opportunity to use his qualifications, the husband is unable to adequately support himself. In his financial statement sworn 29 October 2003 the husband claims average weekly expense of $760. His claim of $80 per week electricity is excessive, as is $100 per week for telephone expenses. Examining his financial statement it appears that the husband has intermingled his and the child’s expenses, rather than delineating those, which are his and those relating to Vishra. He claims rent of $190 per week, which is his total rent. It should be apportioned equally with Vishra and therefore $95 per week is appropriate rent. Half of the husband’s claimed weekly expenses are $390. After adding $95 for his share of the rent the husband’s reasonable and necessary weekly expenses are approximately $475. This means that the husband’s expenses exceed his income by approximately $435 per week.
In approximately forty weeks, the wife has managed to save approximately $11,000. This equates to savings of about $275 per week. The wife did not complete part (N) of her financial statement and thus the court does not have a complete picture of her average weekly expenses. Whatever they are, it is clear that the wife is able to meet her fixed expenses, average weekly expenses, and child support and still acquire considerable savings. With her modest income this outcome is surprising and suggests that the wife earns more than she has revealed. This means that presently the wife has the capacity to pay spouse maintenance in a modest sum. She will be ordered to pay $100 per week for eight months. Although she has shown a capacity to save more than that amount since separation the court should not order spouse maintenance at a level that is potentially debilitating or requires the payer to work unreasonably long hours. This gives the husband sufficient time to order his affairs in India and, should he wish to do so, sell the Rohtak property and bring its sale proceeds to Australia. The husband will then be in a position to acquire modest accommodation or have a capital sum, which can contribute to his living costs. The court is not satisfied that ordering spouse maintenance for a longer period or greater amount particularly given the parties’ modest financial circumstances would be proper.
For these reasons the court makes the orders identified at the start of this judgment.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Ryan FM
Associate: Paloma Sessions
Date: 29 July 2004
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