Dharun & Dharun (No 2)
[2023] FedCFamC1A 41
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Dharun & Dharun (No 2) [2023] FedCFamC1A 41
Appeal from: Dharun & Dharun [2022] FedCFamC2F 1105 Appeal number(s): NAA 207 of 2022 File number(s): MLC 8273 of 2020 Judgment of: ALDRIDGE J Date of judgment: 31 March 2023 Catchwords: FAMILY LAW – APPEAL – PROPERTY – Whether Indian assets should have been assets available for distribution between the parties – Contributions – Whether the adjustment of property interests was just and equitable – No error established – Appeal dismissed. Legislation: Family Law Act 1975 (Cth) ss 4, 90XT Cases cited: Australian Coal & Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621; [1953] HCA 25
Bonnici & Bonnici (1991) FLC 92-272
Calvin & McTier (2017) FLC 93-785; [2017] FamCAFC 125
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78
Lee v Lee (2019) 266 CLR 129; [2019] HCA 28
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Number of paragraphs: 54 Date of hearing: 9 February 2023 Place: Sydney (via video link) The Appellant: Self-represented litigant The Respondent: Self-represented litigant ORDERS
NAA 207 of 2022
MLC 8273 of 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR DHARUN
Appellant
AND: MS DHARUN
Respondent
order made by:
ALDRIDGE J
DATE OF ORDER:
31 march 2023
THE COURT ORDERS THAT:
1.The Application in an Appeal filed on 27 January 2023 is dismissed.
2.The appeal is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dharun & Dharun (No 2) has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
INTRODUCTION
Mr Dharun (“the husband”) appeals against property settlement orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 30 August 2022 in proceedings between him and Ms Dharun (“the wife”).
The orders provided for a sum of $42,613, at that time being held in trust as a result of an earlier sale of the former matrimonial home, be paid immediately to the wife. In addition, the husband was to pay the wife $72,144. If that payment was not paid within 60 days, the husband was to cause his interest in two properties located in India to be sold and the proceeds used to pay the said sum to the wife.
Further, an amount of $30,000 was allocated out of the husband’s superannuation as a base amount to the wife by way of a superannuation splitting order pursuant to s 90XT of the Family Law Act 1975 (Cth) (“the Act”).
The husband has acted for himself throughout this appeal, as has the wife. The husband relies on nine grounds of appeal, which were supported by a brief outline of submissions, which referred to all of the grounds, save for Ground 2.
THE APPEAL
Should the primary judge have considered the Indian assets as assets available for distribution between the parties? (Grounds 1 and 6)
The husband submitted that:
·The Indian assets were not marriage assets and were not generated by the husband before the marriage;
·The Indian assets were not and are not in the control or possession of the husband;
·The Indian assets were an adjustment of the assets of the family, of father and of the husband, to provide financial support to the husband to migrate to Australia;
·The Indian assets “for all practical purposes” were the assets of the husband’s father;
·The husband’s evidence of the transfer of the assets from his brother was wrongly rejected.
Before turning to the primary judge’s findings on this matter, it is useful, briefly, to survey the evidence.
In his Amended Financial Statement filed 18 March 2022 the husband disclosed no interests in property or that he had disposed of any interests in property.
In a trial affidavit filed on 24 June 2022, the husband stated that the property dispute “is essentially in respect of $42,000 which are the net proceeds of the sale of the house” (Husband’s affidavit filed on 24 June 2022, paragraph 50). There is no reference to any property in that affidavit.
In an affidavit prepared on 25 February 2022, the husband said:
61.The ancestral property I had a share in, I signed it over to my brother […] in late 2008 in a Power of Attorney. Annexed hereto as Annexure [MD]6 is the Power of Attorney document in original [language Q] and its translated and verified version. I borrowed large amounts of money from my brother to assist the responding and I to relocate to Australia, to settle and for ongoing living expenses. My brother also financially assisted us throughout our time in Australia across multiple relocations, interstate and within Melbourne and through the respondent’s [...] treatment and surgery. In 2016, the respondent and I wrote to my brother expressing our inability to repay the borrowed sums back and releasing the properties for him to dispose of and recover his monies.
(Emphasis removed)
The annexed document (Annexure “[MD]6”) does indeed appoint the husband’s brother as his attorney “fully authorised to take care of my property”. The attorney is authorised also to deal with the property in any way, including by sale deed and transfer deed. The document continues to state “the attorney is authorised received the amount of selling of my property and will be bond to deposit same in bank account” (as per the original). This appears to be the husband’s bank account, although it is not clear.
The husband annexed a valuation of the property, which described the owner as being
Mr T, who is husband’s father.
In her trial affidavit filed 23 June 2022, the wife referred to two properties in India, asserting that at the time of separation, the husband owned a property, which can be conveniently be described as the “G Road property”, in equal shares with his brother. The wife also referred to a property which she said was sold by the husband in 2020 to his brother’s wife at a much reduced price. In support of these assertions, the wife annexed two valuations and a copy of the sale deed.
The valuation report is not entirely clear, but it appears to support the wife’s position.
In oral submissions before me the husband said that he had interests in ancestral property which he had disposed of to his brother and sister in law, essentially confirming the wife’s contentions.
The oral evidence is unavailable because the husband was excused from his obligation to provide a transcript for the hearing of the appeal. At the time that order was made, it was explained to the husband that if he needed the transcript in order to demonstrate the primary judge was in error, then the lack of the transcript would mean he must fail on those points.
As to what was described as the G Road property, the primary judge said:
9.[The wife] deposes to [the husband] having an interest in two properties in India. In his written evidence, [the husband] denies that he has any valuable property in India. His Amended Financial Statement makes no mention of any Indian property despite him deposing to the document setting out all of his property interests. Inconsistently, [the husband] gave oral evidence that he and other members of his family own a residential property in India. He subsequently gave oral evidence that he and his brother are the legal owners of that residential property.
10.It is [the wife’s] evidence that [the husband] and his brother are the owners of the residential property in India. That evidence was not successful impugned in cross-examination. A valuation obtained by her lists [the husband] as an owner of the property which is identified to be at G Road, Village H, District J, City E.
11.[The husband] gave oral evidence that because the property is his “ancestral property”, he “can’t claim”, like [the wife] “can’t claim”. He referred to there being a different rule in India. The basis for that assertion was not articulated by him. It is not evidence that satisfies me that [the husband] is anything other than the half owner of the residential property. It does not support [the husband’s] ultimate submission that he is prevented from being able to sell the property because it is his ancestral property.
12.I accept [the wife’s] evidence, given it is consistent with at least part of [the husband’s] oral evidence and find that [the husband] is the owner of a 50% interest in that residential property in India.
Those findings do not appear to be entirely consistent with the ownership recorded in the valuations but they do not identify the basis on which the assertions as to ownership were made. However, the point is of no moment, because as his Honour recorded, the husband accepted in oral evidence that he had a half interest in the property with his brother. In the absence of the transcript that finding cannot be impugned.
As to the other land, his Honour said:
15.It is common ground that [the husband] previously had an interest in agricultural land in India. [The wife] asserts that he remains its owner. [The husband] denies that he now owns the property. Regrettably, no Certificate of Title or equivalent document has been produced. [The husband] attempted to sell the property to his sister-in-law after the parties’ separation. [The wife] gives evidence that an Indian Court has issued an injunction preventing the transfer in proceedings brought by her to protect her property rights. Her oral evidence was consistent with her affidavit, namely that the transfer of the property has not been completed as a result of the proceedings she has brought to restrain the transfer in India.
16.[The husband’s] evidence in relation to the transfer to his sister in law generally lacked consistency. He claimed that an agreement was reached for his family to buy or keep or sell the agricultural land to recover money received from his parents to settle here. The document he claimed recorded that agreement is inconsistent with his evidence. It is a statement signed by him on 7 November 2016 addressed “To Whom it May Concern”. Whilst it states funds were previously advanced to him by his family, it goes on to state “I have requested to you that if we require further financial assistance from you, we shall obtain it with the understanding that you may keep, dispose of our property to recover the debt.” Despite being given an opportunity to explain that inconsistency, [the husband] was unable to do so. He maintained that the agreement had a meaning other than what is expressed in the document.
17.Other aspects of [the husband’s] oral evidence in relation to the transfer also lacked internal consistency. He initially gave evidence that the property is being transferred to another name before giving evidence that it had already been transferred. He also agreed that there is an injunction preventing the transfer of the property before giving evidence that the property has been transferred contrary to the injunction. In attempting to clarify the evidence, the Court enquired of [the husband] what he understood the injunction to mean. His response was that [the wife] was without basis to challenge the transfer because the lands were his “ancestral property”. He then gave evidence that there is no injunction in India.
18.By contrast, [the wife’s] evidence in relation to the transfer was consistent and unimpeached. She gave evidence that the transfer had not been completed as a result of proceedings brought by her in India. I prefer her evidence and find on the balance of probabilities that the agricultural property remains owned by [the husband]. Any suggestion that [the husband] is unable to deal with the agricultural property because it is his “ancestral property” is readily refuted by observing that it was sold by him to his sister-in-law.
19.It is noteworthy that [the husband] gave evidence that he transferred the property out of his name because he thought [the wife] would make a claim against it. He also gave evidence that he entered into an earlier power of attorney to protect his property from any claim made by [the wife].
In his Summary of Argument, the husband said:
1.…
(iii)The legal title of the appellant did not reflect the actual ownership. Actual owner of the Indian assets is [Mr T] who is father of the appellant. Who always controlled and possessed the Indian properties. The transfer of legal title in favour of his children during his lifetime was not to confer the actual ownership.
(Husband’s Summary of Argument filed on 20 January 2023, paragraph 1)
This stance is inconsistent with the assertions made by the husband during the hearing.
The husband indicated that he would be seeking leave to adduce evidence of this, but he has not done so.
It has to be emphasised that the primary judge was attempting to do the best he could with the evidence he had which was meagre and, at times, confusing.
His Honour did not have the benefit of any expert evidence and as he pointed out, he was bereft of a number primary documents such as certificates of title. The valuation reports relied upon by the wife annexed documents that suggest that the land described in them had a number of co-owners. However, in the absence of any expert evidence explaining what the document is and how it is to understood, it is impossible for a court in Australia to accurately attempt to understand it.
What was crucial from his Honour’s point of view, was the fact that the husband accepted in cross-examination that he was a half owner of the G Road property and that he had been an owner of the other property, but had sold it to his sister in law.
In light of the above findings, and in particular the concessions made by the husband during his cross-examination, it is difficult to see on what basis it could be found that the husband’s father was in fact the owner of the properties in India. He did not give evidence to that effect before the primary judge and therefore it cannot be an error on his Honour’s part in failing to find that the husband’s father was the true owner. The husband did not adduce any evidence before me to show that, notwithstanding his failure to call evidence at the hearing, that his father was the true owner of the properties.
Similarly, there is no evidence that the assets were “ancestral” property, what the effect of that was, and how that would affect the interest of the husband in the properties or the value of his interest. It is therefore impossible to take this matter further. I note that none of the valuers referred to the properties as being “ancestral” property.
There is therefore no basis for finding that the primary judge erred in finding that the husband had interests in properties in India. It matters not whether the husband was not in the control or possession of the land, if he was in fact the owner, unless that ownership or that lack of control or possession in some way affected its value. No such evidence was given.
The definition of “property” in s 4 of the Act is not limited to property held within Australia and extends to property held anywhere. It was therefore property to be taken into consideration.
The husband’s real complaint is that any interest held by him in property in India was ancestral property which meant that he did not have the sole interest and with which he could not deal. His insurmountable difficulty (leaving aside his contradictory evidence as to ownership) was that he did not establish that the properties were, in fact, held as ancestral property, call expert evidence as to the nature of ancestral property and how, if at all, it may be disposed of or how that affected the value of any interest he may have had in the property.
No error on the part of the primary judge has been identified.
It is for the husband to demonstrate error in the reasons which are presumed to be correct otherwise (Australian Coal & Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 at 627).
Finally, the husband complains that his evidence about borrowing money from his brother was wrongfully rejected. His Honour said:
31.[The husband] deposes to having received money from his family during the parties’ relationship. He gives evidence of having “borrowed large sums of money from my brother to assist the responding [sic] and I to relocate to Australia, to settle and for ongoing living expenses. My brother also financially assisted us throughout our time in Australia across multiple relocations, interstate and within Melbourne and through the respondent’s [...] treatment and surgery.” [The wife] denied that any such funds had been received. In light of other inconsistencies in [the husband’s] evidence, I prefer [the wife’s] evidence. In any event, I would be unable to give any weight to the evidence of funds purportedly advanced absent any meaningful quantification of them.
His Honour’s reasoning is apparent and explains why the husband’s evidence was not accepted. These grounds have not been made out.
The appellant also filed an Application in an Appeal on 27 January 2023. He sought to adduce further evidence, which was an affidavit sworn by him on 25 January 2023, requesting that his father give evidence in respect of the Indian assets. For the same reasons as above, the application will be dismissed.
Did the primary judge fail to consider that the wife “pre-planned the separation and wanted to get maximum financial advantage from the marriage”? (Ground 2)
It is true that his Honour did not undertake such a consideration, but there was no basis for doing so. Even if that was the case, it is impossible to see how that would have been a valid matter to take into account in determining the appropriate property division between the parties.
Did the primary judge fail to consider the significantly higher financial contribution of the husband? (Ground 3)
In addition to taking into account the husband’s contribution of the two properties in India, his Honour was well aware of the husband’s earnings, saying:
32.It is common ground that [the husband] was the primary income earner during the parties’ relationship while [the wife] was the primary homemaker and parent. I reject [the husband’s] submission that those activities should sound in a greater assessment of his contributions because he was the predominant financial contributor, even if it is conceded by [the wife] that he was largely responsible for the mortgage repayments on the former matrimonial home.
Thus the premise for the ground has not been made out, the primary judge did take it into account and did consider the significantly higher financial contribution of the husband.
It is true it appears that the husband’s interests in the Indian properties were obtained prior to the marriage, although that is not entirely clear. What is clear is that there is no suggestion that the wife contributed to the acquisition of these properties. His Honour noted at [28] that neither party made any contribution to the properties throughout the marriage relating to their acquisition, conservation nor improvement. Nonetheless, the primary judge recognised that the husband’s interest in the Indian properties “represents a majority of the parties’ present wealth” (at [36]). His Honour accepted that he had to afford appropriate weight to the introduction of those assets at [36] as a contribution of the husband. Once again, no error has been identified.
The husband finally submitted that the primary erred by failing to accept his evidence that since separation he had been paying the mortgage on the family home. As his Honour pointed out at [34], the husband also said that mortgage payments had been made since he vacated the matrimonial home on separation. As the wife gave evidence that no mortgage repayments were made, her evidence was preferred because of the inconsistency in the husband’s.
The husband is unable to point to incontrovertible evidence, such as the bank accounts for the mortgage repayments, to demonstrate that his evidence was right and the wife’s was wrong. In such a case, it is difficult to see any error in the factual findings of the primary judge (Lee v Lee (2019) 266 CLR 129; RobinsonHelicopter Co Inc v McDermott (2016) 331 ALR 550).
Did the primary judge fail to find that the wife’s allegations of domestic violence were unfounded? (Ground 4)
It is difficult to understand this ground. There is no reference in his Honour’s reasons to family violence whatsoever.
Did the primary judge wrongfully apply a global approach as opposed to an asset to asset approach? (Ground 5)
The husband submitted that an asset by asset approach should have been taken because his contribution was significantly higher than the wife’s and the superannuation fund of the wife was less than 20 per cent of the superannuation fund of the husband.
It is open to a trial judge to follow either course (Norbis v Norbis (1986) 161 CLR 513). However, the mere fact that an asset may not have been acquired during the period of the relationship, and that the other party did not contribute to its acquisition, is not a bar to that property being divided between both parties (as is explained in Calvin & McTier (2017) FLC 93-785 at [48]–[51]; Bonnici & Bonnici (1992) FLC 92-272 at [42]).
The husband’s asset by asset approach however did not follow the course discussed in those authorities, but simply sought to exclude both the properties in India and his superannuation from consideration whatsoever (see [26] of his Honour’s reasons). Such an approach would have been clearly contrary to authority and was properly rejected by his Honour.
Did the primary judge fail to take into account that the husband’s needs have increased because of his responsibilities to a newly born child? (Ground 7)
The primary judge was well aware that the husband and his new partner were expecting a child. His Honour however discounted that because the husband adduced no evidence as to the financial circumstances of his cohabitation with his new partner. The husband made no reference to his partner in his Amended Financial Statement, though he did say other income earners in his house received “nil” income. However, the wife’s evidence in her affidavit was that she was working in childcare, however there was no cross-examination on the topic. In the absence of such evidence, it is difficult to see how his Honour erred in making the findings made, including the expectation of a child, and did the best that could be done.
This ground does not succeed.
Was the adjustment of property interests just and equitable? (Ground 8)
The husband says that the division was not just and equitable, because:
·He spent the “best years of life” making the home;
·He made the family to settle in Australia;
·After 12 years of hard work he is burdened with a liability he may not be able to discharge within his lifetime and
·The primary judge considered the husband’s earning capacity instead of his actual earnings.
As to the last point, his Honour’s approach was entirely consistent with authority.
As to the other points, they were matters taken into account by the primary judge. His Honour also took into account the wife’s care of the children, including their future care and the husband’s greater earning capacity.
Appeals from discretionary decisions such as this are governed by the principles set out in House v The King (1936) 55 CLR 499. The husband has not pointed to any fact or principle that was wrongly taken into account or wrongly ignored. Accordingly, his Honour’s decision can only be challenged if an appeal court is satisfied that the outcome was unreasonable or plainly wrong.
The total property available for division was $296,120. The two properties in India had a value of $205,000, which is 69.23 per cent of the property available for distribution. The contributions throughout the marriage to their property and to the welfare of the family were essentially found to have been equal, given that his Honour rejected that the husband’s financial contributions should sound a greater assessment in his favour (at [32]). Given that the wife was primarily responsible for the children’s care post-separation and that no mortgage payments were made post-separation, it is a fair inference that his Honour viewed her post-separation contributions well exceeded the husband’s. This led his Honour to conclude:
37.Nevertheless, all contributions must be weighed collectively, and it is an error to segment or compartmentalise various contributions and weigh one against the remainder. It is wrong to weigh the myriad of contributions made by the parties against [the husband] contribution of the Indian properties. Further, I am to consider the parties’ contributions all of relevant types holistically over the whole period from the commencement of cohabitation to trial. Each party has made a substantial myriad of contributions over the course of their nearly 12 year marriage, in particular through employment, parenting and homemaking.
38.The length of the relationship impacts on how early significant capital contributions are viewed in assessing the totality of the parties’ contributions. Over the course of a long relationship, the proportionality or significance of [the husband’s] original contribution is reduced.
(Footnotes omitted)
No challenge can be taken to his Honour’s general approach, which accords with well-established authority (see for example Jabour & Jabour (2019) FLC 93-898).
The question arising however, that given the significant disparity in original contributions, which at the time of the hearing still represented in excess of two thirds of the wealth of the parties, whether the contributions finding can be said to be unreasonable or plainly wrong. The mere fact that an appellate court might come to a different view as to the appropriate percentage does not establish error. Further, it is the overall order that must be looked at in order to determine whether the outcome is unreasonable or plainly wrong. In the circumstances of this matter, a division of 55 per cent to the wife and 45 per cent to the husband cannot be seen as unreasonable or plainly wrong.
Should the $8,000 withdrawn by the wife from her superannuation fund be added back? (Ground 9)
As to the withdrawal of the funds from superannuation, the primary judge said:
33.In 2021, [the wife] withdrew $8,000 from her superannuation. [The husband] did not contend that sum should be added back to the assets now in existence. [The wife’s] unchallenged evidence is that she applied those funds to repayment of a credit card debt accrued during the parties’ relationship which in turn had funded the purchase of her motor vehicle. Accordingly, the parties’ net asset position is unchanged as a result of the withdrawal and I do not consider the withdrawal to result in any assessment favouring either party.
The husband did not refer to the withdrawal from the superannuation fund in his outline of argument relied on at the hearing before his Honour. In the absence of the transcript it cannot be shown that the primary judge erred in recording the husband’s contentions. In these circumstances, it is now too late for the husband to raise the point and to seek the add back.
In any event, the reasons quoted explain why no add back would have been made. This was because the net asset position did not change as a result of the withdrawal. I see no error in that approach.
CONCLUSION
It follows that the appeal will be dismissed.
I certify that the preceding fifty-four (54) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Aldridge. Associate:
Dated: 31 March 2023
0