Farmer and Naidoo
[2011] FMCAfam 975
•14 September 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FARMER & NAIDOO | [2011] FMCAfam 975 |
| FAMILY LAW – Property – considerations as to waste – valuations regarding overseas properties – procedural issues when party’s solicitor faces disciplinary proceedings leading to party becoming unrepresented in course of trial – intervention by local Law Society in proceedings – duties in relation to obtaining valuation – ‘child of the relationship’ acting as interpreter in course of proceedings – long marriage – how to treat property in long marriage where there are no valuations or highly contested valuations. |
| Family Law Act 1975, ss.79(4), 75(2) Federal Magistrates Court Rules 2001, rr.24.03, 24.04 |
| In the Marriage of Browne & Green (1999) 25 Fam LR 482 Family Law Council, Best practice guidelines for lawyers doing family law work (2004) |
| Applicant: | MS FARMER |
| Respondent: | ,MR NAIDOO |
| File Number: | CAC 166 of 2009 |
| Judgment of: | Neville FM |
| Hearing dates: | 24, 25 & 26 February 2010, 11 March 2011 |
| Date of Last Submission: | 4 April 2011 |
| Delivered at: | Canberra |
| Delivered on: | 14 September 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms J Haughton |
| Solicitors for the Applicant: | Ray Swift Moutrage & Associates |
| Counsel for the Respondent: | Mr G Brzostowski SC on 24-26 February 2010, then Self-Represented Litigant |
| Solicitors for the Respondent: | Mamdouh Elmaraazey (until 21 June 2010) |
ORDERS
In the absence of written agreement between the parties within 28 days:
(a)The former marital residence is to be sold and the net proceeds be divided in accordance with the percentage split of 59% – 41% in favour of the Applicant Wife;
(b)Each of the Iranian properties (Property [O], [D] and the Property [S]) be transferred to the Respondent Husband, and the Applicant Wife shall renounce any and all right, title or interest in them and do all things necessary to effect such transfer;
(c)
Pursuant to section 90MT(1)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable in respect of the interest of MR NAIDOO in the [P] Superannuation Scheme,
MS FARMER shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount of $269,205.50 and there is to be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these Orders;
(d)The amount payable pursuant to Order 1(c) is to be paid to the Applicant Wife 28 days after the expiration of the period of notice to the Trustee of the [P] Superannuation Scheme;
(e)The Respondent Husband is to retain as his own the gold jewellery, the silverware, the Persian rugs, the furniture in Iran, the motor vehicle and the [omitted] shares; and
(f)The Applicant Wife is liable for the debt of $21,500 to her daughter, Ms N.
IT IS NOTED that publication of this judgment under the pseudonym Farmer & Naidoo is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 166 of 2009
| MS FARMER |
Applicant
And
| MR NAIDOO |
Respondent
REASONS FOR JUDGMENT
Introduction (including procedural detours)
There were more than the usual ‘twists and turns’ – factually, procedurally and substantively - in these property proceedings, which involve a marriage of 33 years, three adult children of the relationship (all of whom are completely estranged from their Father),[1] and real estate in Australia and Iran.
The parties, who are aged respectively 60 (Ms Farmer) and 63 (Mr Naidoo), married in Iran in January 1975 and separated under the one roof in April 2008, having come to Australia in 1990. The parties, and the third child (a daughter, now aged 25), continue to live under the one roof of the former marital residence in a suburb in Canberra.[2]
The parties are divorced under Australian law, which divorce was granted in June 2009, but are not divorced under Sharia law. This is of some relevance, indeed significance, in relation to what the Applicant Wife, can, and cannot, do in relation to the properties in Iran.[3] This is so because, as contended by the Wife, until divorced under Sharia law, she is effectively legally disempowered under Iranian law to deal with the real estate in that country without the consent of her Husband. It was contended that this extended to the ability of Ms Farmer even to obtain valuations of property in Iran. Mr Naidoo rejected that such a legal disability attaches to his Wife under Iranian law. No expert evidence was provided to assist the Court to resolve this legal contest over Sharia law in Iran.
I should note that “Attachment D” to Mr Naidoo’s detailed submissions, filed on 3rd December 2010, comprised copies of two documents – one in Farsi, the other a translation of it – dated 25th October 2010, which purports to be a brief statement in relation to Article 8 of the [Iranian] Family Protection Act, and the circumstances in which an Iranian Court will issue what is described as a “certificate of incompatibility.”
Leaving aside (a) that the documents are all copies and the originals of them are not before the Court, (b) the documents were not formally tendered,[4] and (c) no advice, expert or otherwise, was proffered to the Court in relation to Iranian law, in any event, the Court is in no position to know, and therefore cannot determine, the import or relevance of the matters set out in Attachment D.
Three further matters should be noted here.
First, Mr Naidoo confirmed that he would not agree to a divorce under Iranian law.[5] Secondly, in her closing submissions, Counsel for
Ms Farmer referred the Court to the Department of Foreign Affairs & Trade web-site, “smartraveller”, which site gives the following warning in relation to Iran: “dual national females may require the permission of their husband or a senior relative to leave Iran.”[6] Thirdly, the issue of divorce under Sharia law has some relevance also for Mr Naidoo because he alleges that while-ever the parties remain married under Iranian law, he is at risk of a claim against him in relation to a dowry.[7] It follows that the converse is true: if the parties are divorced under Iranian law, then Mr Naidoo is not at risk of any dowry claim.
I accept without question the usual ‘four steps’ to be undertaken in property proceedings, very succinctly set out in AJO v GRO, thus: (i) identify and value the net property of the parties (usually at the date of the trial); (ii) consider the contributions of the parties within paragraphs (a) – (c) of s.79(4) of the Family Law Act 1975 (“the Act”); (iii) consider the s.75(2) factors; and (iv) consider whether the order proposed is just and equitable.[8]
The evidence, and therefore the conclusion, in steps (ii) and (iii), in my view, are relatively clear and straight-forward in this matter. In the light of the small percentage difference between the orders sought by each of the parties, it also follows that the ‘just and equitable order’ pursuant to step four is quite uncomplicated – at least in percentage terms. However, what was not straight-forward in this matter was the identification and the value of the asset pool. Identification of the various assets is, of course, directly relevant to the appropriate ‘just and equitable’ order in so far as it is necessary to assign a particular property to one party or another, or to make some other appropriate order in relation to the properties more generally.
One relatively simple example, and its related permutations, might assist in showing other difficulties that beset this case.
Procedural Complications
One of the properties in dispute is a Property [S] in Iran. The Respondent Husband said that he has a ¼ share in this [property] with his brothers, who live in Iran, although one of them has lived, at times, in Dubai.[9] The Husband said (and it seemed not to be disputed) that although purchased in 1988 its legal ownership was not officially “registered” until 2008.[10] With some unintended understatement,
Mr Naidoo confirmed that buying and selling property in Iran is not easy, and patently that dealings with land in Iran take a tortuously long time.[11]
It was obvious throughout the course of the proceedings that it was quite problematic to obtain valuations of real estate in Iran, the more so when both parties were mutually doubtful about each other’s contentions, as well as the difficulties that attend women travelling to and from Iran, to which I have already referred. The Respondent Husband in particular made plain that he distrusted everything that came from his former wife and her solicitors.[12] Indeed, in the course of his submissions he confirmed that he had made formal complaints to relevant authorities against both solicitors (i.e. his own solicitor and
Ms Farmer’s solicitor), as well as against Counsel for Ms Farmer. Further, he alleged that various documents had been forged and/or procured by fraud.[13] Mr Naidoo confirmed these complaints in his submissions in reply, filed 4th April 2011. Respectfully, all such arguments were by assertion only.
Added to the regular difficulty concerning valuations from Iran and otherwise dealing with property in that country, there was the unsurprising issue over the translation of documents, both as to the accuracy of the translation and or the relevant imprimatur from whichever Iranian department or official was most apt.
To complicate matters further, translation was also an issue during the trial. It arose this way. Although Ms Farmer speaks and reads English moderately well, for the purposes of the proceedings it was considered beneficial if she had an interpreter.[14] Alas, no such official person, fluent in (Persian) Farsi, could be secured. In the circumstances, the parties’ daughter (who was then a final year law student) agreed to be the interpreter for Ms Farmer. The parties assented to this unusual and difficult course. But for one instance of contest between the daughter and her Father, Mr Naidoo, when he challenged a particular translation given by her, the daughter assisted everyone in obviously very difficult circumstances. Everyone, including the Court, is in her debt for undertaking this difficult task.
Two other matters should be noted here. First, because of the relatively narrow difference between the parties in their final orders sought, at the conclusion of the evidence it was agreed that they would attend a further conciliation conference with a view to seeing if the matter might be able to be settled. Unfortunately, because of the intractable positions of the parties, that course did not prove fruitful. It also explains, to some degree, the significant period of time between the conclusion of the evidence and the final submissions. But, there is another reason for the considerable interregnum, which is the second matter to note.
The matter was listed for a conciliation conference on 25th March 2010. For reasons set out in the Registrar’s notes (on the Court file), the matter was subsequently adjourned by the Registrar on a number of occasions to 29th April, and thence to 21st May and finally to 4th June 2010. Following these unsuccessful endeavours, the matter returned to me whereupon I made orders on 21st June 2010 for a time-table for the provision of written submissions by each of the parties.
Intervention by the Law Society of the ACT: Between 21st June and 23rd August, the Law Society of the Australian Capital Territory appointed an administrator to the practice of the Respondent Husband’s lawyer. On 23rd August the matter was mentioned before me with Mr Blain, the Administrator of the said solicitor’s practice, in attendance. Mr Blain confirmed that he would provide Mr Naidoo with certain advice in the difficult circumstances where his [former] solicitor was now facing disciplinary action. In such circumstances, the matter was adjourned to 5th October for further directions. It would appear that from, or on or about, this date, Mr Naidoo became an unrepresented litigant.
On 5th October, the matter was listed for a further hearing on 21st December, with a direction for the filing of written submissions. Due to foreshadowed judicial unavailability on that day, the matter was re-listed on 14th December, and directions made for the completion of the hearing on 11th March 2011. At the resumed hearing, which was confined to oral submissions in support of or supplementary to written submissions previously filed, Mr Naidoo remained a self-represented litigant. He confirmed, however, that one or more work colleagues had assisted him in the preparation of his extensive written submissions.[15]
By way of further introduction, it remains only to note that Ms Farmer has not insignificant health issues which, although disputed by
Mr Naidoo, on the medical evidence presented on her behalf (noted below), I accept.[16]
I should also note, again by way of overview, that Mr Naidoo claimed that he had a number of health issues, such as some kidney problems.[17] However, given that he continues to work, and that there was no medical evidence, or at least comparable to that provided by
Ms Farmer, the weight of such matters clearly favours the Applicant Wife.
It was not disputed that Mr Naidoo, who works in [field omitted], has been and remains in receipt of a significant income – in excess of $100,000 – while Ms Farmer, even when she was in paid employment (such as when she [omitted]), earnt a modest income (in the order of approximately $25,000 per annum, according to the financial year 2008/2009) and has little or no prospects of employment now. She certainly would not, if employed, be able remotely to come close to
Mr Naidoo’s income.
Given the duration of the relationship, I accept the submission of
Mr Naidoo’s then Senior Counsel in his Case Outline, filed on 23rd February 2010 (para.1.1), that ‘the Husband was the principal income earner and the wife was the principal parent/homemaker.’ Both Counsel submitted that it was more likely than not that the Court would find that, up to the time of separation, the contributions were equal, although Counsel for Ms Farmer went further and submitted that equality of contribution should be found up to the commencement of the trial.[18]
In the course of his submissions when he was then a self-represented litigant, Mr Naidoo seemed to move away somewhat from the earlier submission made on his behalf by Senior Counsel and claimed that he had contributed much more to the care and welfare of the children, in addition to his income.[19] Unsurprisingly, the fact that there were some differences between the position advanced by his then Senior Counsel during the trial, and Mr Naidoo’s position when a self-represented litigant but who still relied upon Counsel’s ‘case outline’, tended to complicate further a case that already had sufficient intricacies. I deal with any relevant inconsistencies as and when they occur.
These reasons proceed as follows: (a) outline of orders sought; (b) parameters of the asset pool;[20] (c) contributions; (d) consideration of s.75(2) factors; (e) determination of ‘just and equitable’ order.
Outline of Orders Sought
In the Initiating Application filed by Ms Farmer on 30th January 2009, she sought a division of the asset pool 55% in her favour, and the 45% balance to the Respondent Husband. Those orders became significantly more refined in relation to the distribution of property pursuant to a detailed Minute of Orders filed on 18th March 2011. Those detailed orders sought are as follows.
1. That within 14 days of the date of these Orders the respondent husband shall do all acts and things and execute all documents necessary to transfer to the applicant wife all of the respondent husband’s right title and interest in the matrimonial home located at Property [G] in the Australian Capital Territory, more particularly known as (the “[G] Property”).
2. That simultaneously with the transfer in Order 1 of these Orders the respondent husband shall vacate the [G] Property and thereafter the applicant wife shall have exclusive occupation of the [G] Property.
3. That the Respondent husband shall retain as his own property located at [Property O], Iran (the “[O] Property”).
4. That the Respondent husband shall retain as his own the property located at Property [S], Iran (the “Property [S]).
5. That the respondent husband shall retain as his own the gold jewellery, the silverware, the Persian rugs, the furniture in Iran, the motor vehicle, and the [omitted] shares.
6. That the applicant wife shall be liable for the debt of $23,000 to her daughter, Ms N.
7. That the respondent husband shall pay to the applicant wife the sum of $300.00 per week by way of spousal maintenance until the husband retires.
8. That paragraphs 9-12 (inclusive) are binding on the Trustee of the [P] Superannuation Scheme (the “Fund”).
9. That the base amount of $98,254 be allocated to MS FARMER out of the interest of MR NAIDOO in the fund.
10. That pursuant to s 90MT(1)(a) of the Family Law Act 1975 (the “Act”) whenever a splittable payment becomes payable in respect of the interest of MR NAIDOO in the Fund, MS FARMER shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (the “Regulations”) using the base amount and there be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these Orders.
11. That Order 10 has effect from the operative time.
12. The operative time for the purpose of Order 11 of the Orders is four (4) business days after the date of service of these Orders upon the Trustee of the Fund.
13. That subject to Orders 9 to 12 and Orders 16 to 20 of these Orders the respondent husband shall be and is hereby restrained from withdrawing or dealing with any of his superannuation until such time as the legal possession and control of the [D] Property has been transferred to the applicant wife or her nominee, and the applicant wife or her nominee has possession of the Certificate of Title of the [D] Property.
14. That within 90 days of the date of these Orders the respondent husband shall transfer to the applicant wife or her nominee all of the respondent husband’s interest in the property located at [D], Iran (the “[D] Property”). If the applicant wife does not have legal possession and control of the [D] Property, and the Certificate of the Title to the [D] Property in her possession, within 90 days of the date of these Orders, then the respondent husband shall pay to the applicant wife the sum of $202,247 within a further 7 days.
15. That in the event that the applicant wife or her nominee should not have legal possession and the control of the [D] property within 90 days of the date of these Orders, and that the respondent husband has not paid to the applicant wife the sum of $202,247 within a further 7 days, then Orders 16 to 20 below will take effect.
16. That paragraphs 17-20 (inclusive) are binding on the Trustee of the [P] Superannuation Scheme (the “Fund).
17. That the base amount of $202,247 be allocated to
MS FARMER out of the interest of MR NAIDOO in the Fund.
18. That pursuant to s 90MT(1)(a) of the Family Law Act 1975 (the “Act”) whenever a splittable payment becomes payable in respect of the interest of MR NAIDOO in the Fund, MS FARMER shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (the “Regulations”) using the base amount and there be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these Orders.
19. That Order 18 has effect from the operative time.
20. The operative time for the purposes of Order 19 of the Orders in four (4) business days after the date of service of these Orders upon the Trustee of the Fund.
In his Response filed on 17th February 2009, Mr Naidoo sought orders whereby there was a division of the net proceeds of the asset pool 60% / 40% in the Husband’s favour, as well as an order for his superannuation to be split so as to achieve an equal division of that financial resource. Like Ms Farmer, Mr Naidoo’s orders sought became rather more refined in the Minute of Orders, which was filed on 4th April 2011. Those orders provide as follows.
Summarily, Mr Naidoo sought a division of the net asset pool whereby he had an adjustment of between 4 – 7%, based primarily on (a) his [alleged] higher contribution during the marriage, (b) the [alleged] loss of the [A] property, (c) his [alleged] exposure to a possible dowry claim, and (d) the [alleged] inheritance to which Ms Farmer is entitled.[21]
In precise detail, the orders sought by Mr Naidoo are as follows:
1. That the respondent Husband shall be liable for the debt of $23,000 to her daughter, Ms N.
2. Within 45 days of the date of these Orders the applicant wife pay to the Husband the sum of $401,500 ($401,500 = $390,000 + $11,500 share of debt to Ms N) and the respondent Husband shall do all acts to transfer to the applicant wife all of the respondent husband’s right and interest in the matrimonial home located at Property [G] in the Australian Capital Territory, more particularly known as (the “[G] Property”).
3. If the applicant wife cannot pay the full amount of $401,500 to the respondent husband and is not interested to keep the matrimonial home located at Property [G] in the Australian Capital Territory within 14 days of these Orders inform the respondent Husband in writing and leave the option of keeping the matrimonial home located at Property [G] in the Australian Capital Territory to the respondent Husband.
4. If the applicant wife declined to keep the matrimonial home located at Property [G] in the Australian Capital Territory set in Order number 2 and the respondent Husband was interested to keep the matrimonial home the respondent should inform the applicant Wife within 14 days of these Orders.
5. If the respondent Husband was interested to keep the matrimonial home then with 45 days of the date of these Orders the respondent Husband pay to the applicant Wife the sum of $378,500 ($378,500 = $390,000 - $11,500 share of the debt to
Ms N) and the applicant Wife shall do all acts to transfer to the respondent Husband all of the applicant wife right’s title and interest in the matrimonial home located at Property [G], in the Australian Capital Territory, more particularly known as (the “[G] Property”).
6. That simultaneously with execution of Order 2 – 5 of these Orders the other party shall vacate the [G] Property and the holder title shall have exclusive occupation of the [G] Property.
7. If the applicant Wife and the respondent Husband are not interested to keep in the matrimonial home located at Property [G] in the Australian Capital Territory, more particularly known as (the “[G] Property”). Then they shall do and act the necessary thing to sell the property in the agreed value.
8. That paragraphs 9-12 (inclusive) are binding on the Trustee of the [P] Superannuation Scheme (the “Fund”).
9. That the 28% of the interest of MR NAIDOO in the Fund be allocated to MS FARMER. The 28% is calculated as follows:
a) assumed each party keep the equal share of the matrimonial home (the “[G] Property”) therefore there is an adjustment of $54,600 cash to the respondent Husband.
b) the 28% of Superannuation = 43% of Super – 9$54,600 * 1.30 tax).
10. That pursuant to s 90MT(1)(a) of the Family Law Act 1975 (the “Act”) whenever a splittable payment becomes payable in respect of the interest of MR NAIDOO in the Fund, MS FARMER shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (the “Regulations”) using the base amount and there be a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these Orders.
11. That Order 10 has effect from the operative time.
12. The operative time for the purposes of Order 11 of the Orders is four (4) business days after the date of service of these Orders upon the Trustee of the Fund.
13. The respondent Husband shall give the gold jewellery to the applicant wife, the applicant wife retain the furniture in Iran as his mother house.
14. The respondent husband retains the silverware, the motor vehicle, and the [omitted] shares.
15. The applicant Wife retains the 2 Persian rugs valued in total $25,000 that valued by the applicant Wife valuator (a 2*3 meter marked Habibian Naien in red colour and the other 2*3 meter unmarked from Naien).
16. The respondent Husband retains the rest of Persian rugs valued in total $18,590 that valued by applicant Wife valuator (a 2*3 meter marked Habibian Naien in cream colour, 3 unmarked used and washed rugs from Naien and Mahalat and one 1*2 meter unmarked in cream colour from Naien which in total is 5 rugs).
17. The respondent husband shall sale the share of untitled property located at [omitted], Iran (the “[O] Property”) and pay the loan to the mortgage referenced in the letter from his brother [Mr R] that handed to Court and the Counsel for the applicant wife on 11 March 2011.
18. The applicant wife shall do and act all necessary action within 90 days to sale the share of undisclosed share of inheritance. A three story house from her mother located at Tehran known as [address omitted] that is in the transcript of Court hearing date of 24 February 2010 and repatriate the fund to Australia.
19. The applicant wife within 14 days of this Orders give power of attorney to the respondent husband to recover the lost value of Property [A] property from her brother Mr F. If she refused to provide such proxy to the respondent husband then the respondent husband retain the [D] property located at [D], Iran (the “[D] Property”) and the Property [S] located at Property [S], Iran.
20. If the applicant wife gave the power of attorney to the respondent Husband to recover the lost value of Property [A] property located at [omitted] known as (“Property [A] property” from her brother Mr F then simultaneously when Court in Iran proceeding to recover the lost value of Property [A] property from applicant wife’s brother the respondent husband proceed with the sale of “[D] Property” and the “Property [S]”.
21. The paragraph 22 and 23 will be executable when the funds for subject Orders 18, 22 and 23 in available in Australia.
22. If the applicant wife is interested to buy the “Property [S]” then she pay $18,000 (not $21,000) for the share Value of the respondent husband and the respondent husband shall do and act all necessary action within 90 days to transfer the title deed of the property located at Property [S], Iran (the “Property [S]”) to the applicant wife.
23. If the applicant wife is interested to buy the ‘[D] Property” then she pay $118,000 (not $121,000) for the value of the [D] Property and the respondent shall do and act all necessary action within 90 days to transfer the title deed of the property located at her name.
24. If the applicant wife is interested to proceed with offer suggested in subject orders 22 and 23 and has difficulty to transfer the funds at paragraph 18, 22 and 23 to Australia then she can exchange with the share of her superannuation entitlement or other funds available to her in Australia.
25. The Court make a minimum 4 to 5 percent adjustment to the respondent Husband for payment of dowry as the wife is entitle to claim at any time under Islamic marriage and the respondent Husband is in a big risk as the applicant Wife clearly declare in her letter to the respondent Husband dated 17 January 2011 that the forfeiture of the marriage dowry will be enforced in Iran Court.
26, The house holds furniture in Australia at list “B” of the applicant wife solicitor mail to the respondent Husband for respondent Husband and list “A” for the applicant wife.
Parameters of the Asset Pool
I have already indicated that there was quite some difficulty in relation to determining both the asset pool and its value. That was so for the following reasons.
There is no dispute that there are five properties to be considered. Three of them are in Iran and are beneficially owned by the Husband (as submitted by his Senior Counsel); a fourth, being the former marital residence, is in Canberra. Only the value of the Canberra property is agreed, being $780,000.
There is another property, also in Iran, which is said to have been “lost” by the wife, not in the sense of its whereabouts being unknown but that circumstances ensued whereby it has effectively passed out of the possession of the wife. This matter is, of course, considered later in these reasons.
Throughout the trial, and in submissions, what I will call the three extant Iranian properties were referred to respectively as “the Property [O] property”, “the [D] property”, and, as already noted, the Property [S]. The so-called ‘lost property’ was and will be referred to as “the [A] property.” This last-named property is in Tehran. I understand that the other properties are similarly located, although nothing directly turns on this, other than all of them being in Iran.[22]
I should also note here that the basic submission from Senior Counsel for Mr Naidoo was that the values of the Iranian properties could, and should, be treated as essentially immaterial because, in his view, the best course would be simply to sell all of them and then to divide the net proceeds equally. In such circumstances, he said, issues of valuation fall away because the properties will garner what they will upon their sale. Moreover, Senior Counsel submitted that there should be no adjustment in favour of Ms Farmer because it was through her actions that her brother came into possession of the [A] property and which, through his default, was the subject of it coming into possession of the mortgagee. This so-called “waste” argument was rejected by
Ms Farmer for reasons discussed later.[23]
Property with Agreed Values: In addition to the real estate, there are some Persian rugs, the value of which was agreed to be $43,590, some [omitted] shares (owned by Mr Naidoo) with an agreed value of $4116, a car with an agreed worth of $5800, and silverware of $800, which was brought to Court in a large suit-case. A small amount of gold jewellery was agreed to have a value of $8100.
There was also agreement that the parties have a debt to their daughter in the sum of $21,500.
In addition to the matters noted, it was agreed that the Husband has a superannuation entitlement of $471,851, and as a ‘financial resource’ (discussed further below), Mr Naidoo has a long service leave entitlement (post tax) of $46,953.
The Iranian Properties
It may assist to note that (a) this section of my reasons is quite long and necessarily detailed, and (b) because it is so intricate as to facts and issues, there is a summary of findings and other relevant matters at the conclusion of this section.
Property [O], [D] & the Property [S]: There was little disagreement that the [D] property is essentially a vacant block of land with a wall around it.[24] There also seemed scant dispute that the Property [O] property is a home unit. The issues in relation to this property were (a) the degree to which it was habitable – Ms Farmer confirmed that she had never seen it[25] - and (b) the cost of its ‘fit-out’. Ms Farmer stated that the Property [O] property was completed and that her cousin, [name omitted], lives in the same complex. She also confirmed that her sister had visited the Property [O] property in approximately December 2009 and found it to be finished.[26] For his part, Mr Naidoo said that its refurbishment was/is not complete, even though documentary evidence he provided suggested that it was.[27] He also said that he owed his brother certain monies in relation to the completion of the fit-out.
In my view, nothing much turns on such disparities because, in any event, in relation to both properties, as already noted, the critical issue is to determine their value. In the circumstances of this case, complete or partial refurbishment is unlikely to make very much difference to any ultimate valuation. The same or similar issues attend the valuation of the Property [S].
In this regard there was quite some contest – documentary and in cross-examination – as to whether the Husband and or his solicitor had deliberately (by act or omission) effectively thwarted the Wife from obtaining valuations of the Iranian properties.[28]
Somewhat related issues concerned whether, and if so to what degree, there was timely disclosure of documents on the part of Mr Naidoo.
There was a significant trail of correspondence between the solicitors regarding (a) disclosure and (b) the lack of approval of valuers who Ms Farmer wished to retain to value the properties. These documents are attached to the parties’ affidavits. One example will suffice.
As long ago as March 2009, the solicitor for the Applicant Wife, Ms Farmer, wrote to Mr Naidoo’s solicitor requesting, among other things, the provision of the Respondent Husband’s bank statements, and address and title details in relation to the Property [O] and [D] properties as well as in relation to the Property [S].[29]
By letter dated 1st May 2009, a similar but more detailed letter of request was sent by the Wife’s solicitors to the Husband’s legal counterpart. Again, it sought the provision of a range of records, which in my view, should have been provided as a matter of course (e.g. tax and relevant business records). The letter again sought valuations in relation to the Iranian properties.[30]
In Ms Farmer’s affidavit filed on 9th October 2009, she said (para.27): “We sought valuations of all properties in which the husband has an interest, with English translations. These were provided with the exception of the Property [S].” These matters need some qualification in due course.
Annexures F to J of Ms Farmer’s affidavit filed 3rd February 2010 provide copies of correspondence between the parties’ solicitors, which seek either (i) agreement to certain valuations of specified items, (ii) agreement to certain persons to perform valuations in Iran, and/or (iii) the provisions of documents by way of disclosure. The request for disclosure was obviously in addition to earlier, similar requests in the first half of 2009.[31]
Among other replies from the Respondent Husband’s solicitor were two letters (also part of the annexures to which I have just referred) dated respectively 14th and 29th January 2010. The first of these letters simply stated: “Mr Naidoo instructed to decline to approve the Iranian’s valuer that you have suggested to undertake the valuation in Iran.” No explanation was given.[32] The second letter was somewhat more fulsome and informed the Wife’s solicitor of what Mr Naidoo did and did not have in his possession in relation to title deeds concerning the Iranian properties. Why this information was not provided earlier was not explained. The letter concluded: “As for the items that you have requested by the way of disclosure, I am in receipt of your request and I will write to you as soon as I am in a position to do so.”
Moreover, annexure D to Mr Naidoo’s affidavit filed on 2nd October 2009 is a copy of a letter from Ms Farmer’s solicitors, dated
28th September 2009, to Mr Naidoo’s solicitors, which sought discovery of certain documents. In Paragraph 6 of that affidavit,
Mr Naidoo deposed as follows: “I believe that the request or requests made in this letter [of 28th September 2009] is/are vexatious, abuse of process, and in particular that most if not all of the request or request [sic] are repetitive, irrelevant to these proceedings, provided to the Applicant or obtained on behalf of the Applicant by, and without any objections what so ever on by behalf, several Subpoenas.” [sic]
I note, too, that the Court had made orders on 19th October 2009 in relation to discovery.
Disclosure: I interpose here simply to observe that the requirement of proper and timely disclosure is an unqualified responsibility of all parties in proceedings of this kind.[33] Mr Naidoo and his solicitor were on notice many months before the hearing to make proper and timely disclosure. To respond to the Wife’s solicitor in the manner I have outlined, firstly in September 2009 claiming that discovery was ‘vexatious and an abuse of process’, and secondly as late as 29th January 2010, with a trial due to commence in less than four weeks’ time, was completely inappropriate and decidedly unhelpful.
In addition to the rules of Court to which I have referred, case law is no less clear. For example, in Oriolo & Oriolo, the Full Court said: “We consider that there is a clear obligation on a party to proceedings … to make full and frank disclosure of all relevant circumstances.”[34] Rather more recently, the Full Court in Chang & Su considered at some length the case law in relation to proper disclosure.[35]
The jurisprudence to which I have referred makes plain that in circumstances where one party has not properly disclosed assets, or has otherwise made the determination of the asset pool more arduous than it should have been, the Court has something of a wide discretion than it might otherwise have in dealing with the asset pool and related matters. More formally, I note the following further discussion.
In Gould & Gould,[36] the Full Court (Bryant CJ, Finn & Boland JJ) dealt with the issue of “non-disclosure” beginning at [19]. The Court considered the cases to which I have referred – plus a few others along the way. The only matter I wish to note here is the Court’s quotation of comments by Callinan J in the special leave to appeal application in Chang v Su. In the course of argument, his Honour said: “It does not matter what the principle might be said to be, a court has to do the best it can, having regard to the evidence that is adduced and if the parties are not frank then naturally there is going to be a measure of imprecision about any findings the court can make.” This quote is cited by the Full Court in Gould at [49].
The context of Callinan J’s remarks was in response to Counsel’s submission on Mezzacappa.[37] And for the sake of completeness – because it is not in the Full Court’s judgment – the citation for the High Court’s special leave hearing is found in the accompanying footnote.[38]
The Full Court went on to say, at [27]:
… the appropriate approach for his Honour to have adopted in this case would have been to have increased the asset pool to take account of non-disclosure by the husband, and indeed his Honour had already done this to some extent in accepting the schedule of assets prepared by the wife’s counsel (see also paragraphs 12 and 14 of his Honour’s reasons). Alternatively, or even in addition, had his Honour been persuaded that on the balance of probabilities there existed assets other than those contained in the asset pool contained in his reasons, his Honour could have made some adjustment in favour of the wife on account of the husband’s non-disclosure pursuant to the provisions of s 75(2)(o)….
The Full Court in Gould, at [25], also quoted part of an earlier Full Court (Nicholson CJ, Buckley & Kay JJ) decision in K & K, where the Court said, at [51]:[39]
Whether the non-disclosure is wilful or accidental, is a result of misfeasance, or malfeasance or nonfeasance, is beside the point. The duty to disclose is absolute. Where the Court is satisfied the whole truth has not come out it might readily conclude the asset pool is greater than demonstrated. In those circumstances it may be appropriate to err on the side of generosity to the party who might be otherwise be seen to be disadvantaged by the lack of complete candour. This is the course the trial Judge adopted. It was a course clearly open to him and one that does not merit appellate interference.
While I have the view that there was no fraudulent conduct at all by
Mr Naidoo, his clear, sworn statement that he regarded requests (repeated or otherwise) for him to provide certain documents that would and should have been “discovered” as a matter of course in the proceedings as “vexatious”, was a significant, deliberate and improper protest that impeded the normal processes of the litigation. Because the affidavit in question containing this statement was filed by his then solicitor, I can only infer that his actions were sanctioned by his legal adviser. If that be so, it only makes his conduct the more dumb-founding and inappropriate, if not more.
Returning to the issues of the Iranian properties, for his part,
Mr Naidoo attached to his affidavits filed 15th and 23rd February 2010 copies of two different sets of valuations. The same documents are annexed to both affidavits. Annexure O to both affidavits contains photocopies of valuations for the Property [O] and [D] properties, being respectively 2,210,000,000 rials (Property [O]), and 1,800,000,000 rials.[40] Both valuations are dated 27th May 2009.
There was yet another contest over whether the translations of the valuations referred to were “official translation.” There is a hand-written notation on each valuation by a person unknown to the effect that the translation is not “official.” Various “Diplomat” stamps are affixed to each document. Their provenance is unclear. In her affidavit filed 18th February 2010 (para.5) Ms Farmer confirmed that, having read both of the original valuations and the translations (all of which are part of Annexure O), the translations were “true and correct.” I note again that the Court had no expert evidence in relation to property law in Iran.
Annexure A to both February affidavits of Mr Naidoo contains copies of originals and translations of valuations for the Property [O] and [D] properties. Both valuations are dated 4th January 2009. They provide, respectively, valuations for those properties of 1,700,000,000 rials (Property [O]) and 1,080,000,000 ([D]).[41]
Annexure B to both February affidavits of Mr Naidoo is a copy of a valuation, dated 6th May 2009, in relation to the Property [S]. The valuation confirmed that the [property] was “currently inoperative and closed down.” A value of 752,000,000 rials was provided.[42]
There are, however, some further complications in relation to the Property [S] valuation. First, on the face of the document it is simply a valuation of the building (described in the valuation as “infrastructure, superstructure, connections and appurtenances”), which obviously does not take account of (i) the land itself, or (b) any share-holding by
Mr Naidoo and his brothers. Secondly, although the valuation states that the business is closed down, no comment is offered about any possible value of the business or the property in the event that the business re-opened or re-commenced operation. For either or both of these qualifications, I have significant difficulty as to the utility that can be made of this valuation.
The various valuations to which I have referred are still not the end of the story. For example, Mr Naidoo contended that he owed one or more of his brothers certain moneys for work done in relation to the Property [O] property (in the order of approximately $25,000), and at the same time, he complained that because he purchased that property at a time when he was an employee of a certain company in Iran and that, because he is no longer an employee, he could actually forfeit the property.[43] If the latter case be so and he is (as he says) at risk of losing it, one might ask, not unreasonably, why would he provide funds for his brother to continue to fit out the property? The inconsistency of his evidence in this regard was not helpful. It may be, of course, that, because of the seemingly unchallenged evidence that dealings in land in Iran is rather fraught, and because of translation “issues”, there are entirely innocent explanations and no intention to obfuscate, and certainly no intention to deceive. For my part, I prefer, and will adopt, the latter view.
As indicated earlier in these reasons, I summarise my findings in relation to all the Iranian properties at the end of this section.
Property [A]: There are a number of issues that surround this particular property. As briefly as possible, I note the following.
This property is an apartment in [A], in Tehran, which was purchased in the early 1980s by the Applicant Wife. The Respondent Husband said that he contributed to its purchase. When the parties came to Australia in the 1990’s Ms Farmer said they (i.e. she and Mr Naidoo) agreed to her brother renting the property from them. It is not disputed that Ms Farmer’s brother continued to stay in the property until approximately 2000. On either version of events, Ms Farmer’s brother continued to pay rent or something equivalent thereto. It also seemed undisputed that the rent was paid in cash and that, by some means or other, Mr Naidoo had access to and certainly knowledge of this cash rent from Ms Farmer’s brother.[44] Around the year 2000 (or thereabouts) Ms Farmer provided her brother with a “proxy” on her behalf. Mr Naidoo protested that Ms Farmer did not permit one of his brother’s also to have a “proxy.”
It was not disputed that Ms Farmer’s brother raised a loan of $32,000, with the [A] property as security. For reasons that are not completely clear, and accepting that the brother had repaid some $22,000 of the loan, the mortgagee took possession of the property.
Both parties acknowledge that the property is no longer owned by
Ms Farmer.[45] Mr Naidoo contends that the brother simply transferred the property to another person. No evidence was provided to support this contention.
In cross examination, Mr Naidoo confirmed that he knew that
Ms Farmer’s brother had rented the property since 1990 and that the rent had stopped in 2000. He also confirmed that he knew the brother had gone bankrupt in 1997, and that in 2008, he had become aware that someone else was living in the property. He also confirmed that he had a proxy for his wife and that he could have commenced proceedings to seek to “recover” the property. Mr Naidoo confirmed that he did not have a valuation for the [A] property.[46] Thus, how he proposed that the Court assign a value of $180,000 (set out in his table of Iran Assets)[47] to the property remained something of a mystery.
Proceedings of some sort seem to remain on foot, but stalled, in Iran. To say the least, details of them are sketchy.[48]
Mr Naidoo contended that, in the circumstances outlined, Ms Farmer had satisfied the jurisprudential pre-conditions in relation to “waste” such that the [A] property should be ‘added back’ into the pool of assets. He contended that because, in his view, Ms Farmer had furnished her brother with a proxy that enabled him to mortgage the home unit, she should be accountable for such action. Mr Naidoo seemed to acknowledge, or rather his then Senior Counsel did, that there could be some argument as to whether Ms Farmer might have some claim against her brother, although how she might prosecute it, given the limitations or restrictions on what married women may or may not be able to do in Iran, perhaps makes this aspect somewhat moot.[49]
In Kowaliw & Kowaliw, Baker J stated very precisely the following:[50]
As a statement of general principle, I am firmly of the view that financial losses incurred by parties or either of them in the course of a marriage whether such losses result from a joint or several liability, should be shared by them (although not necessarily equally) except in the following circumstances:
(a) where one of the parties has embarked upon a course of conduct designed to reduce or minimise the effective value or worth of matrimonial assets, or
(b) where one of the parties has acted recklessly, negligently or wantonly with matrimonial assets, the overall effect of which has reduced or minimised their value.
Conduct of the kind referred to in para. (a) and (b) above having economic consequences is clearly in my view relevant under sec.75(2)(o) to applications for settlement of property instituted under the provisions of sec.79.
His Honour’s clear articulation of principle has been regularly cited and endorsed. For example, defining the “three categories” of “add-backs” in AJO v GRO, the Full Court (Holden, Warnick & Le Poer Trench JJ) said:[51]
To date, three clear categories of cases have emerged where the Court has determined that it is appropriate to notionally add back to the pool of assets, that is, assets that no longer exist. They are:
(a) Where the parties have expended money on legal fees...
(b) Where there has been a premature distribution of matrimonial assets… [and]
(c) In the circumstances outlined by Baker J in Kowaliw and Kowaliw.
In my view, given the clear statements of Mr Naidoo in the course of cross examination where he confirmed his knowledge of the rental of the [A] property, and that he knew as early as 1997 that there were some ‘financial issues’ in relation to Ms Farmer’s brother, and that he was receiving cash payments (being the rental) which stopped in approximately 2000, as well as him having a ‘proxy’ for Ms Farmer (albeit that the details of it are not altogether clear), I have some difficulty in seeing that Baker J’s delineation of principle as to when a court will or should ‘add back’ a property that has been the subject of some ‘waste’ has been properly satisfied on the facts available to the Court here. Added to which is the fact that there is no value of the property before the Court. In such circumstances, I propose excluding this property from the asset pool.
Asset Pool: Summary of Findings
In the course of his written submissions/case outline, [then] Senior Counsel for Mr Naidoo stated (para.1.4): “The Court will probably find that there have not been any or any reliable valuations in respect of some of the property.” Few truer words were written or stated in relation to these proceedings.
The usual judicial reference point for matters of valuation is the old High Court case of Spencer v Commonwealth.[52] The purport and general provenance of that case was summarised more recently by the High Court in Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority.[53] In that case, the Court said, at [51] (internal citations omitted):
The result of the judicial exegesis in Spencer was summed up by McHugh J in Kenny & Good Pty Ltd v MGICA (1992) Ltd as follows:
"Value is determined by forming an opinion as to what a willing purchaser will pay and a not unwilling vendor will receive for the property. In determining that value, there must be attributed to the parties a knowledge of all matters that affect its value. Those matters will include the predicted impact of future events as well as the experience of the past and the rates of return on other investments. As Isaacs J pointed out in Spencer v The Commonwealth:
'We must further suppose both to be perfectly acquainted with the land, and cognisant of all circumstances which might affect its value, either advantageously or prejudicially, including its situation, character, quality, proximity to conveniences or inconveniences, its surrounding features, the then present demand for land, and the likelihood, as then appearing to persons best capable of forming an opinion, of a rise or fall for what reason soever in the amount which one would otherwise be willing to fix as the value of the property.' (emphasis added)
The market for the property is, therefore, assumed to be an efficient market in which buyers and sellers have access to all currently available information that affects the property."
I am also conscious of the consideration and statement of principle of the Full Court (Finn, Kay & O’Ryan JJ) in Phillips & Phillips in relation to “appropriate principles” and the resolution of disputes in relation to valuations.[54]
Having regard to the statements of principle to which I have referred from the High Court and the Full Court, and to the facts of this case, it is readily apparent that there are significant gaps in the evidence, and/or at least quite significant issues in relation to it. Thus, the High Court’s comment that (a) ‘in determining that value, there must be attributed to the parties a knowledge of all matters that affect its value,’ and the further comment (taken from Spencer) that (b) ‘we must further suppose both to be perfectly acquainted with the land, and cognisant of all circumstances which might affect its value, either advantageously or prejudicially, including its situation, character, quality, proximity to conveniences or inconveniences, its surrounding features’, have little or no application here. To take just one example, Ms Farmer said, without much or any opposition, that she had never seen the Property [O] property. And even in Mr Naidoo’s case, where he frequently returns to Iran, he is very much dependent on valuations which seem not to have had regard (or very much regard) to a number of the matters to which the High Court has referred.
In such circumstances, doing the best that one can, I propose to proceed to take a mid-point between the respective values claimed by each of the parties in relation to the Property [O] and [D] properties. That being the case, these Iranian properties would appear in the table of assets as follows:[55]
(i)Property [O]: Wife’s value – $248,314; Husband’s value - $191,000
Court’s value: $219,657
(ii)Property[D]: Wife’s value - $202,247; Husband’s value - $121,000
Court’s value: $161,623
In relation to the Property [S], I note again that the only valuation provided to the Court concerned solely the value of the building. There was nothing in relation to the land, or to the business in the event that it resumed operation. In such circumstances, it seems to me that there should be at least some greater value ascribed to the Property [S] because of the matters I have mentioned. Having regard to the competing values ascribed to it (Wife’s value: $100,000; Husband’s value: $21,000), I propose fixing a value at 75% of the value asserted by the Wife, which results in a figure of $75,000.
On the basis of these figures, the non-superannuation asset pool looks this way:
ASSETS and LIABILITIES VALUE [G] property - Joint ownership 780,000.00 (agreed) Property [O] property 219,657.00 [D] land 161,623.50 Property [S] and land 75,000.00 Gold Jewellery only 4 items - balance missing 8,100.00 (agreed) Persian rugs 43,590.00 (agreed) Husband's 1176 [omitted] Shares 4,116.00 (agreed) Matrimonial car 5,800.00 (agreed) Silverware 800 (agreed) Debt to Ms N -21,500.00 (agreed) TOTAL NON SUPER POOL 1,277,186.50
Added to this, the superannuation table – which is agreed – is as follows:
ASSET VALUE Husband's Long Service Leave (105,763 before tax) 58,169.00 Super 471,851.00
Contributions
Contributions during the Marriage: I accept unequivocally judicial instruction to the following effect: ‘meticulous mathematical precision’ is not apposite in relation to contributions, especially so in long marriages where children have been raised and the parties’ various resources have been provided for the benefit of all.[56] The evidence clearly shows this to have been the situation here. Moreover, having regard to the way in which the matter was conducted at trial, save for the Wife’s “health”, there was absolutely minimal cross examination about anything other than the asset pool. Accordingly, in my view, it is appropriate to adopt the submission of Senior Counsel for the Respondent Husband, and argued essentially similarly by Counsel for the Applicant Wife, that the contributions during the relationship should be considered as equal.[57]
Post-separation contributions: In relation to this period, I have already noted that both parties (and one of the adult children) have continued to live – separately – in the former marital residence. In this respect there has been little change to the asset pool or, in my view, in the respective contributions. Whatever has been paid in terms of rates and other outgoings by Mr Naidoo, he has benefited from continuing to reside in the home just as much as Ms Farmer. That said, because he has made such payments, there should be a quite small allowance in Mr Naidoo’s favour for these post-separation contributions. That allowance, should be in the order of 1.5%.
Section 75(2) Factors
For reasons already given, namely that Ms Farmer’s health issues significantly outweigh those experienced by Mr Naidoo, and that
Mr Naidoo enjoys a very significantly greater income than Ms Farmer, as well as having greater qualifications than his former wife (he works in [omitted]), the s.75(2) factors strongly favour Ms Farmer. I would allow a figure of 10.5%.
Having regard then to the allowance under contributions in favour of Mr Naidoo of 1.5%, and a 10.5% allowance in favour of Ms Farmer in relation to s.75(2) factors, the net result, in percentage terms, favours Ms Farmer by 9% of the net asset pool. Of course, that is not the end of the story. It remains to consider what is “just and equitable” in all the circumstances of this case.
Conclusion: Just & Equitable Order
Having regard to my earlier concerns and comments in relation to disclosure and lack of co-operation in relation to obtaining valuations, I am nonetheless not minded to make any further adjustment in relation to the allowances to which I have already referred. In my view, some latitude for both parties should be given. They are, respectfully, still in the throes of some turmoil and disquiet following a very long marriage. Moreover, Mr Naidoo has had to deal with the additional unusual if not discomfiting circumstances where his solicitor has been formally precluded from further involvement in the proceedings due to the intervention of the ACT Law Society. For these further reasons, in my view, the percentage division of the asset pool, of 59/41% in favour of Ms Farmer is just and equitable.
However, some further consideration needs to be given to the distribution of the assets themselves.
Having regard to the very large and seemingly on-going issues that surround dealings with property in Iran, I cannot be confident that either party, but especially Ms Farmer, would or could appropriately deal with any of the properties in that country either expeditiously or satisfactorily. For example, on the evidence before the Court, I could not be confident that an order for sale, or equally an order for transfer to Ms Farmer, of one or more of the properties would be likely to take place any time soon. Moreover, there may also be issues in relation to the remittance of any proceeds of sale from Iran. A more expeditious course, it seems to me, is to order that one party (Ms Farmer) transfer any and all right, title and interest in the Iranian properties to
Mr Naidoo. It would then be within the power of Mr Naidoo either to sell or to keep one or all of the Iranian properties.
In such circumstances, and having regard to guidance from authority, such as Phillips & Phillips (to which I have previously referred),[58] in my view, in the absence of formal agreement between the parties within 28 days of these orders, the most appropriate course is to proceed as follows:
(i)the former marital residence be sold and the net proceeds be divided in accordance with the percentage split 59 – 41% in favour of Ms Farmer;
(ii)all of the Iranian properties (Property [O], [D] and the Property [S]) be transferred to Mr Naidoo, and Ms Farmer shall renounce any and all right, title or interest in them and do all things necessary to effect such transfer;
(iii)taking as a reference point the combined value of the three Iranian properties as set out in the confirmed pool of assets table in these reasons, and dividing that total value in accordance with the percentage division set out in these reasons (59/41% in favour of Ms Farmer), and after affording the trustee of the relevant fund procedural fairness, a base amount from Mr Naidoo’s superannuation fund representing this figure shall be paid to Ms Farmer 28 days after the expiration of the period of notice to the trustee of Mr Naidoo’s superannuation fund.
Otherwise, orders are made as sought by Ms Farmer.
I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Neville FM
Date: 14 September 2011
See Transcript (25th February 2010) p.123. This unfortunate circumstance was acknowledged by
Mr Naidoo.
[2] Unsurprisingly, the situation in the house can only be described as tense, not least because the 25 year old daughter of the parties has reported to police her fears about the risk of her Father, the Applicant Mr Naidoo, hurting her. The daughter alleged to police that Mr Naidoo had ‘gone through her room’ and had endeavoured to take photographs of her with her boyfriend. See the Australian Federal Police Report, dated 7th April 2009, being annexure D to Ms Farmer’s affidavit, filed on 3rd February 2010.
[3] Mr Naidoo confirmed that he and Ms Farmer remain married under Sharia law. Transcript (25th February 2010) p.113.
[4] Counsel for Ms Farmer had no objection to me looking at this “Attachment.” See Transcript (11th March 2011) p.13.
[5] See Transcript (11th March 2011) p.10.
[6] See Transcript (11th March 2011) p.11, which also contains details of the web-site referred to.
[7]
See, for example, Transcript (11th March 2011) p.11. The matter was amplified in his written submissions, filed on 3rd December 2010. See also the copy documents at annexures J & K to
Mr Naidoo’s affidavit, filed 15th February 2010, which confirm (at least) reference to a dowry.
Mr Naidoo also raised the issue of an inheritance to which Ms Farmer was entitled. She denied this, nor was there evidence presented to support Mr Naidoo’s allegation/contention. In cross examination, Ms Farmer said that (a) her Mother died in 2009, (b) her Mother’s property was sold some time before her death, and (c) she (Ms Farmer) does not know what is in her Mother’s will, which is not to be read until 2012. And apart from passing reference to one or more of her sisters, there is no evidence before the Court of any relevant family member who might be likely to share in any inheritance – whatever its possible dimension. See Transcript (24th February 2010) pp.72-74. Mr Naidoo seems to consider that part of the alleged inheritance is a [property omitted], about which there is no evidence at all before the Court. Given (a) the lack of evidence in any material respect in relation to any inheritance, (b) the problems recounted in these reasons in relation to property in Iran, and (c) the basic principles in relation to inheritances, set out, for example, in the joint judgment of Lindenmayer & Finn JJ in In the Marriage of De Angelis (2003) 30 Fam LR 304 at [95], I do not propose to make any allowance in relation to any claimed inheritance.
[8] See AJO v GRO (2005) FLC ¶93-218 at p.79, 619 [46].
[9] Ms Farmer contended that Mr Naidoo had subsequently purchased a further 25% interest in [property [S]], and that he receives a dividend from the company that runs it. She said that she does not know the amount of the dividends. See her affidavit filed 3rd February 2010, para.23.
[10] See Transcript (25th February 2010) p.153.
[11] Transcript (25th February 2010) pp.116 & 153; (26th February 2010) p.174.
[12] See, for example, the discussion at Transcript (25th February 2010) pp.131-132.
[13] Among other places, see Transcript (11th March 2011) p.32, as well as Mr Naidoo’s written submissions, filed 3rd December 2010, passim.
[14] At the outset of her cross-examination, Ms Farmer confirmed that she has no difficulty reading English, but that she has hearing, and some speaking, difficulties. See Transcript (24th February 2010) p.26.
[15] See Transcript (11th March 2011) p.36.
[16] Among other things, see the unchallenged medical records that constitute Exhibit B. These records attest to, among other things, surgery to Ms Farmer’s elbow in late 2009, and that she suffers from migraine headaches, arthritis, and osteoporosis. See also Transcript (24th February 2010) pp.31 ff. Further medical records are attached to Ms Farmer’s affidavits filed on 19th November 2009 and 3rd February 2010.
[17] In this regard, Mr Naidoo attached a Report of Dr C. (a renal physician) to his affidavit, filed on 15th February 2010 (annexure M). At the conclusion of that report Dr C. stated: “From the medical perception [sic] there is no need to reduce [Mr Naidoo’s] working hours. It is a matter of a patient’s perception of their lifestyle but there is no medical indication for it.” Dr C. said that Mr Naidoo suffered from “impaired kidney function.” My reading of Dr C’s report does not indicate any imminent need for medical intervention to assist Mr Naidoo. Certainly, no such intervention was ever claimed by Mr Naidoo at any stage of the proceedings.
[18] See Transcript (24th February 2010) pp.13 & 14.
[19] See Transcript (11th March 2011) p.34. However, I should also note that in his written submissions, filed 3rd December 2010, Mr Naidoo annexed and relied upon the ‘Case Outline’ prepared by his former Senior Counsel. It is convenient to note here that an issue in relation to spousal maintenance originally sought by Ms Farmer was not pressed at trial. See Transcript (24th February 2010) p.19.
[20] Because most of the evidence and cross-examination more generally related to issues concerning the property pool, I consider it in the course of this “step.”
[21] See Mr Naidoo’s detailed written submissions, filed 3rd December 2010, p.32. Helpfully Mr Naidoo set out, at pp.30 & 31 of his written submissions two alternative outcomes in the light of the distribution that he sought.
[22] See, for example, Mr Naidoo’s affidavit filed on 15th February 2010, para.22, where he stated that the [D] property is situated in the village of [omitted], “in [D] about 60 kms outside Tehran….” According to Ms Farmer, Proeprty [S] is located quite some distance from Tehran. See her affidavit, filed 3rd February 2010, para.59. Of course, the precise location of the [O] and [D] properties are set out in the valuations, which are noted later in these reasons.
[23] On the issue of “waste”, see generally Kowaliw & Kowaliw (1981) FLC ¶91-092. This case has been cited and discussed often. Thus, by way of example only, see In the Marriage of Browne & Green (1999) 25 Fam LR 482, and more recently, Kiefer v Kiefer (2009) 40 Fam LR 295.
[24] See, for example, Transcript (24th February 2010) p.29.
[25] Transcript (24th February 2010) pp.27 ff.
[26] Among other places, see Ms Farmer’s affidavit filed 18th February 2010, para.34.
[27] See, for example, the discussion at Transcript (25th February 2010) pp.142 & 146.
[28] In this regard I note the express terms, and the basic intention, of the Best practice guidelines for lawyers doing family law work (2004) issued by the Family Law Council, especially Part 12 Section 2 regarding expert witnesses and valuations. Guideline 4.2 in that section refers to parties, “… should, wherever appropriate, consider agreeing to an assessment of the value of an asset rather than requiring sworn or formal valuation. The cost of formal valuation should be compared with the likely value of the asset.” In my view, the facts of this case suggest that there was insufficient attention paid to possible agreement in relation to valuation of the Iranian properties. This applied both as to the procedure in obtaining valuations as well as in relation to all other details relating to them. In this regard, I have the clear impression that the major fault in this regard should be ascribed to the Husband’s side of the ledger.
[29] See Annexure D to Ms Farmer’s affidavit filed on 9th October 2009.
[30] See Annexure A to Ms Farmer’s affidavit filed 9th October 2009.
[31] I note that in the course of cross examination Mr Naidoo confirmed that he had not provided or otherwise produced any of his bank statements. They were obtained only pursuant to subpoena. See Transcript (25th February 2010) p.157.
[32] In her affidavit filed 18th February 2010 (paras. 65 & 66 and annexure C), Ms Farmer provided the curriculum vitae of Mr N. who, she said, was a valuer “approved by the Iranian Government.” This is of some relevance because, in the course of the trial, Mr Naidoo not infrequently protested about the authority and or qualification of valuers – or the lack thereof. So far as I could discern, there was little, if any, difference between Mr N.’s qualifications and the qualifications of those who provided the valuations for Mr Naidoo. Again, there was no expert evidence before the Court in relation to valuers or valuations in Iran.
[33] Among other things, see the Federal Magistrates Court Rules2001, rr.24.03 & 24.04.
[34] Oriolo & Oriolo (1985) FLC ¶91-653 at p.80,256.
[35] In the Marriage of Chang & Su (2002) 29 Fam LR 406 at pp.420-424 and especially at [66] – [72].
[36] Gould & Gould (2007) FLC ¶93-333.
[37] Mezzacappa & Mezzacappa (1987) FLC ¶91-853.
[38] Chang v Su [2002] HCATrans 549 (5th November 2002).
[39] K & K (2003) FLC ¶93-135. Unfortunately, this report gives only an abbreviated judgment, limited to the removal of the Next Friend.
[40] As at the date of these reasons, on the current exchange rate, based on the valuations to which I have referred the respective value of each property in Australian dollars is approximately $195,600 ([O]) and $160,000 ([D]).
[41] Again as at the date of the publication of these reasons, these valuations in Australian dollars amount to (approximately) $103,600 ([O]) and $95,600 ([D]).
[42] O the same basis as the other property conversion amounts, the [Property [S]] would be worth $A66,500 (approx.)
[43] There was some brief discussion about the distinction between Mr Naidoo being a share-holder in the Iranian company which entitled him, in that respect, to “own” property, and owning property without any intervening share-holding. Given his Senior Counsel’s submission that Mr Naidoo owned certain property in Iran beneficially, such distinctions are, in my view, rather moot for the current proceedings.
[44] See, for example, Transcript (25th February 2010) p.119.
[45] See Ms Farmer’s affidavit filed 3rd February 2010, paras.13-17, and Mr Naidoo’s affidavit filed 15th February 2010, pars.13-17.
[46] See the discussion at Transcript (25th February 2010) pp.114-119.
[47] See p.31 of the Husband’s Written Submissions, filed 3rd December 2010.
[48] See Transcript (25th February 2010) pp.115-116.
[49] See Counsel’s Outline of Case on Behalf of Husband, filed 23rd February 2010, passim. I have noted earlier that Mr Naidoo attached a copy of these same submissions to his “Husband’s Written Submissions”, filed 3rd December 2010.
[50] (1981) FLC ¶91-092 at p.76,644.
[51] AJO v GRO (2005) 33 Fam LR 134 at pp.144-145 [30].
[52] Spencer v Commonwealth (1907) 5 CLR 418.
[53] Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259.
[54] Phillips & Phillips (2002) FLC ¶93-104 especially at pp.88,982 - 88,983 [43] – [49] & [57]. In particular, I note the Full Court’s comment, at [45], thus: “As to “appropriate principles” there is no fixed rule as to the proper method of valuation and the preferred methodology depends on the facts of the case.” The Court then cites from the judgment of Mason J in Mallet v Mallet using the citation from the Family Law Cases; the relevant citation in the authorised reports is (1984) 156 CLR 605 at pp.626 – 627.
[55] The respective values claimed are taken from the parties’ submissions.
[56] See, for example, the comments by the Full Court (Evatt CJ, Lindenmayer & Strauss JJ) in Garrett & Garrett (1984) FLC ¶91-539 at pp.79,371 – 79,372.
[57] See too the important comments by Fogarty J (as part of a Full Court also comprising Baker & Hannon JJ) in Doherty & Doherty (1996) FLC ¶92-652 at pp.82,684 – 82,685. His Honour’s words, respectfully, need to be considered regularly by lawyers and litigants. Broadly stated, among other things, his Honour emphasised that in long marriages it would be unusual if contributions would or could be assessed as anything other than as equal.
[58] In that case, the Full Court said, at [48] and [49], citing earlier authority, that where evidence as to valuation is so problematic, the most appropriate course is to order a sale.