G and G
[2001] FMCAfam 154
•8 June 2001
FEDERAL MAGISTRATES COURT OF AUSTRALIA
G & G [2001] FMCAfam 154
FAMILY LAW – Property – financial contributions – assets of parties – financial factors to be considered – Family Law Act 1975 s75(2), s79, s79(2), s79(4) (a), (b), (c).
FAMILY LAW – Children – change of child’s surname – general principles to be applied – religious significance in changing names.
In Marriage of Lee Steere and Lee Steere (1985) FLC 91-626; Ferraro and Ferraro (1993) FLC 92-335, McLay and McLay (1996) FLC 92-667, Norbis and Norbis (1986) FLC 91-712, Palmer and Palmer (1978) FLC 90-510, Beach and Steemler (1979) FLC 90-692.
| Applicant: | A K G |
| Respondent: | H K G |
| File No: | ZP 907 of 2000 |
| Delivered on: | May 2001 |
| Delivered at: | Parramatta |
| Hearing Dates: | 17 & 18 October 2000 |
| Judgment of: | Scarlett FM |
REPRESENTATION
| Solicitors for the Applicant: | Mr Dunkley, McPhee Kelshaw DX 26729 Springwood NSW |
| Solicitors for the Respondent: | Mr Ramrakha, as agent for Glade, Wright and Mahindroo DX 159 Hobart TAS |
ORDERS
The child of the marriage, formerly known as DG, born on 25 October 1996, is to be known by the name of PS.
The applicant is authorised and entitled to sign all such documents as shall be necessary to give effect to Order 1 above.
The respondent is to pay to the Applicant the sum of $30,723.50 within one month from the date of these Orders.
In the event that the respondent fails to comply with Order 3 above within one month then he shall forthwith at his expense:
(a)execute such instruments and sign such documents and give such consents as shall be necessary to transfer to the applicant all of his shares in AMP;
(b)execute such instruments and sign such documents and give such consents as shall be necessary to transfer to the applicant his Toyota motor vehicle registration number EE9963; and
(c)notify the trustee of each of the AMP Superannuation Fund and REST Superannuation Fund that the entitlements in such funds in the name of H K G G shall on the happening of a terminating event be paid to the applicant A K, and the respondent shall be restrained from receiving such funds at such time as they become available.
The respondent is restrained from selling, dealing with, borrowing against or transferring his AMP shares or his said Toyota motor vehicle until he has complied with Order 3 in its entirety except for such actions that may become necessary to give effect and operation to Order 4.
Both parties are to do all such acts and things and give all consents and execute all documents and instruments necessary to give effect and operation to these Orders.
In the event that either party refuses or neglects within 14 days of being required to do so to execute any deed, document or instrument then a Registrar, Deputy Registrar of the Federal Magistrates Court of Australia or a Federal Magistrate be appointed pursuant to section 106A of the Family Law Act to execute such deed, document or instrument in the name of such party and to do all things necessary to give validity to the operation of the said deed, document or instrument.
The applicant is granted liberty to apply on 7 days notice with respect to the implementation of these orders.
All other applications save as to costs are dismissed
FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA
ZP 907 of 2000
A K G
Applicant
And
H K G
Respondent
REASONS FOR JUDGMENT
Application
A K, the wife in these proceedings, has commenced property proceedings and also seeks an order that the child of the marriage be allowed to change his name, so as to be known as P S. Originally, the Applicant sought a property order in the sum of $150,000, but she now seeks the more modest sum of $39,868.00.
In his Response, the husband originally sought an order that the parties should divide the assets and financial resources between themselves in an equitable manner. At the end of the evidence, the husband was seeking orders that the wife be permitted to retain jewellery given to her to the value of $27,811.00 and that she pay to the husband the sum of $25,500.00.
Background
Both the husband and wife were born in India. The wife was born on
8 April 1968, so she is now 33 years old. The husband was born on
2 April 1963, so he has now reached his 38th birthday.
The parties were married at Chandigarh in India on 23 March 1995. Both the husband and wife had been previously married, and each has a daughter by their previous spouse. The wife had been living in India at the time of the marriage, but the husband had been a resident of Australia since May 1988. The husband became an Australian citizen in August 1990.
The husband returned to Australia after the wedding. The wife had to remain in India, awaiting a visa to enter Australia. From the date of the wedding until she arrived in Australia, the wife lived with her mother-in-law, although she spent some time living with her own parents.
The wife arrived in Australia on 5 October 1995, and commenced to live with the husband at his home in W, where he had a small shop. The wife worked in the shop, before and after the birth of the only child of the marriage, a boy called D G, who was born on
25 October 1996.
The marriage was a short one, and not without acrimony. The wife left the husband on 30 June 1997, taking the baby with her. The husband has moved to Hobart to live, and has now remarried. At the date of hearing, the husband’s new wife was living in India, awaiting a visa to enter Australia. The parties were divorced on 17 March 1999. The wife had not, at the date of the hearing, formed a new relationship.
The husband owned two items of real property at the time of the marriage, the premises where they lived at G W Highway, W, and a house at C Street, K. During the marriage, the husband purchased a property at G Road, L. The husband sold all three of these properties after the parties separated. The wife says that she did not receive any of the proceeds of sale.
The wife says that she contributed to the marriage not just as a wife and mother but by working long hours in the family shop. She also says that she later worked as a housekeeper at the F Resort. The wife says that the marriage was marked by domestic violence on the part of the husband, which led to her leaving with the child.
The husband says that the wife received a considerable amount of jewellery from the husband’s family when they were married. He says that she has kept it all.
The relevant law
In determining an application under section 79 of the Family Law Act 1975, the authorities make it clear that a three-stage process should be adopted (In the Marriage of Lee Steere and Lee Steere (1985) FLC 91-626; Ferraro and Ferraro (1993) FLC 92-335; McLay and McLay (1996) FLC 92-667).
First, the court should identify the property, liabilities and financial resources of the parties at the time of the hearing. Next, the court should evaluate the contributions made by the parties as defined in section 79(4)(a), (b) and (c), which cover the financial contributions made by or on behalf of the parties, the contributions made directly or indirectly by or on behalf of the parties, and the contribution made by a party to the welfare of the family.
Finally, the court has to evaluate the relevant matters contained in section 75(2). When determining what order it should make, the court must be satisfied that in all the circumstances it is just and equitable to do so [see section 79(2)].
There are two separate approaches to be taken in determining property matters, the global approach, as referred to in Norbis and Norbis (1986) FLC 91-712, or the asset-by-asset approach. The global approach is the more common, although a particular case may suggest that an asset-by-asset approach is more likely to provide a fairer outcome.
The net property of the parties
As has been set out in paragraph 8 above, at the date the parties commenced cohabitation, the husband owned two items of real property, being a house at C Street, K which was purchased in 1989, and the house and shop at G W Highway, W, which was purchased in 1992. He also owned a quantity of jewellery, which the wife says included three gold chains, six gold bangles and a set of gold earrings. The husband says that he and his mother purchased jewellery for her to the value of $19,065.00.
The wife owned no real estate at the date of the marriage. It is her evidence that at the date of the marriage she owned few possessions except a quantity of gold jewellery, being two gold necklaces, two gold earrings and two gold rings. The wife says that her father provided a gold chain and a gold ring at the time of the marriage.
The husband says that those items of jewellery were worth approximately $8400.00. He also says that the wife’s parents gave her jewellery to the value of approximately $25,000.00 at the time of the parties’ wedding. He says that he purchased a gold watch for her before the wedding, although the wife says that she received a watch that did not work after a short time. The husband has provided receipts from various jewellers in Chandigarh dated 20 and 21 March 1995, shortly before the marriage ceremony.
There was a substantial dispute between the parties about the amount of jewellery received by the wife at the wedding, its value and its source. There was also substantial dispute about what happened to that jewellery. The wife says that some of the jewellery given to her was taken back and later given to her sister in law, S.
I am satisfied that the wife received some jewellery from her own family at the time of her wedding, but there is no evidence as to its value. I am also satisfied that she received a substantial amount of jewellery from the husband or his family, totalling 301310 Rupees. The exchange rate between the Australian dollar and the Indian Rupee was, at the date of hearing, $A1=Rs 23.01. Thus, the approximate value of the jewellery said to be given by the husband and his family was $A 13,094.74.
As far as liabilities at the date of the commencement of the marriage are concerned, the husband claims that his mother lent him the sum of $23,832.00 to pay for the wedding. I am not satisfied that this debt has been proven.
The husband also says that he borrowed an amount of money from his mother to purchase the property at G W Highway, W, with his brother and sister-in-law. He paid the sum of $20,000 to his mother out of the proceeds of sale of that property, when it was sold in August 1997. For reasons that were never explained, the husband says that his mother gave Indian Rupees to a family friend in the United States, who then gave sums of money to the husband in United States dollars. The husband has shown evidence that he received three cheques for $US 2000.00 from one P S between
20 April and 7 August 1992. There was not produced any evidence of the rate of exchange between the Australian dollar and the United States dollar at the time, although it is reasonable to assume that the husband received a total of approximately $A10,000.00 from his friend in the United States. There was no evidence either from the husband or his mother as to how the loan, if it were so, reached the sum of $20,000.
I am satisfied that the husband has shown a liability at the date of the commencement of the marriage of no more than $10,000.
I find that there were no other assets or liabilities at the time of the commencement of the marriage.
The contributions by the parties
The wife gave evidence that she had worked in the family business, a “corner shop”, from the time she arrived in Australia in October 1995 until 30 June 1997, when the parties separated. She also obtained part-time work as a housekeeper at the F Resort at L. She said that she worked long hours in the shop, even whilst she was heavily pregnant. Her evidence that she worked for up to 14 hours a day, 7 days a week, is corroborated, at least in part, by her former neighbour, M S, a regular customer of the shop. On the other hand, the husband denies that the wife worked in the shop for 14 hours a day, saying that it was only open from 6.30 am to 7.30 pm. He says that she worked only ten hours a week, for which she was paid the sum of $100 per week. The wife denies receiving this money.
The husband also worked in the shop, as well as working in other employment as a chef. The wife’s sister in law, S G, worked in the shop as well, but the wife says that S did not work the same number of hours as she did.
During the marriage, in November 1996, the husband purchased a property at G Road, L, for $225,000. He says he paid the initial deposit of $22,500 out of his savings. As to the balance of the purchase price, the husband gave evidence that he borrowed $174,151.20 from a bank and that he borrowed $28,000 from his mother. The property was sold at a loss on 12 December 1997.
The husband says that the wife made no financial contribution at all to the real estate and that he paid all the outgoings on the property. He said that he did not know how she spent the money she made working at the F Resort.
The husband also says that he purchased items of jewellery for the wife during the marriage, including a gold chain worth $500. He says that when the parties separated, the wife returned to the house and took a number of items of jewellery with her, estimated by the husband to be worth $50,000. The wife says that she took only one necklace, which was hers. Senior Constable D. W, of L Police Station, said in a letter to the husband dated 23 September 1997 and annexed to the husband’s affidavit of 11 October 2000, that he observed the wife pack some personal items, including jewellery, into bags. He referred to the jewellery as “the jewellery that you mentioned in your letter”. He refers to that jewellery elsewhere in the letter as “all items of jewellery, gold chains, rings and earrings”. Whilst the officer, who did not give oral evidence, did not particularise the jewellery he saw packed into bags by the wife, it is clear that he is referring to more than one necklace, which is all that the wife says that she took.
The husband was a member of the H-P superannuation scheme during the marriage, which had a total balance of $22,419.07 as at
5 July 2000. The husband also had an AMP Investment Linked Superannuation Plan, with a transfer value of $7872.79 at
15 December 1999.
The only other asset was a Ford van, which the husband says that he traded in on his present motor vehicle for $1000.
The three pieces of real estate were all sold after the couple separated.
There do not appear to be any other matrimonial assets.
It is clear that the husband made the major contribution to the matrimonial assets during the marriage, having brought two items of real estate into the marriage. The third piece of real estate, the property at G Road, L, was purchased in November 1996, 20 months into the marriage. The wife’s contribution to the matrimonial assets comes from her role as homemaker and from working in the family business. She also worked outside the business, at the F Resort. I assess the wife’s contribution at 20%.
Section 75(2) factors
Mr Dunkley, for the wife, submits that the section 75(2) factors favour the wife. He refers particularly to the fact that she has less in the way of work skills, her income property and financial resources are less than that of the husband. In addition, she has the care and control of the parties’ four year old son, and her commitments to support herself and her son are greater than those of the husband.
Against this, the husband’s solicitor, Mrs Mahindroo, paints a far rosier picture for the wife. The wife, she submits, is a healthy young woman who could easily remarry. The husband, on the other hand, has remarried, and has the responsibility of supporting his new wife and his mother. He is also paying child support for the children of his two previous marriages. The husband’s financial position, it is submitted, has deteriorated, whilst that of the wife has improved. She has obtained employment, and she also receives money from Centrelink.
The husband, it is submitted, has suffered a drop in income, due to the limited job prospects in H compared to S. The husband has given no explanation as to why he chose to relocate himself from N S W to T. The husband is now living in rented accommodation, whereas he was the registered proprietor of three pieces of real estate during the marriage. His evidence about the disposal of the proceeds of sale of the real estate, all three properties having been sold in 1997, does not provide a satisfactory answer as to why he appears to be so impecunious at this time.
Section 75(2) of the Family Law Act 1975 sets out a list of some 16 factors to be taken into account by the court. A number of these are relevant in this case.
a)Age and state of health [s. 75(2)(a)] – the husband is 38 years of age, having been born on 2 April 1963. He is in good health. The wife was born on 8 April 1968, so she is now 33 years of age. She is also in good health. I make no adjustment pursuant to this sub-section.
b)Income, property and financial resources [s. 75(2)(b)] – the husband is in full-time employment as a pastry chef at the S B in H. He earns $578.91 per week. He also receives superannuation benefits from his employment amounting to $40.38 per week. He is a member of two superannuation funds, AMP L and H P. He can draw the benefits of his superannuation when he reaches the age of 58.The wife is in part-time employment as a process worker with M B (Australia) Pty. Limited. She earns on average the sum of $61.00 per week. She is not a member of any superannuation fund. There should be an adjustment in the wife’s favour pursuant to section 75(2)(b).
c)Care and control of the children of the marriage [s. 75(2)(c)] – the child D, aged 4, resides with the wife. The husband pays child support in the sum of $200.00 per month, which is less than that needed to maintain him. There should be a slight adjustment in the wife’s favour pursuant to this sub-section.
d)Commitments to support themselves and other children
[s. 75(2)(d)] – as well as paying child support for D, the husband has a responsibility to support his daughter by his first marriage. The wife also has a daughter by her first marriage, whom she has a responsibility to support. This child resides in India with the wife’s parents. I make no adjustment either way.e)Responsibility to support any other person [s. 75(2)(e)] – the husband has remarried. His new wife has not been able to obtain permanent residence status and is consequently unable to work in Australia. The husband has a responsibility to support her. The husband says that he also has the responsibility of supporting his mother, who is 70 years of age and in poor health. However, the husband says that his mother lives with him “when she is in Australia”, and there is no evidence as to how much time that is. I note that the husband’s mother had recently returned from India when she gave evidence in these proceedings. The wife has no responsibility to support any other person. There should be an adjustment in favour of the husband pursuant to sub-section (e).
f)Eligibility for pension, allowance or benefit [s. 75(2)(f)] – the husband has no entitlement, but the wife receives a benefit from C of $293.00 per week. The husband will receive the benefit of two modest superannuation policies when he attains the age of 58 years. No adjustment is appropriate in favour of either party.
g)Reasonable standard of living [s. 75(2)(g)] – the standard of living of both parties has reduced since the marriage. No adjustment is called for either way.
h)Maintenance [s.75(2)(h)] – there are no relevant factors, nor are there any relevant factors under sub-section (j).
i)Duration of the marriage [s. 75(2)(k)] – the marriage was of short duration, from March 1995 to June 1997, a little over two years and one month. The husband remained in full-time employment as well as working in the business. The wife worked in the business, and later worked elsewhere. I make no adjustment either way.
j)Protection of a party’s role as a parent [s.75(2)(l)] – the child D lives with the wife.
k)Cohabitation with another person [s. 75(2)(m)] – the husband has remarried. The wife appears not to have formed another relationship. This issue is referred to more fully in paragraph 43 above.
l)Section 79 Order [s. 75(2)(n)] – The orders to be made in these proceedings will not be sufficient to permit the wife to purchase any real estate. The husband will be in a slightly better position. Both parties will be living in modest financial circumstances in the immediate future. No adjustment is required pursuant to this sub-section.
m)Child support [s.75(2)(na)] – the respondent pays child support in the sum of approximately $200.00 per month. The respondent’s income would not permit any higher payment, and his prospects of significantly increasing his income are not high. I make no adjustment.
n)Other facts and circumstances [s. 75(2)(o)] – no other facts or circumstances are relevant.
The section 75(2) factors balance out almost evenly, to the extent that there is only a slight adjustment to be made in favour of the wife. This adjustment should be placed at 5%. As a result, I find that the applicant should receive 25% of the pool of matrimonial assets.
The value of the matrimonial assets
The applicant made no contribution to the purchase of the properties at 1 C Street K or G W Highway, W. The property at G Road, L was purchased during the marriage. The three properties were all sold immediately after the parties separated.
The applicant complains that the respondent provided no reasons for the sale, nor did he provide any details. His evidence about the real property was vague and incomplete. What can be ascertained is that the respondent obtained the sum of $23,335.00 from the sale of C Street, K.
The respondent received the sum of $37,645.87 from the sale of the property at G W Highway, W. His mother received $20,000.00, and his sister-in-law, S G, received $37,645.87, being her share as a joint owner of the property. There is no issue as to S’s entitlement to a share of the proceeds of sale. The balance left to go into the matrimonial asset pool amounts to $75,646.74.
From the sale of G Road, L, the respondent received $61,913.51. From this amount must be deducted the sum of $28,000.00 which was repaid to the respondent’s mother, being money owed to her for assistance with the purchase. The total value of the proceeds of sale of the real property which goes into the pool of matrimonial assets is $132,894.00.
To the proceeds of the sale of real property should be added the AMP shares ($673.74), an interest in the respondent’s Toyota Tarago van, the superannuation and the jewellery. The evidence of the jewellery was so contradictory, unsubstantiated and confusing that I am not satisfied that the applicant has received anything like the amount of jewellery which the respondent claims. He alleges that she has retained worth $50,000.00 but the evidence does not support this claim. There is no doubt that she retained some jewellery, but as to its value, and whether or not it was jewellery received from her own family, the evidence does not support an inference to be drawn.
The respondent claims that he owed his mother the sum of $23,832.00 for the cost of the wedding. I have previously found that the amount would be no higher than $10,000.00.
Taking these considerations into account, I find the value of the matrimonial asset pool to be $122,894.00. Having considered the matters set out in section 75(2) of the Family Law Act, I am satisfied that the applicant is entitled to 25% of the matrimonial asset pool of $122,894.00, which amounts to $30,723.50.
The name of the child
The applicant seeks an order that the child of the marriage, D G, should be known by the name of P S. The applicant is of the Sikh religion, but the respondent is not. The applicant gave oral evidence that she and the child attend Sikh temples on the weekend.
The applicant’s reasons for the change of name are:
(a)the embarrassment that would be caused to the child by continually having to answer questions from members of the Sikh community as to why he did not have a Sikh name;
(b)the embarrassment that would be caused by having to answer questions about his paternity;
(c)the limited contact between the respondent and the child since the parties separated; and
(d)the regular involvement of the applicant and the child with the Sikh community.
The respondent made no submissions about this issue.
The relevant law on changing a child’s name
In Chapman and Palmer (1978) FLC 90-510, the Full Court of the Family Court said that:
“The general principle appears to be that the Court will not intervene to prevent a parent from changing the surname of a child in the custody or care and control … of that parent (or to direct that a name be restored where a change has occurred) unless the Court is satisfied that the change was made without the consent of the other parent and that it does not promote the welfare of the child.”
The Court set out the factors to which the Courts should have regard in determining whether there should be a change in the child’s surname to include:
(a)the welfare of the child is the paramount consideration;
(b)the short and long term effects of any change in the child’s surname;
(c)any embarrassment likely to be experienced by the child if its name is different from that of the parent with custody or care and control;
(d)any confusion of identity which may arise for the child if his or her name is changed or not changed;
(e)the effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage;
(f)the effect of frequent or random changes of name (at 77675).
In Beach and Stemmler (1979) FLC 90-692 Connor J mentioned certain additional matters which may be relevant, including the contact that the husband has had and is likely to have in the future with the children and the degree of identification which the children now have with their father.
The respondent, as I mentioned earlier, made no submissions about the proposed change of name. It is clear that, now that the respondent resides in Tasmania, the contact between father and son is infrequent. The child D lives with his mother, the applicant, who is a member of the Sikh religion and identifies with the Sikh community. The respondent is of a different religion.
It is customary in the Sikh community for children to bear a name that identifies them as Sikhs. It will be necessary for the entire name of the child to be changed to comply with this custom. I am satisfied that it is in the child’s best interests to bear a name that associates him with his mother and the community in which they both reside. It is appropriate for him to bear the Sikh name of P S.
I make the orders set out in the attached schedule.
I certify that the preceding fifty-four (54) paragraphs are a true copy of the reasons for judgment of Scarlett FM
Associate:
Date: 16 August 2001.
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