Gola & Ralston

Case [2021] FCCA 1170

FEDERAL CIRCUIT COURT OF AUSTRALIA

Gola & Ralston [2021] FCCA 1170

File number(s): DGC 3996 of 2018
Judgment of: JUDGE RIETHMULLER
Date of judgment: 31 May 2021
Catchwords: FAMILY LAW – property proceedings – section 79 of the Family Law Act 1975 – contributions – unilateral dealings of the parties after separation – fraud – withdrawals from bank accounts – unilateral application of funds – final split – division of 67.5% split in favour of wife
Legislation: Family Law Act 1975 (Cth), ss 75, 79, 117
Cases cited:

Bennison & Bennison [2015] FamCA 243

Bevan & Bevan [2013] FamCAFC 116

Biltoft & Biltoft [1995] FamCA 45; (1995) FLC 92-614

Browne & Green [1999] FamCA 1483

C & C [1998] FamCA 143

NHC v RCH [2004] FamCA 633

Danh & Loi [2019] FamCAFC 190

Essex & Essex [2009] FamCAFC 236

Field & Basson [2013] FamCAFC 32

Kouper & Kouper (No 3) [2009] FamCA 1080

Kowaliw & Kowaliw [1981] FamCA 70; (1981) FLC 91-092

M & M [1998] FamCA 42

Malpass and Mayson [2000] FamCA 1253

AJO & GRO [2005] FamCA 195

Pencious & Pencious and Anor [2014] FamCAFC 171

Prince & Prince [1984] FamCA 7; (1984) FLC 91-501

Sartin & Sartin & Anor [2016] FCCA 800

Shimizu & Tanner [2011] FamCA 271

Talbot & Talbot [2015] FamCAFC 132; (2015) FLC 93-660

Tobey & Rezek [2017] FamCAFC 84

Townsend& Townsend [1994] FamCA 144; (1995) FLC 92-569

Trevi & Trevi [2018] FamCAFC 173; (2018) FLC 93-858

Tuckson & Elsey [2017] FamCAFC 145

Vass & Vass [2015] FamCAFC 51

Wolter & Wolter [2012] FamCA 1133
Number of paragraphs: 90
Date of last submissions: 8 October 2020
Date of hearing: 16, 17 and 18 September 2020
Place: Melbourne
Counsel for the Applicant  Mr Berghoffer
Solicitor for the Applicant  Genuine Legal
Counsel for the Respondent Mr Burns
Solicitor for the Respondent Pentana Stanton Lawyers
Table of Corrections
22 June 2021 In paragraph 88 the amount of $536,440.72 has been replaced with $411,113.72.
22 June 2021 In paragraph 88 the amount of $351,406.42 has been replaced with $226,079.42.

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

PARTIES

DGC 3996 of 2018
BETWEEN:

MS GOLA

Applicant
AND:

MR RALSTON

Respondent

REASONS FOR JUDGMENT

BACKGROUND

[2]

ASSETS AND LIABILITIES

[12]

Land in India

[13]

The wife’s Jewellery

[18]

The wedding ring

[22]

Present property and superannuation of the parties

[23]

UNILATERAL DEALINGS OF THE PARTIES AFTER SEPARATION

[24]

Wife’s withdrawal of funds after separation

[25]

HUSBAND’S POST SEPARATION DEALINGS

[27]

The B Street, Suburb C Property

[27]

The Husband’s withdrawals from bank accounts

[44]

Proper approach to post-separation dealings

[48]

Conclusions on Post Separation Dealings

[64]

Superannuation

[67]

CONTRIBUTIONS

[68]

Initial contributions

[68]

Contributions during the marriage

[69]

Post-separation

[72]

SECTION 75(2) FACTORS

[80]

FINDINGS

[87]

JUDGE RIETHMULLER:

  1. The applicant wife (‘wife’) seeks property settlement Orders pursuant to section 79 of the Family Law…

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Gola & Ralston [2021] FCCA 1170
Case
[2021] FCCA 1170
Decision Date

CaseChat Overview and Summary

In this matter before Riethmuller J of the Federal Circuit and Family Court of Australia, the applicant wife sought property settlement orders under section 79 of the *Family Law Act 1975* (Cth). The dispute concerned the division of assets following the parties' separation in 2015, with the wife residing in India with the parties' two children and the husband controlling the majority of the assets in Australia. The court acknowledged that it was just and equitable to make property settlement orders given the long relationship, the location of assets, and the wife's residence abroad.

The primary legal issues before the court were the characterisation of certain assets and the husband's post-separation dealings with property. Specifically, the court was required to determine whether a parcel of land in India was the wife's separate property or a joint asset, and whether the husband's acquisition of the B Street, Suburb C property was a valid transaction to which the wife had agreed or consented. The wife also disputed the authenticity of her signature on loan documents related to this property.

Riethmuller J found that the land in India was the wife's separate property, having been purchased for her by her parents, and not funds of the parties. Regarding the B Street, Suburb C property, the court accepted the wife's evidence that she did not sign any documentation for its purchase and did not authorise the husband to forge her signature on loan documents. The court found the husband's evidence regarding these transactions unpersuasive, noting that the mortgage broker had purported to witness the wife's signature when she was in India, and that the husband had deceived the broker. The court concluded that the husband had uttered false signatures of his wife and deceived the mortgage broker.

Orders

Orders of the court

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Background

Background to the litigation

The applicant wife (‘wife’) seeks property settlement Orders pursuant to section 79 of the Family Law Act 1975 (Cth) (‘the Act’). There is no question in this case that it is just and equitable that there be orders for a property settlement, as the parties had a long relationship, the vast majority of their assets are in Australia and controlled by the husband, and the wife resides in India with the children.BACKGROUND The wife is 45 years old and the husband is 46 years old. The parties commenced a relationship in or around 1992 and later married, and commenced cohabitation in India in 2000. The husband worked as a professional and the wife worked as an allied health worker. In 2003, the husband and wife purchased a property situate at D Street, Suburb E (‘the D Street, Suburb E property’) in joint names, for approximately $290,000. The D Street, Suburb E property became their matrimonial home. In 2005, the parties’ first child, S, was born (now 16 years old). In 2010, the parties purchased an investment property situate at F Street, Suburb G (‘the F Street, Suburb G Property’), relying upon a joint loan from ANZ Bank for $305,000. In 2011, the parties’ second child, N, was born (now 9 years old). On 8 October 2015, the parties separated and the wife moved to India with the two children of the relationship, where she and the children remain. The husband has visited the wife and children four times in the last five years. There parties are in dispute as to whether the children should return to Australia, however, no children’s proceedings have been filed in India or Australia. In October 2018, the parties were divorced and the wife brought the respective proceedings in November 2018. On 1 May 2019 and 8 April 2020, the parties attended mediation and conciliation conferences, respectively, but were unable to reach an agreement. The final hearing proceeded via Microsoft teams due to COVID-19 related Government restrictions in effect in Victoria at the time. The mother gave evidence electronically via video link from India. On 23 March 2017, the husband purchased a property located at B Street, Suburb C (‘the B Street, Suburb C Property’). On 2 February 2018, the husband sold the F Street, Suburb G Property for $338,000. On 28 November 2018, the wife filed an application in this jurisdiction seeking final property orders. ASSETS AND LIABILITIES The parties provided a table of assets, liabilities and superannuation entitlements for hearing, listing all current property and liabilities. There are three items in dispute: the property in India, the wife’s jewellery, and the wife’s wedding ring.Land in India The parties gave evidence that they had always understood that the wife owned a parcel of land in India, which had been purchased for her by her father. The husband had even visited the land when traveling to India. The wife listed the property in her financial statement, filed at the start of the proceedings as a property of which she is the registered owner and stated that its value was $38,000. The financial statement is an admission by the wife that she owns the land and as to its value.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The bank statements for the account were produced by the husband, showing the money being transferred out of the account, but no statements were produced showing the money being transferred into the account. No alternative source for the funds was put to the wife. On balance, I am satisfied that the funds were the property of her parents, as she alleges, and that they were not funds of the parties.HUSBAND’S POST SEPARATION DEALINGSThe B Street, Suburb C Property The husband purchased the B Street, Suburb C Property in early 2017, and settlement occurred on 23 March 2017. The husband made the purchase in his name, but said that was to maximise negative gearing for tax purposes, as he was the only one earning an income in Australia. In order to purchase the property, the husband used funds of the parties and refinanced their mortgages. The wife first became aware that the husband had purchased the B Street, Suburb C property when told by the husband’s girlfriend, although the wife did not believe her at that time. The wife denied that she agreed to the purchase of the B Street, Suburb C property and denied that she authorised the husband to forge her signature on the loan documents. She denied having forged his signature in the past, and no specific examples of alleged forgeries by her were put to her in evidence. Whilst she agreed that the husband came to visit her in India in September 2016, she said that the parties had never discussed buying a property for redevelopment. There are many documents that appear to have the wife’s signature on them that effected the refinancing arrangements. These were prepared and witnessed by the husband’s mortgage broker, Mr J. The wife never attended upon the mortgage broker, Mr J, who purported to witness her signature in the bank documents: she could not have done so as she was in India at the relevant time. Whilst the mortgage broker, Mr J, purports to have witnessed the wife signing the documents, that cannot have happened. Mr J was not called to give evidence so I have not heard his version of events. The husband says that he convinced Mr J to witness the signatures (including the signatures purporting to be the wife’s, but which were forged by the husband). The husband also says that it was a mistake that the wife’s name was included on the mortgage and proffered a document purporting to be from Mr J. It is clear that the husband deceived Mr J, as he knew that Mr J would not agree to witness a forgery of his wife’s signature, although Mr J nonetheless witnessed a signature that he had not seen the wife write. I do not find the husband’s evidence with respect to these transactions persuasive, beyond his admissions as to uttering false signatures of his wife and deceiving Mr J. The wife stated that she did not sign any documentation for the B Street, Suburb C Property, there was no documentation presented to her to sign and she would not have agreed to purchase and sign the loan for the B Street, Suburb C Property. I accept the wife’s evidence in this regard.