Granger and Sloper - [2011] FMCAfam 192

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GRANGER & SLOPER

[2011] FMCAfam 192

FAMILY LAW – Property settlement – length of marriage balanced with length of time residing together – significant disparity in contributions – consideration of disputed evidence of parties – increase in percentage entitlement because of duration of relationship and continued residence in Australia – significance of section 75(2) factors – ill health of one party balanced against limitations of other party’s skills and effect of limited English speaking.

Family Law Act 1975, ss.75(2), 79(2) & (4)

Pastrikos and Pastrikos (1980) FLC 91-987
Whitely and Whitely (1996) 92-684
In the Marriage of Clauson (1995) FLC 92–595
In the Marriage of Ferraro (1993) FLC 92-335
In the Marriage of Lee Steere and Lee Steere (1985) FLC 91-626
Russell and Russell (1999) FLC 92-877

Applicant:

MS GRANGER

Respondent:

MR SLOPER

File Number:

BRC 9533 of 2009

Judgment of:

Coker FM

Hearing date:

2 March 2011

Date of Last Submission:

2 March 2011

Delivered at:

Townsville

Delivered on:

16 March 2011

REPRESENTATION

Counsel for the Applicant:

Mr Hamwood

Solicitors for the Applicant:

Nita Stratton-Funk & Associates

Counsel for the Respondent:

Mr Hackett

Solicitors for the Respondent:

Hirst & Co

ORDERS

THAT BY WAY OF PROPERTY SETTLMENT:

That the Wife relinquish all right title and interest in and to the following property which shall remain the sole property of the Husband:
(a)the former matrimonial home situated at [Property A], Brisbane;
(b)the 2006 Model Suzuki Van and 2003 Daewoo motor vehicle in the possession of the Husband;
(c)the furniture and contents situated at the former matrimonial home save for the following items:
(i)all items of the Wife of a personal nature, including but not limited to, clothing, shoes, make-up and jewellery to be made available for collection by the Wife within 14 days of the date of this Order.
(d)the proceeds of the Husband’s superannuation with [omitted Superannuation Fund];
(e)the proceeds of sale of the shares and [omitted Bank Account] held at separation;
(f)all bank accounts and cash savings of the Husband.
That the Husband relinquish all right, title and interest in and to the following property which shall remain the sole property of the Wife:
(a)the real property and contents situated at [Property B];
(b)the Wife’s bank accounts and term deposits.
That within 30 days of the date of Order, the Husband shall pay to the Wife by way of Bank Cheque made payable to the Trust Account of the Wife’s solicitors, the sum of $31,735.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT TOWNSVILLE

BRC 9533 of 2009

MS GRANGER

Applicant

And

MR SLOPER

Respondent

REASONS FOR JUDGMENT

These proceedings relate to an application for a property settlement between Ms Granger, whom I shall refer to as the wife, and Mr Sloper. The wife filed an application in this court on 18 February 2010. At that time she sought orders in relation to a property distribution to be effected between she and the husband upon a basis of an equal share in the assets of the parties being retained by each, though in her application she specifically sought an order that she retain all the assets of which she is currently the legal owner, including her property in India situated at [Property B] India and the contents therein and the wife’s bank accounts in India.
The wife otherwise sought that there should be a cash adjustment between she and the husband to effect the overall 50 per cent division, but specifically noted that there would need to be an accounting of the assets, liabilities and financial resources of the parties and of the net equity available to be divided between them. Until such time, as there had been some form of accounting effected, the wife otherwise sought that she be excused from further particularising her claim in relation to a property settlement.
At the commencement of the hearing a case outline was filed in which the wife more fully particularised the orders that she sought, in relation to property settlement. It was still upon the basis that there should be what generally appeared to be a 50 per cent distribution of the net value of the assets as between the parties, but a figure of $250,000 was specified in light of various figures that had been obtained in relation to the assets of the parties.
The specific orders that were sought by the wife were detailed as orders (a) through (f) as set out in the case outline and were in these terms:
(a)That the wife relinquish all right title and interest in and to the following property which shall remain the sole property of the husband:
(i)the former matrimonial home situated at [Property A], Brisbane;
(ii)the 2006 Model Suzuki Van and 2003 Daewoo motor vehicle in the possession of the Husband;
(iii)the furniture and contents situated at the former matrimonial home save for the items referred to in Annexure “S” of the wife’s Affidavit of Evidence in Chief filed 14 February 2011 which the husband shall deliver to a place as nominated by the wife at a mutually convenient time within 14 days of Order;
(iv)the proceeds of the husband’s superannuation with [omitted Superannuation Fund];
(v)the proceeds of sale of the shares and [omitted Bank Account] held at separation;
(vi)all bank accounts and cash savings of the husband.
(b)That the husband relinquish all right, title and interest in and to the following property which shall remain the sole property of the wife:
(i)the real property and contents situated at [Property B];
(ii)the wife’s bank accounts and term deposits.
(c)That within 30 days of the date of Order, the husband shall pay to the wife by way of Bank Cheque made payable to the Trust Account of the Wife’s solicitors, the sum of $250,000.
(d)That in default of the Husband paying to the Wife the sum referred to in (c) herein within the time specified, then the husband shall:
(i)take all necessary steps to sell the former matrimonial home by public auction such auction to take place within 10 weeks from the date of default or at such later date as nominated by the real estate/auctioneer appointed by the parties to conduct the auction and in the absence of agreement between the parties as to such appointment, as appointed by the Chief Executive Officer of the Real Estate Institute of Queensland or his/her nominee; and
(ii)within 48 hours of any request being made, execute and deliver to the Real Estate Agent acting on the auction, all documents requested by the said Agent with respect to the auction; and
(iii)co-operate in every way with the Real Estate agent including allowing inspection of the property at all reasonable times requested and ensuring that the property is in a neat and clean condition at the time of inspection by prospective purchasers; and
(iv)within 48 hours of submission of a contract of sale execute and return the same to the real estate agent; and
(v)execute and return all other documents necessary to complete the sale in the normal course within 48 hours of any such document being submitted for that purpose.
(e)For the purpose of sale by auction, the former matrimonial home shall carry a reserve price agreed between the parties and failing agreement, a reserve price as fixed by valuer appointed by the parties or in default of agreement in that respect, as appointed by the Chief Executive Officer of the Real Estate Institute of Queensland.
(f)That the proceeds of sale of the former matrimonial home shall be dispersed as follows:
A.in payment of agent’s commission and conveyancing costs of sale;
B.the sum of $250,000 to the wife (less reimbursement to the husband for one half the costs of marketing and advertising paid by him with respect to the auction) together with interest thereon in accordance with the amount as prescribed in the Family Court Rules such interest to be calculated fro the date the wife’s entitlement became due to date of payment in full;
C.the balance proceeds to the husband.
The husband responded to the wife’s initiating application on 18 June 2010. The orders that he sought were of very short compass. They were in these terms:
(a)That the wife’s amended initiating application filed on 9 March 2010 be dismissed;
(b)That the parties each retain the property and assets presently in their sole name or possession as at the date of orders;
(c)That the wife pay the husband’s costs of and incidental to the application;
and a general catchall provision was also included such that the court was asked to provide or to make any further order as may be considered necessary.
In the husband’s case outline filed just prior to the hearing he again reiterated that the orders that he sought in relation to this matter were in terms of those contained within his response of 18 June 2010.
I must say that there are a number of aspects of this application which caused some difficulty in relation to its actual determination. They included an issue as to the actual term of the relationship between the wife and the husband. It is agreed that the parties married on 1 September 2000. It is also agreed that their final separation was in the latter part of 2008 in or about October of that year and that the parties were divorced on 13 June 2010.
What is also clear, however, is that there was a very significant period or periods during the relationship when the parties did not live together. In fact that commenced shortly after the parties were married and that arose as a result of the fact that the wife was an Indian national and following their marriage in September of 2000, the husband returned to Australia, being the holder of Australian citizenship, about a month later, but the wife was unable to obtain a visa and therefore remained in India for a period of about another 10 months or so.
Thereafter there were a number of periods during the relationship where the wife returned to spend time with family in India and whilst the husband accompanied her on some of those occasions, he certainly did not appear to remain living with the wife in India for the duration of all times that she was there. In the final calculation, which appears generally to be agreed, it is clear that the wife in fact was living in India separate and apart from the husband for a period of somewhere in the vicinity of three years and 10 months.
The entirety of the relationship was almost exactly eight years and therefore it is clear that almost exactly one half of the period of the actual marriage was spent with the parties living separate and apart. It was a matter that was emphasised on the part of the husband as being an indicator of the fact that whilst the parties were perhaps married for a period of eight years, the relationship between them, if I can describe that way, was one that perhaps could be more particularly categorised as a short marriage.
From the wife’s perspective that was countered by the argument that this time was facilitated by the husband and that during such times as she was in India, the Husband provided no financial support so that if anything, her contribution was made more arduous.
Additionally, there were issues that arose between the parties in respect of the support that each provided to the other. In particular, there was very divergent evidence given by the wife, as opposed to the husband, as to who might have been the more significant controller of the relationship and therefore of the other party. Quite simply, the wife says that she was a wife in what might be called the traditional Indian sense and that she was subject to control and direction by her husband.
The husband, for his part, says that there was in fact a very different dynamic as between the two of them and that in fact it was much more of a situation where the wife, whilst perhaps to the outside world appearing to be a traditional Indian wife, was very much in control of the household and dictated the terms of their relationship including, in particular, the arrangements to exist with regard to their financial circumstances and in particular therefore the arrangements with regard to moneys to be available within the household, at any particular time.
Obviously they also will be matters which will need to be commented upon in relation to these proceedings because, whilst there may have been some corroborative evidence given on the part of the wife and on the part of the husband as to their particular positions taken in relation to this matter, to a very significant degree the real determinant of that matter, and it is significant in relation to the final orders that might be made in relation to these proceedings, turned upon the assessment of the evidence and the credibility of the evidence given by each of the parties.
Before turning to the parties themselves however, it is of course appropriate that I should comment upon the evidence that was taken from those called in relation to these proceedings as supportive of the wife and the husband. From the perspective of the wife, her brother, Mr Granger, was called in relation to these proceedings. Notwithstanding that Mr Granger said in his affidavit that he was, “fluent in English”, it was abundantly clear that when evidence was to be taken in relation to these proceedings, he was not in fact able either to understand to any real degree spoken English, nor to answer in other than Hindi, or when answers were given in English, they were only a matter of “yes” or “no” answers.
Mr Granger gave evidence with regard to what he says were his observations of the relationship that existed between the wife and the husband. He spoke of the fact that whilst the parties were married in September of 2000, it was certainly the case that the wife did not immediately travel to Australia, he said until August of 2001, when her residency was confirmed.
It was noteworthy, however, that in paragraph 11 of his affidavit he said the following:
My sisters and I felt very concerned about Ms Granger being left without funds and we decided to return to her the money she had given to us before her marriage from fixed deposits inherited from our father and her own savings.
He then went on in paragraph 12 to perhaps explain the concern that he refers to in the previous paragraph by saying:
I became aware that Ms Granger’s marriage to Mr Sloper was not at all a happy one. Mr Sloper did not stay for the weddings of my sister’s children in late 2005 and early 2006 and left Ms Granger to attend on her own.
As a result of those comments, Mr Granger went on to give evidence about the repayment of certain moneys to the wife. He confirmed in paragraph 13, and in his oral evidence, that he repaid to her 2.15 lacs which is, as I understand it, the equivalent of 215,000 rupee. He also commented, though it was certainly the subject of some challenge in relation to whether it were inadmissible in evidence or not, about repayments that were made by his sister, Ms U, of 75,000 rupee and by his sister Ms H of 65,000 rupee.
Mr Granger’s evidence was to the effect that in total 355,000 rupee were paid to the wife in the reimbursements that he referred to, following the concerns arising with regard to the financial circumstances of the wife. It was noteworthy in particular that Mr Granger gave evidence as to what could only be perhaps described as, the precursors to the payment.
As I said, in paragraph 12 of his affidavit he referred to the non-attendance by the husband at the weddings of his sister’s children in late 2005 and early 2006 and in paragraph 13 makes the following comment:
In 2006, Ms Granger paid a deposit for a house in [India] and in early 2007 Ms Granger sold the [suburb omitted] house which she inherited from our father. My sisters and I returned to Ms Granger the following monies which she had given to us before her marriage.
Following those statements, the reference is then made to the repayments of a total of 355,000 rupee to which I have already referred.
The significance of those particulars however, is that the wife’s evidence was clear and to the effect that the moneys were repaid to her in December of 2004 and January of 2005. I in fact queried whether I was to understand that those dates were indicators of the events which gave rise to the repayment of the money, and whilst there were certainly difficulties in perhaps the witness’s understanding of my question and my understanding of his evidence, it was clear that when he became aware of what I was asking in relation to that particular aspect of the matter, he repeated that the payments were either in he thought 2005 or 2006 and then, when specifically referred to the statement in paragraph 13 as to events in 2006 and 2007, he again confirmed that the payments were made in 2006.
What arose from that of course was the fact that whilst the evidence appears to be to the effect that moneys were repaid to the wife by other family members, it was also quite clear that the payments that the wife says were moneys received by her from her sisters and her brother, which were deposited to accounts in December 2004 and January of 2005, were not the same moneys.
Unfortunately there were difficulties in relation to the full comprehension of the evidence that was taken from Mr Granger in relation to this matter and whilst I accept the general veracity of the comments that were made by Mr Granger in his affidavit filed on 17 February 2011, I must say that there were certain difficulties with regard to translation and to the understanding by Mr Granger of the questions directed to him and by me of the answers that were given by him.
In part that arose, as I understand it, from the fact that the translator had some difficulties in understanding Mr Granger, though it is not exactly clear whether that arose as a result of a question of the dialect which may have been used by Mr Granger or the difficulties in the phone connection and therefore the clarity of the expression made by Mr Granger. In any event, Mr Granger’s evidence was, I thought, significant in relation to that one particular aspect of the matter with regard to the repayment of moneys which were said to have been lent by the wife to Mr Granger and to their sisters.
Also called in relation to this matter, but on behalf of the father, were the father’s two sons, Mr M Sloper and Mr N Sloper. Both had filed affidavits in relation to these proceedings and both were also required for short cross-examination. I must say that I thought both Mr M Sloper and Mr N Sloper were extremely impressive young men and impressive witnesses. They were frank in relation to their relationship with the wife and made comments, for example, to the effect that at least one thought that the wife was somewhat “confrontational” in relation to her dealings with other people and, in particular to the two boys.
But just as clearly, there was at least some degree of respect held for the wife by each of the husband’s sons of his prior marriage. It was noteworthy that both, in their written evidence, indicated that the wife had an understanding of what might be called conversational English and that whilst Mr M Sloper in particular indicated that there were occasions when the wife would ask the husband for some clarification of what might or might not have been conversation being conducted between the boys and the wife, it was also clear, and I accept, that if it were what Mr M Sloper referred to as a “normal discussion,” then certainly the wife was able to communicate.

Mr N Sloper also indicated that there was a basic level of understanding of what might be called conversational English held by the wife and that there was a degree of understanding of any conversation that was conducted. I will obviously comment upon that particular aspect of this matter a little later in the discussions or in the assessment of the evidence of the wife. As I indicated however, I found the evidence of both Mr M Sloper and Mr N Sloper to be persuasive.
In no way did I think that they were evasive in either their written evidence or in their oral evidence and, in particular, I thought that they were genuine in their responses which were given to inquiries as to whether they might be in a position to provide some financial assistance to their father, should there be orders made with regard to payment of certain moneys to the wife.
I was more than satisfied that Mr M Sloper’s response that he would not provide a guarantee was genuinely one that would be the position he would take in relation to the matter.
He said that he was a married man, that he had a 14 month old baby and that he had just signed his own mortgage documents in relation to borrowings. As he put it, he couldn’t risk the liabilities that would arise and I must say that I thought that that was both a sensible and appropriate response. Similarly, Mr N Sloper indicated that he would need details of what borrowings there would be and of his obligations and liabilities before he could consider the possibility of providing a guarantee in respect of borrowings by his father, if that were necessary. I must say that I thought the tempered nature of the response by both Mr M Sloper and Mr N Sloper was an understandable and sensible one.
I was also mindful of the answers that were given by Mr N Sloper in relation to moneys borrowed by him from his father and of the fact that, as he indicated in his material, his father, certainly in the time that he was married to the wife, kept significant sums of money within the house and Mr N Sloper made reference to a borrowing from his father of a sum of $5000 in or about 2002 and that that money was, at least as best he understood it, moneys that were held within the household.
Mr Sloper was challenged in relation to those understandings of where moneys might or might not have been obtained, but I must say that I was generally accepting of the evidence given by Mr Sloper in that regard and, in particular, the genuineness of the evidence in relation to significant sums being held within the home. As indicated, both Mr M Sloper and Mr N Sloper were, I thought, impressive witnesses in relation to this matter.
There was also evidence given by way of affidavit in this matter from two witnesses who were not required for cross-examination. The first was Mr G, a registered valuer, who provided a valuation in respect of the husband’s residence situation at [Property A], in Brisbane. Mr G valued the property at a current market value of $500,000 and noted that the purchase was effected in November of 1999, approximately one year prior to marriage, for a sum of $145,500.
The valuation was prepared by Mr G on 26 August 2010 though it was only brought before the court pursuant to his affidavit filed 23 February 2011. In any event, Mr G was not required in relation to this matter and both parties appear to have accepted that, for the purposes of these proceedings, the value of the asset was $500,000.
Also providing evidence in relation to this matter was the husband’s general practitioner, Dr A. Dr A indicated that the husband had been a patient of his since 1980, in other words, a period of 30 years. Dr A indicated that he had been treating the husband for depression following the separation from his first wife in or about 1996 and that he had prescribed antidepressant medication for him at that time and has continued since that time to prescribe antidepressant medication.
Dr A commented at paragraph 6 of his affidavit as follows:
I observed that [Mr Sloper’s] depression became worse after his marriage to Ms Granger and in particular [Mr Sloper] began from suffering from what I would categorise as “severe depression” in about 2002.
Dr A went on to say, at paragraph 7:
I am aware that [Mr Sloper] receives benefits from Centrelink due to his illness. I have certified to Centrelink that [Mr Sloper] suffers from depression.
Dr A was not challenged in relation to this matter and it appears clear that the husband has suffered from depression for a significant period of time and that, at least from the perspective of his treating general practitioner, but also upon assessment by the appropriate authorities, the husband is disabled as a result of his depression and is in receipt of a disability support pension.
I turn now, as obviously is appropriate, to the evidence of each of the parties in relation to this matter.
As is so often the case, the evidence of the parties is most significant in relation to the determination of the proceedings, but, as I mentioned at the commencement of these reasons, in this instance it takes a very significant place in the determination of the matter because there are such divergent positions taken by each of the parties, in respect of their relationship, one with the other. I had the opportunity of seeing both the wife and the husband in the witness box, though I must say that I had some extreme difficulties in relation to appreciating fully the oral evidence of the wife in relation to this matter because of the difficulties that she indicated she experienced with regard to the English language.
Before turning specifically to her evidence however, I feel that it is incumbent upon me to comment upon a matter that did give rise to concern, as to the determination of this matter. An interpreter in the Hindi language was sought in relation to assisting the court, and no doubt the wife, in relation to these proceedings. The interpreter, Ms J, was called. When asked as to her qualifications however, it was somewhat surprising that the interpreter indicated that she did not have NAATI certification and that none was held by her.
She did provide some indications, however, of her experience in relation to interpreting or translating English to Hindi and Hindi to English, saying that she had been interpreting for a period of about five years, primarily doing hospital work and Legal Aid conferences where one or other of the parties required assistance with regard to translation, but that she had also over that period of five years or so done, as she put it, 10 or 12 cases in court. As there was obviously no alternative available in relation to the proceedings, Ms J was sworn and assisted in relation to the translation of the evidence and questions directed to elicit responses, in relation to these proceedings.
I comment simply that I was troubled on a number of occasions as to the exchanges that occurred between the translator and the wife because, in some of the instances, the answers that were given were very short in compass though there was a quite lengthy exchange between the interpreter and the wife. Examples of that abounded within the cross-examination in relation to these proceedings, but it can best perhaps be indicated by the fact that on one occasion a question was directed to the wife through the interpreter which was simply to the effect of, “How much money was paid to you by your sister, ..... ?”
The question was obviously translated into Hindi and the wife answered in some form. However, the answer was not translated back, but rather there was a further exchange between the interpreter and the wife where there appeared to be a degree of conversation between them before the answer was given as, “She says 64 or 65,000 rupees.”
It was clear that there was significantly more exchange in relation to this matter and whilst there was not objection taken on the part of either the husband or the wife in relation to the matter, I must say that I was troubled as to what appears to have been less than the prescribed professionalism, in relation to such translation.
In any event, as I say, no objection was taken to the form that was followed in relation to the translation and as there was no alternative available and the real possibility of further expense and delay if the matter did not proceed, the hearing went ahead.
I should also note, and it was raised by counsel on one occasion, but it occurred on more than one occasion, that notwithstanding the fact that the wife’s clear evidence was that she could not in any way speak conversational English, when some questions were directed to her through the translator, on more than one occasion she commenced to give an answer, albeit in Hindi, before there appeared to have been even any real commencement of the translation of the question from English into Hindi, by the interpreter.
I gained the distinct impression that the wife had at least what might be called an understanding of, “conversational English”, and that she had a far greater appreciation of what was being exchanged in the court proceedings than was admitted by her. This was emphasised also by the fact that, following the conclusion of the wife’s evidence, the interpreter sat beside her during the balance of the hearing, but on no occasion did I note that there was any interpretation provided by the interpreter to the wife and yet on more than one occasion she could be heard to be speaking in only what would seem to have been response to certain evidence that was being given, or questions that were being asked. I shall come to that particular aspect of the matter a little more completely when commenting upon issues as to credibility.
Insofar as the evidence of the wife was concerned, I was troubled by a significant amount of that evidence. In particular the issue of what understanding she did or did not have of the English language was one of the points, but perhaps more significant was that matter to which I have already referred when commenting upon the evidence of her brother, Mr Granger. The wife was adamant that the amounts that were paid to her in repayment of loans previously made to family members, were a total of approximately 355,000 rupee.
She gave evidence that one sister repaid 65,000 rupee in three instalments of 30,000, 25,000 and 10,000 rupee and that those repayments were made at different times, but were banked by her. The wife was adamant, it would appear, that those repayments coincided with the deposits to the bank in December of 2004 and January of 2005 though of course, and it was emphasised on behalf of the husband, none of the deposits that were made in any way coincided with the amounts that were said to have been received, from various of the wife’s siblings.
More particularly, and again it is noteworthy, the wife indicated that she had little, if any, funds available to her from the husband and yet the total amount that was banked during that period of about two months or so was in excess of 400,000 rupee, though of course the wife acknowledges that the total amount that she received in repayments from her siblings was 355,000 rupee. That discrepancy, as well as the fact that none of the deposits referred to in December of 2004 and January of 2005 matched the amounts that she indicated had been received from her siblings, was unexplained, as was the additional deposits which were made.
I was troubled by that, but also particularly troubled by the apparent difference between when the wife says moneys were repaid to her by her siblings and when the only independent evidence appears to have been from her brother, Mr Granger, which was to the effect that the repayments were made perhaps one or even two years after the deposits which were noted by the wife.
It is a significant matter because the husband, long and loud in material, suggested that the wife had insisted on significant amounts of money being held within the household in Australia at all times and gave evidence which was clearly to the effect that on at least one occasion, when he gave what he called, “spending money”, to his wife in the sum of A$3000, he noted a payment by his wife to one of her sisters of an amount of $4500, which could not be explained, other than by the wife having access to other funds in Australia, which she did not acknowledge.
Unfortunately those discrepancies, and what I thought was a very clear lack of frankness on the part of the wife as to her understanding of English, lead me to believe and to find that the wife in fact had access to funds significantly more freely than she suggests and that it was not simply a case of her being required to request money of the husband at any time that it was necessary.
In fact I am far more inclined to the view that, at least to a significant degree, the purchase of the property now registered in the wife’s name, [Property B], was at least in part as a result of moneys which were available from what I might call the matrimonial pool, than from moneys simply which were either repaid to the wife or part of her inheritance from her father.
That particular aspect of the matter troubled me in relation to these proceedings because it gave rise to a concern as to the veracity of so much of the evidence that was given in relation to these proceedings. In particular, it gave rise to a concern as to why there were not other witnesses called, including of course the wife’s two sisters, particularly when it was suggested within the husband’s material that when discussions were held in the presence of the wife’s siblings as to why the property at [India] was not in joint names, the wife was insistent that it should remain in her name, though the husband says that her sisters at least acknowledged that the moneys were moneys that had in part been transferred from Australia and that therefore they should be recognised by the property being held in joint names.
Certainly from the wife’s perspective, it was argued that if that were the position of the husband in relation to this matter, then he should have called the wife’s sisters to give evidence in respect of the matter and whilst there is perhaps some legitimacy in relation to that aspect of the matter, there is also clearly the difficulty that arises in that regard from the fact that the wife relied upon evidence of repayments being made by her sisters as well as her brother, but their evidence was not called in relation to this matter.
It might be, as was suggested by the wife, that there was some cultural difficulties that arose and perhaps one or other of the husbands of her sisters would not have allowed their wives to give evidence in relation to this matter. But again, whilst some play was made of the fact that there might have been cultural issues, and certainly there was suggestion of those matters in submissions made as to why a greater proportion of any settlement should be effected in favour of the wife, there was no evidence whatsoever called in relation to cultural matters and I am more inclined to the view that the onus, if I can describe it that way, would fall upon the wife, with regard to the calling of evidence in relation to matters arising, which involved her family in India.
I turn now to the evidence of the husband in relation to this matter. I must say that I was troubled by some of the evidence in relation to the husband and to what might have been suggested on the part of the wife to have been convenient lapses of memory, in relation to the evidence of the husband. Just as clearly, however, I thought that the husband was, as best he could be, an honest witness in relation to this matter, particularly when there was clearly the unchallenged medical evidence as to the fact that he was suffering, and had suffered, from depression for a period of about 15 years and certainly since about 2002, had suffered from what Dr A described, as severe depression.
Dr A was not required in relation to the matter and it appears clear that there was an acceptance of the fact, that the husband was so impaired by depression that it affected his capacity to earn income. Again, and I must say it troubled me in relation to this matter, there was some difficulty in the suggestion by the wife that the husband, because of depression and therefore the effect upon mood, had caused her contribution as a wife and homemaker to be harder to perform, yet the wife’s own evidence under oath in relation to this matter, was to the effect that she had not noted issues with regard to depression or an effect upon the husband.
I thought that the husband attempted to be full and frank in relation to this matter. I certainly found that the husband’s evidence in relation to the matter was generally easier to understand, and whilst I am mindful of the fact that there were difficulties arising from the need for a translator to be called on behalf of the wife, I am still more of the view that the husband’s evidence was a more accurate and honest reflection of the arrangements that existed within their household. In particular, whilst there may have been some vagueness in the evidence that was given by the husband as to moneys held within the household, I am certainly satisfied that there was a wish or requirement on the part of the wife that there be significant amounts of money within the household in cash, at any particular time and that the wife primarily had the opportunity to utilise those funds, as and how she saw fit.
In particular, I am satisfied that at least on one occasion, and perhaps on more than one occasion, there were significant amounts of money that were utilised directly by the wife for the purposes of loans to her family or to the acquisition of the apartment in India in her name only.
The husband was cross-examined about travel that he had taken at different times during the period of the relationship, and in fact subsequent to separation, and to that end documents were tendered from the Department of Immigration, in relation to the husband’s apparent travel to and from Australia.
The husband contested many of the entries in relation to the proceedings and I thought was most believable in relation to the evidence that he gave and, in particular, the contesting of the entries. I was troubled by the fact that there was, obviously arising from documentation, though that particular document was not apparently made available to me, a suggestion that the husband held a New Zealand passport. The husband was adamant that he had never held a New Zealand passport and that he had been, as he said, a naturalised Australian citizen since 1972, having arrived in Australia in 1965.
He also denied certain other trips including one which appeared to indicate that he had left Australia one day and returned to the Commonwealth of Australia the next day. Without the corroborative evidence in relation to this matter, I find that I was little assisted by that information in respect of these proceedings and do not consider that anything of a negative or positive nature could be drawn, from the documentation which was tendered in the proceedings.
The husband was, I thought, a generally honest witness and one upon whom considerable reliance could be placed, at least insofar as the day-to-day nature of the relationship between he and the wife and of course, I also find that the husband was reliable in relation to the evidence that he gave with regard to the assets that he brought into the relationship and the dissipation over time of those moneys in particular, at least to the extent that he was able to comment upon such funds.
I need, obviously, to look at the law in respect of financial determinations between husband and wife and, in that regard, the relevant law is as follows. Section 79 of the Family Law Act defines the court’s powers in determining applications for property settlement. Subsection (2) of section 79 provides that:
The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.

Section 79(4) sets out the matters the court must take into account when considering what orders should be made for the alteration of the interest of the parties in property. Those matters include:
(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last-mentioned property, whether or not that last-mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and
(c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and
(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and
(e)the matters referred to in subsection 75(2) so far as they are relevant; and
(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and
(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.
The approach to the determination of an application under section 79 is well established by authority (see, for example Pastrikos and Pastrikos (1980) FLC 91-987; In the Marriage ofLee Steere and Lee Steere (1985) FLC 91-626; In the Marriage of Ferraro (1993) FLC 92-335; In the Marriage ofClauson (1995) FLC92-595 and In the marriage of Whitely and Whitely (1996) 92-684). The process ordinarily involves a multiple part procedure.
The court must first identify the assets, liabilities and financial resources of the parties and attribute a value to all assets, usually at the time of the hearing. Thereafter it must evaluate the contributions made by each of the parties as defined in section 79(4)(a) to (c). Finally, the court must consider the financial resources, means and needs of the parties, and other matters set out in section 75(2) in so far as they are relevant. An adjustment of the amount due to each party by way of contribution is then made by reference to the section 75(2) factors. It is not essential, however, that such an adjustment be made. Generally speaking, an adjustment is made because one party has greater needs and the other has stronger means. Section 75(2) is concerned with the process of arriving at a just and equitable result.
In determining what order the court should make under section 79, the court must be satisfied, in all the circumstances of the case, that the order to be made is just and equitable – not simply that the underlying percentage division of the net value of the parties is appropriate. In other words, in consideration of whether the overall result of the order in the property settlement proceedings, is just and equitable (see section 79(2)). It is the justice and equity of the actual orders that the court must consider Russell v Russell (1999) FLC 92-877.
Section 75(2) of the Family Law Act sets out the matters which must be taken into account by the court when determining applications with respect to maintenance. This is the prospective element of the determination of the application for property settlement. The assessment of contributions during the marriage is the retrospective element.
In the Marriage of Ferraro the Full Court said:
A now well established line of authority in this Court indicates the approach normally to be taken in the exercise of the discretion in s79 proceedings. That approach is firstly to ascertain the property of the parties at the time of the hearing, then to consider “contributions” of the parties within paras (a) to (c) of s79(4), and then to consider the matters in paras (d) to (g), more especially para (e) which takes up by reference the provisions of s75(2) and which are generally referred to as the “section 75(2) factors”.
The first step then in relation to these proceedings is to determine the assets of the parties. It is clear that there is not a great deal available for distribution between the parties. From the wife’s perspective, an aide memoire was provided which detailed the total value of the net assets of the parties at the current time as, $596,752.00. The list of assets are as follows:
[Property A],  Husband     $500,000
[Property B]       Wife         $ 33,765
($1,550,000 INR at current exchange rate)
State Bank of India Accounts  Wife         $    6,000
Suzuki APV Van  Husband     $    8,700
Daewoo motor vehicle  Husband     $    4,900
Furniture and contents  Husband     $    6,000
FurnitureWife         $    1,000
Superannuation (addback of husband’s legals and             Husband     $ 28,727
further drawdown)
Shares sold by husband post separation  Husband     $    7,660
$596,752
That calculation, however, included an add back of a draw down that had been taken by the husband in relation to superannuation of $28,727 and an add back of $7660 in relation to shares which were held by the husband and sold post separation.
Counsel for the husband indicated that whilst he did not, as he put it, cavil with the suggestion that there needed to be some add back in relation to the matter, it was also clear that the husband’s evidence, particularly with regard to the sale of the shares, was that of the $7760, some was used for the purposes of day-to-day expenses and living expenses, but that he acknowledged that there had been a sum of perhaps $5000 used by him for the purposes of payment of legal fees. Similarly, he acknowledged that he had drawn down moneys from his superannuation account and that at least, in part, some of those moneys were utilised for the payment of his legal fees.
His evidence in that regard however was that certain of those moneys were used by him for the payment of legal fees, but that also some of those moneys were used for day-to-day living expenses and he acknowledged that there was a payment of perhaps $14,000 or 15,000 utilised for the payment of legal fees, he indicating that his solicitors had required moneys on account of costs, in relation to the proceedings.
Being mindful of the difficulties associated with trying to calculate what might have been the amounts used by the husband as payments towards legal fees, which should properly be added back into the pool, as opposed to moneys which were used for either joint purposes or purposes solely associated with meeting his day-to-day living expenses, there are clear difficulties. In this instance I am satisfied that on the best evidence available, the add back should be a sum of $20,000 and that therefore the amount to be taken into consideration with regard to add backs either for share sales or superannuation draw downs is not $36,387, but rather $20,000, and that therefore $16,387 must be deducted from the amount taken to be the value of the assets of the parties.
On that basis, and for convenience, I find that the pool for distribution available in relation to this matter is a sum of $580,000.
The next step in relation to the consideration of this matter of course is to look at the contributions of each of the parties to the assets, particularly at the commencement of the relationship. In that respect, the initial contribution by the wife was very small as compared to that made by the husband. In fact, in the written submissions provided by the wife, it was acknowledged that:
In percentage terms the proportionate initial contributions were at about 94 per cent to the husband and 6 per cent to the wife.
The husband’s position in relation to this matter was to similarly suggest that the contribution was in the vicinity of 93.75 per cent to the husband and 6.25 per cent to the wife. Clearly there is only the most miniscule difference between the two positions taken by each of the parties in relation to this matter and simply, for the purposes of clarity and certainty, I accept that in percentage terms, the initial value of contributions by each of the parties was 94 per cent on the part of the husband and 6 per cent on the part of the wife.
The difficulty, however, then arises from consideration of what the contributions of the parties might have been during the marriage and subsequent to separation. Quite simply, there is an enormous divergence between what each of the husband and the wife says should be the appropriate position taken in relation to the matter. The wife, for her part, says that she contributed in a normal manner as a partner and homemaker throughout the marriage and that she provided services in respect of cooking, cleaning and general support for the husband as well as, in particular as was emphasised on her part, a more difficult provision of assistance and support, because of the mood swings and matters associated with the husband’s depression.
Additionally it was suggested, and strongly pressed, that there should be a greater consideration as to the contribution of the wife arising from what might be called a “negative” contribution by the husband during the periods when the wife resided in India. At that time it appears clearly accepted that the wife supported herself, initially through her employment as a preschool teacher and subsequently was supported primarily by family living in India.
The husband, it was said therefore, had greater funds available to him for his own support, as a result of the fact that he provided no financial contribution to the wife whilst she lived in India and that as that was therefore for a period in the vicinity of four years, there was a significant negative contribution to be taken into account in, relation to this matter.
Of course balanced against that was the fact that the husband, from his perspective, says that there was little contribution by the wife in an indirect manner in relation to the role of wife and homemaker and a very significant contribution by him which related to moneys that were held by him from the sale of his business just prior to the commencement of the marriage, and that as a result of that the wife in fact had available to her significant funds and that those funds, at least in part, were utilised towards the expenses associated with her living overseas, and in fact acquiring an asset in her name in India.
I note that in that regard the husband’s sons made reference to the fact that there was provision of household and homemaking services by the wife and that whilst the father may have cooked on many occasions for himself, there were certainly occasions where the wife provided services to the relationship. I am certainly satisfied that there are differences in what each party provided, be it financial or non financial contributions, during the relationship and subsequent to separation, but that in a general sense each of these parties to the marriage provided services and contributed as best they could to the relationship.
I am satisfied that during periods that they were living together or apart but were still a married couple, that they each contributed equally to the household and to the day-to-day needs of the household.
Subsequent to separation, it is contended on the part of the wife that she has supported herself without assistance from the husband and that the husband has continued to reside in the former matrimonial home. Certainly, that appears to be the case. There is however of course the correspondingly important consideration which arises from the fact that both the husband and the wife are in receipt of various pensions or benefits and that that reflects on the limited financial circumstances of each of them.
In any event, it appears clear that whilst the husband may have had limited superannuation entitlements available to him, they have been, to all intents and purposes, utilised and therefore one would think that each, apart from consideration of the fact that the husband has primarily remained in occupation of the former matrimonial home, have had equal financial difficulty in providing for themselves.
The husband has certainly had a home available to him, but of course it must be recognised, as was noted previously, that the husband continued to have the interest in the home after separation which existed in exactly the same form prior to the commencement of the relationship, as was indicated in the valuation provided by Mr G. The property was purchased by the husband in 1999 and was an unencumbered property.
If you like it could properly be severed off and apart from any of the other assets of the parties, as having been an asset to which neither party was required to make any contribution, other than perhaps the normal day-to-day living expenses and, as I indicated, I would find that during the period of cohabitation at least, the parties contributed equally in relation to those day-to-day expenses, associated no doubt with rates, water, utilities, insurance and the like.
When contributions are considered in relation to this matter, it is a difficult assessment to make. The parties were together for a matrimonial period, if I can describe it as such, of eight years and a cohabiting period of approximately four years. The husband brought into the relationship the vast proportion of the assets which are now available for distribution as between the husband and the wife, and whilst the wife may have provided certain services and benefits as a wife and homemaker, the husband similarly provided services, perhaps of a different nature, in relation to provision of income, including particularly what appears to have been the drawing down of a sum in the vicinity of $90,000 which was held by him prior to the commencement of the marriage, to the extent that it no longer exists at this time, other than in very limited form with regard to some small amount of savings and a very small sum now held in the husband’s name, by way of superannuation.
It is a difficult assessment to make in relation to this matter and if, as I have indicated, there is only equal contributions during the relationship, but that they were almost exclusively of a non financial nature, neither party being in any real respect in employment and therefore bringing money into the relationship, then it is hard to imagine that there would be significant variation in respect of the initial contributions made by each of the parties, other than what might be acquired by the effluxion of time.
Certainly from the wife’s perspective, it was submitted that the wife’s contributions to the date of trial ought to be valued at 35 per cent and from the husband’s perspective, it was submitted that there should in fact be no variation whatsoever, in relation to the interest that might be held in respect of the assets, other than upon the percentage basis that existed at the commencement of the relationship.
I must say, that the contention of the wife, that she should receive 50 per cent of the assets in total, or even 35 per cent, as a result of contribution was, as suggested by counsel for the husband fanciful. In my view it was not an unreasonable comment in relation to the contribution or entitlement of the wife.
The wife’s financial contribution has been virtually nil. I make no criticism of that, but simply comment upon it as being an accurate reflection of the arrangements that existed, however they may have come about in respect of the relationship between the husband and the wife. If anything, and I have found it to be the case, the wife has in fact had, at least to some degree, cash available to her which would not otherwise have been available and which has been utilised toward the purchase of the accommodation situated at [Property B].
There must be some assessment, however, made in relation to this matter and in light of what I would call, the effluxion of time and therefore, at least to some extent, an erosion of the entitlements in relation to this matter, I am of the view that an appropriate assessment of the contributions attributable to each party as at the time of trial would be to say that it should be 87.5 per cent in favour of the husband and 12.5 per cent in favour of the wife.
Whilst that is not obviously a significant amount, it is a reflection of the fact that in eight years the wife’s entitlement has, if you like, as a result of contributions and passing of time, doubled in value and when of course one is mindful of the very significant increase, in particular in relation to the value of the husband’s home and the wife’s property at [India], it is a significant increase in entitlements that would have been held by her.
I am satisfied that that therefore is an appropriate reflection of the contributions of each of the parties, during the relationship and up to trial.
The third step in relation to any determination then is to consider issues with regard to those matters that arise pursuant to the provisions of section 75(2) of the Family Law Act. Generally the considerations would relate to responsibilities that one or other of the parties might have with regard to the care and supervision of children or, of course, to disparity in income or earning capacity, as well as considerations of the nature of health or capacity to earn income.
In this instance, however, there is little to distinguish the position of either the husband or the wife. Both are in receipt of appropriate Commonwealth benefits. Neither has the responsibility for the care and supervision of children under the age of 18 years, nor in fact does it appear that they have responsibilities in relation to provision for children over the age of 18 years, or perhaps what might be sometimes referred to as the moral or societal obligations that arise, in respect of provision of assistance for elderly parents or the like. Both have little prospects of future employ.
It was certainly contended on the part of the husband that the wife, being 56 years of age, has the capacity for future work. She is clearly, it is suggested, in good health, but there is, counterbalancing any such suggestion, the indications that she has very limited English skills and has no work history in Australia at all. It would be hard to imagine therefore that the wife would have either the skills or the wherewithal to obtain employment, other than of the most menial and lowly remunerated nature if at all, whilst continuing to reside in Australia, and she indicates that that is her future intent.
The husband of course, is in receipt of a disability pension or benefit. His unchallenged medical evidence is that he suffers from severe depression and that he has been certified as being entitled to a disability pension, and there appears to be no indicator that would suggest that he has any capacity, otherwise than to continue in receipt of a pension or benefit.
There is little therefore that distinguishes the situation of each of the parties. It is clear that both are more likely than not to continue to receive the entitlements that they currently receive from Centrelink. It is clear that the wife, whilst indicating that it is her intention to remain in Australia, and I accept that that is her intention, will, as she has done on many occasions in the last eight or 10 years, take up the opportunity to travel to India and will therefore have available to her the largess and support of her family, as has previously been the case.

In the end I have come to the view therefore, that there is little, if anything, that would distinguish between the circumstances of each of the parties prospectively and I would not assess that there should be any variation to the financial circumstances of the parties and in fact, to the assessment of what each contributed to the relationship as a result of consideration of those matters pursuant to the provisions of section 75(2) of the Family Law Act.
If that were to be the case then, having determined that the appropriate pool for distribution between the parties is $580,000, then if the wife were to receive 12.5 per cent of the assets of the parties, she would receive in total a sum of $72,500. In that respect, however, the wife has already received various amounts which appear generally to be agreed. That includes the sum of $33,765 being, as best one can assess, the current value of the tenement owned by her in [India], as well as the retention of approximately $6000 in the State Bank of India in an account held in her name and furnishings contained within that residence of about $1000.
The wife has therefore received approximately $40,765 and to receive a further entitlement so as to effect a payment in total of $72,500, there would be required to be paid to her by the husband the sum of $31,735.
In my view, that is an appropriate distribution as between the parties and reflects a just and equitable resolution of the proceedings in relation to this matter. In respect of that determination of what might or might not be the justice and equity of the proposed adjustment in relation to this matter, I am mindful of the fact that much was made of the fact that the husband is in receipt of a disability benefit and his evidence, which appears to have been unchallenged, is to the effect that he approached the [omitted Credit Union] with regard to the possibility of obtaining funding to enable him to make a payment of any nature to the wife and was advised that it was not available to him.
Just as clearly, however, he does have, at least on the face of it, certain resources which could be utilised and, in particular in that regard, I note that there is of course the 100 per cent equity held by him in the home, as well as of course the fact that at least one of his sons at the current time is living with him and makes no real financial contribution to the expenses of the household.
I am satisfied that whilst there may be some small degree of difficulty for the husband in relation to being required to make a payment to the wife in relation to this matter of the sum of $31,735, when one considers the justice and equity of the settlement in its entirety, it is appropriate that such steps be taken in relation to the matter.
Accordingly therefore the orders that I intend to make in relation to these proceedings are as follows:
(1)That the Wife relinquish all right title and interest in and to the following property which shall remain the sole property of the Husband:
(a)the former matrimonial home situated at [Property A], Brisbane;
(b)the 2006 Model Suzuki Van and 2003 Daewoo motor vehicle in the possession of the Husband;
(c)the furniture and contents situated at the former matrimonial home save for the following items:
(i)all items of the Wife of a personal nature, including but not limited to, clothing, shoes, make-up and jewellery to be made available for collection by the Wife within 14 days of the date of this Order.
(d)the proceeds of the Husband’s superannuation with [omitted Superannuation Fund];
(e)the proceeds of sale of the shares and [omitted Bank Account] held at separation;
(f)all bank accounts and cash savings of the Husband.
(2)That the Husband relinquish all right, title and interest in and to the following property which shall remain the sole property of the Wife:
(a)the real property and contents situated at [Property B];
(b)the Wife’s bank accounts and term deposits.
(3)That within 30 days of the date of Order, the Husband shall pay to the Wife by way of Bank Cheque made payable to the Trust Account of the Wife’s solicitors, the sum of $31,735.

I certify that the preceding one hundred and eleven (111) paragraphs are a true copy of the reasons for judgment of Coker FM

Date: 16 March 2011