Gull and Gull
[2008] FamCA 183
•19 March 2008
FAMILY COURT OF AUSTRALIA
GULL & GULL [2008] FamCA 183
FAMILY LAW – PROPERTY SETTLEMENT – Identification of assets - Treatment of monies held in fixed deposits in India – Treatment of monies held in child’s name – 65/35 split determined
Family Law Act 1975 (Cth) ss 79, 75(2)
Hindu Minority and Guardianship Act 1956
Challen and Challen [2007] FamCA 1292
Omacini and Omacini (2005) FLC 93-218; (2005) 33 Fam LR 134
APPLICANT: Mrs Gull
RESPONDENT: Mr Gull
FILE NUMBER: MLF 2723 of 2004
DATE DELIVERED:
PLACE DELIVERED: Melbourne
PLACE HEARD: Melbourne
JUDGMENT OF: Mushin J
HEARING DATE: 26 - 30 November 2007 and 10 December 2007 REPRESENTATION
COUNSEL FOR THE APPLICANT: In Person
SOLICITOR FOR THE APPLICANT: In Person
COUNSEL FOR THE RESPONDENT: Mr A Combes
SOLICITOR FOR THE RESPONDENT: Vernon De Gama and Associates Orders
It is ordered that:
(1)For the purpose of these orders, the net assets of the parties are hereby calculated as being in the sum of $756,013 and are as follows:
(a)The property known as and situated at … (“the former matrimonial home”) fixed at the value of $194,195;
(b)The property known as and situated at …, B (“the [B] property”) fixed at the negative value of -$7,000;
(c)The husband’s interest in the property known as and situated at G, India fixed at the value of $2,000;
(d)The husband’s Suzuki Balino motor vehicle fixed at the value of $6,000;
(e)The husband’s superannuation entitlements fixed at the value of $3,500;
(f)The wife’s superannuation entitlements fixed at the value of $7,000;
(g)Gold jewellery in the wife’s possession fixed at the value of $2,000;
(h)Notional property in the form of:
(i)monies received by the husband by way of rental payments on the B property fixed in the sum of $21,000; and
(ii)monies withdrawn by the husband from the mortgage account in respect of the B property fixed at the sum of $25,300;
(i)Funds held in the following Indian accounts (“the investment monies”) standing, at trial, in the approximate sum of $502,018 being:
(i)O Bank accounts in the name of the husband and the wife, bearing account numbers …, …, …, …, … and …;
(ii)O Bank accounts in the name of the husband, the wife and the child, R, bearing deposit numbers …, …, …, …, … and …;
(iii)M Bank accounts in the name of the husband and the child, R, bearing account numbers … and …;
(iv)M Bank accounts in the name of the husband bearing account numbers …, … and …; and
(v)C Bank accounts in the name of the husband bearing account numbers …, …, … and ….
(2)The net assets be divided between the parties as to 65% to the wife and 35% to the husband on the basis of the provisions of these orders pursuant to which the wife will receive a total of $491,408 and the husband will receive a total of $264,605 subject to paragraph 3 hereof.
(3)In the event that the investment monies amount to a sum other than $502,018, they be distributed between the parties on the basis of the wife receiving 65% of the net assets and the husband receiving 35% of the net assets and on the assumption that, excluding the investment monies, the wife has received assets totalling $203,195 and the husband has received assets totalling $50,800 pursuant to these orders.
(4)Both parties sign all documents and do all things necessary to cause the investment monies to be repatriated from India to Australia.
(5)All outgoings required to give effect to paragraph (4) hereof be paid from the investment monies.
(6)Forthwith upon arrival in Australia, the investment monies be paid into an appropriate interest bearing account in Australia to be held on trust by the solicitor for the husband for the benefit of the parties in accordance with these orders.
(7)Forthwith upon the parties’ compliance with paragraphs (4) and (5) hereof:
(a)The husband do all things and sign all documents to transfer all his right, title and interest in the former matrimonial home to the wife at her expense;
(b)The wife do all things and sign all documents to transfer all her right, title and interest in the B property to the husband at his expense; and
(c)Contemporaneously with the transfers referred to in sub-paragraphs (a) and (b) of paragraph seven (7) hereof:
(i)The wife indemnify the husband and keep him indemnified against all liability past, present and future in respect of all outgoings including principal and interest on any mortgage and any other loan in respect of the former matrimonial home;
(ii)The husband indemnify the wife and keep her indemnified against all liability past, present and future in respect of all outgoings including principal and interest on any mortgage and any other loan in respect of the B property; and
(iii)Each party remove any caveats placed by or on his or her behalf on either the former matrimonial home or the B property or both so as to give the transferee of such property clear title thereof subject the specific provisions of these orders.
(8)Save as provided herein and subject to the liberty to apply reserved herein, property in all items of personal property forthwith vests in the party presently having possession thereof.
(9)All applications be otherwise dismissed.
(10)Liberty be reserved to both parties to apply in respect of any machinery provision of these orders and generally.
(11)All exhibits be returned to the tendering party at the expiration of 28 days or further order.
(12)All subpoenaed documents be returned to the person producing such documents.
IT IS CERTIFIED
(13)Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.
IT IS NOTED that publication of this judgment under the pseudonym Gull and Gull is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
FAMILY COURT OF AUSTRALIA AT MELBOURNE FILE NUMBER: MLF 2723 /2004
Mrs Gull Applicant
And
Mr Gull Respondent
REASONS FOR JUDGMENT
Introduction
1. These applications for alteration of property interests take place after a marriage of between 11 and 14 years. The parties’ property, which has an approximate net value of $750,000, is situated in both Australia and India. It primarily consists of two pieces of real estate in Melbourne with a combined estimated net value of a little less than $200,000, together with funds invested in various banks in India totalling slightly more than $500,000. The balance is made up of add-backs to which I will refer below.
2. The parties were physically separated from each other for a significant portion of their marriage because of employment opportunities for the husband which enabled the parties to accumulate their assets. The parties have a child who is presently aged 13 years who, for their periods of separation, was in the sole care of the wife. The marriage was a traditional one in which the husband was the almost exclusive breadwinner and the wife was the almost exclusive homemaker and caregiver.
3. This litigation has taken far too much Court time given the real issues involved. My observation is that the inordinate lengths of time spent on insignificant matters, have been caused by the very high degree of antipathy which the parties bear towards each other. They include:
·a three-year disparity as to the date of separation;
·whether a significant proportion of the investment monies in India are held on trust for the parties' child, thereby creating a legal or equitable interest in the child;
·the existence of gold jewellery, and if so, its value;
·whether the husband has any, and if so what, interest in a property in India; and
·significant allegations of nondisclosure on both sides.
CREDIBILITY
4. Regrettably, I have considerable reservations with regard to the credibility of both parties. While I will detail those matters in due course, as a general finding neither of them has made a full disclosure and each of them has given contradictory evidence.
5. In the husband's case, he has given contradictory evidence with regard to the date of separation of the parties and also in relation to the value of gold allegedly stored and subsequently stolen from an Indian bank deposit box. In later affidavits he sought to withdraw and correct his earlier affidavits and then gave viva voce evidence contradicting those later affidavits. He has not disclosed the details of his present financial circumstances, including those of his wife, or any detail of his earnings while he was working overseas.
6. The wife's affidavit material contradicts statements made by her to hospital staff in circumstances in which the hospital records are correct to a high degree of probability. The wife also gave incorrect viva voce evidence in an earlier interim hearing before Bennett J with regard to her having fully disclosed all bank accounts in her possession, in circumstances where she had several non-disclosed active accounts.
7. Accordingly, I find that I must treat the entirety of the parties’ evidence with great caution. I will make individual findings as necessary.
HISTORY OF PROCEEDINGS
8. These proceedings were commenced ex parte by the wife filing an Application for both parenting and property orders on 23 September 2004. Pursuant to orders made by Senior Registrar Fitzgibbon on 30 July 2007, the applications concerning children’s issues have been adjourned pending the outcome of Court ordered counselling for the child. The only orders sought before me are for alteration of property interests.
9. In February 2005, the wife commenced proceedings in the Family Court of Mumbai, India, seeking that the parties’ investment monies be determined in that jurisdiction. That Court delivered judgment on 19 April 2005, in which it was held that the balance of convenience lay in the parties continuing the litigation earlier commenced in this Court. The wife appealed to the High Court at Mumbai. Orders were made by that Court providing for the parties’ investment monies to be frozen pending orders made by this Court. However, it was held that Australia remained the appropriate forum.
BACKGROUND FACTS
10. The parties were both born in India. The wife is presently aged 44 years and the husband is aged 50 years.
11. From 1985 until 1990, prior to the commencement of the parties’ relationship, the husband worked predominantly in the Middle East in order to accumulate savings and assets.
12. In 1988 the husband purchased a property at G, India (“the [G] property”). That property is one of the relevant assets in these proceedings.
13. The parties married in India in March 1990. The husband brought to the marriage assets with the equivalent value of a little less than $9,500, in addition to his interest in the G property referred to above and further discussed below. The wife made no significant initial contribution.
14. In April 1990, less than one month after the marriage, the husband returned to the Middle East to work with the wife’s agreement, leaving the wife in India. From this time the marriage was characterised by long periods of separation for the purposes of the husband maintaining gainful employment in the Middle East. There is no evidence to suggest that the wife objected to the husband’s long absences.
15. In January 1991, the wife joined the husband in the Middle East until February 1994 when she returned to India. In October 1994, the only child of the marriage, R, was born. Shortly after the birth, the husband returned to India to see the child, remaining there for two weeks before returning to the Middle East on his own. In approximately mid 1995 the Wife and child joined the husband in the Middle East.
16. An incident over which there was significant dispute, occurred in April 1999. On the husband’s evidence, the wife was apprehended by customs when attempting to enter India with large quantities of undeclared gold jewellery. The husband asserts that the wife’s passport was impounded for 6 months. The wife denies that. In his viva voce evidence the husband conceded that both parties and the child had, on multiple occasions, entered countries carrying undeclared sums of gold and cash in excess of the threshold which requires a declaration to customs. This incident has no substantive bearing on the issues for determination before me. It simply illustrates the background of these parties, their credibility and practice of non-disclosure, as well as the level of conflict between them. I granted both parties a certificate pursuant to s 128 of the Evidence Act 1995 (Cth) in relation to their evidence on this and other issues. It is not necessary to make any finding as to whether such events actually occurred.
17. The parties migrated to Australia in 2001, the husband arriving in January and the wife and child arriving in March. The parties and their child subsequently became Australian citizens.
18. Shortly after arriving in Australia, the parties purchased the former matrimonial home for $147,000, secured by a mortgage of $90,000. The deposit was paid from monies held in the parties’ fixed deposits in India.
19. In June 2001, the husband left the wife and child in Australia and returned to the Middle East, remaining in employment there for four years. The wife swore that the husband’s departure from Australia marked the date of separation. She claimed that the husband simply left the matrimonial home with no prior warning or discussion and that she did not know where he had gone.
20. The husband swore that he was unable to find suitable employment in Australia and that he returned to the Middle East to work with the wife’s consent, she being fully informed. He further claimed that the marriage subsisted throughout the period of physical separation from June 2001 to February 2004 and that the actual separation did not occur until May 2004.
21. The husband returned to Melbourne from the Middle East on 14 February 2004. It is agreed that the husband and wife both lived under the one roof from the time of the husband’s return until May 2004. However, the circumstances of this arrangement are strongly disputed. The husband’s evidence was that the marriage was continuing and they lived as husband and wife, sharing a bedroom and having sexual relations. The wife’s evidence was that the husband returned on the pretext of attempting a reconciliation. When questioned on the husband’s evidence in relation to the parties’ relationship from February to May 2004 the wife had difficulty responding. After prevaricating, she ultimately denied that the parties shared a bed or had sexual relations.
22. On 6 May 2004, the wife was admitted to the Emergency Department at Hospital, purportedly as a result of having intentionally taken an overdose of Panadol. The hospital’s records establish that the wife was treated by the CAT team from and by two social workers employed by the Hospital. The medical records and case notes further establish that an intentional overdose was the reason for the wife’s admission. Recommendations were made by the CAT team for the wife to undergo counselling, which she consistently declined to do. Discussions occurred between the wife’s social worker and the husband, as a result of which a ‘Plan’ was entered into pursuant to which a strategy was settled in order to minimise any risk to the wife. That included the husband staying with the wife and not proceeding with an application for divorce until the wife had stabilised. Contingency plans were also included should the husband be unable to stay with the wife and should he have concerns that she may attempt an overdose again.
23. The wife in her affidavit and viva voce evidence denied that she took an overdose. Instead, she asserted that she simply took two Panadol tablets and that she went to hospital because she was feeling dizzy. The wife was unable to explain why the medical records of both the hospital and the social worker were contrary to her evidence. She stated that she could not remember what she told the hospital staff upon her admission.
24. Counsel for the husband submitted that the wife’s alleged overdose was intentional and the result of her distress and shock at the breakdown of the marriage which, on the husband’s evidence, occurred only days earlier.
25. There is a further dispute between the parties as to what financial support, if any, the wife received from the husband during the period between June 2001 and February 2004. The wife alleged that she received no financial support from the husband while he was away and that she survived on a CentreLink pension. The husband asserted that he left the wife with $20,000 in cash, access to a fixed deposit containing the sum of $8,500 and access to gold which the husband claimed he instructed her to sell if she was in financial need. The husband conceded that some CentreLink payments were made to the wife between 2001 and 2003 for the benefit of the child. He asserted that the parties made an arrangement that the wife would put her CentreLink payments towards the mortgage repayments and the husband would put his income into deposits in India.
26. In the circumstances, it is not necessary to make specific findings on the various matters in dispute as detailed above. It is common ground that the parties lived separately between June 2001 and February 2004. Whether, in strict legal terms, the parties or either of them intended that their marriage had broken down is not material. The relevant question is the nature of the financial circumstances between them during that period. Likewise, it is not relevant whether, upon the husband's return in February 2004, they were only resuming living together under the one roof, their marriage having remained extant in the interim, or attempting a reconciliation, having previously separated. Again, it is the nature of the financial relationship which is relevant.
27. On any view, the parties finally separated in May 2004 and have lived separately and apart since that time. Their marriage finally broke down no later than that time.
28. In April 2004, the property at B was purchased in the husband’s name. This became the parties’ investment property and was tenanted from April 2004 until December 2006.
29. On 4 August 2004, the wife instituted intervention proceedings on behalf of herself and the child in the Magistrates Court at Ringwood. The proceedings sought orders against the husband and his brother. The application was dismissed on the return date and an order was made for the wife to pay costs to the husband in the sum of $1,000.
30. In March 2006, the husband remarried. The husband and his wife have one child, A, born in August 2007. The husband has made no disclosure as to the financial circumstances of his wife or his own financial obligations in relation to his new family, which I will address in due course.
31. In October 2006, the wife suffered a work accident and made a compensation claim to WorkCover. This claim was approved in mid 2007 and the wife received payments in August 2007. The wife did not disclose this information until the third day of the trial and has provided no disclosure as to the quantum of the compensation she received. This is a prime example of her significant lack of disclosure in these proceedings.
ASSETS AND LIABILITIES
32. The parties were able to reach agreement on the valuation of some of the assets and liabilities relevant to these applications. However, there remained considerable disagreement between them concerning the identification and valuation of various items and also in relation to add-backs claimed by the wife. I will now set out the agreed assets and liabilities, followed by the disputed assets and liabilities.
Agreed Assets
33. By the end of the trial the parties agreed on the following assets:
Item Value ($) The former matrimonial home 194,195 The B property -7,000 Husband’s interest in property at G, India. 2,000 Suzuki Balino Motor Vehicle 6,000 Monies held in Indian fixed deposits (in the name of either the husband, the husband and child jointly, or the husband, wife and child jointly) (“the investment monies”) 502,018 Husband’s Superannuation 3,500 Wife’s superannuation 7,000 Total 707,713
Disputed Assets
Indian deposits held in child’s name34. Whilst the parties agreed on the value of the investment monies as identified in the table above, there is a major dispute between them over the nature of the parties’ interest (if any) in, and the treatment of some of those accounts, being accounts held jointly in the child’s name. The relevant accounts are held either jointly in the names of the child and the husband or jointly in the names of the child, the husband and the wife. There is no account held solely in the name of the child. The accounts for which the child’s name appears on the title total approximately AUD$220,000, which represents a substantial proportion of the parties’ net assets.
35. The wife claimed that the accounts held in the child’s name are the exclusive property of the child and should be excluded from the pool of assets relevant in these proceedings. The wife submitted that these accounts should be governed by Indian law, specifically the Hindu Minority and Gaurdianship Act 1956 (Act No. 32 of 1956), which, she submitted, provides that the accounts must be set aside in these proceedings and held on trust for the child until he reaches the Indian age of majority, namely 18 years.The wife submitted an Opinion Report by a purported expert, Mr Y. She submitted that Mr Y is an expert on the relevant Indian Law and that he is a practising lawyer in India. No curriculum vitae was provided for Mr Y. Counsel for the husband obtained expert advice which was contrary to that of the wife.
36. The wife filed an appeal to the High Court at Mumbai which held that the accounts in question were the property of the parties. However, this finding was made in circumstances in which the wife’s pleadings did not include the question of the son’s interest and the High Court did not address this issue. The husband submitted that the accounts are the property of the parties and not of the child and that they should be included in the property pool in these proceedings and divided in like manner to the other Indian accounts. The husband further submitted that the Indian High Court judgment raises a question of res judicata.
37. Regardless of whether the wife’s submissions in relation to Indian law are correct and regardless of whether the wife is indeed estopped from pursuing the question of the child’s interest in the Indian Courts (which to my mind would seem unlikely), I have the power under Australian law to make the orders she seeks if I find that the accounts in question establish a trust in favour of the child. The issue must be decided in accordance with the domestic law of Australia and I am not bound by any decision of a Court of another country, albeit that as a matter of comity, I will have regard to the litigation in India.
38. I do not accept the wife’s submissions in relation to the question of the child’s interest. The wife’s own viva voce evidence was that the money held in the accounts was deposited and maintained exclusively by the parties, with no contribution from the child. The wife’s evidence was that the parties first began putting aside the money in question when the child was two years old to enable them to provide for the child’s future needs, such as his education. I find that in saving the money in question and establishing the relevant accounts, it was the joint intention of the parties that the money be used for the purpose of the parties themselves providing for their son at the parties’ sole discretion, and not for the creation of a trust for the child. I find that the child has no legal or equitable interest in the accounts, that the accounts are the property of the parties and that they therefore should be included in the pool of assets in these proceedings.
Gold Jewellery
39. There is a significant dispute between the parties in relation to the existence of gold jewellery. The husband submitted that the parties own a total of $70,000 worth of gold, being items of jewellery which the husband purchased over several years in the Middle East. He claimed that the parties took a proportion of that gold to Australia and left the remainder in a safety deposit box with a bank in India. The husband claimed that in May 2004 the wife and her brother fraudulently withdrew that gold by forging the husband’s signature and that the wife then took the gold to Australia. The wife denied that. She submitted that the parties own gold jewellery with a total value of $2,000, this jewellery currently being in her possession.
40. In his affidavit filed 14 August 2006, the husband annexed two letters of complaint written by him to the relevant bank and to the Inspector of Police at Mumbai Police Station in India in October 2004 and November 2004 respectively. The husband produced no evidence as to the outcome of these complaints, stating that as he has not returned to India in recent times he has no knowledge of their progress. The husband also produced no bank document which identifies the assets initially held in the safe deposit box. Further, the husband has tendered no admissible evidence in relation to the alleged forgery. Whilst I am not an expert in assessing hand-writing, I note that the alleged forgery appears remarkably similar to the husband’s signature on various affidavits sworn by him and filed in these proceedings.
41. The husband has sworn several contradictory affidavits throughout the proceedings. His evidence provides several versions of his story in relation to the gold. In an affidavit, the husband swore that 75% of the total $70,000 of gold was held in the deposit box, the wife having taken 25% of the gold with her to Australia. However, in viva voce evidence in an interim hearing on 20 June 2007 before Bennett J the husband swore that half of the gold was left in the deposit box and half taken to Australia. In cross-examination in these proceedings he initially swore that both his affidavit and viva voce evidence were correct and then later said that the statement in the affidavit was true and the viva voce evidence was false.
42. As earlier discussed, I have serious concerns about the husband’s credit and without the benefit of any objective evidence as to the veracity of the husband’s allegations, I am not satisfied to the requisite degree that $70,000 of jewellery exists. I will therefore include gold jewellery in the pool of assets at a value of $2,000, thereby accepting the wife’s evidence.
43. A further issue which is similar to that detailed in the previous paragraph concerns an allegation by the husband of the wife's brother fraudulently changing one of the husband's personal accounts to a joint account with the wife. The husband's evidence is mere assertion which is totally unsupported. The husband has not established his assertion.
Mumbai Property
44. There was also a dispute over a property known as Gull House at Mumbai, India, (“the Mumbai property”) in which the husband was brought up and in which the wife’s brother currently lives under contentious circumstances. The wife claims that the husband has a proprietary interest in the Mumbai property and that it should be included in the asset pool. However, the wife was unable to provide any evidence to support her claim and could provide no admissible evidence as to the value of the property or the extent of the husband’s interest in it. The husband submitted that the property is owned by the Church in Mumbai, and that his father previously leased the home from the parish.
45. The husband tendered a letter from the Parish Priest, which appears to support his submissions. Nevertheless, this letter is not sworn and the wife had no opportunity to cross-examine the priest. The weight that I attribute to this letter must therefore be limited. The husband also tendered a rental receipt for the period of January 2005 to December 2006 showing a payment of 112 rupees by the husband’s father to the Mumbai Church. Once again this document is unsworn and the author of the receipt is not able to be determined. I therefore attach minimal weight to this document. The husband also tendered what purports to be a further rental receipt in which a significant proportion of the document is in a language other than English. No translation was provided and I therefore find this document has no probative value and I give it no weight.
46. It appears that the husband may well have some possessory interest in the Mumbai property. However, there is insufficient evidence to support a finding that the husband has any legal or equitable interest in it and I find that the wife has therefore failed to establish her claim. I will omit this property from the pool.
Husband’s life insurance
47. There was also a dispute over an insurance policy, entitled “Income Growth Plan”, purchased by the husband in 1989 from American Life Insurance Company (“Alico”). The husband’s evidence is that he paid premiums from 1989 to 1996, these payments totalling the sum of US$800. The husband submits that this policy has no surrender value. The wife submits that it does have a surrender value, stating that the policy is worth $50,000 with a maturity age of 75 years.
48. The husband tendered the Policy contract which lists the “basic policy face amount” as US$50,000 and the maturity date as August 19, 2033. The policy also contains an endorsement which states that dividends will be declared at the end of the 7th policy year. The policy contract provides for total and partial surrenders and states that the “Surrender Value of the Policy is its IPA value less any Policy debt and less any surrender charge”. The contract provides that the IPA may be calculated as follows:
IPA Value on prior monthly due date
Minus the monthly deductions
Plus one month’s investment earnings
Plus all Net Premiums received since the prior monthly due date.
No information has been furnished with which to make the above calculations.
49. The policy states that after the 10th year there will be no Surrender Charge. The date of issue of the policy is 13 September 1989 and therefore no surrender charge will now be applicable. The policy provides that whilst there will be no Surrender Charge the company will charge a fee for processing the surrender. There is no evidence of the quantum of such a fee.
50. I do not accept the husband’s submissions that the policy is worthless. Nevertheless, I am not in a position to make a finding as to the exact value of the policy. I find that the wife has failed to prove the policy value and I will therefore omit the policy from the pool. However, I will consider it under s 75(2) below.
Chattels
51. There was also some dispute as to the treatment of chattels. The husband maintains that there are $5,000 worth of chattels in the B property and $15,000 in the former matrimonial home. The wife denied this and advanced no evidence or submission in relation to chattels. The parties are agreed that the husband will retain the B property and the wife will retain the former matrimonial home. Given the lack of evidence in relation to chattels, the relatively small difference between the two sums which the husband puts forward and the fact that the child presently lives with the wife in the former matrimonial home and will continue to do so, I will order that chattels in both properties be distributed in specie. I will therefore omit the chattels from the pool of assets for the purpose of calculating the property distribution.
Wife’s claimed add-backs
52. The wife submitted that a number of items should be included in the assets by way of add-backs as follows:
·Mortgage repayments made by the wife for the former matrimonial home during the period of June 2001 to February 2004, totalling $28,025;
·Payments made by the wife for tree cutting on the former matrimonial home, totalling $3,013;
·Payments made by the wife for roof restoration on the former matrimonial home, totalling $2,400;
·Council rates on the former matrimonial home paid by the wife during the period of June 2001 to an unspecified month in 2006 totalling $4,000.00;
·Rent received by the husband from the B property totalling $21,000, being $700 per month for 30 months;
·Loss of $1,488.00, being a 1% interest charge owing upon a premature withdrawal from a fixed deposit made by the husband;
·Reimbursement of monies withdrawn from the B mortgage account by the husband on 28 April 2004 totalling $25,300 ($20,000 being the principal amount withdrawn and $5,300 being the interest payable for the period 28 April 2004 to 30 November 2007); and
·Child support not received by the wife from June 2001 till February 2004, totalling $19,095 (being 18% of the husband’s monthly salary of US$2,800 for 33 months).
53. In Challen and Challen [2007] FamCA 1292, Murphy J summed up the law in relation to add-backs. His Honour held at para 72:
72.…[T]he general principle is that the Court takes the property of the parties or either of them as it finds it at the date of trial.
73.Financial losses incurred by the parties or either of them during the course of the marriage should be shared by them, although not necessarily equally[1]. Adding back to the pool is the exception, not the rule.[2]
…
77.The Full Court in Omacini and Omacini[3] noted that circumstances in which it is appropriate to notionally add back to the pool of assets fall into “three clear categories”: where the parties have expended money on legal fees; where there has been a premature distribution of matrimonial assets; and in the circumstances outlined in Kowaliw[4] referred to above.
78.Furthermore, that Court rejected the notion that “the mere fact that a party has expended money realised from the disposition of assets that existed as at the date of separation, will result in that expenditure being added back …” as being unduly simplistic[5].
79.What is crucial, is an assessment of the reasonableness or otherwise of the expenditure…
[1] In the Marriage of Kowaliw (1981) FLC 91-092 at 76,643 – 76,644 per Baker J.
[2] C and C [1998] FamCA 143 at paragraph 46.
[3] Omacini and Omacini (2005) FLC 93-218; (2005) 33 Fam LR 134 at paragraph 30.
[4] In the Marriage of Kowaliw (1981) FLC 91-092 per Baker J.
[5] Omacini and Omacini (2005) FLC 93-218; (2005) 33 Fam LR 134 at paragraph 39.
54. Monies reasonably expended or incurred in meeting the parties’ necessary living expenses are not to be added back.[6]
[6] See Chorn and Hopkins (2004) FLC 93-204 and M and M [1998] FamCA 42.
(a) Mortgage and maintenance payments
55. For simplicity I propose to consider the first four items listed above together and deal with them separately to the other items making up the add-backs claimed.
56. In relation to those four items, the husband does not dispute that the wife made these payments. The dispute arises in relation to whether these items should be the subject of an add-back, as proposed by the wife, or simply taken into account in assessing contributions, as proposed by the husband.
57. The parties submit that the dispute over the date of separation is relevant to my consideration of these items. I do not accept this submission. I find that regardless of whether the marriage subsisted whilst these payments were made, the payments ought be considered as part of the wife’s contributions under s 79(4)(a). They constitute either post-separation contributions or contributions made during the course of the marriage. In the circumstances of this matter, the selection of one or other of these characterisations makes no difference to the value or weight to be attributed to those contributions. Therefore, I propose to exclude those items claimed by the wife from the pool of assets. I will take them into account when I consider contributions in due course. I note that the mortgage payments and costs of maintenance put forward by the wife total $37,438 which is not an insignificant amount in the context of the total asset pool.
(b) Rental receipts
58. The rent received from the B property, by contrast, is money received after separation from matrimonial property which was solely retained and used by the husband. The wife submits that the rent was paid directly into the husband’s personal account. The husband has tendered no evidence in order to trace the rent payments. There is no evidence that the rent was diverted to any joint purpose, or that it is still retained within any asset or financial resource now included in the matrimonial property pool. I infer that the husband enjoyed the funds received from the B property, being matrimonial property, for his own personal benefit and to the exclusion of the wife. I find that these funds should be notionally added back into the pool.
(c) Penalty charge for premature withdrawal
59. With respect to the loss borne due to the husband’s premature withdrawal from the fixed deposit, a letter from the Customer Care Manager of the relevant bank dated 27 September 2004 was annexed to the wife’s affidavit filed 14 August 2006. This letter indicates that on written instruction from the husband, the deposit account in question was prematurely closed and the entirety of the contents of that account were transferred to a personal bank account of the husband. Consequently, a penalty charge of 1% was levied on the principal amount.
60. The husband’s unilateral act in prematurely closing the account appears to have resulted in wastage, albeit of an arguably negligible sum. However, given the size of the pool of assets this sum is de minimis and will be ignored.
(d) $20,000 drawdown on B property mortgage
61. In relation to the $20,000 drawn down on the B property mortgage account by the husband, the wife subpoenaed bank statements showing a transaction on 28 April 2004 in which $20,000 was withdrawn from the mortgage account and transferred into an account in the husband’s name. The statement for the mortgage account shows that $5,300 interest is now payable having accrued on that $20,000 withdrawal.
62. The husband admitted withdrawing this money but asserted that it had been used by him to purchase furniture for the B property and otherwise for the benefit of the parties. The husband did not corroborate that evidence and given his tainted credit I find that he has failed to adequately negate the wife’s prima facie case that the $20,000, having been transferred to his account, was used for his own benefit. I therefore propose to notionally add back the sum of $25,300.
(e) Unpaid Child Support
63. The wife claimed that the husband owes her $19,095 in unpaid child support for the period of June 2001 until February 2004. The husband denied that any child support was payable during this period. He maintained that as far as he was aware no application was made to the Child Support Agency until 2004. The wife’s viva voce evidence was that she made an application to the Child Support Agency in 2001, but that no outcome resulted from her application. In my view, it is highly improbable that the Agency would fail to consider an application for administrative assessment. The wife was unable to provide any documentation substantiating her alleged application and could offer no explanation as to why the husband would not have been notified of it. I find that the wife has failed to prove her claim and it will not be included in the pool of assets.
Liabilities
64. The mortgage liabilities on each of the former matrimonial home and the B property have been taken into account by the parties in coming to their agreement on the net value of the two properties. Due to various draw-downs made by the parties, the mortgage secured over the B property is now greater than the value of the property and it has therefore been included in the table of agreed assets as having a negative value.
65. The wife claims no other liability.
66. At the commencement of this trial, Counsel for the husband provided me with a list of assets and liabilities as at November 2006. A number of liabilities were included within that list which, at that stage, were asserted to be relevant to the proceedings. However, during his final address Counsel provided me with a further list of assets which excluded the liabilities on the earlier list. Accordingly, I regard those liabilities as having been abandoned or otherwise included in the material before me.
Findings with regard to assets and liabilities not agreed
67. As detailed above, I find the following to be added-back into the asset pool:
Gold jewellery $ 2,000
Rent from B property $21,000
Draw-down from B mortgage $25,300
Total $48,300
Conclusion in relation to divisible pool of assets
68. Accordingly, I find the net assets to be in the sum of $756,013 which is calculated as follows:
Assets agreed $ 707,713
Assets not agreed $ 48,300
Less liabilities $ nil
Total net assets $ 756,013
THE PARTIES’ PROPOSALS
69. At the commencement of this trial the husband proposed that the parties’ property be divided in the proportions of 55% to the wife and 45% to himself. The wife proposed that the division be 25% to the husband and 75% to herself.
70. During their final addresses, both parties changed their proposals. The husband proposed a division of 60% to the wife and 40% to himself. The wife proposed 32% to the husband and 68% to herself. I now consider those proposals.
CONTRIBUTIONS
71. In my consideration of competing applications for alteration of property interests, I may take either an asset by asset or global approach.[7] Neither party made any specific submission as to which approach I should take. Having decided the major issue of whether the moneys invested in India are to be included in the list of assets, there is then no suggestion that I should treat any particular asset differently to any other. Both parties conducted these applications on the basis that I would take a global approach which, in my view, is appropriate.
[7] Norbis v Norbis (1986) 161 CLR 513.
72. In determining competing applications for alteration of property interests, s 79 of the Act empowers me to alter the interests of the parties or either of them in their property as I deem appropriate, provided that it is just and equitable to do so. In considering whether it is just and equitable to make any such alteration, I must consider the various matters in section 79(4) to which I now turn.
73. Subsections 79(4)(a)-(c) deal with matters of contribution. I must assess the financial and non-financial contributions made to the acquisition, maintenance or conservation of the property of the parties or either of them by the parties or on their behalf. I must also assess the contributions made to the welfare of the parties’ family being the parties and their child, including any contribution made in the capacity of homemaker or parent.
Financial contributions
74. First, I turn to the financial contributions made in relation to the parties’ property. At the commencement of the marriage, the husband had the sum of approximately $9,500 in savings, as well as his interest in the G property valued at $2,000. I do not regard that as a capital contribution of any significance in the context of these applications. The wife made no initial contribution. It is evident that they both worked very hard and gave careful consideration to their investment strategy in order to accumulate the assets they now own.
75. The main financial contribution made throughout the marriage was the husband’s earnings from his full-time employment in the Middle East. The husband made no disclosure as to his earnings for the period from 1990 to 2001. From 2001 to 2004 he was earning US$2,800 per month.
76. The wife submitted that she also made significant financial contributions to the marriage. The husband contests this, submitting that the wife made no direct financial contributions.
77. A dispute exists in relation to whether the wife worked in paid employment whilst she lived with the husband in the Middle East from 1991 - 1994. The husband’s evidence was that the wife did not work in that capacity because she entered the Middle East on a “housewife’s visa” and was therefore not entitled to the requisite “labour card” which granted employment rights.
78. The wife maintained that she was employed from 1991 – 1994 with T Company in the Middle East. An affidavit sworn by the wife in these proceedings annexed a certified copy of a document entitled “Service Contract” which purported to appoint the wife as “Secretary” to a specific branch of that entity, effective from 1 June 1991, and provided the terms of her employment. A further document entitled “Contract of Employment” was also annexed, which purported to renew the wife’s employment as “Executive Secretary” with that branch. The document stated that the renewal would take effect on 1 June 1993.
79. Also before me as an exhibit was the Husband’s application form for migration to Australia in which it is stated that the wife was employed with that entity from 1991-1994. The form is signed by the husband. The husband swore in viva voce evidence that his application form was not accurate and that, whilst he had signed the document, it was filled out by his former solicitor without his full knowledge. I do not accept that the husband’s former solicitor would make such a fundamental mistake without any instruction from the husband. In any event, by his signature the husband has adopted the contents of the document.
80. I accept that the wife was employed as she submits. The contracts of employment provide that the wife’s salary was initially 250 (local currency) per month with a transport allowance of 50 per month, and upon renewal of her employment her salary was 300 per month with a transport allowance of 50 per month. No evidence was led as to the exchange rate at that time.
81. The wife in her affidavit of evidence in chief swore that between 1991 and 1994 the husband developed a business in the Middle East and that she made significant non-financial contributions to the success and development of this business. The wife submitted that she “performed all the administrative duties in respect of the business in the evenings and on holidays”. She further submitted that she marketed the husband’s product to her employer, T Company, and that consequently all T Company’s office requirements were purchased from the Husband’s business.
82. The husband denied the wife’s evidence in relation to the business, swearing that he never operated any independent business and rather that he solely worked as a tradesman.
83. There is no objective evidence before me which supports the wife’s claim. On one view, it is unlikely that the wife would have fabricated the existence of such a business and the details of her role in it. Nevertheless, given the difficulties I have with both parties’ credit, in the absence of any objective evidence, I am unable to make the finding that the wife urges on me.
84. The wife further claims in her affidavit of evidence in chief that she “was offered Office and Administrative work (5 hours daily from home) on an equal partnership with the Respondent” in a particular company in the Middle East. She stated that she was not remunerated for this work but that the “income generated was saved by way of acquiring deposit bonds in joint names either in the names of Respondent and name of their child or individually in the name of the Respondent alone”. The husband denied this. Once again, without any supporting evidence, I find that the wife has failed to prove her claim.
85. I return now to the dispute over the financial circumstances of the wife and child between 2001 and 2004. It is the wife’s evidence that upon the husband leaving for the Middle East in 2001 she was solely financially responsible for herself and the child and that she was forced to pay the mortgage repayments, maintenance and rates on the former matrimonial home. The husband’s evidence is that he left the wife and child with reasonable financial support in the form of $20,000 cash, access to $8,500 in a bank deposit and access to $70,000 worth of gold jewellery which he instructed the wife to sell if she was in need. I have already rejected the husband’s evidence in relation to the gold. Therefore, at best the husband left the wife with approximately $30,000 with which to support herself and the child for four years. It is common ground that the husband did not send any of his earnings to the wife during this period.
86. There is no evidence that the wife was in paid employment during the period between 2001 and 2004. It is agreed that she was in receipt of CentreLink payments for at least a substantial part of that time. However, there is no evidence before me as to the quantum of these payments. The husband submitted that the parties had made an agreement that the wife’s CentreLink pension was to be put towards the mortgage repayments on the former matrimonial home and the husband’s earnings were to be put into term deposits. I do not have sufficient evidence to determine whether this was indeed what occurred. Regardless, in the circumstances where the husband was drawing a comparatively good salary, none of which he was contributing to the daily living costs of the wife and the child, the wife must have lived very frugally by diverting funds necessary for her own maintenance to the maintenance of the matrimonial assets and to the child.
Non-financial contributions
87. It is not submitted by either party that there is any relevant non-financial contribution.
Homemaking and parenting contributions
88. It is agreed between the parties that after the birth of the child, the wife was the primary parent and homemaker. For an aggregate period of approximately four years when the parties were living in different countries she was the sole carer and she has continued to be the primary parent since separation.
89. The husband maintains that he contributed to parenting and household duties outside of his working hours, for example in the evenings, on weekends and holidays. Given the husband’s primary role as breadwinner in full-time employment and his extended periods away from the family, any homemaker and parenting contribution made by him must have been very small when compared with those of the wife.
90. Counsel for the husband submitted that whilst the parties were living in the Middle East, the husband eased the wife’s workload by employing a part-time housekeeper to assist the wife with cooking, cleaning and caring for the child. This was denied by the wife. In the absence of objective evidence to substantiate the husband’s claim, I am unable to accept his evidence.
91. The husband further sought to minimise the wife’s contributions by stating that as the wife was a strict vegetarian she refused to cook or eat with the husband when he was eating meat and that as a result the husband often cooked for himself and the child. Again, the husband has not established that proposition to the required degree, but in any event I am not persuaded as to its relevance or weight.
92. Counsel for the husband conceded that by returning to the Middle East between 2001 and 2004 the husband missed a large proportion of the child’s growth and development, but further submitted that the husband “made this sacrifice for the long term welfare of the family”. I accept that this was at least one motivating factor in the husband’s decision to return to the Middle East. Nevertheless, it does not alter my conclusion that the wife’s contributions to parenting and homemaking were very considerably greater than the husband’s and significantly larger than they might have been had the husband not been absent overseas for extended periods.
Conclusion on Contributions
93. Both parties made significant sacrifices in order to further their financial security, the husband by living for long periods away from his family in order to provide for them financially, the wife in bearing the primary burden of parenting and homemaking and in working in paid employment in the Middle East for at least part of her time there.
94. I find that whilst the parties lived together in the one country they contributed equally to the marriage. In particular, there is nothing unusual in the husband’s financial contributions, despite the fact that he was living overseas. In the four years since the child’s birth in which the parties lived in different countries, I find that the wife’s considerable contributions as a sole parent in particularly difficult and frugal circumstances, together with her other contributions discussed above, outweigh the contributions of the husband.
95. I find that it is just and equitable that the parties’ respective contributions be assessed on the basis of 55% to the wife and 45% to the husband.
S 79(4)(d), (f) and (g)
96. Section 79(4)(d) requires me to take into account the effect of any proposed order upon the earning capacity of either party to the marriage. Neither party made any submission on this point. I find that any division within the range proposed by the parties as detailed above will have no detrimental effect on the earning capacity of either party.
97. Sub-section 79(4)(f) requires me to consider any other order made under the Act affecting a party to the marriage or a child of the marriage. Interim orders have been made for the child to live with the wife and spend time with the husband. However, the husband’s time with the child has been fraught with tension. Recently, he has not been spending any time with the child. Final parenting orders will be made at a later date in separate proceedings referred to above in which the parties will consent to an order that the child live with the mother. The father will seek to reinstate orders for him to spend time with the child. I will consider the effect of parenting orders and the wife’s obligations to the child when I turn to the future factors in due course. The subsection is not otherwise relevant.
98. Subsection 79(4)(g) requires me to consider any child support that a party has provided, is to provide or is likely to provide in the future for a child of the marriage. I will address this below when I consider s 75(2)(na).
FUTURE FACTORS
99. I now turn to a consideration of the various factors in s 75(2).
(a)the age and state of health of each of the parties;
100. The husband is presently aged 50. The wife is presently aged 44. Counsel for the husband submitted that the husband is in “reasonable” health. There is no evidence of any present or prior serious health problem faced by the husband.
101. The documents filed by the wife do not establish that the wife is in anything but good health. However, on the third day of the trial the wife disclosed that she suffered an injury at her workplace in October 2006 and that she lodged a successful workplace compensation claim. No detailed disclosure was made as to the precise injury suffered by the wife or any ongoing health problem she continues to face. While the wife denied any health problem connected with her overdose and consequential hospital admission as discussed above, I have found against her on that issue. However, there is no evidence to establish that she has any ongoing effect of those events or any other relevant health issue. I therefore conclude that she is in reasonable health.
(b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
102.The husband presently works full time as a tradesman and earns a total income of $960 per week. There is no evidence to satisfy me that his future employment prospects are limited. He has not established that he will not be able to continue in employment to at least an equal salary in future.
103.The wife presently has a total income of approximately $530 per week. She is currently employed on a part-time basis as a retail store assistant and earns approximately $300 per week. In addition to this, she receives a CentreLink single mother’s pension of approximately $125 per week and an unspecified “tax” benefit of $100 per week. The wife receives a further $5 per week in child support.
104.The wife did not adduce any evidence of her education or training. She swore in her affidavit in chief that she is “not professionally qualified”. An application form for migration to Australia referred to above states that the wife completed secondary school education and attained a Bachelor of Commerce and then later obtained qualifications as a personal secretary from a Secretarial College. The document states that all that education and training was completed in India and in the English language. From my observations of the wife in Court she is clearly proficient in English.
105.On her evidence, which I have accepted, the wife worked as a Secretary and “Executive Secretary” in the Middle East. However, this was almost 15 years ago and in a different country. She would need to update her skills in order to obtain any similar employment in Australia in the future.
106.From my observations of the wife and the manner in which she ran her own case, she is clearly an intelligent and resourceful woman and I find that she has the mental capacity for gainful employment. There is no evidence that she has any physical impediment in maintaining gainful employment. However, the respective work histories of the parties leads me to the finding that the husband has a greater capacity for full time employment than has the wife and then at a higher remuneration.
(c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;
107.As discussed above, the wife is almost solely, if not solely, responsible for the day to day care of the parties’ child. The husband has an infant son from his new marriage. However, he is not a sole carer and I infer from his present full-time employment that he is not the primary carer.
(d) commitments of each of the parties that are necessary to enable the party to support:
(i) himself or herself; and
(ii) a child or another person that the party has a duty to maintain;
108.In her Financial Statement the wife listed her total personal expenditure as $530 per week. Under Part H being personal expenses paid for the benefit of others the wife’s response was “Nil”. However in her affidavit in chief she estimated that the approximate total living expenses for the child (including “his studies, education and maintenance, food, clothing, sport activities, other activities, medical and entertainment expenses”) amounted to $700-800 per month.
109.The husband, in his Financial Statement, lists his total weekly personal expenditure as $1009.04 per week. Under Part H the husband lists “Nil”.
110.As I have previously noted, the husband has failed to make any disclosure whatsoever in relation to the financial circumstances of his new wife and the financial obligations he has towards her and to his son by that marriage. The husband knowingly misled the Court by allowing his former solicitor to file written submissions in October 2006 which stated that the husband had not remarried. When questioned on this matter at trial, the husband stated that he did not disclose his second marriage because it was “his personal business”.
111.The husband’s non-disclosure of his second marriage is another aspect of my concern with his credibility. His non-disclosure of his wife’s financial circumstances is a further serious omission.
(e) the responsibilities of either party to support any other person;
112.There is no evidence or submission to suggest that this is a relevant factor.
(f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:
(i) any law of the Commonwealth, of a State or Territory or of another country; or
(ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;
and the rate of any such pension, allowance or benefit being paid to either party;
113.The husband is not eligible for any such pension, allowance or benefit. The wife presently receives CentreLink payments being a single mother’s pension of approximately $125.00 per week and a tax benefit of $100.00 per week.
114.Neither party is eligible to access their superannuation for some time, for at least 7 years in the case of the husband and 14 years in the case of the wife. Both parties’ superannuation funds were only established recently and are presently relatively modest.
(g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
115.Neither party led any evidence nor made any submission on this factor. Throughout the marriage the parties lived very frugally, making sacrifices for their future and for the future of their child. It appears that both parties have continued to live in this manner after separation. However, I observe once again that the financial circumstances of the husband’s new family are completely unknown to the Court.
(h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income;
116.As a result of the orders I intend to make, the wife will have sufficient opportunity to arrange her finances in order to undertake at least some education or training, should she so wish, in order to increase her earning capacity. I note however that the husband’s qualifications and experience in his trade place him at a greater advantage and it is unlikely that the wife’s earnings would rival his, notwithstanding the completion of further training by the wife.
(i) the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and
117.This is not relevant to the present proceedings.
(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
118. See the discussion of contributions above.
(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration;
119.The marriage had a duration of either 11 or 14 years. The wife’s role as the primary, and at significant times, sole carer and homemaker has no doubt had a detrimental effect on her earning capacity as she has been out of the workforce for a considerable period of time.
120.The husband’s earning capacity was probably strengthened throughout the marriage, or at worst left unaffected by it. The husband freely travelled and worked overseas throughout the marriage, increasing his work experience and earning capacity, without the burden of parenting duties.
(l)the need to protect a party who wishes to continue that party's role as a parent;
121.The wife presently has the primary parenting responsibility for the child of the marriage and this will continue, at a minimum, for a further six years.
122.The father’s non-disclosure in relation to his new family renders any consideration of his parenting role impossible.
(m)if either party is cohabiting with another person--the financial circumstances relating to the cohabitation;
123.The wife is not cohabiting with any other person.
124.The husband’s non-disclosure causes the wife considerable prejudice in this respect. I infer that had the husband’s new family created a greater economic burden on him, he would have made disclosures to the Court in order to serve his own interests in these proceedings. I therefore draw a negative inference against the husband for his failure to disclose these circumstances.
(n) the terms of any order made or proposed to be made under section 79 in relation to:
(i) the property of the parties; or
(ii) vested bankruptcy property in relation to a bankrupt party;
125.This factor is not relevant to the present proceedings.
(na) 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; and
126.As previously discussed, I have found that no child support was payable during the period 2001 – 2004.
127.Assessments by the Child Support Agency for the period from 17 September 2004 to 16 March 2007 were before me in these proceedings. According to these assessments the husband was liable to pay the minimum sum of $21.67 per month. It is agreed that the husband has continued to pay the minimum amount until the present time. That has resulted in the wife having to shoulder virtually the whole financial burden of bringing up the parties’ child during this time.
128.The husband was not working in paid employment during the two assessment periods. However, he has since obtained employment with an income of approximately $50,000 per annum. Counsel for the husband submitted that the husband has now filed an updated tax return and informed the Child Support Agency. Consequently, the husband was informed by the Agency that he will be reassessed in the near future.
129.The wife’s Child Support payments are likely to rise in the near future. While an accurate estimate of the quantum she is likely to receive is not presently possible given the lack of information in relation to the husband’s financial commitments to his new family, on all of the evidence I infer that the wife will continue to carry by far the greater burden of the child’s material needs.
(o)any fact or circumstance which, in the opinion of the Court, the justice of the case requires to be taken into account; and
130. This factor is not relevant.
(p)the terms of any financial agreement that is binding on the parties.
131.This factor is not relevant.
Conclusion on s 75(2) factors
132.Given the husband’s substantially greater income, his superior qualifications, work experience and earning capacity, along with the wife’s primary obligation to raise the parties’ child and the negative inference drawn in relation to the husband’s failure to disclose his new wife’s financial circumstances, I find that an adjustment of a further 10% in favour of the wife under s 75(2) is appropriate.
133.Such an adjustment results in a final property division of 65% of the parties’ net assets to the wife and 35% to the husband.
Conclusion
134.The final division of the matrimonial assets will be as to 65% to the wife and 35% to the husband. To give effect to this division I will order that the wife receive a total of $491,408 and the husband receive a total of $264.605. I have rounded those figures off to the nearest dollar.
135.A major area of disagreement between the parties concerned to question of whether the money in India should first be repatriated to Australia and then divided, that is the husband's submission, or be divided in India which is the wife's submission. Counsel for the husband submitted that because of the substantial litigation in India, the wife's potential non co-operation and the possibility of further litigation in India, the money should be first repatriated. The wife submitted that she wanted to use her share of the money in India and funds would be needlessly lost in bringing it to Australia.
136.In usual circumstances, the wife's submission would undoubtedly find favour. However, in the particular facts of this matter, the situation is somewhat different. The issue of repatriation of those monies to Australia has been litigated in this Court on a number of occasions, particularly in the Judicial Duty List when I have been presiding. At all times, the wife has been totally resistant to any of those monies being brought to Australia. During this trial, the wife's attitude did not change. The wife did not adduce any evidence to establish any cost which may be incurred, despite making a submission that such cost would accrue. Consequently, on those facts the husband's submission is to be preferred.
137.The assets to which I have found relevant to these proceedings are notionally divided between the parties as follows:
The Wife
The former matrimonial home 194,195 Wife’s superannuation 7,000 Gold jewellery $ 2,000 The Husband
The B property -7,000 Husband’s interest in property at G, India. 2,000 Husband’s Superannuation 3,500 Rent from B property $21,000 Draw-down from B mortgage $25,300 Suzuki Balino Motor Vehicle 6,000 138.I have found the wife to receive $491,408 and the husband receive $264,605. Accordingly, to give effect to that finding, the investment monies are to be repatriated to Australia and, on the basis of their value at trial being $502,018, are to be apportioned so that the wife receives $288,213 and the husband receives $213,805. If upon repatriation the investment monies stand at a figure other than $502,018 the orders will provide that the monies be apportioned so as to give effect to the percentage distribution of the wife receiving 65% of the total net assets and the husband receiving 35% of the total net assets.
I certify that the preceding one hundred and thirty-eight (138) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin.
Associate: Shantelle Vercoe
Date: 19 March 2008
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