Gull & Gull
[2009] FamCAFC 71
•30 April 2009
FAMILY COURT OF AUSTRALIA
| GULL & GULL | [2009] FamCAFC 71 |
| FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Appeal from trial Judge – Whether the trial Judge erred in the calculation of the parties net assets – Whether the trial Judge erred in determining the distribution of property – Whether the trial Judge erred by ordering that the parties investments in Indian bank accounts be transferred to Australia for distribution FAMILY LAW – APPEAL – APPLICATION TO ADDUCE FURTHER EVIDENCE AT APPEAL – Where the wife submitted that further evidence should be allowed – Evidence to demonstrate that the husband had not disclosed assets at the trial – Evidence as to the wife’s medical condition – Evidence of the proceedings in Indian courts – Evidence of the cost of returning investment monies to Australia – Refused FAMILY LAW – APPEAL – Dismissed no basis for appeal - Orders amending the trial Judge’s calculations of assets and distribution between the parties after concession made of an error FAMILY LAW – COSTS – No order as to costs |
| Family Law Act 1975 (Cth) |
| AMS v AIF (1999) FLC 92-852 De Winter v De Winter (1979) FLC 90-605 Fox v Percy [2003] 214 CLR 118 Gronow v Gronow (1979) 144 CLR 513 House v The King (1936) 55 CLR 499 |
| APPELLANT: | MRS GULL |
| RESPONDENT: | MR GULL |
| FILE NUMBER: | MLF | 2723 | of | 2004 |
| APPEAL NUMBER: | SA | 23 | of | 2008 |
| DATE DELIVERED: | 30 April 2009 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Warnick, May & Boland JJ |
| HEARING DATE: | 9 October 2008 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 19 March 2008 |
| LOWER COURT MNC: | [2008] FamCA 183 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Appellant appeared in person |
| COUNSEL FOR THE RESPONDENT: | Mr A Combes |
| SOLICITOR FOR THE RESPONDENT: | Vernon DA Gama & Associates |
Orders
The application to adduce further evidence be refused.
The appeal be dismissed subject to the following orders.
The sum in paragraph 1(a) of the order dated 19 March 2008 be varied to $173,710 and the sum referred to in paragraph 1(b) be varied to the negative value of -$5,639 so that the net assets of the parties are calculated at $736,889.
The sums referred to in paragraph 2 of the orders dated 19 March 2009 be varied to $478,977.85 for the wife and $257,911.15 for the husband.
No order as to costs of the appeal.
No order as to costs of and incidental to the application for a stay of the orders dated 19 March 2008.
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).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SA 23 of 2008
File Number: MLF 2723 of 2004
| MRS GULL |
Appellant
And
| MR GULL |
Respondent
REASONS FOR JUDGMENT
Introduction
Final property orders were made by Mushin J on 19 March 2008. The order made by the trial Judge provided that the net assets be divided as to 65 per cent to the wife and 35 per cent to the husband. Three key findings made by the trial Judge were challenged in the appeal:
·The identity and value of the net assets of the parties calculated at $756,013;
·Funds held in the Indian accounts (“the investment monies”) in the sum of $502,018 to be divided between the parties; and
·The net assets to be divided between the parties in the total amounts of $491,408 to the wife and $264,605 to the husband and that in achieving this result the funds in India be repatriated to Australia;
Generally it was argued that the trial Judge should only have made orders in relation to property in Australia leaving it to the Indian courts to resolve other issues including the division of property in that country.
In the first paragraph of the judgment his Honour described the matter as he understood the case:
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.
It is important to note at the outset that his Honour had “considerable reservations with regard to the credibility of both parties”. The adverse findings about the credibility of their evidence was not a ground of appeal. His Honour said:
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.
The parties gave evidence which was not only contradictory of each other but was, as found by the trial Judge, on occasions not truthful.
The parties asked for radically different orders as described by the trial Judge:
69.…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.
Although there were 36 grounds of appeal there were ten major points in the appeal. These can be summarised as follows:
a)That the trial Judge made mistakes of fact with respect to the parties’ bank accounts in India. Some of the moneys were for the sole benefit of the parties’ only child and the law of India required that the money remain in India for the child upon his obtaining majority;
b)That the trial Judge erred in determining the proper distribution and value of the husband’s Indian properties located at Goregaon and Goa and that the husband failed to disclose property in India;
c)That the trial Judge failed to consider that the husband had suppressed the evidence of his salary for the period from June 2001 to February 2004, being the time he was working in the Sultanate of Oman. It was submitted that these moneys were deposited in the [Bank M] and should have been taken into account by including the sum earned in the pool of assets;
d)That the trial Judge failed to properly calculate the value of the husband’s […] Life Insurance Policy in view of the likely imminent maturity of the policy;
e)The trial Judge erred in not including in the assets of the parties gold jewellery, valued by the wife at $70,000 in the husband’s possession;
f)The trial Judge failed to consider the complaints to the police made by the husband and the [Bank C] in India in making orders that bank funds be distributed;
g)The orders made by the trial Judge in transferring funds to Australia did not properly consider the consequence of the heavy financial loss for the parties and their son by reason of penalties and costs of currency exchange;
h)That the trial Judge applied the wrong value for the parties’ properties in Australia, including the net value of the ‘matrimonial home’ at [X, a suburb east of Melbourne], the [B property, located east of Melbourne] and the value of the car;
i)That the trial Judge made an error in understanding the orders as proposed by the wife at trial;
j)That the trial Judge made various mistakes of fact and relied on inadmissible evidence.
Although there was no medical evidence before the trial Judge the wife wishes on the appeal to have us consider her further evidence that she is not in good health.
The wife asks that should the appeal be allowed we make orders that the net assets of the parties be calculated at $999,425 in total, $396,207 of which is in Australia and $603,218 in India. The wife asks that the Australian property be divided as to 68 per cent in her favour and that in particular the following orders be made:
(1)The moneys deposited in India in the names of the parties’ son remain and be available to him upon his attaining majority and that the balance of the moneys be divided equally between the parties;
(2)If the property at Goa is valued at $2,000 then it be transferred to the wife;
(3)The Goregaon property be transferred to the wife;
(4)The sum of A$101,825 representing the husband’s earnings in Oman be included in the value of the pool and divided between the parties;
(5)The moneys made available from the insurance policy with […] upon maturity be distributed between the parties as to 68 per cent to the wife and 32 per cent to the husband and that alternatively the value of the policy be included in the pool at $25,000;
(6)The gold jewellery valued by the wife at $70,000 be included in the pool being an asset said by the wife on appeal to have been retained by the husband;
The trial Judge in his orders calculated the parties’ net assets as $756,013 in total, $253,995 in Australia and $502,018 in India. As recorded in paragraph 33 of the judgment, the parties agreed about the identity and value of some of the assets.
The wife takes issue on the appeal with the following calculations made by the trial Judge, summarised as follows:
Item
Calculations by Trial Judge
Calculations by the Wife
Total Net Assets:
$756,013
$999,425
Australian Net Assets:
$253,995
$396,207
Indian Net Assets:
$502,018
$603,218
X Property
$194,195
$176,121
B Property
-$7,000
-$5,639
Suzuki Balino
$6,000
$10,000
H’s Insurance on maturity
(No value attributed)
$55,100
H’s salary from Oman
(No value attributed)
$101,825
We note that the value of the X and B properties was agreed at trial. The difficulty seems to be the net value of those properties. The value of the Suzuki motor vehicle was based on an assertion by the husband by reference to a book used to value second hand vehicles.
It was also submitted by the wife that the trial Judge should have made orders for independent valuations of property in India at Goa and Goregaon.
The wife also took issue with how the parties’ bank accounts were described and says that a number of errors were made by the trial Judge. The trial Judge, it is submitted, wrongly attributed to the parties a total of $220,000 of the $502,018 deposited in India being various deposits in the child’s and parents names.
The wife submits that four accounts were held in Indian bank accounts for the benefit of the child only:
a)Bank O, to the value of $169,925; and
b)Bank M, to the value of $45,989;
in total $215,914 said to have been deposited by the parties for the benefit of the child. It is her case that these sums should be excluded from the pool of assets.
Background
The essential facts as set out by the trial Judge are not in dispute. Where there were disputes his Honour described the two positions. We can do no better than set out the relevant parts from the judgment:
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.
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 Oman in order to accumulate savings and assets.
12.In 1988 the husband purchased a property at Goa, India (“the Goa property”). That property is one of the relevant assets in these proceedings.
13.The parties married in India […] 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 Goa 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 Oman 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 Oman. 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 Oman until February 1994 when she returned to India. […] 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 Oman on his own. In approximately mid 1995 the Wife and child joined the husband in Oman.
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 Oman, 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 Oman 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 Oman 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 [A] 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 [B] Hospital and by two social workers employed by [A] 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.On 28 March 2006, the husband remarried. The husband and his wife have one child, [A], born […] 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.
Application to Adduce Further Evidence
Prior to the appeal, the wife filed an application and affidavit dated 19 September 2008 with numerous exhibits. We decided to treat this as an application to adduce further evidence. The wife says that a number of the documents annexed were in India and otherwise the material was not in her possession at the time of the trial. None of these documents were before the trial Judge.
The affidavit includes reference to attempts by the wife to obtain documents in India by order of the court in that country. Reference is made to an order dated 15 September 2008 (Exhibit 6) by the court in Mumbai which provided by way of interim relief that the parties may not deal with bank accounts in India.
In paragraph 48 of the affidavit of the husband filed 14 August 2006 the husband described the orders made by the courts in India and annexed the orders. His Honour was therefore aware that:
· The Family Court Mumbai on 19 April 2005 refused the wife’s application for an injunction restraining the husband from dealing with the banks funds. In the judgment reference was made to the proceedings in Australia and that the matter was properly before this court;
· That order was stayed on 19 April 2005 to allow the wife to appeal to the High Court;
· On 18 October 2005 the High Court ordered that all bank accounts of the parties shall not be operated by either of the parties “pending adjudication of their matrimonial dispute in the court of Australia.”
The wife contends that the husband has an interest in a flat in Mumbai based on the use of that address on the husband’s drivers licence dated 31 December 1985. Other property in India is referred to however it must be said that there is no evidence provided which would lead to a conclusion that the husband had an interest in any of these properties. One letter, said to support a conclusion that the husband has other property in India is dated 24 March, 1990 and is equivocal at best. There is no reason to conclude that the property transaction there referred to was completed.
Exhibit 13, a calculation of the cost of closing the bank accounts in India and bringing the money to Australia was prepared by the wife. Exhibit 12 is said to be a document obtained from the Bank O. Apart from the lack of proof of authenticity of this document, at best Exhibit 13 could carry little weight it being only an assertion made by the wife. This was an important issue before his Honour. There is no explanation why this evidence could not have been before the trial Judge other than the wife’s complaint that only 10 days were allowed by the trial Judge to produce the evidence. There was no application for an adjournment.
The wife’s affidavit explains that from June 2001 until February 2004 she had not received any child support and since then $5.00 per week. These are all matters that were before his Honour.
The wife also asserts that due to her life threatening medical condition her doctor has advised her to live in India and that she cannot work. Therefore, as part of her case that the funds in India should not be repatriated to Australia she asks that they remain in that country so that she can live there and rely on the money for her financial support. To some extent this may be the connection with the reference to the absence of any real financial support from the child’s father.
In paragraph 13 of her affidavit the wife says as follows:
… I state that I am suffering from Liver Cirrhosis, Thyroid, Hypertension and Hepatitis C. The copy of the medical test report from [C] Hospital and the medical report of Dr. Pilkington from [D] Medical are annexed hereto and marked as EXHIBIT-CG14.
The pathology report is dated 12 December 2005 relating to a liver biopsy. The diagnosis was “… insufficient tissue sample for definitive diagnosis:-Chronic hepatitis C, displaying moderate activity with probable cirrhosis.” There is also a letter from a Dr Pilkington dated 28 April 2008 (after the trial) which advises that Mrs [Gull] has been a patient of the clinic since 2001.
In October, 2005 the doctor explains she was diagnosed with chronic hepatitis C caused by a blood transfusion when she was a child. The hepatitis C has caused some liver damage. In addition the doctor has diagnosed hypothyroidism for which she takes medication. Apparently she also shows an indication of hypotension. The doctor recommended that the child and mother be granted leave to live in India with her parents as well “… This will help [Mrs Gull] and [R] in obtaining assistance and support from her parents and family members.” It was suggested that the numerous medical conditions of the wife would mean that she could not do any full time work or work that would aggravate her medical condition.
The wife said in her affidavit that the reason her health problems were not disclosed to the trial Judge was because the husband and his family live in Australia. It is then alleged that in the past the husband and his brother in-law have assaulted and threatened both her and her son and she did not want to provide them with more “ammunition”.
Now that the wife is considering returning to India to live she also asks that property in India be transferred to her rather than to remain with the husband. It seems that the other basis for such an order is that she challenges the low value attributed to the property in India.
The contents of the affidavit in relation to the insurance policy are mostly argumentative or provide submissions in relation to why the appeal in this respect should be allowed.
Apart from the incorrect figure provided to the court in relation to the X property which is conceded, the wife also asserts that the figures in relation to the B property are incorrect. The wife seeks to support these contentions by annexing to her affidavit a statement from bank W in the name of the husband for September/October 2007 where it appears that the sum owing to the bank on 19 October 2007 was $41,878.64. We note that in paragraph 61 and 62 his Honour referred to a $20,000 draw down on the Y property mortgage and for reasons explained added back the sum of $25,300 to the pool. The further letter dated 21 May 2008 from the Dispute Resolution Group of Bank W confirms the amount required to discharge the mortgage over the loan on 22 October 2007 was $205,639.55. The agreed value of the B property was $200,000. This explains why the wife says the proper figure included in the pool should have been negative $5639.
The husband resists the application to adduce further evidence on a number of bases including that it was filed outside the time limited in directions set by the registrar and that the affidavit raises issues that could have been agitated at the trial. Further, it is submitted the wife is attempting to supplement her evidence at trial, which is impermissible and is highly prejudicial to the husband.
The disposition of the assets contained within the parties’ Indian bank accounts continues to be restrained by the court in India. It was submitted in the context of the application to adduce evidence about funds in India that the husband requires the funds to pay his mortgage and would resist any delay caused should the evidence be admitted and the matter remitted for further hearing.
In summary, as best as can be described, the further evidence relates to the following:
a)The proceedings in the Family Court of Bandra, Mumbai, India;
b)Two further properties in Mumbai alleged to be owned by the husband and not disclosed by him during the trial;
c)Undisclosed income of the husband between June 2001 and February 2004;
d)The wife’s medical condition;
e)Cost of returning the money to Australia rather than distributing the fund in India; and
f)Police complaints which prevent the relevant banks from releasing the party’s funds until all court matters are dealt with.
In CDJ & VAJ(No 1) (1998) 197 CLR 172 at 200 the High Court said of the admission of further evidence at para 104:
In the exercise of the discretion conferred by a power such as s 93A(2) the critical factor is the subject matter of the proceedings with which the appeal is concerned. This is because the purpose of the power to admit further evidence is to ensure that the proceedings do not miscarry. Tests such as those stated in Wollongong Corporation based on the need for finality in litigation are therefore not necessarily applicable to cases in which the interests of third parties, such as children, are at stake, although factors such as finality, discoverability of the evidence and its likely effect on the orders made are usually relevant to the exercise of the discretion.
And in para 109:
One consideration in construing s 93A(2) is its remedial nature. Its principal purpose is to give to the Full Court a discretionary power to admit further evidence where that evidence, if accepted, would demonstrate that the order under appeal is erroneous. The power exists to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellant procedures. A further, but in practice subsidiary, purpose is to give the Full Court a discretion to admit further evidence to buttress the findings already made.
And in para 111:
… The power to admit the further evidence exists to serve the demands of justice. Ordinarily, where it is alleged that the admission of new evidence requires a new trial, justice will not be served unless the Full Court is satisfied that the further evidence would have produced a different result if it had been available at the trial. Without that condition being satisfied, it could seldom, if ever, be in the interests of justice to deprive the respondent of the benefit of the orders made by the trial judge and put that person to the expense, inconvenience and worry of a new trial.
After reviewing the contents of the wife’s affidavit, it cannot be seen with the possible exception of the medical evidence, that even if the evidence were admissible it could be said that its admission would lead to a different result. It also contains highly controversial matters which were agitated at the trial and raises other issues which could have been dealt with by evidence properly adduced at the trial. The substantial prejudice to the husband should such evidence, or any of it, be admitted is obvious.
Further reference will be made in the conclusions as to whether the medical evidence alone should be admitted and the possible consequences of doing so.
Reasons of the Trial Judge
We return to the appeal. It is necessary to set out at some length the reasons given by his Honour to appreciate the evidence before him and how his Honour dealt with the various issues now raised in the appeal.
The trial Judge noted in his reasons for Judgment that there were a number of complicating features in the matter which included the contradictory nature of the evidence given by both parties and the credibility of the parties:
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.
The parties disagreed on many facts and issues. These were summarised at paragraph 3 of the trial Judge’s reasons:
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.
The Trial Judge took great care, despite the uncertain evidence, to establish the assets and liabilities. Mushin J set out those he understood were agreed by the parties:
33.By the end of the trial the parties agreed on the following assets:
Item
Value ($)
[X property] (“the former matrimonial home”)
194,195
[B property] (“the [B] property”)
-7,000
Husband’s interest in property at […] Goa, 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
As much of the argument in the appellant’s case relates to his Honour’s findings and the composition of the pool, it is as well to set out his reasons in relation to these matters. In each case the conclusions of his Honour appear in bold:
Indian deposits held in child’s name
34.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 [sic] 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 Gulab Singh Yadav. She submitted that Mr Yadav is an expert on the relevant Indian Law and that he is a practising lawyer in India. No curriculum vitae was provided for Mr Yadav. 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 Oman. 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 Goregaon 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.
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Goregaon Property
44.There was also a dispute over a property known as [Gull] House at Goregaon, India, (“the Goregaon 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 Goregaon 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 Trust of [the Church of S], Goregaon East, and that his father previously leased the home from the parish.
45.The husband tendered a letter from the Parish Priest, Father [D], 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, [N Gull], to the [Church of S] Estate. 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 Goregaon 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 […]. 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.
50I 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.
In coming to the necessary conclusions in relation to the parties’ contributions, about which the wife makes some challenge, his Honour said:
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 Goa 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 Oman. 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.
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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 Oman 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.
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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.
Under the heading relating to section 75(2) factors his Honour said:
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.
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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.
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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”.
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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.
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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.
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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.
[Emphasis added]
Principles
It was clearly enunciated in House v The King (1936) 55 CLR 499, at 504-505 that:
It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.
In Gronow v Gronow (1979) 144 CLR 513 Stephen J said at 519:
The constant emphasis of the cases is that before reversal an appellate court must be well satisfied that the primary judge was plainly wrong, his decision being no proper exercise of his judicial discretion.
Thus, as a matter of firmly established appellate process it is necessary first to establish whether there is any recognised ground for reviewing the judge’s discretionary decision consistent with these principles. If there is then, unless the result is plainly right notwithstanding an appellable error, per Gibbs J (as he then was) in De Winter v De Winter (1979) FLC 90-605 at 78,091, we are obliged to allow the appeal, set the orders aside and, if possible, substitute our own decision after considering the matter afresh. We also remind ourselves of what Kirby J said in AMS v AIF [1999] 199 CLR 160 at 211:
[A]n appellate court, invited to review the exercise of discretion at first instance will avoid an overly critical, or pernickety, analysis of the primary judge’s reasons, given the large element of judgment, discretion and intuition which is involved. Only if a material error of the kind warranting disturbance of a discretionary decision is established is the appellate court authorised to set aside the primary decision, to substitute its own exercise of discretion or to require that it be re-exercised on a retrial.
In Fox v Percy (2003) 214 CLR 118 Gleeson CJ, Gummow & Kirby JJ as part of a discussion in relation to the powers and functions of courts of appeal said:
22.The nature of the "rehearing" provided in these and like provisions has been described in many cases. To some extent, its character is indicated by the provisions of the sub-sections quoted. The "rehearing" does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. No such fresh evidence was admitted in the present appeal.
23.The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to "give the judgment which in its opinion ought to have been given in the first instance". On the other, it must, of necessity, observe the "natural limitations" that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the "feeling" of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.
Submissions
It is only necessary to refer to one part of the respondent’s submissions. It was conceded at the outset that there had been a mathematical error. The sum in paragraph 1(a) should have been $173,710. This error alone should not lead to the appeal being allowed as it is easily remedied by a simple recalculation of the pool.
It is neither necessary nor helpful to set out every submission of the wife. Some of her submissions have already been discussed in the context of the application to adduce further evidence. It can be seen that each of the matters raised by the wife were the subject of reasons in the judgment.
Bank accounts in India
As already mentioned the wife’s case before the trial Judge was that the Australian court should make no order in relation to bank accounts where one of the owners of the account is the parties’ son. This submission was made for various reasons including that the provisions of Indian legislation, the Hindu Minority and Guardianship Act 1956, should be regarded and the moneys should be retained for the child.
To some extent, the argument on the appeal ignores the fact that the trial Judge determined the matter be heard in Australia and as referred to in paragraph 9 of the judgment there has been a decision in India that the dispute between the parties be determined in this court. As to the factual background, where the wife alleges that the moneys were deposited as a gift to the child, his Honour rejected that contention. On the evidence before him he was entitled to come to the conclusions as he describes them in his judgment.
The wife was also concerned in the appeal to explain that a number of the numbers provided by the trial Judge in the judgment in relation to the Bank O, Bank M, Bank C and Bank I were incorrect. In essence it is her argument that receipt numbers attributed to the name of the husband and wife were is some cases in the name of the wife and in some cases in the name of the husband only. In addition, there were some receipt numbers in the name of the child only. These were in relation to the Bank O and Bank M. It is difficult to understand how it matters what names the receipt numbers bore. It is of much greater significance as his Honour considered the matter to decide in whose name the bank accounts were held and the basis upon which the moneys were deposited. Ultimately in effect, his Honour decided that the moneys were not held on trust by the parents for the son. The evidence supported this conclusion.
The Goregaon & Goa properties
The wife complains that a letter from a priest dated 14 November 2006 relied upon by the Judge in coming to factual conclusions was false and misleading. It is submitted that the trial Judge should have made orders that the property be valued separately and that the husband’s evidence that he had no interest in the Goregaon property not be accepted.
Likewise the wife contends that the Judge made an error in determining the value of the property in Goa.
This is an example among many where the trial Judge was left to deal with issues on the evidence that was presented before him by the parties albeit inadequate. In this case the Judge placed very little reliance on the evidence. There was no application for an adjournment or that the properties be valued independently. There is no evidence before us that would allow us to conclude that for some reason the appeal should be allowed on these grounds and the matter remitted for further hearing.
Husband’s income from Oman
The wife’s claim in this respect seems to be that she was entitled to some share of the income received by the husband from the time between June 2001 and February 2004 and that the total sum received by him said to be in the vicinity of $101,825 be included in the pool. In her argument on the appeal, the wife seems to suggest that the trial Judge failed in not insisting that documents be obtained from the bank. Further, that the appeal should be allowed in this respect and the matter remitted for such documents to be produced. In the husband’s affidavit filed 5 July 2007 commencing at paragraph 20 the husband made reference to the relevant bank accounts and his attempts to obtain copies of those accounts since 2004 when he arrived in Australia. His evidence in essence was that his inquiries failed and that the bank informed him that he would have to attend personally.
It is not correct that his Honour did not take into account the husband’s income. In paragraph 85 his Honour acknowledged the circumstances the wife was placed in and in the following paragraph that the wife must have lived frugally. These were matters taken into account in determining the parties’ contributions during the marriage. It would have been an incorrect approach to simply “add back” the total sum of income received by the husband during the marriage, many years before the hearing of the matter.
The Husband’s Life Insurance
The wife would have us accept that the surrender value of the insurance policy is $25,000 and that sum should have been included in the pool. The husband’s evidence contained in his affidavit filed 14 August 2006 (para 8) was that the policy is a death benefit only and that no moneys would be available during his lifetime.
The only documents available to us and to his Honour were Exhibit W2 (AB p.868–875) and Exhibit H17 (AB902-916). It may be that the policy will mature on 19 August 2033 when the husband is 75. There are no other documents that would allow us nor would have permitted the trial Judge to come to the conclusion asked by the wife. In view of the absence of proper evidence before his Honour he could not make a finding as to its value. Instead he took it into account as a s 75(2) factor.
The only real complaint possible is that in concluding as he did, by reason of the matters referred to under the heading “Future Factors”, the adjustment in favour of the wife was insufficient. As his Honour made an adjustment of 10 per cent which was in addition to already assessing the contribution of the wife at 55 per cent, this possible argument is not persuasive. It could not be said that the conclusions and orders made by his Honour were outside the possible range of orders to be made.
Gold jewellery and complaints to the police
His Honour referred to the wife’s case about jewellery in her possession, which he accepted. There was no reliable evidence before his Honour that the husband had been in receipt of jewellery to the value of $70,000. Certainly there was a dispute between the parties’ as to whether such gold jewellery might have been removed from a locker. The evidence before his Honour provided no further assistance.
To some extent this issue is linked with the wife’s concern that the trial Judge did not appreciate or take into account properly a police complaint lodged by the Bank C and by the husband. It is said by her that the bank will not release funds deposited with the Bank C prior to the outcome of the complaint being dealt with. Again there was no evidence which would have persuaded his Honour on such a matter.
It was alleged by the wife that the husband had lodged a false police complaint and that in some way his Honour ought to have resolved this issue. Again, that would have been an impossible task for his Honour.
Transfer of moneys to Australia
It is the wife’s contention both before us and the trial Judge that if funds are transferred to Australia there will be a heavy financial loss to the parties because of lost interest due to premature withdrawal and penalties. This is in addition to any loss caused by exchange rates.
There was no material before his Honour in this respect. For that reason, on 30 November 2007 his Honour adjourned the matter to 10 December 2007 to allow the parties to obtain further evidence and make submissions. The question of the ownership and value of the moneys in India and their repatriation to Australia had always been an issue. On 10 December 2007 the wife and counsel for the husband provided the Judge with proposed orders. The discussion that followed was largely in relation to the personal items of the parties. The wife maintained her position that the property in India should remain undisturbed by Australian orders.
After the Judge repeated his inquiry as to what orders the wife sought in relation to the bank accounts in India it became clear that Mrs Gull had not obtained any further evidence in relation to the repatriation of the funds.
It is not correct that the wife did not have an opportunity to obtain advice and place relevant evidence before the court to resist the order as indicated by the trial Judge. The Judge made the orders as explained in his judgment after each party had the opportunity to make submissions.
The value of Property X, Property B and the parties’ car
The issue of the property X house needs no further reference as it seems a mistake was made based on the information provided by the husband’s lawyers. As to property B, the wife’s contention is that the correct negative value is -$5,639. That also appears to be correct.
There is no need to refer further to the net value of property B or property X houses. The only other value contested on appeal was the car, the wife’s submission in essence is that the Judge should have accepted her contention as opposed to the husband’s. There is no support for this argument especially as it seems there was not an application by the wife for the car to be separately valued. There was some basis for the value put by the husband.
Other
The wife submits that the trial Judge misunderstood her proposed application at the commencement of the case which was 30 per cent to the husband and 70 per cent to the wife. Apart from this being an irrelevant consideration it is quite clear from his Honour’s judgment that he fully appreciated the arguments of each party.
The wife also complained that the trial Judge erred in not drawing adverse inferences against the husband. His Honour’s remarks in relation to the credit of each party is entirely clear in his judgment.
Various other evidentiary matters were raised in the wife’s written submissions which are not persuasive.
Conclusion
The wife now wishes to place evidence before this court in relation to her health. She did not do that before his Honour although it is clear that evidence was available to her. Reference to health difficulties was made only in submissions on the last day.
The application to adduce further evidence in relation to the wife's medical history is potentially relevant in two areas; one, the assessment of s 75(2) factors and secondly, the question of the wife returning to India to live, this in turn bearing upon the order for transfer to Australia of all the monies in the Indian bank accounts.
A starting point for consideration of the application of the wife that we receive further evidence relating to her medical condition is the strong finding against her credibility. We note the explanation of the wife for the failure to adduce the evidence of her health at trial. It is an explanation acceptance of which requires acceptance of the wife's credibility. It is an explanation which of itself does not sound to us inherently probable.
The primary medical evidence is that contained in exhibit BG15, a letter from a Dr Pilkington. Apart from the reference to chronic hepatitis C and probable cirrhosis of the liver, Dr Pilkington refers to hypothyroidism, a permanent medical condition for which the wife receives therapy, and to hypotension. The only comments or medical opinions about these conditions is the term "life threatening medical conditions" - though without further discussion - and "Patients with numerous medical conditions are not in a capacity to do any full-time work and/or any work that will aggravate the medical conditions. This strictly applies to [Mrs Gull]". Otherwise the evidence does not describe any effects of these conditions on the wife's health, offer any prognosis or comment on the effectiveness of treatment.
The evidence at trial was that the wife was in part-time employment. There is nothing in the medical evidence to indicate that the wife was not capable of exploiting such an earning capacity into the future. There is nothing in the reasons for judgment of the trial judge to show that, while he took the wife to be in reasonable health, that he took her to have an earning capacity beyond what she was utilising at the time of trial.
As seen, the wife received an adjustment in her favour for s 75(2) factors of 10 per cent, on top of an apportionment of 55/45 per cent in her favour on account of contributions. We are not satisfied that at face value, the further medical evidence shows that the trial judge's orders were wrong.
Bearing upon the matter of the wife returning to India, Dr Pilkington's report said:
As a treating doctor of [Mrs Gull] for the past seven years and knowing that [Mrs Gull] and [R] live all on their own in Australia from 2001. I recommend that [Mrs Gull] and [R] should not be forced to live in Australia only. I strongly recommend that [R] and [Mrs Gull] be granted leave to live in India with their parents as well. This will help [Mrs Gull] and [R] in obtaining assistance and support from their parents and family members.
It is not clear that this is necessarily a medical opinion.
The passages of Mushin J's reasons for judgment relating to his order for the transfer of the whole of the monies in the Indian accounts to Australia have already been set out. He records that the wife strenuously opposed bringing monies to Australia on the basis that she wished to use the monies there. While the further evidence might reinforce the wife's arguments on this issue, it does not show that the trial Judge's orders about it were wrong.
As to the other grounds of appeal there is no proper basis for the appeal.
Costs
The wife has not succeeded in her main grounds of appeal. However, the orders will be varied due to errors caused by the information provided by counsel for the husband to the trial Judge. Taking into account the poor financial circumstances of the wife together with the necessity to raise these mathematical errors on appeal as they had not been conceded earlier, there should be no order as to costs.
Although an order for a stay was granted by the trial Judge, and although the need for it has proved largely unnecessary there are no features of that application which would attract an order for costs in favour of either party.
I certify that the preceding eighty-three (83) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court
Associate:
Date: 30 April 2009
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