Hops and Hops

Case •

[2010] FamCA 1131

•

10 December 2010

FAMILY COURT OF AUSTRALIA

HOPS & HOPS [2010] FamCA 1131
FAMILY LAW – PROPERTY SETTLEMENT – Property acquired before marriage – Financial and Non financial contributions during marriage –  Inheritance – Monetary Gifts – Superannuation splitting order – Future needs of parties and ability to earn income
Family Law Act 1975 (Cth)
Ferraro and Ferraro (1993) FLC 92-335
McLay and McLay (1996) FLC 92-667
Hickey and Hickey (2003) FLC 93-143
Cahill & Cahill (2006) FLC 93-253
Chorn & Hopkins [2004] FamCA 633
APPLICANT: Ms Hops
RESPONDENT: Mr Hops
FILE NUMBER: SYF 2707 of 2006
DATE DELIVERED: 10 December 2010
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Le Poer Trench J
HEARING DATE: 23, 24, 25, 26 & 27 August 2010

REPRESENTATION

THE APPLICANT IN PERSON: Mrs Hops
THE RESPONDENT IN PERSON: Mr Hops

Orders

  1. All prior interim orders made herein are discharged.

  2. On or before 10 March 2011, the husband is to pay to the wife the sum of $117,575.

  3. For the purpose of Order 2, the said sum of $117,575 is charged against the husband’s interest in the deposit of $423,919 held by the husband in his UBS account. The husband is not to deal with that fund otherwise than for the purpose of drawing down sufficient funds to meet the payment to the wife and making that payment. Once the husband has paid to the wife the sum of $117,575, the charge against the fund will lapse.

  4. The wife is to sign any documents provided to her by the husband which may be necessary to effect a transfer of the registration of the Subaru motor vehicle to his sole name.

  5. Each party is otherwise declared the owner of assets standing in his or her name and is to be responsible for payment of any liabilities standing in his or her sole name.

  6. The proceedings are otherwise completed and all outstanding applications are dismissed.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2707/2006

MS HOPS

Applicant

And

MR HOPS

Respondent

REASONS FOR JUDGMENT

Introduction

  1. The proceedings before the Court are confined to the determination of disputes between the parties about property.

  2. The parties lived in a marriage which lasted for 9 years. It commenced with an advertisement placed by the husband in an Indian newspaper in May 1994. By July 1994, the parties were married.

  3. It appears that the marriage was a happy one right to the date of separation. The husband says that he was badly affected by the breakdown of the marriage.

  4. During the marriage, there were significant contributions made by each party. One of the main achievements was the building of a house in India on land which belonged to the wife at the time of the marriage.

  5. The great shame of these proceedings is that, if ever a couple appeared well suited to each other, it is this couple. They treat each other with respect and cordiality whenever in Court. I have on a number of occasions suggested that they consider reconciliation. The husband says that he married the wife and not her family. It appears, from his perspective, that the wife has prioritised her family to him.

  6. The Indian house has been a major matter of dispute between the parties. The value of the property at various times is the subject of dispute. The wife claims to have sold the house to her sister for 12 Laks ($35,000). The husband considers that is not the case. He believes the wife still owns the house. The parties eventually agreed on a valuer who was prepared to carry out the valuation. That was completed by Mr N in 2010. The husband does not agree with the valuation and sought to have the valuer answer specific questions. There were many questions asked. The valuer sent the husband an estimate of cost which the husband believed to be extortionate and accordingly would not pay. The husband sought to have the valuer attend for cross-examination by telephone. That did not happen.

  7. At the commencement of the hearing, I explained to the parties that they could elect to have the proceeding conducted as a less adversarial trial and have Division 12A of Part VII of the Family Law Act 1975 (Cth) (“the Act”) apply to the conduct of the hearing. Both agreed to adopt that course.

  8. The material supplied by the husband, in this case, is voluminous and completely out of proportion to the size and extent of the dispute between the parties. The husband has engrossed himself in such minutia and detail that he has failed to appreciate the big picture. For my part, I have only dealt with matters of substance which are supported by evidence and which are likely to make a real impact upon the exercise required to be undertaken by the Court in the determination of a property dispute. The “over the top” approach by the husband not only related to the affidavit evidence sought to be relied upon by him, but also to his submissions.

  9. When the hearing commenced, the husband sought to cross-examine the wife for five days. I refused to allow him to do so and I restricted each party’s cross-examination of the other party to a period of time that I thought was appropriate, having regard to the extent of the parties’ property, the length of the marriage and the identified issues. Having completed the hearing, I consider that determination, with the benefit of hindsight, was appropriate and fair.

The Orders Sought by Each Party

The Orders Sought by the Husband

  1. “Exhibit H2” is the husband’s Minute of Order. I made Order 1 of that minute by consent on the first day of the hearing.

  2. In relation to paragraphs 9 and 10 of the husband’s Minute of Order, I declined to hear those applications for the following reasons:

    ·The order was made on 11 September 2007.

    ·The alleged offence is said to have occurred three years earlier and the husband has taken no action in that time.

    ·The order alleged to have been breached was a consent order restraining the wife from further alienating the Indian property.

    ·There is no power to make Order 10 as sought.

  3. The husband’s Minute of Order provides as follows:

    1.An order causing a CD includingt he recording of all proceedings between 23rd  August 2010 and 28th August 2010 in this matter to be made available to the parties at the same cost as imposed upon the Court by Auscript Transcript Services on 28th August 2010.

    2.Pursuant to section 78 FLA a Declaration of ownership of a “Indian Property”as at:

    a.      9th September 2007

    b.      Current date

    3.Pursuant to section 78 FLA a declaration as to any affection of the rights of [the husband] as a result of a “sham” transaction in respect of a Indian property.

    4.Pursuant to section 90AD FLA the quantified debt/support for the nephews ([NC] and [LK]) by the Applicant be ‘treated as property for division’ in these proceedings and to be incorporated into the Applicant’s side of a property division.

    5.Appropriate Order pursuant to section 90MT or 90MU splitting the superannuation resources of [the wife].

    6.Order dispersing the superannuation of [the wife] consistent with the overall division by the Court in these proceedings.

    7.An order causing a continuance of Loughnan JR’s order #5 of 11th September 2007 in respect of $35,000 preserved in term deposit money until ALL orders associated with [the wife’s] application are resolved.

    8.Order causing a division of the property pursuant to section 79 and section 75 of the FLA in the proportions of 5(five) percent to [the wife] and the balance to [the husband].

    9.–

    10.–

    11.Pursuant to section 106B FLA an order causing the unmaking of the transfer of the title of the Indian Property into the name of [JC and NC].

    12.Orders causing the proceeds of an authentic sale of Indian Property to be split between the parties consistent with the overall division by the Court in these proceedings.

    13.Orders necessary to effect a genuine sale using internet listing (MagicBricks.com) so as to establish the actual value of a Indian Property jointly subject of asset pool of both parties.

    14.That no order cause affection of any right of [the husband] of [address] Australia to seek decrees in Indian Courts for the purpose of preserving the rights in relation to the property at […], India which is a subject property in these Family Court of Australia proceedings and her contraventions of Indian laws.

  4. The husband told me in opening that what he was seeking was an overall property order that saw 85% of the current assets with him, together with a splitting order in relation to the wife’s superannuation which gave him 85% of same.

The Orders Sought by the Wife

  1. The wife’s minute of order was marked as Exhibit W1. She seeks the following orders:

    1.That within 30 days of the date of this order the respondent husband transfer to the applicant wife:-

    a.      50% of the value of the [S] property with the address […, S, New South Wales], from the estate of [the husband’s late aunt].

    b.      50% of the money held in the International Money market with UBS Swiss bank

    c.      100% of the husband's share in the company [O] Pty Ltd is transferred to the wife's name - for the estimated value of $4000.

    2.That in default of compliance with either (a) (b) (c) of order 1 hereof, the respondent husband, in addition, pay to the wife interest at the rate of 20% per annum upon the amount specified therein, or upon so much thereof as shall be outstanding from time to time.

    3.That the respondent Husband – [Mr Hops] - pays the applicant wife the cost of this application.

The Background Facts

  1. The following appear to be common or uncontested facts in this case.

  2. The husband was born in 1945. He is 65 years of age. He does not have employment.

  3. The wife was born in 1955 in India. She is 55 years of age. She is employed as a customer service officer. She was unemployed earlier in the year.

  4. The parties met as a result of the husband advertising in an Indian newspaper in May 1994. They were married in July 1994.

  5. On about 29 March 1995 the husband received a gift from his mother of $6,667.

  6. On 22 December 1994 the wife came to Australia. In August 2003 the wife became an Australian citizen.

  7. Final separation took place on 1 March 2003. A divorce was granted on 16 May 2005.

  8. On about 9 July 1997 the parties purchased a property at B for $185,000. The deposit of $50,000 came from the sale of the property at A.

  9. In 2002 the B property was sold for net $262,000. The funds were placed into the parties’ joint account. On 3 February 2003 the wife withdrew $97,000 and left $99,000.

  10. In 2002 the parties purchased a Subaru car for $19,000.

  11. In April 2003 the husband inherited $63,330.

The Issues to be Determined

  1. Does the wife have any legal or beneficial interest in the Indian property?

  2. If the wife does have a beneficial interest in the Indian property, what is that worth?

  3. I note the value of the wife’s property at the date of its sale is valued by Mr N at $55,000. The parties now accept that valuation.

Credit

The Husband

  1. The husband presented as an honest and straight forward person. I did not think that he was at any time being deliberately untruthful with the Court. He readily accepted rulings and determinations made be me during the hearing and in the lead up to same. Although he had a fairly one sided perspective to matters of contribution, he nonetheless was prepared to give credit to the wife where he thought it was due.  From time to time he clearly had a different recollection of financial history to that of the wife.  Nonetheless he was not angry with her nor did he show resentment towards her. Again, from time to time I felt his criticism of the way things operate in India was intended to be a criticism of the wife to the extent that there was an innuendo that she had become enmeshed in corruption and deceit in relation to financial matters.

  2. There is one matter that really troubled me about the husband and the veracity of his evidence. That relates to the circumstances in which he came to be the sole beneficiary of the estate of his late aunt. In his evidence and also in his submissions to the Court the husband said he had taken advantage of his aunt’s circumstances, including her health, whilst she was in a nursing home. He prevailed upon her to change her will to name him her sole heir.  He has lived in her property for 9 years following her death in 2001. He has not administered her will notwithstanding that he stands as her unchallenged sole beneficiary.  He now expresses contrition about that act and professes that he will remedy the situation. I have no confidence he intends to do that.

  3. It seems to me however, that a person who is prepared to steal from his own incapacitated aunt and consequently deny his siblings and their offspring their rightful inheritance in order to gain advantage and wealth for himself, would feel less constrained than most to fabricate evidence and take action necessary to take advantage of a spouse who has deserted him. I therefore conclude that unless I specifically determine otherwise in these reasons, I accept the evidence of the wife in preference to that of the husband. I also reject all his criticism of her unless I have made a specific finding to the contrary about same.

The Wife

  1. Like the husband the wife presented as a truthful witness. She readily made concessions when called for. When she was sure of her facts she would not give ground. I concluded she was a witness of truth and unless elsewhere, in these reasons, I make a finding to the contrary then I accept her evidence.

The Relevant Law

General Principles

  1. Section 79 of the Act enables the Court to make orders with respect to the property of the parties to the marriage. In considering what order, if any, should be made the Court is required to take into account the matters under section 79(4).

  2. It is now well established that the determination of a section 79 application requires a four step process (Ferraro and Ferraro (1993) FLC 92-335; McLay and McLay (1996) FLC 92-667;  Hickey and Hickey (2003) FLC 93-143). The Court must:

    a)Firstly, identify and value the net property, liabilities and financial resources of the parties at the date of the hearing;

    b)Assess the contributions of the parties pursuant to section 79(4);

    c)Consider the relevant section 75(2) factors; and

    d)Lastly, consider whether such an order, in all the circumstances, is just and equitable. The final consideration is a reflection of the requirement under section 79(2).

Assessing the section 79(4) Contributions

  1. In considering the alteration of property interests I am required to consider the contributions made by the parties in accordance with the matters outlined under section 79(4). Section 79(4) provides:

    (4)  In considering what order (if any) should be made under this section in property settlement proceedings, the Court shall take into account:

    (a)  the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

    (b)  the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and

    (c)  the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and

    (d)  the effect of any proposed order upon the earning capacity of either party to the marriage; and

    (e)  the matters referred to in subsection 75(2) so far as they are relevant; and

    (f)  any other order made under this Act affecting a party to the marriage or a child of the marriage; and

    (g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.

Considering the section 75(2) Matters

In making a decision in relation to property, section 79(4)(e) requires a consideration of relevant section 75(2) matters. I here incorporate the provisions of section 75(2).

  1. The first step I must undertake is to identify the property of the parties or either of them available for division between them.

  2. The Court at the commencement of the hearing was provided with the balance sheet set out hereunder for its consideration.

  3. The husband submitted that the Court should take an asset by asset approach in determining the contributions of the parties in this case. I consider such an approach would not be appropriate in this case because of the length of the marriage and the mingling of the parties’ assets and incomes. I consider the global approach is the most appropriate manner in this case and the approach mostly supported by the Full Court of the Family Court of Australia.

  4. In Cahill & Cahill (2006) FLC 93-253 Coleman J said:

    56. It is then necessary to consider and evaluate the contributions of the parties prior to a consideration of relevant s 75(2) factors. Two cases of significance need to be referred to in this context. First there is the decision of the High Court in Norbis v Norbis (1986) 161 CLR 513 in which the Court made clear that in discharging its function in property settlement proceedings, the Court may adopt either what is described as a global approach to the assets of the parties, or adopt an asset by asset approach, or some combination of the two. As the High Court has stressed in Norbis v Norbis (supra), the approach does not produce a different result in terms of a just and equitable outcome. It is not a case of selecting one method and having the prospect of being correct, but incorrect if the other is selected. It is a convenient and helpful way in many cases, to achieve a just and equitable resolution, where one approach is likely to more readily facilitate that outcome.

    57. This is a case where an asset by asset approach is appropriate in relation to certain assets, whilst others, they being the remaining assets, ought be considered globally.

    58. The second authority relevant to the present case and its determination, is Pierce v Pierce (1999) FLC ¶92-844 and the passage in particular set out at para 28 of the authorised reports at page 85-881. The Full Court there said:-

    "In our opinion it is not so much a matter of erosion of contribution but a question of what weight is to be attached, in all circumstances, to the initial contribution. It is necessary to weigh the initial contributions by a party with all other relevant contribution of both the husband and the wife. In considering the weight to be attached to the initial contribution, in this case of the husband, regard must be had to the use made by the parties of that contribution. In the present case that use was a substantial contribution to the purchase price of the matrimonial home."

  5. Both of the decisions referred to by Justice Coleman have guided me in my approach to the determination of this case.

  6. In considering the contributions of the parties I have considered the contributions in both an asset by assets method as well as a global method. I have also had regard to the fact that the husband contributed far more significantly than the wife at the commencement of the marriage. I have had regard to how property owned by the husband was sold and then how the proceeds of the property found its way to another property. I have had regard to the fact that the land upon which the Indian property was built was inherited by the wife.

The Balance Sheet

  1. During oral submissions I had each of the parties make submissions to me as I went through the balance sheet. As a result the following represents commonality between the parties in relation to the balance sheet.

1

H

Proceeds of sale of Y property on 3 December 2004 $340,000 Paid to UBS and now worth (see Husband’s Form13)

$432,919

2

W

Wife’s non resident account State Bank of India

$45,000

3

W

The wife’s NAB. Term deposit.

$35,000

4.

W

Wife’s savings with NAB.

$2,045

5

W

Wife’s State Bank of India joint account with the wife’s sister

$54.

6

W

UCO bank joint account with the wife’s sister.

$32

7

W

Wife’s account with UCO

$197

8

W

Wife’s Bond (rental)

$840

9

W

Wife ’s jewellery.

$3,500.

10

H

Husband’s account  Bendigo account

$278

11

H

UBS Swiss account

$92.

12

J

Joint Subaru Car

$4,000

13

H

Husband’s shares in O Pty Ltd

$4,000

14

H

The husbands Nissan car (acquired post separation)

$1,000

15

W

Furniture and effects (acquired post separation)

$2,000

16

H

Furniture and effects

$3,500

17

H

Husband’s Commonwealth Term Deposit. (from mother’s inheritance.)

$21,000

18

H

Husband’s Commonwealth Savings acc.

$208

TOTAL ASSETS

$546,665

SUPERANNUATION

20

W

Wife’s Super balance. 

$51,500

21

H

Husband’s super.

$3,500

TOTAL SUPERANUATION

$55,000

ADD BACKS

22

W

Difference between sale proceeds of the Indian property and the value of that property at the time of sale.

$20,075

TOTAL ADD BACKS

$20,075

TOTAL ADD BACKS & ASSETS

$566,740

LIABILITIES

23

W

Wife’s credit card debit.

$1,824

24

H

Husband’s Commonwealth Mastercard

$1,526.

25

H

O Pty Ltd annual payment.

$500

26

H

Husband’s UBS credit card

$1,654.

TOTAL LIABILITIES

$5,504

TOTAL NET ASSETS

$561,236

Add Backs

  1. The husband seeks a number of add backs. Earlier in the proceeding there were many add backs sought. In final written submission the husband seeks the following:

    ·Rent on the Indian property 30 months at $41.45. Total $2,171.

    ·Difference between the Indian property value ($55,075) and the sum received by the wife from the sale. Value claimed $20,075.

    ·The sum of $5,000 spent by the wife from joint funds.

    ·The sum expended by the wife on the support of her nephews in Australia.

  2. On 26 November 2008 the parties and I had a thorough examination of the balance sheet in preparation for the hearing. On that day I noted that the $40,000 held by the wife in the SBI term deposit originated from a transfer of $45,000 to India in November 2006. The wife acknowledged spending $5,000 of that original sum whilst spending time in India.

  3. In order to determine whether it is appropriate to add back the $5,000 it is necessary to consider the history of that fund. To this extent see Chorn & Hopkins [2004] FamCA 633. The evidence is that at the date of separation the wife withdrew $97,000 from the parties’ joint savings. That left a balance of about $99,500 which was withdrawn by the husband. Apart from that sum it is the wife’s evidence that she had very little by way of savings at the date of separation. Including her $97,000 withdrawn from the joint savings the wife had total savings of $108,076. She otherwise had some small savings in accounts with financial institutions in India. The $5,000 therefore spent in India must have come from the savings she had at separation together with any income generated since the separation.

  4. The husband had not less than $99,500 in savings at the date of separation. He subsequently received a legacy of $63,000 from his mother. All the funds held in savings at the date of separation and the funds inherited from his mother have been expended by him on living expenses since the separation. There is no suggestion by the husband or the wife that those sums should be added back to the balance sheet as notional entries.

  5. In the circumstances I would not add back the $5,000 referred to as to do so would be quite inequitable as between the parties in this case.

  6. The wife concedes the difference between the property value and the sale price should be added to the balance sheet as an “add back”.

  7. The husband seeks a rental add back for the Indian property from March 2004 until 1 September 2007. Rental value agreed at 3000R ($41.45) per month. This was a period of time during which the wife’s family had exclusive use of the property.

  8. There is no evidence that the wife received any financial benefit from the occupation of the property from 2004 until 2007 by her relatives. The wife was not cross-examined about this matter.  The husband’s case is that the wife could have rented the property out but chose instead to have family live in it rent free.

  9. As against that, the property was built for the parties by the parties. The husband did work on the building of the house. There is no evidence to suggest the property was built as an investment property. The evidence, to the extent it exists is that the property was to be used by the parties whilst they resided in India from time to time. The evidence is that the wife went to India about once a year during the marriage whilst the husband went with her on three occasions. The wife appeared to be concerned to have someone occupying the property who she knew and could trust to care for the property. I am not satisfied it would by fair to assess the amount of rent the wife could have received for the property from 2004 to 2007. In the scheme of this case the loss is small in any event.

  10. The husband says that the wife should have $65,000 in savings. He says this arises because he is able to identify from the information provided by the wife the income she has earned since separation and also her expenditure from her Financial Statement and determine there is a $65,000 difference. That is a very simplistic approach which I reject. There is no other evidence which suggests the wife has a fund of $65,000 in saving somewhere. Likewise there is no evidence to suggest the wife has lived a lavish lifestyle since the separation.

  11. The wife’s legal costs were paid in part from $10,000 charged on a credit card; NC (her nephew) also lent/provided her with $3,900 to pay a barrister, David Maddox. Her own income was used to pay Anthony Ziade (solicitor) $4,000. Grace Basaglia (solicitor) was paid $783 from a savings account. Levitt, Robertson (solicitors) were paid $783 from savings in 2009.

  12. The husband paid Sandra Hale (solicitor) $265. He said he has paid thousands of dollars in photocopying.

  13. Taking into account the source of the funds to pay legal costs I would not add back either party’s legal costs to the balance sheet. I rely on the Full Court decision in Chorn and Hopkins as a guide to determine this issue.

  14. The husband seeks that all the funds expended by the wife on the support of her nephews NC and LK be included as an add back in the balance sheet. He claimed, during one of the direction hearings prior to the hearing commencing, that the support of the two nephews had cost $260,000. In his affidavit of 5 August 2010 there is no material to support that conclusion. He really relies on the average cost of support of two adults per week multiplied by the number of weeks the nephews were being supported by the wife.

  15. The wife in her affidavit of 19 March 2010 provides specific detail of support provided by her.  Her oral evidence did not contradict any of the information contained in her affidavit.

  16. She says her two nephews, in April 2002, expressed a wish to study in Australia. She had conversations with the husband about the request. The husband offered to have the boys stay in the S unit and also to pay their university fees.

  17. The boys’ courses commenced in March 2003 and concluded in December 2003. The husband and wife assisted the boys in applications to universities.

  18. The wife paid the boys’ university fees totalling $31,376 from money withdrawn from the joint account and from her wages. With additional expenses specified in the wife’s affidavit, she paid $37,658 in total for their university and associated expenses.

  19. In oral evidence the wife conceded that she had withdrawn $20,000 from her account in the first 2 weeks of March 2003. She said she paid $10,000 to each of her nephews. I have assumed that those were part of the funds used to meet the university expenses said to total $37,658. No suggestion to the contrary having been made.

  20. NC lived with the wife until March 2005. LK said he lived with the wife until January 2005. In the wife’s oral evidence she said LK left in March 2005 and NC in May 2005. I think in the circumstances the recollections of the boys might be more reliable.

  21. When LK gave oral evidence he agreed he had relied on the wife for support until he obtained a job. He said his parents also partly provided support for him. In December 2003 he obtained work at a shop. He was earning about $500 per week. When he obtained work he then contributed about $100 per week towards the wife’s household.

  22. In addition to the expenses which the wife specified as having been paid by her for the nephews, LK said the wife had paid for a flight for him to India.

  23. LK has assisted the wife whilst she was out of work by providing her with groceries. He also provided her with some cash. He would help her in the future if she needed help.

  24. NC gave oral evidence. He said he was supported by the wife until April 2004 when he obtained a job at a takeaway shop. He was then able to support himself although he still received assistance from the wife. He has assisted the wife by providing her with money. If the wife asked him for help in the future he would assist her.

  25. I also have to take into account that the wife provided food for the boys. From March 2003 that expense was met exclusively by the wife. I accept the evidence of each of the nephews that they did contribute towards their cost of living in the wife’s household.

  26. Having regard to all the circumstances relating to this claim for a notional entry in the balance sheet and particularly that much of the expenditure incurred by the wife in the support of the boys took place after the parties’ separation I consider the fairest manner of taking this expenditure into account is by considering it under section 75(2).

Resources

  1. The husband’s interest in the estate of his late aunt is the focus of this heading. There is a concession by the husband that the property probably has a value of about $355,000. The wife considers this is grossly undervalued. There is no current valuation evidence. The husband claimed in the hearing that he is really entitled to only one sixth of the title.  He has not in fact told the balance of his siblings about this view he now holds.  He said that he had manipulated his aunt to sign another will while she was in the nursing home. The latter will (which was her last will at the time of her death) left the property entirely to him.

  2. In his affidavit the husband set out in detail the circumstances under which he came to be the sole beneficiary of his aunt’s estate. The husband’s aunt died in March 2002. By that time her savings (arising from the sale of shares) of $16,000 had become intermingled with the parties’ property and was used by them. The parties had moved into the husband’s aunt’s house in 2001 after she was admitted to a nursing home. The wife moved out at separation in March 2003 and the husband has lived there ever since.

  3. There has been no challenge to the will. The husband has not sought to transfer the property into his name.

  4. The husband has occupied the property (initially with the wife) for 9 years. He says he now has at least a moral duty to distribute the property as his aunt had originally intended. He said he would not contest a challenge to the will.

  5. Considering all those matters it seems to me that the property has been and probably will continue to be a very significant resource if not asset for the husband. I have no confidence that anything will change in relation to the property so long as the husband chooses to live there. I propose to take this matter into account under section 75(2).

Other Matters arising from the Balance Sheet

  1. The balance sheet has assets noted which are really of little to no consequence. I have been loath to take up with the parties matters relating to assets of small value or liabilities of little value. This is because of the time taken as a result of raising those matters. The outline of this balance sheet was prepared by the parties with the assistance of a deputy registrar of the Court. In many entries the inclusion of same in the balance sheet arises because the parties agreed to include the items rather than the Court determining the item should be on the balance sheet.

  2. In determining the disputes between the parties in relation to the balance sheet and otherwise I have concentrated on the issues which are likely to have had an impact of moment on the final determination of the Court.

Assessment of the section 79(4) Contributions to Date of Separation

Initial Contributions

  1. I make the following findings in relation to initial contributions of the parties.

The Wife

  1. The wife says she had the equivalent of $10,000AUD in savings at the time of the marriage. This money was held with P Employees Co-operative Society (“P Co-op”).The wife produced a copy of a savings account which showed a deposit of 169,279R deposited in February 1991. This was part of the compensation money she received following the death of her former husband. Of that money 155,000R was withdrawn in February 1991 and lodged with the P Co-op. The further sum of about 100,000R had been received earlier as part of the compensation and that sum had been lodged with the P Co-op. Thus the total of the wife’s funds with the P Employees Co-operative Society was about 250,000R at the date of marriage. The husband agrees that the exchange rate at the time was 25 R to $ AUD 1.

  2. The husband is critical of the claim by the wife to have $10,000AUD in savings in the P Co-op. He claims she gave 40% of the fund to her husband’s mother. That is not the understanding I have from her evidence. She specifically denied such assertion in cross-examination. I accept her evidence in relation to same.

  3. I accept therefore her claim to have had the equivalent of $10,000 AUD.

  4. The wife also claims she had in a provident fund the sum of $4,850. She says that in 1996 when in India she cashed in her provident fund money and received about 35,000R. In 1997 she cashed in the group insurance and Life Insurance and received between 85-90,000R. The husband concedes that the wife did have a fund in the P Co-op. In paragraph 209 of his affidavit of 5 August 2010 he said she had an insurance payout of 141,000R. She had annual leave of 23,446R long service leave of 11,669R and superannuation of 59,941R.  This provided a pre tax total of 235,058R. A total of 218,599R after tax. Total value $9,054AUD. The husband claims this fund did not make its way to Australia. That is not the test for an initial contribution to be taken into account and in any event there was no cross-examination on that issue.

  5. In a UCO Bank No 937 account (jointly held with her mother) the wife had the equivalent of $1,033.  The husband accepts that was the case. There was another minor amount in another account.

  6. As for jewellery the wife set out a number of items of gold which she said equated to 587 grams of gold. 75% of the jewellery was a wedding gift from family. The husband concedes all of the claims of the wife in relation to the jewellery set out by the wife in her affidavit on page 3 except 12 pairs of ear rings.  I accept the wife’s evidence on that point.  As pointed out later when the wife sold her jewellery she received $770.

The Husband

  1. I find the husband had the following real estate:

    a)A property at Y. The property was unencumbered. The property was sold in November 2004 for $350,000 gross, $340,000 net.

    b)A property at A. It was unencumbered. The property was sold May 1997 for a gross sale price $75,000, ($72,722 net). The husband sets out in his affidavit how the sale funds were disbursed (paragraph 162 of 5 August 2010) and there is no dispute as to that detail.

    c)A property at T. At the date of the marriage there was $6,000 owing on the property mortgage. The property sold in 1999 for $72,000 gross ($70,000 net). Prior to the sale and in March 1995 the husband’s mother gifted him $6,333 which was used to repay the mortgage.

  2. I find the husband had the following further assets. There is no real controversy about these items.

    a)Shares in a company O Pty limited. The husband held 3000 shares. Those shares are still held today.

    b)Contents of a house.

    c)Toyota Hilux vehicle, tools , tractor and a ride on mower.

    d)The husband had bank accounts totalling $6,069.

    e)The husband had Westpac Super account of $1,964.

Financial Contributions

The Wife

  1. The wife claims a contribution from income earned during the marriage.

  2. Her employment commenced from the date of the marriage where she remained working for P Organisation in India. Her income was $165 per month net. This is accepted by the husband.

  3. When she arrived in Australia the wife obtained employment in June 1995 working on a farm in Queensland. She worked until March 1996 and earned $6,183 net.

  4. From April 1996 to March 1998 she was employed by a telecommunications company earning $71,868 gross.

  5. March to April 1998 she was employed by a recruitment company and earned $1,560 gross.

  6. From April 1998 to June 2000 she worked for a bank and earned $74,996 gross.

  7. From June 2000 to May 2003 she worked for a communications company and earned $78,996 gross.

  8. The husband asserts and the wife agrees that her gross earnings during the marriage totalled $259,949.

  9. The wife asserts that all her savings at the commencement of the marriage was spent as set out in her affidavit. The husband initially contested that some of the money was gifted to family however he did not press that case.

  10. The husband alleges that in August 2002 the wife established her own bank account, being the streamline account with the Commonwealth Bank. The husband accepts that during the marriage the wife spent her income on family expenses relating to the marriage.

  11. The wife asserts and the husband accepts that there was profit of about $770 from the sale of the wife’s gold jewellery. This is already taken into account as an initial contribution.

  12. During the marriage the wife inherited land in India upon which the parties built a house.  Both parties contributed to the funds used to build the house.      

The Husband

  1. During the marriage and in March 1995 the husband received a gift from his mother of $6,666 which was paid to reduce the mortgage on the T property. This has been referred to earlier in these reasons however it was not considered as a contribution. I take it into account at this point.

  2. The husband had rental income from the A property from 28 July 1994 until November 1996 ($115 per week) of $10,692. This is agreed.

  3. The husband had income from the T property from 10 July 1994 to 4 May 1999 ($120 per week) of $25,619. That is agreed.

  4. The husband was employed by an equipment company.

    (a) From 25 July 1997 to 17 October 1997 he received $2,347 gross.

    (b) From 6 March 1998 to 26 March 1998 he received $3,750 gross.

    (c) From 1 July 1998 to 11 December 1998 he received $7,002 gross.

  5. The husband was employed with F Company from 30 November 1998 to 15 January 1999 and received $6,000 after tax.

  6. The husband was employed with K Pty Limited from 23 March 1999 to October 1999 and received $34,336 gross income.

  7. The husband received income from the Y property for agistment from 17 November 1994 to 29 September 1998 totalling $2,104.

  1. The husband received income from K Australia Pty Ltd from 9 February 1999 to 16 November 1999 of $49,664 gross.

  2. The husband received income from D from 28 November 1999 to 23 July 2000 of $24,384.50 after tax.

  3. The husband received income from C Pty Ltd from 10 May 2000 to 26 October 2000 of $16,974.

  4. The husband has calculated, and I accept that the total income received by him during the cohabitation was $146,648 after tax.

  5. Between 1992 and 2010 the husband had not lodged tax returns. On 11 December 2009 he delivered a letter to the Australian Tax Office (ATO) advising he had not lodged tax returns for the period. The ATO have since provided him with forms and he has now completed and lodged his returns for the years 2002 to 2010. He will be lodging the remainder in due course. To this date he has not received any assessment.

  6. The husband believes that he is owed a refund by the ATO.

  7. I referred earlier to the sale proceeds of the property at A, a property which the husband brought to the marriage. From the sale proceeds money was applied to enable the parties to purchase and then pay off the property at B.

  8. The property at A was sold for $75,000 on 9 May 1997. Of which $50,000 was applied as a deposit for the purchase of the B property. A further payment of $7,500 was made on 5 August 1997. The B property was purchased in July 1997 for $185,000. A mortgage to RAMS for $135,000 was taken out.

  9. In May 1999 the husband sold his property at T. It sold for $70,000. The net sale funds were paid to RAMS to reduce the mortgage on the B property to $38,653.

  10. Between March 1999 and October 1999 all the husband’s earnings from K Pty Limited were paid to RAMS and paid off the mortgage. (This contribution is already counted by including all of the husband’s income as a separate contribution).

  11. The parties used the B property to borrow further funds from time to time as required during the marriage.

  12. When the B property sold each of the parties removed about $99,000 from their savings account which was largely the proceeds of sale of the B property.

  13. The consequence of this stated history is to show that the husband must be credited with substantial contribution to the acquisition of the B property and thereby to the $97,000 which the wife removed from the bank account at the time of separation.

  14. In relation to the building of the house on the wife’s land in India, the husband says the funds “were derived from common resources”. As mentioned elsewhere in these reasons the parties do not agree about the exact amount that was sent to India. It was somewhere between $40,000 to $50,000. The parties have each included or excluded cost of travel and accommodation in their respective estimates of costing.

  15. As mentioned elsewhere in these reasons the husband is entitled at law to transfer the property he inherited from his aunt into his own name. He was the only beneficiary of her estate. No challenge to her will has been mounted.

  16. The husband has therefore contributed his entitlements in that property to the marriage. In addition the husband and wife sold shares belonging to his late aunt which realised $16,000. Those funds were used by the parties, in part to carry out work on the property and otherwise to meet their every day expenses. After the parties took up residence in the husband’s aunt’s house they paid the outgoings on the property.

Non-Financial Contributions Including that Made in the Capacity of Homemaker and Parent

  1. I make the following findings in relation to non financial contributions. Much of this was agreed between the parties in submission.

  2. During the marriage there was a year (May 1996 to May 1997) when the husband lived in Queensland and the wife in Sydney. The husband was in Sydney for one month during Christmas that year. Each year except 1995 the wife had a month in India each year.

  3. The wife did all the cooking. The husband did washing up after the meal. The husband did vacuuming. The wife made the bed. The husband did the shopping and the wife accompanied him. I accept they did the shopping together. The wife put the washing in the machine. The husband put it out. He usually brought the washing in. The husband cleaned the kitchen with the wife after the wife cooked the meal.

  4. During the marriage the wife did not drive a car. The husband drove the wife where she had to go.

  5. The husband played a major role in obtaining the necessary visa for the wife to travel to Australia.

  6. The husband drove the wife to church each week whilst they were together.

  7. The husband carried out renovations to the property at A, and also painted the T property.

  8. Prior to the sale of the B property the husband painted the whole of the inside of the house.

  9. The husband moved the parties’ belongings to his aunt’s property in S. He also moved the parties’ belongings from their prior home to B.

  10. The husband did tiling work on the B property.

  11. In 1996 the husband removed mould and then painted the A property inside and out in readiness for its sale. He also did some renovation work to the property at that time.

  12. In about 1997 the husband painted the inside of the T property.

  13. The husband managed the parties’ finances during the marriage.

  14. The husband assisted the wife in settling into Australia. He assisted her in looking for employment. He drove her to work whilst the parties lived in Y. The husband drove the wife to work on the farm.

  15. The wife studied accountancy at a Queensland University for a term. The husband facilitated that and supported her with it.

  16. Following the marriage the parties worked on the building of the wife’s property in India. They spent time at the site and I accept the husband made a contribution of significance to the building of the property. The contributions included design for the property. He initiated the tender process and considered all tenders. He attended at the site. He then supervised the building work. He did cleaning work on the house. He unloaded trucks delivering building materials. He washed down the property each day after the workers left. He designed stairs and supervised the installation of same. He purchased items for the house such as tiles, light fittings, plumbing fittings and the like. He shovelled soil and materials. Overseeing the work and payment of workers/ contractors.  Securing building materials to prevent theft.

  17. I also accept the wife made contributions in the nature of selecting materials and assisting the husband. Details of those contributions are set out hereafter under the heading “The Indian Property”.

  18. The parties decided the wife should be able to claim her study associated with the Real Estate business, as a contribution. The husband also claims to have supported the wife from his workplace.

  19. The husband has claimed a contribution towards the M Association. This was not an asset of the parties or a money generating enterprise. These types of contributions cannot be taken into account.

  20. When the wife took on study at University I accept the husband supported her in that undertaking. 

The Migration Business

  1. In May 2002 the wife completed study for the Migration Agents course. In November 2002 the wife was registered as a Migration Agent.

  2. The parties planned to start a migration agency business together. The parties planned to seek clients from India. The husband would certify documents (as a JP).  They planned to work from Sydney. They agreed to start the business in November 2002. The wife advertised in the newspapers. There were many applications in response to the advertisement. None qualified because they did not fit the “work experience” criteria.

  3. The wife is critical of the husband’s role or lack thereof in this business. Nothing flows from that criticism in my view.

  4. The business did not commence as the parties separated.

  5. The husband supported the wife with her studies as best he could. This included driving her to different places.

  6. The husband managed the rental properties and the family finances.

  7. The property at S, is a property which was owned by the husband’s aunt prior to her demise. She died in March 2002. The husband and wife took up occupation of the property in January 2001. They lived there until separation. The husband has lived there since the separation. The husband carried out some repairs to that property. He replaced carpet, replaced the kitchen, widened a doorway, and installed some heat lights in the bathroom. He painted the property, replaced blinds, and did some kitchen tiling. The improvements were paid for by the aunt.

  8. The hot water system was replaced by the parties.

  9. During the occupation of the S property the parties paid the outgoings on the property. The parties agree this was significantly less than the rental value of the property.

  10. The provision of the property for the occupation of the parties I consider to be a contribution made on behalf of the husband and will so assess it. The accommodation provided considerable benefits to the parties.

  11. The husband made improvements to the B property including painting and did re-tiling work on the balcony.

  12. The husband did work on the A property to prepare it for sale.

  13. The husband did painting work and roof work on the T property.

  14. Both parties have made joint contributions towards the M Association. That was a social association and did not involve any money making enterprise.

Assessment of section 79(4) Contributions from Date of Separation

The Wife

  1. I make the following findings:

    a)The wife was in employment post separation and therefore had the capacity to maintain her savings at a level.

    b)The wife contributed to the parties’ hospital benefits fund for two months post separation.

    c)The wife has contributed to her superannuation. This has been considered later rather than assessed at this point.

    d)The wife has been unable to save any money post separation.

    e)The wife affected improvements to, maintenance of and the sale of her property in India.

The Husband

  1. Each of the parties continued to meet joint expenses between January and March 2003.

  2. At the date of separation the husband owned the Y property. That was sold in December 2004. He met the expenses on the property during that time. To sell the property the husband stayed for 3 weeks near the property and also engaged others to help him.

  3. The proceeds of the Y property were almost $340,000 and were deposited by the husband in the UBS Bank in Switzerland. Since that time the fund has increased to $432,990.

  4. The husband received an inheritance from his mother of $50,151 on 8 April 2003 and $13,182 on 28 October 2005. These funds have been expended by the husband for his own support since the separation.

The Indian Property

  1. On 16 April 2001 the wife became the registered owner of the vacant land in India. She had inherited the property. On the same date her sister relinquished her share and gave it to the wife. The land, on which the house was built, came from that source.

  2. The husband alleged that the land owned by the wife’s sister was bought by the wife or the parties rather than being the subject of a gift. The husband subsequently agreed it was gifted.

  3. The husband alleges that in a discussion with the wife’s sister she said words to the effect that the sister will have a share in the property and that she has a right to enjoy the property.  There is no supportive evidence of this arrangement and the wife denies it. I do not accept the husband’s allegation.

  4. The husband designed a building. He prepared the plans. The plans were sent to India. The wife took the plans to council. A firm of consultants was engaged. The plans were passed by council. The wife says 2,100R was paid for the approval of plans. She said that 9,000R was expended on clearing the land. There was other money spent clearing the land just before commencing the construction. At an earlier time 3,000R was paid to assist the expeditious handling of a partition of the father’s land. I accept all those facts.

  5. The wife paid stamp duty on the transfer of the land to her name. The cost was 4,500R plus 1,816R. Solicitors and registration fees cost 25,000R.

  6. The parties met with the builder in India. The husband submitted plans for a quote. A builder was engaged. In November 2002 the husband went to India. The house was completed in December 2002 or January 2003.

  7. The Husband says the property cost $48,000 the wife says it cost $41,000.

  8. The following amounts were paid:

    a)31 October 2001 - $6,000;

    b)3 May 2002 - $10,000;

    c)29 August 2002 - $20,000; and

    d)14 December 2002 -$4000.

  9. The husband says that he also paid for items on credit cards. I accept that. The parties agreed that the husband had to be accommodated while the house was being built. The husband’s airfare to India was $1,600. The husband said all additional costs were about $7,000. I accept that.

  10. I accept that the parties spent $48,000. The house was completed by early 2003.

  11. The wife says the house was locked and it was cared for by her sister who lived next door. A cleaner was engaged to clean the house.

  12. Until August 2006 the house was vacant. The wife stayed in the house for a month each year. In 2004 the wife built front steps and did drain work. The house was painted. She installed curtains. The electric wiring needed to be replaced. That happened in 2005. The place was not rented out.

  13. In August 2006 the wife transferred $9,500 to her sister AF and another nephew.  Then a nephew commenced to live in the house. Other sisters and family lived there until September 2007.

  14. The wife says the property was sold to her sister JC for 12Lakhs ($35,600). The money was paid to the wife in Australia by her nephew NC between 5 and 9 October 2007.

  15. The husband says that in an email by the wife to her solicitors on 26 August 2007, she told him she intended to sell the property. The wife said it was to be sold for $7,000 less than the valuation (See exhibit W4 for the valuation and H6 for the email). The parties agree the valuation figure converted from Rupees is $45,060.

  16. On 1 September 2007 the property was transferred to JC and NC. The deed said that the sale price was 12 Lakhs but no money was paid at that time.

  17. On 5 September 2007 the wife said in an affidavit she had sold the property.

  18. There was 12 Lakhs deposited to the wife’s account in India. The money came from Father R. That money stayed in the wife’s bank account until 14 December 2007 when it was placed on IBD. The wife did not disclose that deposit in her Form 13.   The wife was paid in Sydney on 5 September 2007.

  19. On 16 January 2008 the wife received a letter of demand from solicitors for the purchasers of the property for the repayment of the $35,000 paid in Australia.

  20. On 13 January 2009 the money in the IBD in India was withdrawn.

  21. I accept the facts recited above under this heading.

Whether the Wife has Secret Funds

  1. The husband says that the wife’s income in 2009 when compared to her stated expenses was such that she had the capacity to pay to NC the sum of $14,000. He has no evidence of any such payment being received. Further the husband did not put to NC that he had received any funds from his Aunt in 2009 as alleged by the husband.

  2. The husband said the wife had not given sufficient particulars, when answering his requests for particulars, to enable him to see how the transactions, relating to the sale of the Indian property, took place.

  3. The husband alleges that the wife has failed to give particulars of this sale and that has caused delay and the husband to have to expend additional money to ascertain the true position.

  4. The wife says on 9 October 2007 she brought the sale deed to the Court. The wife says that on 13 January 2009 the money in the IBD in India was transferred to the account of NC with CitiBank in India. The wife has a copy of the transfer document. The wife had not produced it at an earlier time.

  5. The wife’s evidence is that she had been told by her Counsel that the money had to be deposited to an account in India. However the money was deposited to the wrong account. The wife had to have the money paid to her non resident account otherwise there would be considerable tax to be paid. In order then to show the money had been paid for the sale an arrangement was made for NC to borrow the $35,000 in Australia and pay the wife here.

  6. Taking into account all of the above I find on the balance of probabilities, the property has been sold by the wife as she alleges.

The Value of the Indian Property At the Date of Transfer and at the Current Date

  1. The valuer Mr N was engaged by the parties to value the Indian property at 1 September 2007 and current date. He valued the property at 1 September 2007 as 18,17,500R  The parties agree that is $55,075.

  2. The husband says I should not accept value because it is tainted.

  3. The Court ordered on 23 October 2009 the appointment of the valuer.  The husband said that the wife shopped around for a valuer.

  4. The wife went to India. She contacted the first valuer. He was not there. She had a conversation with the valuer’s wife. As a result she became concerned about the impartiality of that valuer and so she contacted the second valuer on the list, Mr N.

  5. The husband provided a list of questions to the valuer. He asked for about $2,700 to provide answers. The husband would not pay that amount. The wife says the questions included legal questions which would require the engaging of lawyers.

  6. The valuation document does not specify comparable properties.  The valuer says that the cost of building materials has increased considerably. That does not appear to be reflected in the valuation given that the cost of building was in the $40,000’s in 2002.

  7. I requested that the husband provide specific written submissions addressing why the valuation evidence should not be accepted. The husband made written submissions under the heading “Mr N’s Report”.

  8. The husband’s attack on the valuation report is connected with the failure of the expert to answer the questions asked of him by the husband. The evidence establishes that the valuer required payment to answer the questions. The husband refused to pay the sum sought and said it was extortionate. The wife said the valuer had claimed he would need legal advice in relation to some of the questions and he therefore would need to engage lawyers. The husband says this information shows that the wife had contact with the valuer and this is impermissible in relation to a single expert. He says therefore that the report is tainted and should not be accepted. This complaint thus raises the question of what is to be done by the Court in the circumstances in determining the value of the Indian property at the relevant date. The husband answered that question in his submission by saying:

    In the vacuum manifest by no evidence being allowed in relation to surrounding properties including the costs associated with being constructed for [the wife’s sister] I was compelled to accept [Mr N’s] value.

Consequence of the Undervalue Sale of the Indian Property

  1. The wife says that at the time of the sale she believed the value of the Indian property was 14.87 Lakhs which was $45,060 at that time.

  2. The wife sold the property for $35,000 this was $10,000 under the value she believed the property was worth at the time.

  3. The wife said she had agreed to sell the property to another person for 14.84 Lakhs.  She said “He died. I could not find anyone else. So I sold the property to my sister.” “I negotiated with my sister. She had to borrow. She said she could only afford 12 Lakhs plus pay the expenses.”

  4. The wife agrees that the Court should treat the sale at $45,000 rather than $35,000.

  5. In the circumstance the adding of the difference between the sale price and the valuation of the property should be treated as an “add-back” in the balance sheet as sought by the husband.

Assets, Liabilities and Resources at Separation

  1. Given that the parties have been separated for three years it became important to know what the assets, liabilities and resources were of the parties at the date of separation. Each of the parties gave evidence in relation to this matter and made both oral and written submissions.

  1. I find the parties financial position as at the date of separation to be as follows:

    ASSETS

    ·       The Husband had the Y property.

    ·       The wife had the property in India.

    ·       Husband’s savings $99,500 from the sale of the B property.

    ·       Wife had savings of $97,000 from the sale of the B property.

    ·       The Wife had further savings in Australia of $11,076.

    ·       The Wife had $350 in the State Bank of India.

    ·       The wife had a State Bank of India joint account with her sister $148

    ·       The wife had a UCO bank joint account with her sister $72.60.

    ·       Wife’s account with UCO  $141.

    ·       Wife’s Super balance $17,630.

    ·       Wife’s Bond (rental) $840.

    ·       Wife’s jewellery $3,000.

    ·       Husband’s super $1,964.

    ·       Husband’s account $270 Bendigo Acc.

    ·       Husbands’ UBS Swiss account $90.

    ·       Joint Subaru Car.

    ·       Husband’s shares in O Pty Ltd $4,000

    ·       Husband’s resource in S property.

    ·       Husband’s plant & equip on Y property.

    ·       Each party’s furniture & effects.

    ·       On 4 April 2003 the husband inherited $63,330.

    ·       Wife’s credit card debit  $646

  2. The changes of substance to the parties’ financial position post separation is that each have spent the money they received from the sale of the B property. Each party received about half of the proceeds.

Assessment of Contributions to Superannuation

  1. The wife had no superannuation in Australia prior to the date of marriage. After she commenced work in Australia she commenced to accumulate superannuation. At the date of the separation her superannuation was worth $17,630. At the date of the hearing, seven years later, her superannuation is worth $51,500. At the date of separation the husband’s superannuation was worth less than it currently stands (husband asserts $1,964.).

  2. The husband told me during the trial that he had accumulated some superannuation during his work in the mining industry and before the marriage. He had invested those funds into the properties he had bought in A and T and in other investments. The precise detail was not provided however all of the assets he had at the date of the marriage have been particularised by him.

  3. The majority of the wife’s superannuation was accumulated post separation. The assessment of contribution must take that into account.

  4. The husband had no superannuation at the date of the marriage. His current entitlement is $3,500. This, as best I can determine is as a result of his employment during the marriage being limited. There is no evidence of his having accessed any of his superannuation. He would appear, at his present age to be able to realise his entitlement now.

  5. I assess the parties’ respective contributions to the accumulation of superannuation to be 80% to the wife and 20% to the husband.

Conclusion on section 79(4) Contributions

  1. The husband’s initial contributions vastly outweighed the wife’s.

  2. The financial contributions during the cohabitation substantially favour the wife.

  3. The non financial contributions favour the husband by a significant proportion but not substantial.

  4. The post separation contributions are about equal but do favour the husband slightly. This is because of the inheritance received, which was used then to support him since the separation. The wife’s work on the Indian house post separation and the earnings she has generated post separation counter the husband’s contribution of the inheritance and selling the Queensland property to a significant extent. 

  5. All in all I assess the contributions of the parties to the acquisition, conservation and improvement of the property of the parties to the marriage or either of them including such property which is no longer the property of the parties to the marriage or either of them to be 70% to the husband and 30% to the wife.

Consideration of section 75(2) Matters

  1. The husband was born in 1945 and is 65 years of age. The wife was born in 1955 and is 54 years of age.

  2. The wife is in good health. The husband is in good health apart from a haemorrhoid. He is unable to have it fixed because he no longer has private health insurance.  He also says that when he exerts energy he becomes breathless. The husband did attempt to give evidence of other medical complaints, especially in his written submission, however there was no acceptable medical evidence provided.

  3. The wife is employed as an administration assistant. Her income as stated in her Financial Statement is $1,099 per week before tax. Part of her income is from acting as a Migration Agent. She may, at some future time, when not burdened with this litigation, be able to develop that business further. There is no reliable evidence to help me understand what financial future that work might provide for her.

  4. During the marriage and in 2002, the wife studied for and obtained a migration agents certificate.  There was a cost of about $1,350 associated with obtaining the registration.  Money was also spent on books for the migration course.

  5. The husband’s income consists of an income earned on deposits. He does have a substantial amount of money invested in Units on the International Money market ($432,919).

  6. The husband has not worked since working on the house in India. His last paid employment was in October 2000. He was working as draftsman. The husband is qualified as a toolmaker however he has not worked as a toolmaker for many years. The wife asserts and the husband agrees that he was sacked from the positions he held with F Company, D Company, K Company, a resources company and a mining company. The reasons for the sacking were incompetence, acting contrary to work rules and not fulfilling expectations.

  7. Given his age, training and physical state it is reasonable to conclude that the husband will not work in the future. Subject to meeting a means test, he ought to be eligible for a government pension. In his evidence he admits that Centrelink has told him he is eligible for a part pension however he chooses not to accept the pension.

  8. There is no reason why the wife would be unable to work for the next 10 years.

  9. The husband has a small superannuation fund. The wife has a superannuation fund valued at $51,500. Both these funds have been included in the balance sheet and the parties’ contributions to the funds have been taken into account in assessing contribution based entitlements. I have assessed their respective contributions to the funds. The husband seeks a splitting order in relation to the wife’s superannuation. I need to consider that order at this point. The wife opposes a splitting order.

  10. A splitting order does not operate to generate funds for the non member spouse until the member spouse commences to draw against the fund. The wife will probably not access her superannuation until she is 65 years of age. Should the husband still be alive at that time he will be 76 years of age. His evidence suggests that he is not addressing his health issues appropriately at this time. He says he is obese and that diagnosis is patently obvious. Thus it will be many years, if at all, before the husband will be able to take advantage of a splitting order in his favour. The wife opposes a splitting order. In fairness to the husband it seems to me that his circumstance call for the greatest capital result he could achieve now as the most practical approach to the case.

  11. In the circumstance I would decline the husband’s application for a splitting order.

  12. The wife has $20,000 in the balance sheet as a notional asset. This arose because she sold her Indian property at a price which she believed was $10,000 under value but which the valuer said was $20,000 under value.

  13. The husband seeks an adjustment for the parties’ funds spent on the support of the wife’s nephews during the marriage. The husband claims $160,000 was spent on the support of the nephews and the wife claims $39,000 was spent. I have considered the evidence in relation to this matter, as set out earlier. Apart from the lump sum costs associated with the payment of the nephews’ university fees, the bulk of the support required to be provided was in the nature of providing food and shelter for them. That occurred post separation and fell to the wife. She was able to support them from her own resources. Had the wife not expended nearly $39,000 on their university fees then she may still have those funds in the bank. However, it is to be remembered that the wife had a period of time when she was unemployed. During that time she required financial assistance from her nephews. If she had the funds in the bank then no doubt she would have expended those funds. I also need to remember the source of the funds was the wife’s share of the sale proceeds of the B property. In this respect each party received about $99,000. The husband has not been called upon to account for his expenditure.

  14. It is also to be remembered as a matter of fairness that the husband has spent all but $21,000 of the funds received from his inheritance from his mother. He has not been required to account for his expenditure. I accept he has been unemployed during that period and has spent the funds on living expenses.

  15. Ultimately I do not consider I can, in fairness, take the expenditure by the wife of $39,000 of her funds, post separation on the support of her nephews into account in any substantial manner.

  16. The marriage endured for about 9 years. During that period of time the parties lived a comfortable lifestyle which was not lavish. From about 2000 the wife was the only income earner in the form of wages.

  17. As referred to earlier the husband has a resource in the property at S. In my view this is a very considerable resource. It has provided rent free accommodation for the husband (and at an earlier time for the wife) for many years. As explained earlier I consider it will be a resource for the husband for a considerable period of time in the future and may be converted to an asset should the husband choose to distribute the estate.

  18. The wife conceded in evidence that she had made a gift to her sister of $15,000 to assist with her house cost. In her oral evidence she did not say when this occurred however, I consider it probably occurred after separation when the wife had availability to make such payment from the savings she then had. In any event the precise timing is not crucial. The point of taking it into account under section 75(2) (which I intend to do) is because the gift either disposed of assets of the parties during the cohabitation or alternatively if it occurred post separation changed the wife’s financial circumstances in a manner which would disadvantage the husband in the exercise currently being carried out.

  19. The wife conceded she paid for schooling for friends in India during the marriage. No detail of cost was elicited by the husband. The husband also obtained a concession from the wife that she gave the Catholic Church $3,400 each year by way of donation. I have not been provided with any evidence as to the amount of money paid by the wife for education of children in India. So far as the donations to the church are concerned I do not consider that to be waste of the parties’ resources and I would consider it in the same manner as the parties may have spent on personal entertainment. After all had the wife spent money on hairdressers, beauty treatments or the like it would have been treated as a normal living expense unless it was outrageously disproportionate to the parties’ available income and resources.

  20. During the marriage the wife travelled to India approximately annually. The husband made some trips to India. He was there for some of the time the house in India was being built.

  21. During the marriage the wife was afforded the opportunity to study for and achieve a Migration Agents qualification. The husband supported her in that application.

  22. The wife says that at separation she got 5% of the value of the parties’ contents. The husband says she has 30%. I find that she received some of the contents, (value unable to be determined) and accept it was well short of half.

  23. The wife has had to pay rental (currently $271 per week) for her accommodation post separation whilst the husband has been able to live in the property he inherited from his aunt and that is not financially encumbered. I accept that his weekly expenditure in maintaining a roof over his head is less than that of the wife.

  24. I need to take into account that I have assessed the parties entitlement based on contribution to the net assets of the parties to be 70% to the husband and 30% to the wife. I have assessed the parties’ entitlement to superannuation to be 80% to the wife and 20% to the husband. That then means that the husband would be entitled to $392,865 worth of net assets and $11,000 worth of superannuation. The wife would be entitled to $168,371 worth of net assets and $44,000 of superannuation.

  25. I have determined that there should not be a splitting order and therefore there needs to be an adjustment to the husband’s property entitlement to reflect the fact that I have assessed his contribution based entitlement to be worth $11,000 and he will in fact be taking only $3,500 worth of superannuation.

Conclusion on section 75(2) Matters

  1. Weighing all of the above matters I consider there should be an adjustment in favour of the wife. That adjustment should be 10%. The matters which have for me weighed the heaviest in this exercise are the husband’s greater share of the parties’ assets based upon assessment of contribution; the disproportionate superannuation entitlements of the parties; the fact that the husband is assessed as having a contributions based entitlement to $11,000 in superannuation, however, as there will be no splitting order he will retain only $3,500 in superannuation; the husband’s resource in the property occupied by him at S; the husband’s inability to earn an income from personal exertion and the parties different states of health.

Conclusion on the Overall Division of Assets

  1. The above determination will see the wife receive 40% of the parties’ net assets and the husband receive 60%.

Consideration of Whether the Making of an Order is Just and Equitable

  1. The division of assets would see the wife receive $224,494 worth of net assets, together with $51,500 in superannuation and the husband receive $336,742 worth of net assets together with $3,500 in superannuation.

  2. In the circumstances of this case I determine that result to be just and equitable.

The Orders to be Made

  1. I propose orders which will give effect to the following division.

  2. The wife will retain the following:

Assets ($)
·       Wife’s non resident State Bank of India account $45,000
·       Wife’s NAB term deposit $35,000
·       Wife’s NAB savings $2,045
·       Wife’s State Bank of India Joint acc with her sister $54
·       Wife’s UCO account with her sister $32
·       Wife’s account with UCO $197
·       Wife’s rental bond $840
·       Wife’s jewellery $3,500
·       Wife’s Furniture & effects $2,000
·       The difference between the value of the India property and sale $20,075
Total Assets $108,743
Liabilities
·       Wife’s credit card $1,824
Total Liabilities $1,824
Net Assets (excluding superannuation) $106,919

  1. The husband will receive:

Assets ($)
·       Proceeds of sale of Y property, now in UBS $423,919
·       Husband’s Account at Bendigo Bank $278
·       Husband’s UBS Swiss acc. $92
·       Joint Subaru Car $4,000
·       Husband’s shares in O Pty Ltd $4,000
·       Husband’s Nissan car $1,000
·       Husband’s furniture and effects $3,500
·       Husband’s Commonwealth Bank term deposit $21,000
·       Husband’s Commonwealth Savings acc. $208
Total Assets (excluding superannuation) $457,997
Liabilities
·       Husband’s Commonwealth Mastercard $1,526
·       Husband’s O Pty Ltd annual payment $500
·       Husband’s UBS credit card $1,654.
Total Liabilities $3,680
Net Assets (excluding superannuation) $454,317

  1. In order to achieve the division of assets and liabilities as determined by me in this decision it will be necessary for the husband to pay the wife the sum of $117,575. Each of the parties will otherwise retain their respective superannuation benefits.

  2. The husband will be ordered to pay the wife the sum of $117,575 within three months from the date hereof. I propose to set a specific date for the husband to work on. I propose to secure the requirement to make the payment against the husband’s fund in the UBS account which stands in the balance sheet at $423,919.

  3. Each of the parties will otherwise retain the assets in their respective names and/or possession. The wife will need to sign any documents necessary to transfer to the husband her entitlement in the Subaru car.

  4. Each party will be responsible for meeting any liability standing in their name.

  5. Having considered how the orders will operate I continue to be satisfied that the outcome will be just and equitable.

  6. There were a number of orders sought by the husband in his application which have not been specifically referred to by me so far. He sought a declaration under section 78 in relation to the ownership of the Indian property as at 9 September 2007 and current date.

  7. This application was about the husband believing that the wife may still be the owner of the property she formerly owned in India. This issue was not pursued by the husband in the cross-examination of the wife, as best I could discern, however, I do conclude that the evidence would not enable me to find that she still holds a beneficial or legal interest in the property.

  8. Still connected with the Indian property, the husband sought an order under section 106B of the Act. Consistent with that set out earlier, there is insufficient evidence to support the making of the order even if there be any jurisdiction to do so given the property is in India. It would be impossible to implement any order which the wife did not facilitate herself. No order could be made against an Indian official by way of enforcing the order.

  9. Order 14 sought by the husband I do not understand.

  10. The balance of the orders sought by the husband has been dealt with albeit not always in the manner sought by the husband.

  11. The wife sought an order against the S property. I have not made that order as it is unnecessary to effect the determination of the Court.

I certify that the preceding two hundred and fifty-four (254) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench.

Associate: 

Date: 10 December 2010

Key Legal Topics

Areas of Law

  • Family Law

  • Equity & Trusts

  • Civil Procedure

Legal Concepts

  • Injunction

  • Charge

  • Remedies

  • Costs

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Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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Norbis v Norbis [1986] HCA 17
Norbis v Norbis [1986] HCA 17
Chorn & Hopkins [2004] FamCA 633