Iyer & Subramanium (No. 2)
[2013] FamCAFC 80
•21 May 2013
FAMILY COURT OF AUSTRALIA
| IYER & SUBRAMANIUM (NO. 2) | [2013] FamCAFC 80 |
| FAMILY LAW – APPEAL – Appeal allowed in part in order to remedy an obvious oversight in the orders made by the Federal Magistrate which was brought to the attention of the Full Court by the solicitor for the respondent wife – Appeal otherwise found to be entirely without merit |
| Family Law Act 1975 (Cth) |
| Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248 |
| APPELLANT: | Mr Iyer |
| RESPONDENT: | Ms Subramanium |
| APPEAL NUMBER: | NA | 14 | of | 2012 |
| FILE NUMBER: | BRC | 10611 | of | 2009 |
| DATE DELIVERED: | 21 May 2013 |
| PLACE DELIVERED: | Sydney |
| DATE HEARD: | 30 April 2013 |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May, Strickland & Ainslie-Wallace JJ |
| LOWER COURT JURISDICTION: | Federal Magistrates Court of Australia |
LOWER COURT JUDGMENT/ORDER DATES: | 15 February 2012 (amended on 24 February 2012) |
| LOWER COURT MNC: | [2012] FMCAfam 61 |
REPRESENTATION
| FOR THE APPELLANT: | Self-represented |
| SOLICITOR FOR THE RESPONDENT: | Terry Anderssen Solicitor |
Orders
The appeal against the orders of Federal Magistrate Baumann (as he then was) of 15 February 2012 be allowed in part.
The orders of Federal Magistrate Baumann (as he then was) be varied to include an order to the following effect:
The wife shall do all acts and things necessary to relinquish all her interest in any joint bank accounts held in the parties’ names in India such that the husband is solely entitled to the funds held in those accounts.
The appeal otherwise be dismissed.
The husband pay the wife’s costs of and incidental to the appeal as agreed or assessed on a party and party basis.
The wife be permitted to deduct the costs payable by the husband to the wife in pursuance of Order 4 herein from the money otherwise to be paid by her to the husband in accordance with the Federal Magistrate’s orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Iyer & Subramanium (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 14 of 2012
File Number: BRC 10611 of 2009
| Mr Iyer |
Appellant
And
| Ms Subramanium |
Respondent
REASONS FOR JUDGMENT
Introduction and background
By Notice of Appeal NA 14 of 2012 filed on 27 February 2012 Mr Iyer (“the husband”) appeals orders for property settlement made by Baumann FM (as he then was) on 15 February 2012. The Federal Magistrate ordered Ms Subramanium (“the wife”) to pay $58,500 to the husband within 35 days of the order, and the husband to then transfer his interest in the former matrimonial home to the wife. Orders were also made to give effect to the sale of the property in the event that the wife was not able to raise the funds necessary to make the payment to the husband.
The matter before the Federal Magistrate concerned both property proceedings and proceedings in relation to the parties’ child, D, (“the child”). By Notice of Appeal NA 15 of 2012 the husband also challenged the Federal Magistrate’s orders in relation to the child. In November 2012 the matter came before the Full Court on the wife’s application for an order that the husband provide security for her costs in the appeals.
In the course of hearing that application, the wife was given leave to make an oral application that the husband’s appeal as relates to the child be dismissed. The basis of the proposed application was that the child was then aged 17 years and would at or about the time of the final hearing of the appeal be aged 18 years. There would thus be no utility in the husband proceeding with his appeal against the parenting orders. That oral application was then made and we heard submissions in support of it. The husband opposed the appeal being dismissed and he made submissions in support of that opposition. On 15 January 2013 we made orders in conformity with the wife’s application and dismissed the husband’s appeal against the parenting orders.
The wife opposes the husband’s appeal against the property settlement orders and seeks to maintain the Federal Magistrate’s orders.
When the wife’s application for security for costs was heard, the husband did not appear. He had not applied for leave to appear by telephone or otherwise. However, the husband was contacted by the Court and made submissions on the wife’s applications by telephone.
In relation to the property settlement appeal, on 24 April 2013 the husband faxed a letter to the Court in which he said:
To whom it may concern,
It is important that I may see the Orders as soon as possible. It would be great if I could receive a copy of just the order by fax as well as it and the rest by post. I would appreciate this much…
He provided a fax number to which the documents could be sent.
A member of the appeals registry staff responded to the husband on the same day as follows:
Dear [Mr Iyer]
I am unsure what orders you refer to in this fax. If you are referring to the hearing of your appeal, please note it is listed for hearing at 10.00 am on Tuesday 30 April 2013 and parties are expected to attend if they wish to be heard.
No response was received to this communication and the husband did not appear on the hearing of the appeal. We further observe that on 26 March 2013, the Appeals Registrar wrote to both the husband and wife informing them of the date and time of the appeal hearing.
The husband had however filed appeal books and a written summary of argument in support of his appeal against the property settlement orders.
The wife was represented by her solicitor at the appeal hearing and argued that the hearing should not be delayed.
In all of the circumstances, we concluded that it was appropriate for the hearing to continue and the appeal was thus heard in the absence of the husband.
It is uncontentious that both parties were born in India and married there in 1990. They lived and worked overseas before moving to Australia in 2007 where they both continued to work. There are two children of the relationship both of whom are now over 18. The parties separated in 2009.
In 2008 the parties purchased a home in Brisbane, Queensland. The husband has an interest in a property in India, the nature and extent of which was a matter of dispute in the property proceedings between the parties.
Reasons of the Federal Magistrate
The Federal Magistrate found at [49] that both parties had worked hard from the time of the marriage. Although, unable to quantify the amount, his Honour was satisfied at [51] that the parties had accumulated savings in India before they moved to Australia.
In September 2008 the parties purchased a property in Brisbane, Queensland for $400,800 of which $300,000 was provided by way of a mortgage. The Federal Magistrate found at [55] that, despite the wife’s assertion to the contrary, the evidence did not allow him to find that she had made significantly greater direct financial contributions to the property prior to separation. However, his Honour observed at [56] that the parties accumulated $100,000 in savings which was used as a deposit on the purchase of the property.
His Honour found that there was, apart from the purchase of the property, one other “major purchase” being a motor vehicle for which $25,000 was paid in 2008. The husband sold that motor vehicle after separation and retained the proceeds. An amount of $18,000 was notionally “added back” by the Federal Magistrate to the list of assets of the parties to be divided between them.
As to savings in India, his Honour accepted the wife’s evidence at [58] that she had had savings of the order of $34,606, some of which was transferred in October 2009 into her bank account in Australia and from which withdrawals were then made. An amount remained in a joint account in India at the time of the hearing before the Federal Magistrate.
When the parties separated the wife moved out of the house property in Brisbane but she continued to contribute to the mortgage payments until July 2010.
The Federal Magistrate addressed the dispute in relation to a property in India at [67]. The husband asserted that he received the property from his father through a Deed of Settlement made in 1996 but claimed that he is not the only beneficiary, but rather he is one of five family members who may be entitled to an interest in the property. The husband further asserted that that interest would only vest on the death of his father.
The wife obtained expert opinion from an Indian lawyer about the nature of the husband’s interest in that property. That opinion was that the property was vested solely in the husband. In response, the husband relied on an affidavit of his father, in which he said that he had reserved to himself a life interest in the property and was living in the property and paying building tax in relation to it (at [73]).
His Honour, after observing that the husband did not challenge the authenticity of the Deed of Settlement, found at [78] that it operated as a “full and complete transfer”. His Honour concluded at [80] that the property was that of the husband and should be included in the pool of assets.
The Federal Magistrate then found the pool of assets of the parties available for division to include: the house property in Brisbane of which the net equity was $123,500; the parties’ “modest superannuation interests” at [83]; the property in India which was valued at $127,660; the wife’s bank account; and the balance of the money remaining in India. To this list of assets, the Federal Magistrate notionally added back the money obtained and retained by the husband on the sale of the car and the wife’s legal fees. The total net value of the list of assets was $373,507 (at [85]).
Turning to the contributions of the parties, the Federal Magistrate found at [89] that from the date of marriage until arriving in Australia, the parties had contributed equally. As to the period from 2007 until separation his Honour found at [90] that, notwithstanding the wife’s superior income for those years, it was not such as to allow for any further adjustment. The Federal Magistrate further found at [92] that the parties’ post separation contributions were also equal.
His Honour found that there should be a “small adjustment” in the husband’s favour because of his contribution of the land in India. While not being satisfied that the husband and his family solely contributed to the construction costs of the building on the land, his Honour found at [93] that “…whatever maintenance costs and costs/charges running with ownership of the property have been incurred, the Father’s family in India has been meeting those costs – whether they lived there or not”. The Federal Magistrate thus concluded that this should be reflected in an adjustment of contributions as to 52.5 per cent to the husband and 47.5 per cent to the wife.
In considering the relevant factors under s 75(2) of the Family Law Act 1975 (Cth) (“the Act”), the Federal Magistrate found at [100] that the wife’s qualifications gave her a superior earning capacity to that of the husband and concluded that there should be a further adjustment in the husband’s favour of 5 per cent because of that earning disparity.
His Honour provided his reasons for judgment on 1 February 2012 and adjourned the matter for a short while to enable the parties to consider their positions and determine whether either was able to raise funds necessary to keep the house property in Brisbane.
On 15 February 2012 the Federal Magistrate ordered that on the wife obtaining finance to enable her to acquire the husband’s interest in the Brisbane house property, she pay to the husband $58,500 in satisfaction of the husband transferring his right title and interest therein to her.
The appeal
Despite the failure of the husband to appear in person, we dealt with his appeal by reference to the written submissions and considering the oral argument of the solicitor for the respondent wife.
The husband’s grounds of appeal were apparently drafted by him. He raises nine challenges and we will set them out as drafted. His written argument, to a degree, supports the grounds.
Ground 1: The court hasn’t taken into full consideration that while I supported [Ms Subramanium’s] endeavour to become a [health care worker] I raised the money to make the deposit for the house in [Brisbane] ($100,000). I also gave up a lot of good jobs so that she would be happy. I have let go of good chances to gain knowledge and experience for her to gain instead.
The husband argued that he had made sacrifices while the wife was training to become a health care worker and that the Federal Magistrate failed to take proper account of this evidence. Further, he argued that he had paid and continues to pay the mortgage on the house. The husband contended that the evidence before the Federal Magistrate was that the house was valued at $440,000 with a mortgage debt of $270,000 and that $170,000 of the original mortgage balance had been repaid. He asserted that he had paid $80,000 over four years in relation to the mortgage together with costs and other expenses. He further argued that he contributed half of the deposit of $100,000 used to buy the house and thus the Federal Magistrate ought to have made orders that reflected these contributions by ordering the wife to pay to him $130,000, being the $80,000 mortgage payments plus $50,000 being half of the deposit.
We observe that the Federal Magistrate found the value of the house property in Brisbane to be $410,000 not $440,000 as now asserted by the husband. His Honour adopted that figure based on an updated valuation by a registered valuer who considered the property market to be declining. His Honour further noted at [84] that the husband contended that the value of the property was $400,000.
The wife’s submission correctly notes that the Federal Magistrate considered the deposit of $100,000 and concluded at [55] that it represented joint savings. Indeed, the husband himself, in his affidavit filed on 25 January 2012 asserted that “[i]nitial equity paid by [Mr Iyer] and [Ms Subramanium] $AUD 100,000”. [AB1: 151]
As to the husband’s assertion that he supported the wife while training to become a health care worker, the wife contended that she was a registered health care worker when she and the husband first met. Further, it was submitted that the wife’s evidence was that she worked continuously during the marriage both in India and overseas, during which time she remitted money to the husband in India.
Finally it was argued for the wife that the husband provided no evidence of work or employment foregone by him while supporting the wife in her work.
We accept the wife’s arguments. The findings of the Federal Magistrate in this regard were open to him and the husband has failed to establish any error by his Honour.
Ground 2: While I am paying off the mortgage, the amount owing is decreasing. I am also fighting to keep both of us out of bad credit history. The current order hasn’t taken into effect that I have had to make another repayment while waiting for this order to settle. If [Ms Subramanium] chooses not to or cannot refinance for the house, I will be adding to the profit made from the house. I will still receive the same percentage (set amount) given in matters 3(f)(iii), and elevate the profit she will attain, if the house is sold due to this.
The husband’s written submissions do not address this point, however, it seems that he argues that while he has had occupation of the property and has been paying the mortgage, he has advantaged the wife, a matter that the Federal Magistrate did not take into account.
The Federal Magistrate acknowledged at [59] that although the wife continued to contribute for some months after she left the home, it was the husband who remained in occupation and made the repayments on the mortgage. As the wife’s submissions correctly observe, it does not follow that because the husband is making the mortgage payments he has contributed to any increase in the value of the property.
The husband has not made out any appealable error in this regard.
Ground 3: The Indian property is still calculated in the assets, this is house belongs to the family, and is currently owned by my father and mother. The court has insulted me by concluding my father’s life to be near its end, and that I would become sole owner. This insult is also utterly incorrect as I have five other family members to divide this matter with, when and if this tragedy falls. Another fact over looked is that she is filing the case for the Indian property against my father, proof over looked that this property is not mine.
(Errors as in original)
The husband
’s submissions argue that the Indian property “is currently owned by my father and mother, not myself”. That was the husband’s contention in the hearing, a contention rejected by the Federal Magistrate.
The Federal Magistrate made specific findings based on the expert evidence in the matter that the property was, as evidenced by the Deed of Settlement, vested in the husband. He rejected the husband’s assertion and that of his father that the father had retained an interest in the property. The husband has not established any error in his Honour’s reasoning.
Part of the ground relates to the wife registering a caveat over the property. This was a matter to which the Federal Magistrate directly referred and said:
81.In some sense, I am satisfied in my view by the actions of the Indian Court to make an order effectively allowing the Wife to caveat the title to the property. If she was unable to demonstrate some interest in the property it is hard to conceive of a basis for any Court allowing a caveat to be applied.
As to the balance of the ground, it does not contain any proper matters for consideration on appeal. The husband has not established error by the Federal Magistrate.
Ground 4: Through the course of this long battle I have paid the mortgage, rates, bills, child maintenance, well above what [Ms Subramanium] would need to survive. The court has not considered the amount of savings I would have been able to make without these hardships, let alone the amount [Ms Subramanium] should have been able to with her higher pay grade.
The husband argues that although they each have suffered financially, the wife has been less disadvantaged because she has a higher income and fewer financial commitments.
The Federal Magistrate made specific reference to the husband’s payment of the mortgage and other outgoings on the house, but also observed at [59] that the husband had the benefit of living in the home. He further considered at [106] that the husband’s income would probably make it unlikely that he could meet the mortgage repayments on any refinancing of the mortgage. The Federal Magistrate further found at [98] that the husband’s child support payments were: “…unlikely to even cover 50% of the costs and needs of a 16 year old boy…”. His Honour further considered that because of the estrangement between the child and the husband, it would be to the wife that the child would look for support.
Any savings the husband might have been able to make had he not been making mortgage payments would surely have been offset by the need to pay for other accommodation, and, in any event, amounts to speculation.
The husband has not made out any error and this ground fails.
Ground 5: [Ms Subramanium] with her higher pay grade has had a huge advantage over myself in court, allowing her access to better legal aid. While this matter is not to bother the court, she has used illegal documents (including a forged photograph), and lies to gain an unfair advantage in court. This is unacceptable and due punishment should be handed.
The Federal Magistrate took into account the wife’s superior income and earning capacity and reflected that in a 5 per cent adjustment in the husband’s favour. To do so was a matter entirely within his discretion and open to him on the evidence and we find no error.
As to the balance of the matters referred to in the ground, there were no submissions nor any evidence to support such a conclusion.
The husband has failed to make out any error by the Federal Magistrate.
Grounds 6, 7, 8 and 9
The remaining grounds of appeal provided:
6.of these include the following:
7.In the Initiating Application (Family Law) she stated that she was an Australian citizen, this was incorrect.
8.A forgery of the signatures owning to [Mr J] and [Ms K] as seen in an Affidavit handed to my lawyer on 5 Aug 2010 and an Affidavit sworn and affirmed on the 12/11/2010 with the court date of 21st & 22nd July 2011. These people state that the house is uninhabited at the moment, I don’t know why this would be important? It is also common knowledge in the area the [Mr J] is a drug traffica in the area, and a causes trouble when he can. Both are also not mentioned to be part of [Ms Subramanium’s] [Religious] Community Group.
9.The court does not recognise that [Ms Subramanium] did live with myself for three days (while we both had DV orders against each other). This happened only after CSA asked her to pay an outstanding amount to me while [the child] was living with myself. I wished not to use [the child] as a witness to this matter. This is also when, and why she added [the child] to the DV orders she had on me, to avoid child maintenance herself, and turn it on me as more stress. It is knowledge that [the child] lived with me for six months, and how he came to me. How [the child] came to her care is avoided.
(Errors as in original)
As to these grounds of appeal, the wife contends: “…these are not proper grounds for the Appeal and have no bearing on the finding of the Court.” We agree and do not propose to engage with them further.
Conclusion
None of the husband’s asserted grounds of appeal has been established. The husband’s appeal should therefore be dismissed, save however, for a matter raised by the wife. It was indicated that the Federal Magistrate’s orders failed to make provision for the husband to retain the funds presently held in joint accounts in India.
It is clear from the Federal Magistrate’s reasons at [104] that he intended to order the husband retain those funds, and clearly calculated the amount necessary for the wife to pay the husband by taking them into account.
As we have already indicated, after delivering the reasons for decision, the Federal Magistrate adjourned the matter for a little time and invited the parties to provide minutes of draft orders that reflected the reasons. It seems that the husband did not provide a draft order but the wife’s solicitor did, although provision for assignment of those funds to the husband was overlooked.
The wife’s solicitor agreed that the appeal should be allowed in part to the extent necessary to remedy that obvious oversight.
We should indicate that this matter was not raised by the husband in any of his grounds nor in his submissions. The solicitor for the wife, fairly and, in our opinion in accordance with the traditions of the legal profession, brought the matter to our attention and readily conceded a remedy. He is to be commended for so doing.
We shall then allow the appeal in part and amend his Honour’s orders to provide for the husband to receive the funds in the joint accounts in India.
Costs
The solicitor for the wife sought an order that the husband pay the wife’s costs of the appeal on an indemnity basis, but conceded that there were no “exceptional circumstances” which would operate to warrant indemnity costs (see Colgate Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248). He did argue that, nevertheless, the husband should pay the wife’s costs of the appeal on a party and party basis. It is entirely appropriate that the husband should pay the wife’s costs. His appeal has been wholly unsuccessful and, in our view, entirely without merit.
The wife has yet to pay the husband the amount required by the judgment. In order to ensure that she receives the costs from the husband, we will order that any amount of costs be deducted from the money due to be paid to the husband by the wife before payment to him.
I certify that the preceding fifty-nine (59) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (May, Strickland and Ainslie-Wallace JJ) delivered on 21 May 2013.
Associate:
Date: 21 May 2013
0
1
1