Jindal and Jindal

[2016] FCCA 2331

FEDERAL CIRCUIT COURT OF AUSTRALIA

JINDAL & JINDAL [2016] FCCA 2331

Catchwords:
FAMILY LAW − Property adjustment − where husband has sole responsibility for child − where the wife has returned to India − assessment of contributions and adjustments.

Legislation:

Family Law Act 1975 (Cth), ss.75, 79

Child Support (Assessment) Act 1989 (Cth)

Cases cited:
Ferraro & Ferraro (1993) FLC ¶92-335; [1992] FamCA 64

Applicant: MR JINDAL

Respondent: MS JINDAL

File Number: DGC 3490 of 2015

Judgment of: Judge Phipps

Hearing date: 29 July 2016

Date of Last Submission: 29 July 2016

Delivered at: Dandenong

Delivered on: 13 September 2016

REPRESENTATION

Solicitor for the Applicant: Ms Narangala

Solicitors for the Applicant: Settle Easy Law

The Respondent: No appearance

ORDERS

Children

1. That the husband have sole parental responsibility for the child X born (omitted) 2010.

2. That the child live with the husband.

3. That the child spend time and communicate with the wife as agreed with the husband.

Property

1. That the husband pay the wife the sum of $48,600 (“the payment”) on or before 7 December 2016 (“the date”).

2. That contemporaneously with the payment the wife do all acts and things and sign all such documents as may be required to withdraw any caveat she has over the land situated at and known as Property C being the whole of the land described in Certificate of Title Volume (omitted) Folio (omitted) (“the real property”).

3. That in the event that the whole of the payment has not been made by the date the husband and wife sign all documents and do all things necessary to sell the real property (“the sale”) and upon completion of the sale, the proceeds of sale be applied:

   (a)First to pay all costs, commissions and expenses of the sale;

   (b)Secondly to discharge the mortgage and all other encumbrances affecting the real property;

   (c)Thirdly so much of the payment as is then outstanding together with interest at the rate of 7½% per annum to the wife;

   (d)Fourthly the balance to the husband.

4. That unless otherwise specified in these orders and save the purposes of any monies due under these or any subsequent orders:

   (a)Each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders;

   (b)Insurance policies remain the sole property of the owner or beneficiary named thereon or therein;

   (c)Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders.

NOTATION: These orders have been amended pursuant to rule 16.05(2)(e) of the Federal Magistrates Court Rules2001 to reflect the correction in Paragraph 5 of the Orders and in Paragraph 3 of the Reasons for Judgment from “Certificate of Title Volume (omitted) folio (omitted)”  to “Certificate of Title Volume (omitted) Folio (omitted)”.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 3490 of 2015

MR JINDAL

Applicant

And

MS JINDAL

Respondent

REASONS FOR JUDGMENT

Introduction

1. The husband applies for both children and property orders.  The wife lives in India and agrees with the orders proposed by the husband except for the amount that the husband pay her upon transfer of her interest in the former matrimonial home to the husband.

2. The parties’ one child is X born (omitted) 2010.  The wife accepts in her response that the husband have sole responsibility for the child and the child live with him.  The husband applies for an order that he may obtain a passport for the child and that is not opposed by the wife.  An order for sole parental responsibility is sufficient for that purpose.  The husband proposes that the child spend time and communicate with the wife at such times and in such conditions as agreed between the parties.

3. Both parties propose that the wife transfer to the husband her interest in the matrimonial home at Property C being the whole of the land described in Certificate of Title Volume (omitted) Folio (omitted).  The husband proposes that upon that transfer he pay to the wife the sum of $15,000 less $11,578.27 costs of the proceedings.  The wife proposes that the transfer take place upon payment by the husband to her of the $179,250.

4. Section 79 of the Family Law Act 1975 (Cth) provides for the alteration of property interests:

   Alteration of property interests

   (1)  In property settlement proceedings, the court may make such order as it considers appropriate:

   (a)  in the case of proceedings with respect to the property of the parties to the marriage or either of them--altering the interests of the parties to the marriage in the property; or

   (b)  in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the marriage--altering the interests of the bankruptcy trustee in the vested bankruptcy property;

   including:

   (c) an order for a settlement of property in substitution for any interest in the property; and

   (d)   an order requiring:

   (i)  either or both of the parties to the marriage; or

   (ii)  the relevant bankruptcy trustee (if any);

   to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.

   (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)  he 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

5. In Ferraro & Ferraro (1993) [1992] FamCA 64 FLC ¶92-335, (1992) Fam LR 1the Full Court said at [111];

   A now well established line of authority in this Court indicates the approach normally to be taken to the exercise of the discretion in s79 proceedings. That approach is firstly to ascertain the property of the parties at the time of the hearing, then to consider the "contributions" of the parties within paras (a) to (c) of s79(4), and then to consider the matters in paras (d) to (g), more especially para (e) which takes up by reference the provisions of s75(2) and which are generally referred to as the "section 75(2) factors":

6. Once the property has been ascertained the Court must decide whether it is just and equal to make an order.  The party’s relationship is at an end and both propose an order.  It is just and equitable to do so.

7. In addition to the property at Property C both parties include household contents in their financial statements.  There are no formal valuations.  I will not take them into account.  Both parties have superannuation.  The husband alleges that the wife took gold valued at $65,000.  He says it was in a safety deposit box.  The wife says the gold was not in the parties’ safety deposit box but kept by the husband’s brother.  She denies that she took the gold.

8. The father’s material contains a limited description of the gold and there is no valuation.  In these circumstances I cannot include it as matrimonial property.

9. I find that the property for the purposes of this application is:

Property	Owner	Value
Property C	Joint	$470,000
Mortgage liability	Joint	$308,000
Net value	$162,000
Husband’s superannuation	$  43,000
Wife’s superannuation	$  16,764

1. Through her lawyers in India the wife filed a response and affidavit and financial statement.  She did not appear and was not represented at the hearing.  She had notice of the hearing and did not make application to appear by telephone or video link.  Her proposals for orders are contained in the response.

2. The parties married in India on (omitted) 2007.  The husband arrived in Australia on (omitted) 2008 and the wife on (omitted) 2008.  The one child, a daughter, was born on (omitted) 2010.  The parties were divorced on 1 May 2015.

3. Separation took place in December 2013.  The husband travelled to India on (omitted) 2013 to visit his parents.  The wife travelled to India on (omitted) 2013.  The husband alleges that on 12 November 2013 the wife withdrew cash of $7,000 from their joint (omitted) Bank account and withdrew gold from the parties’, (omitted) Bank safety deposit box.  The wife acknowledges that she withdrew $7,000 but denies that she obtained the parties’ gold.  She says that was kept in the husband’s brother’s safe custody.  She says that the $7,000 was normal monthly drawings.  She will have used it for his expenses and so does not influence the property or the assessment of contributions.

4. The husband says that on the morning of 6 December 2013 he dropped the wife at her place of work as usual.  He says that later that afternoon she rang him and asked him to collect the child from child care and that she would be getting home later.

5. The husband collected the child from child care on 6 December 2013.  He attempted to contact the wife by text but received no reply.  The wife did not return home and later that night he says he received a text from the wife’s father stating that the wife was going to spend a few days at a friend’s place.  In fact the wife had left for India and has not returned.

6. The wife alleges that she was “mercilessly tortured physically and mentally by the applicant Mr Jindal and his family”.  She says that the parties’ parents met twice in India to resolve the issue.  At the second meeting she and the husband were present but there was no resolution.  She decided to live separately in Australia but was fearful of the husband and his family members and so resigned her job in Australia and came to India where she has remained.  She lives with her parents and is dependent upon them.

7. The parties’ affidavits do not say when they purchased the former matrimonial home in Property C.  The clear inference is that it was after they came to Australia.  An affidavit of a valuer, Mr C, establishes the value of the property at $470,000.  The mortgage is $308,000.  In the absence of any other evidence, the inference I draw is that any deposit the parties paid they saved after they came to Australia.

8. Both parties were employed during the relationship.  The husband’s employer is (employer omitted) and his income in his financial statement is $1,375 per week.  The husband says that the wife worked as a (occupation omitted) working full-time at (employer omitted).  The affidavits say nothing about the wife’s employment at the time of birth of the child but she must have had some time off work.

9. The evidence is sparse but does establish that the parties’ contributions until the wife returned to India were equal.  The husband may have earned more than the wife but both contributed financially to the extent they were able and the wife’s pregnancy and the birth of the child must have affected her ability to earn income.  When the wife’s contribution as homemaker and carer of the child is taken into account the contributions up to the time of separation were equal.

10. The wife attributes her decision to leave to the behaviour of the husband’s family. That is not something to be taken into account under s.79(4) of the Family Law Act1975 (Cth). Contributions after separation up to the time of making the order are to be taken into account. The husband has been the sole financial contributor to the payment of the mortgage and the expenses and maintenance of the house. He has repartnered and he has the care and maintenance of the child assisted by his partner. He says that he has reduced the mortgage by $14,000 since separation.

11. The parties’ relationship and the time of the marriage to separation was six years.  In the 2½ years since the husband has been the sole contributor both financial and non-financial and in the role of homemaker and carer for the child.  This makes an adjustment in contributions of 10% in favour of the husband appropriate so that contributions are 60% by the husband and 40% by the wife.

12. The significant considerations under s.75(2) are:

    a)The age and state of health of each of the parties;

    b)The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;

    c)Whether either party has the care or control of a child of the marriage who has not attained the age of 18 years;

    d)Commitments of each of the parties that are necessary to enable the party to support himself or herself;

    e)The responsibilities of either party to support any other person;

    Any child support under the Child Support (Assessment) Act 1989 (Cth) 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.

13. The husband was born on (omitted) 1980 and is 35.  The wife was born on (omitted) 1983 and is 32.  Both are in good health.

14. The husband is employed on a salary of about $1,375 per week.  He receives family tax benefits of $105 per week.  He has re-partnered.  The material does not show whether his partner is working.  The wife is not working and is studying.  She is dependent upon her parents for her support.  She is not paying child support and she cannot afford to.

15. The husband, following these orders, will own the property at Property C with an increased mortgage.  He has $43,000 in superannuation.  The wife will have the payment she receives from these orders.  She has $16,764 in superannuation.  Neither party proposes a superannuation splitting order so superannuation is a financial resource.

16. The parties have the normal commitments necessary to support themselves.  The father will have a responsibility to support his partner if she is not able to do so herself.

17. The father has a secure income.  The wife has the ability to earn income.  He has the sole responsibility for caring for the child.  The proper adjustment is 10% in favour of the husband, so that the overall adjustment is 70% to the husband and 30% to the wife.  The net value of the property is $162,000.  The husband must pay the wife the amount of $48,600.

18. The husband proposes 6 months to pay the amount to the wife.  A further three months from this judgment is reasonable time.  I will make the amount payable on 7 December 2016.

I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of Judge Phipps

Date: 13 September 2016