PATEL & KANYAR

[2019] FCCA 428

FEDERAL CIRCUIT COURT OF AUSTRALIA

PATEL & KANYAR [2019] FCCA 428

Catchwords:
FAMILY LAW – Property – assessment of contributions – marriage of approximately one year and six months – no children – husband’s contribution far greater – wife sought lump spousal maintenance – assessment of s.75(2) matters – orders made.

Legislation:

Family Law Act 1975 (Cth), s.75(2)

Applicant: MR PATEL

Respondent: MS KANYAR

File Number: MLC 10144 of 2017

Judgment of: Judge Hartnett

Hearing date: 16 November 2018

Delivered at: Melbourne

Delivered on: 27 February 2019

REPRESENTATION

Counsel for the Applicant: Ms Marshall

Solicitors for the Applicant: Altona Legal

Solicitors for the Respondent: In Person

DECLARATIONS

1. Pursuant to s.78 of the Family Law Act 1975 (Cth) the Applicant husband holds the legal title to the real property situate at Property A in the State of Victoria and more particularly described as Certificate of Title Volume … Folio … to the exclusion of any right, title, claim or interest in the said property by the Respondent wife.

ORDERS

1. Within 60 days hereof the husband pay to the wife the sum of $20,000.

2. Unless otherwise specified in these orders and save for the purpose of enforcing any monies due under these or any subsequent orders:-

   (a)each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders;

   (b)each party forgo any claims they may have to any superannuation benefits belonging to or earned by the other;

   (c)insurance policies remain the sole property of the owner named;

   (d)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; and

   (e)any joint tenancy of the parties in any real or personal estate is expressly severed.

3. Otherwise all extant applications are dismissed and the matter removed from the list.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 10144 of 2017

MR PATEL

Applicant

And

MR KANYAR

Respondent

REASONS FOR JUDGMENT

1. These proceedings commenced by the husband filing an initiating application for property orders on 2 October 2017. In that application the husband sought the following final orders:-

   “1. THAT the Court declare pursuant to Section 78 of the Family Law Act 1975 that the respondent has no right, title or interest in respect of any property or resources of the applicant;

   2. ALTERNATIVELY, the Court declare that it is not just and equitable to make any Order for alteration of property interests of the applicant or the respondent pursuant to Section 79 of the Family Law Act 1975;

   3. THAT the respondent vacate the property of the applicant at Property A ('the property');

   3.[sic]  THAT the respondent pay the applicant's costs of and incidental to this Application; and

   4. SUCH further, consequential or other Order as the Court deems fit.”

2. The husband relied in the proceedings on his application filed 2 October 2017; his affidavit of evidence in chief filed 5 September 2018; his financial statement filed 5 September 2018; and an affidavit of valuer filed 10 September 2018 and affirmed on 7 September 2018 by Mr B, Certified Practicing Valuer.

3. The valuation evidence went to the valuation of real property being that situate at Property A in the State of Victoria (‘the former matrimonial home’). As at 28 August 2018, the real property had a value of $530,000. The real property’s valuation on other relevant dates, in the context of the proceedings, was also considered in the valuation evidence. The property was valued as at 15 December 2015 in the sum of $400,000; and as at 15 July 2016 in the sum of $430,000. The valuation evidence was not challenged by the Respondent wife. She placed no expert evidence before the Court as to any valuation of the real property at any time.

4. The Applicant husband is the sole registered proprietor of the former matrimonial home which property is the subject of the dispute. He was so registered on 13 October 2014. The property is encumbered by way of registered mortgage to Westpac Banking Corporation.

5. The wife filed a response on 12 December 2017, on which she relied. The orders sought by her are as follows:-

   “1. That, from seven days after the date of this order, the Applicant pay to the Respondent spousal maintenance calculated at the rate of $258.00 per week for a period of twelve months.

   2. That within sixty (60) days after the date of this order, the Applicant pay to the Respondent the sum of $16,512 being spousal maintenance at the rate of $258.00 per week for 64 weeks from date of first intervention Order to the date of these Orders.

   4.[sic] That, within sixty (60) days of these orders, the Applicant pay the Respondent the sum of $106,825 being adjustment of the matrimonial property pool with fifty percent distribution to each party.

   5. Except as provided for in paragraph 4, the parties retain all ownership of all assets and liabilities in their possession or under their control,

   6. That the Applicant pay the Respondent's taxed costs of and incidental to these proceedings.

   7. Such further or other Orders as this Honourable Court deems fit.”

6. The wife relied upon in the proceedings her response filed on 12 December 2017; on affidavits sworn and filed by her on 12 December 2017, 4 September 2018 and 10 September 2018; and on a financial statement sworn and filed by her on 10 September 2018.

History

1. The husband was born in Sri Lanka on … 1984. He is now aged 34 years of age. He is employed in a full time capacity as a professional with Employer. His income is $1,285 gross per week or $66,820 gross per annum. He resides in the former matrimonial home and attends to the mortgage repayments in the weekly sum of $432 ($1,872 per month) and other outgoings with respect to the real property.

2. The wife was born in Sri Lanka on … 1984. She is now aged 34 years. She is employed as a customer service officer with Employer. Her income is $550 gross per week or $28,600 gross per annum. She now resides in rental accommodation for which she pays $175 each week.

3. The parties married in Sri Lanka on … 2015. At the time the husband was living in Australia and the wife was living in Sri Lanka. On … 2015 the parties commenced their cohabitation. The wife arrived in Australia on that date.

4. The parties commenced cohabitation in the former matrimonial home. The husband had purchased this in 2014, prior to the parties’ wedding in Sri Lanka.

5. On 16 July 2016 the parties separated. The period of their marriage had been one year, six months and two weeks approximately. There are no children of the marriage.

6. The husband returned to Sri Lanka on … 2016 to arrange for a Sri Lankan divorce. Whilst he was away the wife sought and obtained, ex parte, an Intervention Order. The husband was served with a copy of this order upon his return to Australia on … 2016. One of the terms of the order was that the husband was not permitted to return to the former matrimonial home. For the next 17 months, and until an order was required to be made by the Court, the wife continued in sole occupation of the former matrimonial home. She did not pay the mortgage, nor any of the outgoings of the property with respect to that occupation. The husband agreed to the making of a final Intervention Order many months after the initial ex parte order and without admission. The costs in respect of that proceeding were difficult for him and he sought an end to the litigation. The wife had, around the time of separation, called the police to the parties’ home following a heightened verbal exchange between the parties, which was initiated and continued by the wife. The wife also caused some very minor damage to property during the course of the parties’ argument. The wife’s evidence as to her obtaining an Intervention Order was that her counsellor had thought it was a good idea.

Contribution

1. The wife had no assets of any significance at the commencement of cohabitation. Following the marriage, the husband paid $4,680 for the wife’s visa and $900 in air travel expenses. On arrival in Australia, the wife brought with her a sum of $2,000 in cash. She had outstanding two personal bank loans in Sri Lanka.

2. The wife gave evidence that she and/or her family paid for the parties wedding which was at a cost of $15,000. The husband denied that the wife and/or her family made a contribution of anything in that sum.

3. Each of the parties bought the other a ring costing less than $500. The husband paid for his suit ($50), the wife, her dress. The guests at the wedding comprised the parents of each of the parties and a cameraman to whom the husband paid $200. Additionally, approximately four relatives attended, together with the celebrant. The ceremony was held in the home of the wife’s parents.  The wife’s claimed expenditure is not supported by the evidence put before the Court. Indeed, the wife put no supporting evidence of her claimed expenditure before the Court in circumstances where, had it existed, that would have been possible. No bank documents and/or evidence from her parents was before the Court. The Court concludes, on that basis, and on the basis of the evidence of the husband, that the wedding costs were minimal. The wife’s evidence is not accepted.

4. The wife alleged her father sent the parties the sum of $10,000. The husband denied this. The wife placed no corroborative evidence before the Court. Her father did not visit Australia during the parties’ marriage. There are no bank statements supporting the wife’s assertion before the Court. There is no evidence from the father or the husband’s sister before the Court, the latter whom the wife claims some monies were given to (by her father) whilst the husband’s sister was in Sri Lanka. The wife’s evidence as to these matters was implausible and inconsistent. The Court does not accept her evidence.

5. The husband purchased the former matrimonial home in … 2014 for the sum of $376,374. He obtained a mortgage loan in his sole name in the sum of $338,456. Thus he applied $37,918 together with costs and disbursements toward the former matrimonial home purchase.  Those costs and disbursements included approximately $6,000 in stamp duty; $5,056 in mortgage insurance; and $1,000 approximately in transactions costs. This was a total contribution of approximately $49,974.

6. Additional to the property purchase costs, the husband purchased all the major household contents prior to the wife’s arrival. These included a 55 inch TV; a fridge; a washing machine; furniture; bedding; and all other incidentals that comprise a fully furnished home. The husband had acquired such goods at the time of his taking up occupation in the former matrimonial home in … 2015. The purchases were made with cash payments by the husband and the use by him of a credit card to the sum of $6,000 debit. He commenced to repay this credit card debt in the sum of $250 per month, paying off $1,750 prior to the wife’s arrival in Australia. Additionally, the husband had some equity, of approximately $8,000 in his motor vehicle at the time of the marriage.

7. Throughout the parties occupation of the property, the husband paid all outgoings. He remained in employment and the wife remained at home, not in receipt of income. The husband’s ongoing payments continued after his exclusion from the former matrimonial home following separation, until 15 December 2017. The wife resided in the former matrimonial home for a period of 17 months, making no contribution to her occupation. Further, the wife carried out very few maintenance tasks. Upon her departure from the former matrimonial home she removed household chattels owned by the parties. The expenditure of the husband during this time was in a sum of $49,029.30.  This was comprised of the following costs and expenses:-

   a)mortgage payments to the Commonwealth Bank- $32,724.00;

   b)furniture and electricals - $3,250.00;

   c)respondent's phone bill - $1,035.00;

   d)internet connection - $1,047.18;

   e)gas - $2,805.56;

   f)electricity - $1,161.98;

   g)water- $1,919.33;

   h)council rates - $2,604.00;

   i)body corporate fees - $1,445.57;

   j)home and contents insurance - $1,036.68.

8. The husband was required during his absence from the home and whilst making significant ongoing contributions to the wife’s support, to live with relatives, making a small contribution to their household and otherwise being assisted by them to a total sum of $21,400. The husband has since repaid those monies advanced to him during this period as described below.

Section 75(2) matters

1. The husband is now an Australian citizen. The wife has obtained permanent residency, in part, assisted by her obtaining of an Intervention Order. The wife is able to return to Sri Lanka, she being a citizen of Sri Lanka, but has chosen not to do so.  She wishes to reside in Australia.

2. The wife has gainful employment in Australia and is able to adequately support herself. In addition to her primary occupation she engages, from time to time, in additional work for which she receives payment. So too, is the husband gainfully employed. There are no children of the marriage. Neither has acted in a way to curtail their careers, and there is no need for one to maintain the other in any ongoing way. Both are in good health. The husband provided considerable financial spousal support to the wife in the post separation period. The ongoing pursuit of a spousal maintenance application had no merit.

Other matters going to the asset pool

1. Since separation, the husband has refinanced the home loan secured over the former matrimonial home. He obtained a sum of approximately $40,000. With those monies he repaid:-

   a)his credit card debt;

   b)his then car loan;

   c)a loan from his employer; and

   d)retained $20,000 or $22,000 approximately in cash. With part of this money he repaid his sister (who supported him during the period of the wife’s occupation of the home post separation) the sum of $17,000 (of $21,400 owing).

2. The husband has $35,751 approximately in superannuation entitlements. The wife has minimal superannuation entitlements. Most of the husband’s entitlements to superannuation accrued outside the period of the marriage.

Conclusion

1. There is now approximately $159,000 equity in the former matrimonial home. The husband otherwise has a motor vehicle of modest value and superannuation entitlements. The wife has no significant assets or superannuation. Each of the parties have ownership of some chattels. The husband’s income and earning capacity currently exceeds that of the wife. Both are relatively young however, and do not have children which might restrict their ability to earn income into the future. The husband’s direct financial contributions far outweighed those of the wife in the course of a very short marriage. Each contributed to the household, the wife more so, in the brief period they were together. When looking to all of the above matters, the Court is satisfied that, in all the circumstances it is just and equitable to make the orders it does this day.

I certify that the preceding twenty-five (25) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date:  27 February 2019