Rhazi and Rhazi and Anor
[2011] FamCA 262
•5 April 2011
FAMILY COURT OF AUSTRALIA
| RHAZI & RHAZI AND ANOR | [2011] FamCA 262 |
| FAMILY LAW – CHILDREN – Orders as to parental responsibility and time spent with FAMILY LAW - PROPERTY – Whether the husband owes money to a third party – Whether the husband has an interest in a property overseas – Just and equitable |
| Family Law Act 1975 (Cth): s 60CA, s 60CC(2), s 60CC(3), s 61DA(1), s 61DA(2), s 61DA(4), s 75(2), s 79(1), s 79(2), s 79(4) |
| Benjamin & Bardot [2010] FamCAFC 252 Chorn & Hopkins (2004) FLC 93-204 Coghlan & Coghlan (2005) FLC 93-220 Gosper & Gosper (1987) FLC 91-818 Hickey & Hickey & Attorney-General for the Commonwealth (2003) FLC 92-144 Marvel & Marvel (No. 2) [2010] FamCAFC 101 |
| APPLICANT: | Ms Rhazi |
| RESPONDENT: | Mr Rhazi |
| SECOND RESPONDENT: | Mr S |
| FILE NUMBER: | CAC | 114 | of | 2010 |
| DATE DELIVERED: | 5 April 2011 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Faulks DCJ |
| HEARING DATE: | 4 & 5 April 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr M. Anderson |
| SOLICITOR FOR THE APPLICANT: | Watts McCray McGuinness Eley |
| COUNSEL FOR THE RESPONDENT: | Mr C. McKeown |
| SOLICITOR FOR THE RESPONDENT: | Jeanine Lloyd & Associates |
| THE SECOND RESPONDENT: | No appearance by or on behalf of the Second Respondent |
Orders
IT IS ORDERED THAT:
The mother will have sole parental responsibility for M, born on … June 1997.
Notwithstanding Order 1, M’s mother will inform Mr Rhazi, M’s father, about:
a.All serious medical issues relating to M;
b.The names of M’s medical practitioners and of any other practitioners of a similar sort, be they dental practitioners or psychologists upon whom M may be attending;
c.Details about her schooling including any information about M’s progress;
d.Any major events in M’s life including important visits either by her, or to her, and about her activities.
e.This information may be conveyed in the communication book or by email or by letter from time to time as it may be appropriate to do so and M’s mother will ensure that the information is conveyed as soon as practicable after the happening of the events referred to.
M’s mother will authorise and direct the following to provide information to the father upon his request about M.
a.M’s school, her school teachers and any counsellor at the school (in the last case subject to normal professional confidentiality);
b.M’s doctors, dentists, therapists or other medical or allied professionals including information about her treatment, her diagnosis and her prognosis from time to time.
M’s mother will consider consulting and discussing with M’s father major decisions affecting M’s wellbeing.
Notwithstanding the above orders, M’s mother will have the right to make decisions about M’s long-term care, welfare and development.
M will live with her mother.
a. M will spend time with her father as she determines is appropriate.
b.In relation to the time M spends with her father M’s mother will facilitate and encourage M to spend time with her father and to develop a meaningful relationship with her father.
c.M is free to call her father at any reasonable time; and
d.M’s mother will provide uninterrupted and private time for M to call her father and will facilitate such communication.
IT IS ORDERED, IN RELATION TO PROPERTY, THAT:
The husband will pay to the wife the sum of $280,000 within 60 days of the date of this order.
a. In default of his payment unless the wife otherwise agrees to an extension of time for payment she will become the Trustee for sale of the property known as the H Street property at G in the Australian Capital Territory.
b.There be liberty to apply about the terms of the sale if it is necessary to do so.
c.That upon completion of the sale the net proceeds will be divided so that the wife receives 57.5 per cent of the pool of property as previously defined that the net sale price inserted into the pool in lieu of the $470,000 which presently occupies that place in the pool.
10. The wife is declared to be the owner of the jewellery in her possession or control.
11. The husband and wife will do such things as are necessary to ensure that the items contained in list 1 of the two lists of property produced in relation to the parties is transferred to both physically and legally if necessary to the wife.
12. Otherwise each of the parties shall keep those items of personality in his or her possession or control and each is declared respectively to be the owner both at law and in equity of such items.
13.a. The parties’ son, Mr S, the second respondent to these proceedings, will do all things necessary, as he has previously agreed to do, to assist the father to raise money to pay the wife in accordance with order 8 that I have set out above or do such things as may be necessary to cooperate in the sale of the H Street property at G by the wife as Trustee for the sale and to execute all necessary documents.
b.If the father, or Mr S, shall fail to execute in deed or instrument presented to him within seven days of its being so presented a Registrar of the Family Court of Australia in Canberra is appointed to execute such document in place of the husband or Mr S and to do all things that are necessary to give validity to the operation of the deed or the instrument in accordance with section 106A(1) of the Family Law Act 1975.
14. All material produced by subpoena which did not become the subject of exhibits will be returned by the Court to the persons producing it as soon as practicable. Any material produced by subpoena which became an exhibit will be returned by the Court at the expiration of the appeal period to the person producing it.
15. All extant applications are discharged.
16. The matter be removed from the Pending Cases Inventory.
IT IS NOTED that publication of this judgment under the pseudonym Rhazi & Rhazi and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT CANBERRA |
FILE NUMBER: CAC 114 of 2010
| Ms Rhazi |
Applicant
And
| Mr Rhazi |
Respondent
And
| Mr S |
Second Respondent
Ex tempore
REASONS FOR JUDGMENT
Introduction
These proceedings relate to both children and property issues which are in dispute between the parties, who were formally wife and husband. The applicant wife is Ms Rhazi (“the wife/mother”) and the respondent husband is Mr Rhazi (“the husband/father”). The proceedings fall to be determined pursuant to relevant parts of the Family Law Act 1975 (Cth) (“the Act”).
I should indicate that, in my Reasons for Judgment, I accept that, by way of background, I include the primary facts (without the commentary) contained in chronology of relevant events provided by the applicant mother.
I have indicated, on the copy of the document I have, those parts of the chronology I do not accept as evidence. I am not suggesting that the deletions might not be otherwise proved, but I do not provide them as background. I give an example. The item next to “July 1991” reads as follows:
The husband purchases [Apartment in K]. The husband took the wife to view the apartment. There was no discussion of borrowing money from anyone. The wife says the husband was earning a high salary and travelled a lot between 1980 and 1991. (Emphasis added)
In relation to the italicised and bold sentences above, I do not make those findings, nor do I incorporate them into my Reasons for Judgment. The document, as such, is part of the record and I record the non-contentious findings of fact from the chronology below.
Where otherwise in my Reasons for Judgment I refer to statements of fact, I make findings as to the facts in those terms.
I reserve the right in editing the judgment when it is made available from transcript of proceedings of 5 April 2011 to add in the appropriate sections of the Act where I leave them out, and to add in the authorities for any propositions of law which I might include.
I also incorporate into my judgment, noting as part of the evidence, paragraphs 8 to 14 of the family report, which I note is Exhibit “J1”.
Background
The chronology of relevant events is outlined below.
The husband was born in 1954 and is presently aged 57 years. The wife was born in 1963 and is presently aged 47 years.
The parties married in 1979 in South Central Asia. The parties commenced cohabitation at this time. The wife was a university student and was pregnant. The husband and wife subsequently lived with the husband’s father. Upon the husband’s sister decided to move to Europe, the husband and wife subsequently moved into her home at her invitation.
On 10 July 1980, the eldest child, R, was born (and is now aged 30 years).
In 1981, the wife commenced employment in domestic duties.
On 9 July 1985, the parties’ son, Mr S, was born (and is now aged 25 years). Mr S is the second respondent in these proceedings but there was no appearance by or on behalf of him at the hearing. At the time that Mr S was born, the wife took three months maternity leave and resumed employed work in domestic duties.
On 14 October 1990, the parties’ daughter, T, was born (and is now aged 20). At the time that T was born, the wife took three months maternity leave and returned to employed work in domestic duties.
In July 1991, the husband purchased the apartment in K.
In August 1991, the parties travelled to South Asia with their children.
On 13 November 1991, the wife and the children departed South Asia for Australia. The wife brought $30,000 in savings to Australia at this time. The husband returned to South Central Asia to continue working in K. At the time the wife first came to Australia, she lived with her sister for nine months and paid no accommodation costs.
In May 1992, the husband moved to South Asia.
On 3 July 1992, the husband deposited about $90,000 (USD) (or $107,023 (AUD)) directly into the wife’s bank account with the ANZ Bank.
On 3 December 1992, the husband deposited a further $14,569 (AUD) into the wife’s bank account. The wife subsequently purchased a property situated at R Street, G, in the Australian Capital Territory (ACT) in her sister’s name.
In May 1995, the husband joined the wife and three children in Australia. The house purchased in the wife’s sister’s name is transferred into the husband’s name.
On 12 June 1997, the parties’ daughter, M was born (now aged 13 years). M is the subject child of the proceedings before the Court between the parties. I will refer to her as “the child” in my Reasons for Judgment.
In 2002, the husband sold the property at R Street, G, ACT in order to facilitate the purchase of another property, situated at H Street, G, ACT. The husband informed the wife that he borrowed $80,000 from AXA Finance in order to complete the purchase.
In around 2003 or 2004, the wife left the husband, but later reconciled with him.
In 2008, the husband informed the wife that the loan for the purchase of the property at H Street, G, ACT had been repaid.
On 11 October 2008, the parties finally separated under the one roof (as contended for by the wife).
In November 2008, an interim Domestic Violence Order that had been taken out by the wife against the husband was discharged.
On 31 December 2008, the wife travelled overseas to Scandinavia.
In February 2009, the wife informed the husband that she does not wish to live with him in the same house. The husband subsequently gathered some clothing and left the property at H Street, G, ACT.
On 4 June 2009, the husband received a 12 month good behaviour bond with a surety of $500, imposed in relation to an assault he committed against the wife in October 2008.
On 10 December 2009, the husband transferred the property at H Street, G, ACT to the parties’ son, Mr S, the second respondent. The stamp duty for this transfer was $18,575 (which was paid by Mr S). The consideration paid to the husband for this transfer as recorded on the Transfer document was $15,000.
On 27 December 2009, the parties finally physically separated by the wife leaving the home and then moved into rental accommodation.
On 7 February 2010, the husband assaulted the wife at the property at H Street, G, ACT.
In February 2010, the wife borrowed money from GE Finance to repay approximately $35,000 she borrowed from her cousin. The repayments are presently $600 per month.
On 16 March 2010, the parties were divorced by certificate of the Federal Magistrates Court of Australia.
On 29 April 2010, the wife filed her Initiating Application in the Federal Magistrates Court.
On 18 May 2010, the wife lodged a caveat over the property at H Street, G, ACT.
On 4 June 2010, the husband filed a Response to the wife’s Initiating Application seeking, inter alia, that the child spend at least one day per weekend and three hours on her birthday with her father.
On 7 June 2010, a Registrar of the Federal Magistrates Court ordered a conciliation conference, which was conducted on 19 July 2010.
On 3 August 2010, the proceedings were transferred by Baumann FM from the Federal Magistrates Court to the Family Court of Australia.
On 13 September 2010, I ordered that the parties’ son, Mr S, be joined as a party to the proceedings, and that a family report be prepared.
Further procedural case management hearings were conducted by me on 15 and 26 November 2010.
The family report was released on 8 February 2011.
On 23 February 2011, the husband pled guilty in the ACT Magistrates Court to assault of the wife.
The final hearing was conducted principally on 4 April 2011, with final submissions being made on 5 April 2011. I delivered these Reasons for Judgment ex tempore after the final submissions were made on that day.
Children’s Issues
The decision to be made about the child is to be made pursuant to Part VII of the Act. In this regard, the decision about what orders I must make must be made in the best interests of the child.[1] I am being asked to make parenting orders, and I will make those orders in due course.
[1] Family Law Act 1975 (Cth) s 60CA.
The evidence of the family consultant (Family Report of 8 February 2011)
Family Consultant N affirmed by affidavit a family report dated 8 February 2011.
For the purposes of the evidence before the Court, I set out paragraphs 8 to 14 of Family Consultant N’s report hereunder:
8.[The child] is an assertive and well spoken young girl. She is ambitious about attaining a good education and going to university. By all reports [the child] is a straight A student. [The child] described a close relationship with all of her siblings and reports that her mother’s home is where they regularly meet over evening meals.
9.[The child] believes that all children do not have a particularly close relationship with their father as he was absent for much of their childhood. On the occasion when he is at home, [the child] feels that he was not available to them as he spent time pursuing his own interests.
10.[The child] feels very close to her mother whom she believes raised her. She asserts that her mother has always worked hard to support them and insists that she has spent little time or money looking after herself. [The child] is angered by her father’s unwillingness to move out of the family home, she feels it would be more appropriate if the majority of the family could live in the family home. She indicates that their current home is cramped, however understands that this is all that her mother can currently afford.
11.[The child] sees her mother as being a kind, generous and sensitive person who has always been available to care for all the children in the family. [The child] feels that her mother has performed both the roles of mother and father in the family unit.
12.Adolescence [sic] are at a stage of their development where they see people and situations in “black and white”, they have as yet not developed the ability, nor gained experience to factor in shades of grey. [The child] is currently very angry with her father for “throwing” the family out of their home and for hurting her mother.
CONCLUSION
13.[The child] has agreed to spend time with her father in the presence of her brother and his girlfriend for an evening every three weeks. Her decision to do this is based on her desire to comply with her mother wishes, feeling that it will remove some of the stress that [the mother] is feel over the current court action. [The child] has judged her father to be looking after his own interests rather than those of his children.
14.[The child], at this stage of her development, is struggling to balance her need to maintain a relationship with her father verses avenging and punishing him for hurting the family. Her lack of commitment to the father/daughter relationship could also reflect the possibility that the relationship between them has always been porous.[2] She may well be questioning the benefits of investing in a relationship with [the father] given his desire to return to [South Central Asia] only returning for holidays.
[2] I assume, in the context of these proceedings, that the Family Consultant meant “poisonous”.
I note that there was no request by either counsel to cross-examine the family consultant and no adjournment was sought to enable further consideration to be given to the material in the family report.
Parental responsibility
I begin with the proposition that the Act requires that I should presume that there should be equal shared parental responsibility between the parents.[3]
[3] Family Law Act 1975 (Cth) s 61DA(1).
In this matter, in my opinion, it is clear that there is a rebuttal of the presumption, either pursuant to s 61DA(2) or s 61DA(4) of the Act. The circumstances of the parties, the acrimony between them, the fact that the child has spent most of her time with her mother and the terms of the family report all lead me to conclude that this is not a matter in which equal shared parental responsibility might reasonably occur.
In this regard, it is not the case simply that parents who are unable to agree, or who cannot work co-operatively towards each other, should be forced into a situation where they are obliged to do so by orders of the Court.[4] There is sufficient evidence before me, irrespective of any finding I might make about the question of violence, that the presumption is to be rebutted and that the child should enjoy, (if that is the word,) the sole parental responsibility of her mother.
[4] See generally Marvel & Marvel (No. 2) [2010] FamCAFC 101.
I, however, add to that what I would loosely describe as the “usual qualifications” in my decisions, which are that the mother must provide to the father certain reports about the child in terms of her progress at school, any illnesses she may suffer from, and to provide access to the father to her doctors, her medical practitioners and to her school to obtain relevant information and reports – at his own expense.
Equally, it is important that there should be, to the extent that is possible, collaboration between the parents about things that are important in the child’s life. On the other hand, if there is to be a decision necessary to be made between parents and they are unable to reach agreement, then that responsibility should rest alone with the mother.
The time the child spends with each parent
The second matter that seems to me to follow the above discussion and because it represents what presently occurs between the parties, and because of the evidence contained in the family report, it is important that the child should continue to live principally with her mother. I will make an order to that effect.
As I indicated during the course of addresses with Mr McKeown on behalf of the father, I propose to make an order that the child would spend time with the father and that the mother will facilitate and encourage that time.
I also propose to make orders that the child should be free to telephone her father at any time and that the mother would provide the child with uninterrupted and private time to do that and will facilitate it wherever possible.
Best interests of the child – primary and additional considerations: s 60CC of the
Act
The matters that I have taken into account in arriving at my determination to make orders of the sort I have just outlined are set out in the Act in s 60CC.
The first “primary consideration” is that I should make orders which would, where so far as is possible, encourage a meaningful relationship between the child and each of her parents.[5] In this case, in my opinion, the issues about how this might occur are summarised in this way.
[5] Family Law Act 1975 (Cth) s 60CC(2)(a).
First, it is, to some extent, the art of the feasible as to the extent to which there can properly be a meaningful relationship between the child and her father. In the family report, the child has given her own analysis to the family consultant of her views about her father’s involvement in her life. It is up to her father, primarily, to change that opinion as the child grows older. I hope he will encourage her to develop a good relationship with him.
I note the father asserts that there is a good relationship between himself and the child – a view that does not appear to flow from the family report and what the child has said to the family consultant. In this regard, I note, however, that the family report does not exclude the proposition that such a relationship is feasible.
There is no evidence, notwithstanding the suspicion expressed by the father, that the mother has in any way interfered with the relationship between the child and her father. I accept that the mother has not so interfered and make that finding accordingly.
I further comment, about the question of meaningful relationship, that if it should transpire that the father determines that he will go back to South Central Asia –he began the proceedings by saying he would – and then changed his mind and said he would not – if he were to go back, then this would make the development of a meaningful relationship between him and the child very difficult indeed. This is a matter within his control and not within anyone else’s control. It also, inferentially, ensures that I should make orders that mean that the child should primarily live with her mother.
There are no issues relating to the child’s safety to which I would draw attention to as bearing upon the second of the primary considerations I have to take into account under s 60CC(2)(b) of the Act.
Under the additional considerations that are set out in s 60CC(3), I take account of the views of the child as expressed to the family consultant.[6] I take note of her age, and I take note of the comments made by the family consultant about the maturity and articulateness of the views expressed by the child. These views support the orders I have indicated I will make.
[6] Family Law Act 1975 (Cth) s 60CC(3)(a).
I note also that she has a strong relationship[7] with her mother, which has been reinforced over the years. I also note that she has a strong relationship with her siblings. This will assist her, I suspect, in overcoming the divorce of her parents, the separation of her mother and father, and encourage her in her ability to maintain, or (in the case of her father,) develop, a meaningful relationship.
[7] Family Law Act 1975 (Cth) s 60CC(3)(b).
In so far as the question of whether either parent has or may encourage the child to have a proper relationship with the other parent,[8] I accept the mother’s evidence that she does and has, and will, continue to encourage the child to have a proper relationship with her father. I rather doubt the father’s ability to encourage the child to have a proper relationship with the mother but in the circumstances of the orders I contemplate, this should not be quite as serious as it might be in some other cases.
[8] Family Law Act 1975 (Cth) s 60CC(3)(c).
The impact and practical difficulties[9] associated with the orders I make would be increased significantly if the child were to be faced with a father living in South Central Asia. I have no confidence that the father might not change his mind yet again and decide he will return to South Central Asia. There are also some practical difficulties in the time that the child spends with her father, largely associated with her transport to and from her mother’s and father’s houses – in view of the mother’s claimed need for secrecy. The mother’s claim in this regard, I think, is overdone. But fortunately, at present, there is a work-around arrangement whereby the child’s siblings, (in effect,) will provide the transport to enable the time with her father to be meaningful.
[9] Family Law Act 1975 (Cth) s 60CC(3)(d) & (e) refers.
Each of the parents has some capacity to provide for the emotional, intellectual and educational support of the child.[10] The mother has a proved capacity in this regard in the light of the time that she spent with her daughter over the years and the fact that she has been the primary parent and the person with whom the child has a primary attachment. I am satisfied that there is no reasonable doubt that the mother will continue to provide that support for the child.
[10] Family Law Act 1975 (Cth) s 60CC(3)(f).
The family report suggests, (in paragraph 10 above,) that the father has little understanding of the requirements of the child, particularly in her development. There is little evidence, apart from that comment in paragraph 10 of the family report, to support that proposition. I accept that the father loves his daughter and would like to have a proper and appropriate relationship with her. He undoubtedly has some things to contribute to her in the future.
If, however, there is to be a ground for preferring one to the other, it is clear, in this case, the mother is to be preferred to the father.
Section 60CC(3)(g) requires the Court to take account of the culture and background of the parties. No evidence was put before me that this was a matter that was either of no concern to, or a matter not requiring specific orders from, either parent. In the circumstances, although I note the child’s background and, in particular, what I would assume is the desire in both parents to preserve her parent’s culture, there is no evidence to suggest that either will or could encourage her in this regard. I accept, nevertheless, that each will do so, because I believe it is appropriate that they should. I am sure they will accept that part of their parental responsibility.
Section 60CC(3)(h) is not relevant to these proceedings.
As to the attitude of each of the parents to their responsibilities of parenthood,[11] the comments I have made above apply.
[11] Family Law Act 1975 (Cth) s 60CC(3)(i).
I am directed to take account of matters relating to family violence and also of existing family violence orders.[12] As counsel for the mother, Mr Anderson, conceded today, (as I had in fact noted from the evidence previously,) there has been a family violence order in the past. That has now expired. There does not appear to be any immediate issue relating to family violence that bears upon the sorts of orders I propose to make.
[12] Family Law Act 1975 (Cth) s 60CC(3)(j) & (k) refers.
I note, however, that the allegation is that violence has occurred in the past in the presence of the children and although the stories of the parties differ considerably as to what occurred, there has been an issue of violence which has affected the mother in her responsibilities and attitudes to the father. This has also affected the children to the extent that have been witnesses to such violence. These are not factors which directly apply or affect the orders that I am about to make.
Curiously, the orders I make are in fact less likely to lead to further litigation[13] than a prescriptive order of the sort originally sought by the father in these proceedings. I think it is appropriate to recognise in a child of the child’s age that she will be a person who will exercise her own will about a number of matters. It is important that her parents recognise and give her the dignity and respect due to a person of her age. That does not mean she can do whatever she likes – but it does mean that it is appropriate for her parents to recognise she is not a small child who is either amenable to or who can be “bossed around” in any non-sensible way.
[13] Family Law Act 1975 (Cth) s 60CC(3)(l).
I am obliged to take account of the way in which either of the parents has exercised his or her parental responsibilities since separation.[14] The father believes that he has been prevented from being involved with the child, but he has not substantially exercised his responsibilities as a parent since separation. I note further that, although he would suggest that he only contributed as he might within his means, he has made minimal financial contributions to the child’s care since separation.
[14] Family Law Act 1975 (Cth) s 60CC(4) & (4A) refers.
I repeat, as I suggested earlier, that the presumption set out in s 61DA of the Act has been rebutted. I do not propose to add anything to those orders or to those comments previously made. Accordingly, I make orders in accordance with my Reasons for Judgment.
Property Issues
The four-step test: Hickey & Hickey & Attorney-General for the Commonwealth
In relation to property, my four-fold task is as follows:
a)Identify and value the property, assets, financial resources and liabilities of the parties as at the date of the hearing;
b)Identify relevant contributions and assess them within the meaning of s 79(4)(a) to s 79(4)(c) of the Act and determine the contribution‑based entitlements of the parties expressed as a percentage of the net value of the property of the parties;
c)Consider relevant matters referred to in s 79(4)(d) to s 79(4)(g) of the Act; and
d)Ensure any order adjusting the property, assets and liabilities of the parties is just and equitable.[15]
[15] Hickey & Hickey & Attorney-General for the Commonwealth (2003) FLC 92-144, 78,386 (Nicholson CJ, Ellis & O’Ryan JJ) (‘Hickey’).
Assets and liabilities of the parties
In relation to the assets of the parties, as has been pointed out succinctly by both counsel in their final addresses to me, there is some controversy about some and not about other items.
I start with the item of property known as the property at H Street, G, ACT which is agreed by the parties to be valued at $470,000. It is also agreed that that property is in the name of the parties’ son, Mr S. As Mr McKeown, I think, correctly conceded it should be treated for these purposes as an asset of his client. I agree with that conclusion on the basis that either it is so by reason of a resulting trust in favour of his client, or on the basis that the alleged consideration for the transfer to the parties’ son was not real. Alternatively, I accept that the transaction might properly be set aside pursuant to s 106B(1) of the Act on the basis that:
…the Court may set aside or restrain the making of an instrument or disposition by or on behalf of, or by direction or in the interest of, a party, which is made or proposed to be made to defeat an existing or anticipated order in those proceedings or which, irrespective of intention, is likely to defeat any such order.
Moreover, in such a determination I make it clear, (although it is no longer particularly relevant in the light of Mr McKeown’s appropriate concession) that I do not accept that the motives of the husband in transferring the property it were for the benefit of the children and not to remove it from the matrimonial pool.
In so far as the apartment in K, South Central Asia is concerned, I have carefully considered the various items of evidence that have been put forward. In the end, I find that I cannot find that there is any interest remaining with the husband in relation to that property. The evidence about the transactions concerning it are unsatisfactory in the extreme. On balance, I cannot find that the property has not been transferred to a third party. I cannot find on the evidence that the husband has any equitable interest in the property.
Even if I were to find that the property still remained in some way under the influence of, or in the equitable entitlement of, or perhaps, even on the basis of some undeclared trust in favour of the husband, I could not find satisfactorily what its value might be, what its value might have been, or indeed if there were any consideration exchanged for its transfer, and if so what happened to it.
Accordingly, in my opinion, based on the evidence before me, I cannot satisfactorily determine on the balance of probabilities that the husband has an interest in the property in K which I should take into account.
So far as the furniture and effects are concerned, I have previously determined in the earlier part of these proceedings on the basis of the informed opinion of both parties with the assistance of their counsel that the furniture should be divided on the basis that each would receive equal amounts in value, and this should be determined by the composition of two lists.
Those lists were prepared, and I accept the mother’s evidence that she first exercised her choice as to which of those lists she should have. In my opinion, I should make orders which reflect that fact and that accordingly I should exclude furniture from the list of property. I might add this would, in the circumstances, probably be of some benefit to the husband as he is asserted to have some $10,000 worth of property as against the wife’s $2,000 worth of property. The wife will be entitled to “List 1” of the chattels.
I turn to the wife’s jewellery. Although there was an assertion that she had more jewellery than that that had been the subject of a formal valuation, in the end that valuation was the only formal evidence. I note Mr McKeown did not suggest to me to the contrary. There is some $13,800 worth of jewellery in the mother’s possession. I note in this regard that the mother asserted and I accept in her cross-examination that other items of jewellery had been acquired by her from an establishment known as “[D]”, where the range of the cost of the various items was between $6.99 and $12.99 (AUD) for most pieces (the D weblink became Exhibit “H10” in the proceedings).
The further item to be taken into account is the parties’ vehicles, which I accept (on admissions against interest in the various documents of the parties,) is in the case of the husband $5,000, in the case of the wife $20,000.
I accept that by incorporating that value, I also take into account as a liability at least part of the loan the wife has borrowed from GE Personal Finance. I will return to that matter in due course.
There was no evidence directed to the proposition that the parties had respectively savings in their bank accounts $1,000 in the wife’s case and $700 in the husband’s case. I accept those amounts as part of the property.
I do not accept the suggested inclusion in the list of property of $18,575 which was paid for stamp duty in relation to the transfer of the H Street, G, ACT property from the father to Mr S, the parties’ son. In my opinion, this should not be included in the list of property. I accept the evidence that that sum was paid by Mr S. In those circumstances, it was a third person payment and should not properly therefore be brought back into the pool of property of the parties.
I accept the wife’s superannuation entitlement as being part of the property pool. I accept that it may be treated separately.[16] In these circumstances, given that no evidence was directed either in support of it, nor cross-examination directed to it, I accept, (at least as an admission against interest) that the superannuation of the wife is valued at $4,819 and should be included in the list of assets.
[16] See generally, Coghlan & Coghlan (2005) FLC 93-220.
Accordingly, the pool of property for division between the parties is as follows.
Assets
Value
Property at H Street, G, ACT
$470,000
Jewellery
$13,800
Wife’s vehicle
$20,000
Husband’s vehicle
$5,000
Wife’s bank account
$1,000
Husband’s bank account
$700
Wife’s superannuation
$4,819
Total
$515,319
The issue of whether there should be allowance made for loans to the parties has occupied a significant part of time, mainly in relation to the loan that was alleged to have been incurred by the father on behalf of both parties with Mr and Ms O.
In this regard, I find that that debt has not been proved for the purposes of these proceedings. I give the following reasons for that conclusion.
i.This is a debt that was alleged to be due from both parties and I accept that the wife did not know anything about “the debt” until, as she said in her affidavit, she read about it in the husband’s affidavit.
ii.The documentation that was produced in relation to the loans is, putting it at its highest, unsatisfactory. I stop short of making a finding that the documentation is a construct, but it is unconvincing and there are as many discrepancies in the production of the material relating to it as there are factors which would suggest that it is true.
iii.I do not accept the husband’s oral evidence in relation to the loan. I do not accept it on the basis as to his credibility on this issue (although I have found in his favour on other issues).
iv.Finally, I find that it was open to the husband to have obtained corroborative evidence from those who had advanced the loan but he did not do so. I accept the submission made by Mr McKeown that it might have been difficult for such evidence to have been obtained. In circumstances, however, where the husband asserts that the dispute about this matter has caused a “falling out” with his sister, one would have expected they would readily have contributed some form of formal support for the proposition that money was owed. This was not forthcoming. There was plenty of notice given that it might be required. If an affidavit had been filed it might then have been subject to some form of dispute on the basis that the parties were not available for cross-examination, but no affidavit was forthcoming.
On the whole, it seems to me that the husband has failed in his evidence to establish that the loan exists and I disregard it for the purposes of these proceedings.
The other loans sought to be brought into account are two loans obtained by the wife from GE Personal Finance. In my opinion, for the reasons that I have outlined previously as a member of the majority of the Full Court of the Family Court of Australia in Benjamin & Bardot [2010] FamCAFC 252 at paragraphs 59 to 64, outlined generally in Chorn & Hopkins (2004) FLC 93-204, both loans should be brought into account for the purposes of determining what are the net assets of the parties. I say in this regard two things. The first is that if the value of the wife’s motor vehicle is to be brought into account then certainly any loan that she incurred for the purposes of obtaining it should also be included. Second, that so far as the rest of the money was expended on what would be properly termed “reasonable living expenses”, then, in my opinion, the abovementioned authorities would provide a proper basis for the inclusion of that loan as a factor to be taken into account in determining the net value of the parties’ assets. I note in this regard no cross-examination was directed to the wife about what she spent the money on.
Accordingly, the liabilities of the parties include the debts owed by the wife to GE Personal Finance totalling $50,700.
In this regard, therefore, the net assets of the parties would be $464,619 (being the total assets of $515,319 less the liabilities of $50,700).
Contributions of the parties
I turn to the contributions of the parties.
In this regard, the marriage has been a long marriage (some 29 or 30 years) and the parties have each contributed during the marriage in different ways.
I acknowledge that the husband’s family has contributed accommodation to the immediate family over some period of time. I acknowledge also that the wife’s family had contributed accommodation for her and the children when they first came to Australia.
I accept that each of the parties contributed his or her respective incomes to the development of the assets of the parties. I make no finding contrary to the submission of the wife that the husband has been engaged in illicit activities and accepting bribes and thereby enriching himself and, inferentially, the family. It is unnecessary for me to make such a finding. The husband did undoubtedly contribute funds to the family. I note and take account of the fact that following upon separation, at least, the $80,000 loan in respect of the property at H Street, G, ACT has been discharged. The circumstances in which it was discharged and the identity of those who contributed to it are, to my mind, perhaps a little hazy. There was an element, it seemed to me, of uncertainty about whether or not a member of the husband’s immediate family had contributed to the discharge of the mortgage.
Irrespective of whether or not it came from the husband alone from his own income or from his brother, it does represent a contribution on behalf of the husband.[17] Equally, however, in the period post‑separation, the wife has had the major homemaking and parenting role in relation to the children. In my opinion that offsets any additional contribution that may have been made by the husband.
[17] See generally Gosper & Gosper (1987) FLC 91-818 (per Fogarty J).
Overall, it seems to me that during the course of the marriage the parties should be regarded as having equally contributed. I indicated previously that the husband may have contributed more in money terms.
There is no question about the fact that the wife contributed more as homemaker and parent. In this regard, one only needs to take account of the long periods of absence of the husband from the family home and the fact that during that period, of necessity, the mother was the principal homemaker.
Taking all those matters into account on that basis, in my opinion, for all practical purposes the contributions of the parties to the acquisition of the assets should be regarded as equal.
In this regard, I note that my finding in relation to the non-establishment of the loan from Mr and Ms O means that the money must necessarily have come, as it clearly did, from an overseas source which the wife ascribes to the husband. However, this would represent in default of there being any alternative explanation, to be from the husband’s own earnings and resources rather than from any external source. That is part of his contribution which is, as I indicated previously, offset for all practical purposes by the additional homemaking and parenting contribution made by the mother.
Section 75(2) factors
The factors that might properly be taken into account were summarised by each of counsel as set out hereunder.
I need comment, however, on the fact that Mr Anderson has urged upon me I should treat the apartment in K as a financial resource if I were not to take it into account as property of the parties. It seems to me that I cannot do that on the evidence as it stands, and for the reasons I have aforementioned. If I were to find that the property was in some way beneficially owned by the husband then it should properly be part of the property. If I cannot find that then I (equally) cannot find that it is a financial resource. I accept that he stayed in the property when he was overseas for some time. I do not accept, however, on the evidence that that necessarily implies that he has an interest in the property or that he can necessarily occupy the property if he should choose to return to South Central Asia.
So far as the other factors are concerned, the parties are aged about 57 and 47 years respectively.
Each of them has a limited capacity for further employment. The wife is in employment; the husband was in employment. He has a capacity for employment subject to his health which appears at the moment to be affected by some form of prostate illness which may incapacitate him for some time. I have no medical evidence of a satisfactory sort about the health of either of the parties. I accept simply that each of them has some difficulties in this regard. The wife’s earnings at present, although she is in employment and the husband is not, are very modest and not sufficient to meet her proper expenses.
I see no reason to differentiate between the parties because of their income, particularly in circumstances where the husband is enjoying accommodation and support from his family. This means that even his modest income from government sources is not seriously strained to enable him to survive.
I am not satisfied entirely about the husband’s capacity for employment. I note in this regard that he was proposing at the beginning of the proceedings to return to South Central Asia to earn money there. Whether he is able to work or not I cannot say and there is no medical evidence either way.
On the other hand, uncontradicted is the fact that as a factor to be taken into account under s 75(2) the mother will have the primary responsibility for the care of the child for a further five years and will do so with probably very little contribution financially or physically from the husband. This, it seems to me, is a factor which should result in some adjustment in her favour under s 75(2). I estimate that factor be, in practical terms, 7.5 per cent, which creates a differential of about 15 per cent between the parties. This means that there would be an additional factor in her favour over the share that she receives rather than the husband’s of approximately $70,000 which, in the years that the child will likely remain living at home, represents something in the order of $14,000 a year. This is a relatively modest assessment to meet the cost of a child.
Thus, the parties should be entitled to a net adjustment in percentage terms of 57.5 per cent to the wife and 42.5 per cent to the husband.
The fourth step: justice and equity
So far as the fourth step is concerned, the difficulties that arise in making an assessment between the parties are the somewhat strange and strained circumstances of each of them. The percentages I have indicated I should use mean that the wife will have some contribution towards her future accommodation. It may not be sufficient to enable her to obtain the accommodation she wants. But it will give her some certain accommodation. It is a bit difficult to know with the husband as to what extent he will need further accommodation, as it appears that the house he is staying in is one he would like to keep (and may well keep). How he will borrow enough money to pay out the wife is something I do not know. But in the absence of his being able to borrow that money, then the property will need to be sold.
Neither of the parties has re-partnered and there are no other factors which would bear upon my considerations under s 75(2).
Neither is likely to enjoy a significantly secure financial future and in the circumstances the relatively modest adjustments between them that I have suggested seems to me to be appropriate.
Calculating the effect of the orders
The net assets of the parties total $464,619. On the basis of an adjustment of those net assets in percentage terms between the parties as to 57.5 per cent to the wife and 42.5 per cent husband, this would mean that the wife is entitled to a notional sum of $267,155 and the husband would receive a notional sum of $197,463.
Presently, the wife has in her possession her jewellery worth $13,800, her vehicle worth $20,000, $1,000 in the bank, and her superannuation of $4,819. These items total $39,619. It is necessary to take into account her liabilities of $50,700. In effect, if the assets she has in her possession are offset against her liabilities, she will still owe approximately $11,081. She should thus receive an additional payment from the husband of $11,081 to compensate her for the assumption of that debt. Adding that sum of $11,081 to her notional sum as determined by my findings on the parties’ respective contributions (in percentage terms), she should receive the sum of $278,236 ($267,155 plus $11,081). I round this sum up to $280,000.
The husband presently has in his possession the property at H Street, G, ACT worth $470,000, his vehicle worth $5,000 and his savings of $700. These items total $475,700. Offsetting his notional sum as determined by my findings on the parties’ respective contributions (in percentage terms) of $197,463 as against the total assets in his possession ($475,700 less $197,463), the husband should pay to the wife approximately $278,237 (which is rounded up to $280,000).
The calculation is expressed as follows:
Wife
Husband
57.5% of $464,619 = $267,155
Assets currently in her possession
$13,800 (Jewellery)
$20,000 (Vehicle)
$1,000 (Savings)
____
$39,619
($50,700) (Loans to GE Finance)
____
($11,081)
267,155 + 11,081
___
$278, 236, rounded up to $280,000
42.5% of $464,619 = $197,463
Assets in his possession
$470,000 (Matrimonial Home)
$5,000 (Vehicle)
$700 (Savings)
____
$475,700 –
$197,463
____
$278,237, rounded up to $280,000
Conclusion
All in all, I consider the orders I propose to make are just and equitable. Accordingly, I make orders as set out in my Reasons for Judgment.
I certify that the preceding one hundred and twenty-six (126) paragraphs are a true copy of the reasons for judgment of the Honourable Deputy Chief Justice Faulks delivered on 5 April 2011.
Senior Legal Associate:
Date: 14 April 2011
2
1