SAGAR & SALVI

[2019] FCCA 468

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAGAR & SALVI [2019] FCCA 468

Catchwords:
FAMILY LAW – Property dispute – extensive disputation about properties allegedly owned or part-owned in India – allegations of fraud on the court by doctoring of documents – disclosure by both parties radically incomplete – court forming view that both parties prepared to say anything they perceive to help their case – order that Australian property be divided 60/40 in wife’s favour – court unable to make findings about property interests in India.

Legislation:

Family Law Act 1975

Cases cited:

Stanford v Stanford [2012] HCA 52

Applicant: MS SAGAR

Respondent: MR SALVI

File Number: DGC 3244 of 2017

Judgment of: Judge Burchardt

Hearing date: 12 December 2018

Date of Last Submission: 12 December 2018

Delivered at: Melbourne

Delivered on: 7 March 2019

REPRESENTATION

Counsel for the Applicant: Ms Morkos

Solicitors for the Applicant: VR Lawyers

Counsel for the Respondent: Mr Boden

Solicitors for the Respondent: Starnet Legal Pty Ltd

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

DGC 3244 of 2017

MS SAGAR

Applicant

And

MR SALVI

Respondent

REASONS FOR JUDGMENT

Introductory

1. This is a property dispute, in which much of the disputation turns upon properties allegedly owned, or not owned as the case may be, by the parties in India.  Their child [X] born … 2011 lives with the mother and spends relatively small amounts of time with the father.  The parties have produced consent orders dealing with the parenting issues, which are agreed save for two orders that concern the question of overseas travel.  The applicant wife seeks a division of non-superannuation assets 70/30 in her favour and that the parties’ superannuation be equalised.  The respondent husband seeks a division of 60 per cent in his favour and 40 per cent to the wife.  He seeks that he provide a superannuation split of $10,000 to the wife.

2. For the reasons that follow, I am going to order that the parties’ assets in Australia be divided 60 per cent in favour of the wife and 40 per cent of the husband, with an equalisation of superannuation.  I will further order that whatever properties they do own in India simply remain as they are.

Agreed or Uncontroversial Relevant Facts

1. The wife was born on … 1985 and the husband was born on … 1978.  They entered into an arranged marriage on … 2008 in India, but by no later than … 2009 both the husband, who returned almost immediately after the marriage, and the wife, were living in Australia.

2. The wife obtained a position full-time with [B] (“[B]”) shortly after her arrival in Australia and continued to work until the birth of [X] in … 2011.

3. In … 2014 the parties bought the former matrimonial home.  The wife had been on maternity leave until … 2012 when she commenced part-time employment with [A].

4. The matrimonial home at Street C, Suburb D was purchased for $468,000.  There is a dispute as to who put how much into the property by way of deposit.

5. The husband has worked throughout the relationship albeit that his employment has changed from time to time.  Since about … 2015 he has been working for [E].

6. The wife has alleged and the husband has denied physical assault including rape and verbal abuse.  In or about … 2016 the wife travelled to India with [X] although there is a dispute as to why she did not return to Australia until … 2017.  The parties lived as separated under one roof for a period of time.  The wife said this commenced on 8 February 2017 and the husband says this was around September 2016.

7. The wife recommenced working for [B] in … 2017.  An interim Intervention Order was granted against the husband on 10 August 2017 pursuant to which he was removed from the former matrimonial home.  A divorce order was effected on 9 September 2018.

The Parties’ Affidavits

1. I do not propose to deal with the parties’ affidavits in great detail.  The parties have condescended to a great deal of detailed assertion as to how much moneys they put into the relationship from time to time.  Relevantly from the affidavit material, the wife puts her contribution to the matrimonial home as $40,000 and that of the husband as $50,000.  He appears to concede her $40,000 but says he contributed $70,000.  Both parties assert that the other has bought property in India and that is a matter to which it will be necessary to return in more detail.  Each of them have made competing assertions as to who contributed how much to the cost of the wedding, to jewellery allegedly given to the wife from time to time and other matters of this sort, including an alleged $10,000 dowry.

2. I will return to the question of contributions in due course but I would say even at this stage that much of what the parties put was either not satisfactorily established on the evidence or sufficiently historical to be now of no great moment.

Properties in India

1. This is a topic that consumed the energies of the parties throughout this proceeding including the trial.  It is appropriate to look at what the parties have said about properties in India from time to time in their affidavits.

2. In her affidavit accompanying her initiating application filed on 11 October 2017 the wife deposed to the purchase of a Motor Vehicle F in about 2010 for $7,700 which the wife said she paid for wholly.  She also said at paragraph 11:

   “Around … 2010, the Respondent purchased a piece of land in City K, India under his name.  I do not know how much he paid for the property or what the property is worth today.”

3. At paragraph 16 the wife deposed:

   “Around … 2012, the Respondent and I purchased another piece of land in City L India.  I gave the Respondent AUD$27,000 towards the purchase price.  The land is registered in the Respondent’s name.  The property was purchased for AUD E$30,000.  The property is worth AUD E$110,000.  Now produced and shown to me and marked “S-2” is a true and correct copy of the Commonwealth Bank statement.”

4. The wife had annexed as S-1 a bank statement showing a Netbank transfer of $8,000 towards the purchase of a car on … 2010.

5. Annexure S-2 does show a withdrawal from the wife’s Smart Access bank account of $27,000.

6. The wife deposed at paragraph 22:

   “In … 2015, the Respondent bought his parents a house in City M India.  The value of that property was AUD$100,000 in 2015.  I do not know what the property is worth today.”

7. Finally at paragraph 38 the wife deposed that the respondent transferred $20,000 from the parties’ offset account to his credit card on 9 February 2017.  Annexure S-8 appears to support a withdrawal although it does not appear to show unequivocally who the payee was.

8. In his responding affidavit filed 19 January 2018 the husband deposed at paragraph 9:

   “As part of our wedding, the applicant’s parents gifted one share in their property.  This property is located at City G, India.  Our share which was gifted to us at the time of the wedding was approximately worth $80,000.  The respondent’s parents also gifted us a share in their land near City G, India.  The value of the gifted share is approximately $80,000.”

9. The husband deposed that in around … 2010 he purchased a Motor Vehicle F for $8,250.

10. At paragraph 40 of the same affidavit the husband deposed:

    “On or around … 2014, during our trip to India we bought a piece of land with the applicant’s parents.  I contributing approximately $10,000 to the purchase of this land in City J, India.  The estimated value of that land is $100,000 and our share contributes to 33%.”

11. The husband deposed that he had in … 2015 transferred $37,500 that he had borrowed from Citibank into the offset account to take advantage of a lower interest rate. 

12. He deposed to borrowing another $23,000 from Westpac for the above-mentioned reason.

13. At paragraph 51 the husband deposed:

    “Around November or December 2016, the applicant with her family started construction to build a 3-storey shopping complex in City J, India.  I am aware that the applicant contributed towards the purchase and construction of this site and that the applicant’s parents are on title and listed owners.  To my knowledge, the site is currently under construction, and I estimate the applicant’s share to be worth approximate $75,000.”

14. At paragraph 69 the husband deposed:

    “I vehemently deny that I or anyone from my family bought the alleged land in City K India.”

15. In respect of paragraph 16 of the wife’s affidavit dealing with the property at City L India the husband responded at paragraph 70:

    “In response to Paragraph 16 of the affidavit, I deny that the applicant contributed towards the purchase of the said property.  The said property was purchased by my father, in my name, and was to be utilised by my family.  The applicant transferred the said $27,000 to my bank account.  However, $10,000 of the transfer was in fact my savings, which were deposited by my into the applicant’s bank account.  $7,000 of the transfer was from the Baby Bonus Scheme, which was a Federal Government Initiative to assist young families.  The applicant only transferred $10,000 to my account from her saving, which was her contribution.  The said property was never in my possession or control.  The property was sold by my father in India on or about … 2013.  I did not receive any proceeds from this sale.  Further, my long service leave payments total too $22,000, not $30,000 as alleged by the applicant.”

16. At paragraph 72 the husband deposed:

    “I admit that I bought my parent’s a house in City M India.  I purchased this property solely for the use of my parents.  I do not intend to sell or use this property myself.  Me and my brother have been assisting our elderly parents, whereby, my brother pays for all their expenses/outgoings.  And I contribute to the mortgage repayments.  I purchased this property in mid 2015 for approximately $77,000 and I have an outstanding loan amount with State Bank of India for approximately $70,000.”

17. The husband admitted taking $20,000 from the offset account in February 2017 but deposed at paragraph 83 that this was to repay the Citibank loan, which otherwise faced penalty interest.

18. The next affidavit filed was the wife’s trial affidavit filed 5 December 2018.  She alleged that during the parties’ marriage the husband was in complete control of the parties’ finances.  She deposed that the Motor Vehicle F bought in 2010 was in the husband’s name and was no longer roadworthy.

19. The wife deposed that the land at City K India was bought in about … 2010.  She deposed at paragraph 55 to the husband signing a Power of Attorney to his father.  She deposed that she did not know how much the husband paid for the property nor what it was worth.

20. The wife went on to depose again to the City L India property.  She reprised the purchase as earlier deposed in her first affidavit.  She annexed as “-9” a Statutory Declaration.  The Statutory Declaration declared by the husband on 27 April 2017 purports to disclose that the wife contributed three-quarters of the purchase price of the City L India property in … 2012 and that her share would be not worth less than $60,000.  It also purported to allot the matrimonial home as to 37 per cent to the wife and 63 per cent to the husband.  The wife also annexed “-8” which purported to be a Registration and Stamps document from the government of City G, India valuing the property at 4620000 rupees.  This document became of some significance in the proceedings.

21. The wife deposed that the husband sold the City L India property six weeks after she had commenced property proceedings for $9,600.  She produced a Statement of Encumbrance dated … 2018 as “-10”.

22. The wife went on to depose at paragraph 61 and 62 that the husband had produced a translated Sale Agreement dated … 2013.  She deposed to the property being sold at an undervalue and produced “-11” as a true copy of the translated Sale Agreement.

23. The wife then dealt at paragraph 73 with the City M India property.  She deposed that that value of the property was A$96,000 in 2015 but she noted a valuation produced by the husband in the sum of $75,000 (-17).

24. The wife produced also -18 which purported to be a record of a loan on the City M India property in the sum of A$72,000 (in Indian rupees).  I note that the document having been produced in a Conciliation Conference should probably not have been tendered but no objection was taken.

25. The wife went on to deal with various properties that the husband has sought details about.

26. At paragraph 80 the wife deposed that in relation to a property at City N India that her parents had bought this property in her mother’s name in 2016.  She denied that the parents had gifted one-third share of the property as a wedding present to the parties.

27. The wife deposed at paragraph 81 to a property at City G.  She denied again that one-third of the property was gifted as a wedding present by her parents.  She denied that her parents had ever owned the property.

28. At paragraph 82 the wife deposed about the City J property and said this belonged to her paternal grandfather.  Several members of her father’s family now own the property.

29. The husband’s trial affidavit naturally enough took issue with the mother’s assertions.  I note that his position at [E] is due to expire on 31 December 2018.  He now confirmed that the Motor Vehicle F bought in 2010 was bought by the applicant.

30. The husband continued to deny that his family owned any land in City K.  He went on to deal with the City L property.  He deposed that the City L property was purchased by his father for approximately A$4,200 in 2012.  He deposed that it was sold to his brother-in-law for $9,200 in 2013.  He took issue with the wife’s valuation of $92,000.

31. The husband said he signed all three Statutory Declarations attributed to him in 2017 under undue influence by the wife.  He annexed as exhibit “S5” copies of the Statutory Declarations.  S5 includes the Statutory Declaration indicating that the City L property was registered in his name but jointly purchased with the wife.  A further Statutory Declaration values the City L property at approximately A$80,000 of which the wife had contributed three-quarters.  This was consistent with the one already referred to regarding her interest at $60,000.

32. The husband denied that the City L property had been sold in 2017 and repeated that at paragraph 12:

    “The property was sold in 2013 as per the sale deed and sale agreement, the property after the final part payment pursuant

    
    

    to the before mentioned agreements was transferred on

    
    

    … 2017.”

33. The husband repeated his assertion that the City M property was bought for his parents in 2015 for approximately $80,000 paid by a loan from the State Bank of India for approximately A$60,000 with the remainder provided by his father.  The husband repeated that a portion of the City J property had been bought during the marriage and asserted at paragraph 22 that he contributed $10,000 towards its purchase.

The Evidence Given at Court

1. What follows is taken from my notes.  It is self-evidently not a transcript but records items of the evidence that I found of significance.

2. I note that in opening counsel for the wife indicated the matrimonial home had a value of $700,000, and it is clear that this is an agreed figure.  The mortgage is now either $357,000 or $353,000 depending on whose figures one accept.

3. The husband’s superannuation is put at $85,389 and the wife’s at $31,164.

4. The wife was called and adopted her affidavits as true and correct.  She is a customer value specialist.

5. Under cross-examination the wife said that the husband now pays Child Support.  She applied for an assessment in August 2017 and it took six to eight weeks to come through.  Her Financial Statement, which she had sworn when it was signed, but had not recently seen, was before that.

6. The wife confirmed that she had driven to Court in a brand new Motor Vehicle O.  She said her father had paid $10,000 to enable her to buy it and there was a $30,000 loan also.

7. The wife confirmed that she works 48 hours per fortnight and earns between $1,600 and $1,800.  She now undertakes a lot of overtime.

8. She was cross-examined about the City L property.  She said it was bought during the marriage.  The husband now says his grandfather bought it in 2012 but this was not disclosed during the marriage.  When it was put to her that the property was bought for $4,200 she said this was incorrect.  She said that is not how it works in India.  She said the husband borrowed $27,000.  She was cross-examined about the entries at pages 46 and 42 of her trial affidavit.  It was put to her that this was tampered with by adding an additional zero.  She was adamant that this was a document she received from India and it was forwarded to her lawyers.  The husband said he had bought the property for $30,000 and borrowed $27,000 from him.  She did not accept that the property had been sold to the husband’s brother-in-law for $9,000.

9. The wife said that the grandfather lives in the property at City M.  She accepted that it had been bought for 40 lakhs ($80,000).  She professed not to be sure what the mortgage was when it was put to her that it had a mortgage of $73,000.

10. When cross-examined about the City K property the wife said the husband said he had bought the property but did not tell her where it was.

11. When cross-examined about the City J property the wife said this was her grandfather’s property.  She did not accept that the husband had contributed $10,000 towards this in 2010.  She confirmed that her father was not on affidavit.  The $10,000 was for her brother’s wedding and her sister had paid the money back.  She said her sister undertakes banking duties for her father.  The husband now says he lent $10,000 to the sister which she agreed was paid.

12. When cross-examined about the purchase of the matrimonial home the wife said she contributed $40,000 towards the $464,000 purchase price.  The husband paid $50,000.  Exhibit R2 was the Contract of Sale.

13. It appears to show a deposit of in excess of $106,000 which is more conformable with the husband’s estimate.

14. When cross-examined about the $20,000 taken from the offset account the wife said that she did not know if this was paid to Citibank.  She said she had transferred $10,000 into the account.  She had never seen anything about the husband’s redundancy and he had said it was $30,000.

15. The wife said she looked after the family.  She only took nine months maternity leave.  She worked fulltime in 2010.

16. The wife conceded that her 2010 tax return disclosed an income

    
    

    of $21,482.  When it was put to her that her income as asserted during that tax year was not $60,000 the wife said, wholly unbelievably, that she had only started at [B] in … 2009.

17. When cross-examined about the $27,000 worth of jewellery allegedly in her possession she said that this was with the father’s mother in his parents’ locker.  She denied there were any photographs of her after separation wearing the jewellery.

18. The wife denied having a 33 per cent interest in the property at City N.  She did not remember her first affidavit.  She admitted that no assaults or rapes were reported to the police, but an Intervention Order was taken out in 2017.  She went to the Suburb P Court because the husband was threatening suicide.  She said she had informed SOCIT, but she has not subpoenaed SOCIT or Victoria Police. 

19. The wife was aware that the husband alleged family violence.  He had not been forced to sign the Statutory Declarations giving the property to her.

20. She left to go to India in … 2016 and returned in … 2017.  The husband came in October to her family home and cancelled her ticket back to Australia.

21. There was relatively extensive cross-examination about the wife’s bank accounts, which I confess was hard to follow.  It is clear that bank accounts for an account ending in … and … were not produced, although they should have been available.

1. In re-examination the wife confirmed that she was not aware of the $20,000 payment to Citibank.  She had not seen any documents about this.  The property at City J belonged now to her father.  Her uncle had sold her share to her father.  City M is owned by the husband’s parents.  The City L land is owned by the husband and his father.

2. The husband sold to his brother-in-law in 2013, but she had not seen the documents until they were at Court.  The husband had signed the Statutory Declarations.  She had asked what he did with the money he had taken from her, and he then made the Statutory Declarations.  She had not committed family violence against the husband.  She had bought a new car in … 2018.  She works part time, and her income fluctuates.  If there were no overtime she would earn less.

The Evidence of the Husband

1. The husband adopted his affidavits and Financial Statement as true and correct.

2. Under cross-examination the husband said he had two bank accounts in use and had provided documents from them.  Some have just been closed, like Citibank.  He paid $20,000 and closed the account.  He opened the Citibank account during the purchase of the matrimonial home at 2.9 per cent and put it into the offset account which was 5.3 per cent.  He ultimately repaid this money in about 2015.  Exhibit A1 are Citibank records.

3. It should be noted that, as with the wife, the husband’s discovery of bank records was obviously very incomplete.

4. The husband said he had a bank account with ANZ and an AMEX account.  His Westpac credit bank account is no longer there.  It was a credit card account ceased in about 2015.  He has an overseas account and is paying $700 per month for the City M mortgage.  It is an Indian account.  He has about $2,000 in it.  The mortgage will be paid out of that figure.  He has been paying the mortgage since the purchase of the property.  The loan is in his name, and his parents live in the property.  His brother pays the other expenses.  His father has a Power of Attorney.

5. There are two loans with the State Bank of India.  The first loan was 2015, and the second loan was 2016.  The second loan was for the refurbishment and construction of a compound wall.

6. The husband said he took $37,000 from Citibank.  I note that the husband, when pressed, said he could give more documents.  Exhibit A3 were further Citibank records.  The husband said he closed a State Bank of India account in 2016 and then said possibly 2017.  He now transfers by Instagram.  He uses Western Union for his sister and also sends money when his parents need it.  He would borrow monies from his friends.

7. The husband said he had lost his job but restarted work in … 2014.  His redundancy pay was $22,000 (this was one assertion given with conviction and which I accept).

8. He said he had spent the $22,000 supporting the family.  He had repaid Mr H $30,000.  The husband gave evidence about loans being to purchase jewellery in India, (paragraph 18 of his trial affidavit), but I should interpolate and say it was obvious that these answers were being made-up on the run.

9. The husband said he had transferred funds after separation but this was because everybody wanted their money back.  He did not accept that there was no interest in the City J land.  He said there was a one-third share.

10. The husband said that the wife provided $20,000 towards the City L property and blackmailed him about the statutory declaration.  She said that he signed the Statutory Declarations at annexure S-5 because the wife said she would take his daughter.  They were living under the same roof until the Intervention Order in August 2017.  He conceded that he had read the Statutory Declarations before he signed them, and understood them.  City L had been sold in 2013 and transferred in 2017.  The husband was questioned about the registration document at page 32 and 53 of his trial affidavit.  He said he had obtained this four days ago.  He said City L was vacant land, and not residential and, therefore, much cheaper.

11. The husband was cross-examined at some length about his bank accounts but, once again, beyond the fact that, as with the wife, there had been blatant non-disclosure, it was not easy to follow the detail.

12. The husband said that they had both been primary carers for the child because the wife travelled and worked.  When it was put to him that the marriage was not happy in 2015 to 2016, he said it was happy from his end.  He denied being violent and said he had never forced the wife to have sex.  The wife had a miscarriage, but he did not blame her.  Her allegations were put to get an Intervention Order.  He had bought a ticket for the wife.  He had not cancelled her ticket.  He then conceded, however, that the wife returned on a ticket purchased by her own family.

13. In re-examination the husband confirmed his redundancy payment was received in … 2013.  He had travelled to India in … 2014. 

14. By leave, I permitted further cross-examination about the husband’s bank accounts but, once again, this was of little assistance.

Brief Observations about the Credit of the Witnesses

1. It is always regrettable to have to make remarks critical of witnesses and/or parties.  This is yet another case, however, in which, most unfortunately, criticism simply cannot be avoided.  Both these parties struck me as being avidly concerned to get as much money out of this proceeding as they could, and being prepared to say absolutely anything to try and foster that outcome.

2. Almost from the inception of her cross-examination the wife impressed me as very keen to downplay her income.  Some of her answers about transfers of funds were wholly unbelievable.  As earlier indicated, her assertion that her 2009/2010 income was distorted by late commencement of work with [B] simply does not add up.  Her estimate of her income at $60,000 in that year was plainly wrong and exaggerated deliberately.

3. I formed the very clear impression from what the witness said and the way that she said it that she would say anything that she felt might improve her case.  I note, as earlier indicated, that a number of bank records that really should obviously have been available were simply not provided.

4. The husband was no better.  Indeed, to an extent, he struck me as being an even worse and less believable witness than the wife.  Like her, his failure to discover his bank and other records was very, very striking.  He struck me as being, quite frankly, utterly unconvincing.  Some of his professed lack of recall, for example, about when he closed his State Bank of India account, was wholly unbelievable given his otherwise very precise memory.  His evidence about loans being applied for jewellery in India were clearly, as I have indicated - made-up on the run.

5. The husband had a tendency to give answers that were unresponsive

   
   

   to any questions.  He baldly conceded lying when he swore the Statutory Declarations, even though he had read the Statutory Declarations and well knew that he was required to tell the truth in them.  A man who will lie on his oath (and Statutory Declarations are on oath) is plainly a man to whose word very little credence can readily be given.

6. Indeed, it would be fair to say that looking at their evidence overall,

   
   

   I formed the clear impression that these were two witnesses to whom truth was, at best, an uneasy guest, and at worst, a thoroughly unwelcome visitor.

Stanford v Stanford

1. Against this background, I come now to the Court’s first task which is

   
   

   to identify the legal and equitable interests of the parties and determine whether a property division is appropriate.  As foreshadowed, however, in Stanford, this is one of the very many cases in which the parties have now radically readjusted the way in which they conduct their financial affairs.  Both sides seek a property division and it is eminently appropriate that there be one.

The Pool

1. Both parties agree that the matrimonial home is worth $700,000. 

   
   

   The mortgage appears to be approximately $355,000.

2. The Motor Vehicle F, upon which so much time was wasted, is now valueless.  The wife has estimated in her Outline of Case document an estimate of $4,000, but in my view, given that it is no longer roadworthy, it should be allotted no value whatever.

3. The husband possesses a new car which is heavily encumbered by a loan.  On any view of the matter, wherever he got the money to buy it,

   
   

   it is a post-separation asset.

4. The parties’ bank accounts do not, in my opinion, fall for inclusion

   
   

   in the pool as, once again, there is no evidence to suggest that they were garnered during the relationship.

5. It should be noted that one aspect of the parties’ finances not explored

   
   

   in any meaningful way was the surprisingly high amounts of money they were able to disburse in purchasing properties when their incomes were allegedly relatively low.  One can only surmise as to quite how they managed to amass, for example, $110,000 in savings between 2009, when they came to Australia together, and 2014 when they bought the matrimonial home.

6. I am utterly unable to form any conclusions as to who has what, if any, jewellery in their possession.  Neither party’s evidence struck me

   
   

   as being, in any way, convincing and I will not include them in the pool.

7. This leaves the question of the properties in India.  There is no doubt that one or other side has produced a false document to the Court.  Despite the endeavours by counsel to persuade me that the documents provided by the wife involved an internal inconsistency, I am not persuaded that

   
   

   I am able to make a positive finding about the very serious question of the production of a fraudulent document to the Court.  Having seen and heard them give their evidence, I have no doubt that either of these parties would be well capable of doing so if they thought that it was in their interests.

8. At one point, the husband appeared to concede that the wife might have made some sort of contribution to the property at City M, and the amount that I understood him to concede would be worth more than it was worth according to him.  Unfortunately, however, this apparent concession was just part of the miasma of confusion and mendacity that surrounded all aspects of the Indian properties.  In the end, I am not persuaded that any of the Indian properties can be allotted a particular value as at the present time.  I will return to this aspect of the matter when dealing with the section 75(2) matters.

9. The husband’s superannuation is presently $85,389, and that of the wife is $31,164.

10. It is immediately clear that the wife’s superannuation must have been entirely garnished during the relationship (subject to any minor increases since separation).  There is no evidence before the Court as to how much of the husband’s superannuation was garnished in the period from when he arrived in Australia in … 2007 until the marriage in late 2008, nor how much may have been garnered since separation save that the husband’s first estimate of his superannuation in January 2018 was $56,000.

Contribution

1. I find both these parties did their best to contribute to the wellbeing of the parties’ finances and their wellbeing generally (bearing in mind that household tasks are to be recognised not in a token way).  The wife appears to have worked through most of the relationship, and although his employment has, from time to time, been abruptly ended

   
   

   (as, for example, when he was made redundant in 2013), the fact is that the husband has always worked, as well.

2. The wife’s estimates of her earnings from time to time have clearly, at times, been grossly exaggerated.  One of the reasons why I do not find it easy to accept that she can have contributed any significant amount

   
   

   to the City M property is that her earnings, as revealed by her tax return, are relatively low.

3. Bearing in mind the wife’s greater child-rearing responsibilities,

   
   

   and bearing in mind that I accept that the husband was violent to her on occasion (although I am not able to make a finding as to her assertions of rape), I would assess the parties’ contributions as being equal.

Future Needs

1. Both these parties, undoubtedly, have interests of one sort of another

   
   

   in properties in India.  Their mendacious evidence makes it impossible to work out exactly what those interests are.  All one can say is that,

   
   

   in one fashion or another, it seems highly probable that each of them will generate some sort of benefit out of the inter-family investments that they appear to have made from time to time.  The evidence does not go so far, however, as to enable the Court to be satisfied that it is more probable than otherwise that any particular sum will be received at any particular time.

2. As a matter of very general impression (and that is the best the Court can possibly do in the circumstances), I would opine that both these parties have families who are, by Indian standards, relatively well-off and who conduct their business affairs on what might be described as a broad family grouping.  What each of them had to say suggested that purchases of property in common with other family members with properties registered inconsistently with the initial contributions, appeared to be the norm.

3. Otherwise, the wife presently makes $54,000 per year.  The husband’s income is always likely to be somewhat greater, not least because

   
   

   he does not have primary responsibility for looking after the child.  Neither party is said to be in anything other than unexceptionable health.  There is a disparity in age but not one, in the circumstances, so great

   
   

   as to give rise to any adjustment.  In all the circumstances, bearing in mind the mother’s, essentially, almost full-time care of the child and resultant reduced income, I would allot a 10 per cent loading in respect of future needs.

Conclusion

1. This is a case in which both sides have been utterly lamentable in the production of documentation.  They both impressed as very unsatisfactory witnesses to whom the truth, most particularly in the face of the husband’s false Statutory Declarations, is a disposable commodity.  I think an outcome that gives the wife 60 per cent of the Australian property and the husband 40 per cent, is just and equitable bearing

   
   

   in mind the uncertainties of whatever the position may be in India.

2. In respect of superannuation the vast bulk of it, in the ultimate,

   
   

   must surely have been generated during the period of their cohabitation.  In my view, doing the best one can with figures that are far from precise, is that it is just and equitable that there be an equalisation.  I note that the husband is always likely to earn more than the wife and likely to garner greater superannuation in the future, in any event.

3. Neither party has indicated whether or not they wish to, or indeed are able to, purchase out the interest of the other.  I will give the parties an opportunity to consider these reasons for judgment and hear from them as to the final orders that should be made.

The Overseas Travel Issue

1. The above has determined the question of the parties’ finances.  The final remaining issue is whether or not either parent should be permitted

   
   

   to travel to India with the child.

2. As I understand it, the wife proposes that both parents be at liberty to do so and the husband opposes.  He has articulated a fear that the child will be left by the wife with her family in India.

3. The short answer to this dispute is a simple one.  The wife went to India, for whatever reason, in … 2016.  She returned in … 2017.  Had she wished to return to India permanently, it was well open to her to do so.  As earlier indicated, I have formed the impression that both

   
   

   of these parties come from relatively wealthy families, and had she had

   
   

   a desire to stay there she would have had every opportunity and inducement to do so.

4. The fact is that she returned voluntarily.  She is going to be the possessor of a property in Australia, one way or the other, I suspect, and the evidence simply does not sustain the objections that the husband puts forward.  Likewise, I see no reason to suppose that the husband, should he go to India, would not return the child to Australia.  Orders permitting travel will be made.

I certify that the preceding one hundred and eleven (111) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Date: 7 March 2019