SIMON & HASSETT
[2014] FCCA 48
•24 January 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SIMON & HASSETT | [2014] FCCA 48 |
| Catchwords: FAMILY LAW – Application by husband for orders altering property interests – short marriage – modest property pool – assessment of contributions – considerations of justice and equity. |
| Legislation: Family Law Act 1975, ss.79(1); 79(2); 79(4); 75(2) ;106A |
| Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143 Bevan & Bevan [2013] FamCAFC 116 Stanford v Stanford [2012] HCA 52 Watson & Ling [2013] FamCA 57 Waters & Jurek (1995) FLC 92-635 |
| Applicant: | MR SIMON |
| Respondent: | MS HASSETT |
| File Number: | ADC 87 of 2013 |
| Judgment of: | Judge Brown |
| Hearing date: | 6 December 2013 |
| Date of Last Submission: | 6 December 2013 |
| Delivered at: | Adelaide |
| Delivered on: | 24 January 2014 |
REPRESENTATION
| Counsel for the Applicant: | In Person |
| Counsel for the Respondent: | In Person |
ORDERS
The application filed 1 February 2013 and the response filed 5 April 2013 be dismissed.
That as and from the date of this order, each party shall retain all assets which each now has when so ever or how so ever required; including but without limiting the effect hereto the husband shall retain for his sole use and benefit absolutely free from any further claim or demand of the wife:
(a)furniture and effects in his possession, power and control.
(b)the Magna motor vehicle in his possession.
(c)any savings and investments in his sole name.
(d)any superannuation entitlement, long service leave, annual leave or other work related benefits standing in his name.
(e)his personal effects.
(f)any other real and/or personal property and/or financial resources of the husband in the husband’s name and/or possession not otherwise specified herein.
Including but without limiting the effect hereof, the wife shall retain for her sole use and benefit absolutely free from any further claim or demand of the husband:
(a)the furniture and furnishings in her possession, power and control.
(b)any motor vehicle in her possession.
(c)savings, shares and investments in her name.
(d)any superannuation entitlement, long service leave, annual leave or other work related benefits standing in her name.
(e)her personal effects.
(f)her interest in the property known as and situate at Property I in the state of South Australia and being the whole of the land contained in Certificate of Title Volume (omitted) Folio (omitted) (hereinafter referred to as “the Property I property”).
(g)any other real and/or personal property and/or financial resources of the wife or in the wife’s name and/or possession not otherwise specified herein.
That the wife keep the husband indemnified in respect of all outgoings, including mortgage payments arising from her proprietary interest in the Property I property.
That each party shall do all such things and acts and sign all such necessary documents to give effect to the terms of this order.
That within thirty days of the dates of these orders the husband take all necessary steps and execute all necessary documents to discharge the caveat lodged by in respect of the Property I property, at his own expense.
Pursuant to section 106A of the Family Law Act 1975 the Registrar of the Family Court at Adelaide is appointed to execute any necessary deeds or instrument required to be completed to give effect to these orders in event either party refuses or neglects to comply with order (6) hereof.
IT IS NOTED that publication of this judgment under the pseudonym Simon & Hassett is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MOUNT GAMBIER |
ADC 87 of 2013
| MR SIMON |
Applicant
And
| MS HASSETT |
Respondent
REASONS FOR JUDGMENT
Introduction
These proceedings relate to the settlement of matrimonial property. The parties to the proceedings are Mr Simon “the husband” and Ms Hassett “the wife”.
The proceedings were difficult for a number of reasons. Firstly, each party was unrepresented. Secondly, there is an extreme level of hostility between the parties, which frequently boiled over in the conduct of the case. Thirdly, the parties disagree about practically everything which has ever occurred between them, including the date on which they were actually married.
What is clear, however, is that there are now few, if any, assets available to be divided between the parties and that both are likely to face an uncertain financial future in Australia.
It is also apparent that, regardless of the dispute between the parties, as to when they actually married, the relationship between them was a relatively brief and clearly unhappy one.
The parties share an Indian descent but both are now Australian citizens. The husband was born on (omitted) 1978. The wife was born on (omitted) 1973. The parties agree on the place of their marriage. It was in (omitted), a city in the Indian state of (omitted).
They disagree on the date on which the marriage was solemnised. The husband asserts that it was (omitted) 2005. The wife that it was on (omitted) 2006. She asserts that the husband has either forged or tampered with the original marriage certificate, on which he now relies.
It is the wife’s submission that the tender of what she characterises as a counterfeit document must have serious consequences for the court’s assessment of the husband’s overall credibility. For his part, the husband contends that the wife has falsified the date of the parties’ marriage in order to ensure she does not fall foul of the Australian Immigration Authorities.
Both Mr Simon and Ms Hassett tendered into evidence what he or she respectively asserted was the original marriage certificate.[1] The documents have the same content, apart from the date of marriage. Both are signed by (omitted), who is described as the Additional Collector & Marriage Registrar for the district of (omitted).
[1] See Exhibits B & D respectively
To my eye, the husband’s document has the appearance of a certified copy, as it bears cancelled duty stamps and an untranslated statement in the Hindi language. The certificate tendered by the wife was the document relied upon by her to support her application for divorce filed in this court on 2 January 2013.
The wife is a (omitted) by occupation. She holds a (qualifications omitted) both conferred by the University of (omitted) in 2000.
The wife migrated to Australia in September of 2005 pursuant to a skilled worker visa. It was a condition of her visa that she work as a (omitted) for a period of at least two years in a remote part of South Australia.
It was a further condition of her visa that she not be married, prior to her first entry to this country. This would appear to be why the date of the parties’ marriage, in conflict on the face of the respective documents, has assumed emblematic significance in the proceedings before me.
In February 2006, the wife commenced employment as a (omitted), in (omitted), an (employer omitted) in the North of South Australia. Her salary was approximately $65,000.00 per annum and, given the remoteness of her place of employment, she was provided with accommodation by her employer, (omitted).
The wife’s position at (employer omitted) concluded at the end of the (omitted) 2006. Thereafter, she obtained a (omitted) position at (employer omitted) for the (omitted) year. Her salary was similar, although she was required to contribute towards the costs of her accommodation, which nonetheless remained significantly subsidised by the (employer omitted).
The husband migrated to Australia in May of 2007. His visa application was sponsored by the wife. The parties began to live together, at (omitted), on 27 May 2007. I have not been told by either party as to what was disclosed to the Immigration Department regarding their marital status or when they purported to have been married.
The husband is currently unemployed. He matriculated from secondary school, in India, but failed to complete tertiary studies in (course omitted). It is the husband’s position that when he met the wife, he had a well-paid job as an (omitted) in the (omitted) industry, where he had been employed for several years.
The wife disputes this assertion. It is her position that the husband was, at best, a casual and lowly paid worker in the (omitted) industry, without any great level of expertise. The parties do, however, agree that the husband arrived in (omitted), in May of 2007, with only a few clothes.
It is also common ground between the parties that the wife paid all costs related to the husband’s visa application, which amounted to a few thousand dollars. They disagree about who paid the cost of his travel to Australia. The wife asserts she did; the husband that he paid his own way. Nothing of substance turns on this dispute.
The parties disagree vehemently as to what happened from May of 2007 onwards whilst they lived together in (omitted). From the husband’s perspective, he did the best he could to find whatever employment was available to him. In addition, it is his case that he discharged most of the household duties and regularly cooked tasty Indian meals for the wife.
The wife completely disagrees. She characterises the husband as a person with little commitment to finding employment for himself. In addition, she disputes that he did anything of use around the home. Rather, she would categorise the husband as a lazy person who regularly drank to excess, which led to him committing acts of violence against her.
In early 2008, the wife completed her contract at (omitted). Thereafter, she obtained a position at the (employer omitted), located in the northern suburbs of Adelaide, (duties omitted). The husband accompanied Ms Hassett to Adelaide.
During the period of her employment at (omitted), the wife calculates her salary to have been in the range of $65,000.00 to $70,000.00 per annum. The parties lived in rented accommodation. The husband asserts that he obtained work in the (omitted), at a (employer omitted), but had to leave for health reasons. Thereafter he obtained work as a (omitted).
It is the wife’s position that she paid for the husband to attend a (omitted) course as an incentive for him to gain employment. She continues to be critical of Mr Simon for not applying himself to this occupation. She asserts that the husband rarely worked regardless of her encouragement and assistance to do so.
In early 2009, the parties moved again when the wife obtained a further (omitted) position at (omitted), which she took up at the beginning of March 2009. (omitted) is approximately 554 kilometres north of Adelaide and, because of its remote location, again the (employer omitted) subsidised the wife’s accommodation expenses.
The husband asserts that he obtained employment, as a (omitted), in (omitted), from May 2009 onwards, working five hours per day, six days a week, with the seventh day spent working casually at a (omitted). The wife asserts that, at best, the husband worked a maximum of ten hours per week and, in any event, obtained his position a significant period of time after the parties had arrived at (omitted).
To say that the wife has a jaundiced view of the husband and his behaviour during the marriage particularly in regards to his attempts to find gainful employment, is something of an understatement. She describes his conduct during much of the marriage as follows:
“… the applicant did very little if any work around the house. He expected me as the wife to do all domestic tasks even though I was working full-time and he was not working. He spent most of his days sitting in front of the television looking at pornographic movies. When he was not looking at television he was looking at movies on the computer. … all the cooking was undertaken by me as is expected by an Indian wife. … the applicant relied totally upon me to earn the income. He had an expectation that I would be the person who would undertake all domestic and other activities; work full-time and provide an income to enable him to have a life of ease and luxury. At the same time, the applicant perpetually abused me.”[2]
[2] See wife’s affidavit filed 5 April 2013 at paragraph 21-22
The parties agree that they met whilst on (omitted) in India, in mid-2005. At the time, it is the wife’s position that she was already committed to migrating to Australia and could not come as a married person.
She agrees that she returned to India during (omitted), on a number of occasions in 2006 to see the husband as well as her family. She also forwarded money to the husband. It seems to be the case that the wife formed a deep bond with Mr Simon soon after having met him.
It is the effect of Ms Hassett’s evidence that there is a cultural expectation within Indian culture that a wife is required to give all of her property to her husband, to do with as he wishes, including to benefit members of his family. It seems to be the case that she was prepared to conform with this expectation, to some degree, in the early years of the parties’ relationship, particularly whilst she felt some affection for the husband.
The parties agree that the marriage between them was not arranged via other family members. From the wife’s perspective, it is her position that her family were not likely to approve of the marriage because of differences of caste between her and Mr Simon. It is her case that she married the husband notwithstanding her family’s disapproval. For his part, the husband asserts that his family is of the superior caste.
It is not necessary for me to resolve this issue in the current proceedings. Nor an implied ancillary issue raised by Ms Hassett that Mr Simon is to be regarded as something of a confidence trickster who married her for financial advantage and to secure entry to Australia.
It is the wife’s position that during the first years of the parties' marriage, the husband was constantly pestering her to forward money to his family in India. In addition, she asserts that she paid for the husband to have a lengthy holiday in India, during which he used her credit card without consulting her to purchase a washing machine for a family member. This cost her around $8,000.00.
All in all, the wife portrays the husband as a spendthrift, so far as the money she earned was concerned, with a sense of entitlement that he could use whatever savings she had to either waste on himself or send back to India, whilst he himself was unwilling to seek an appropriate level of gainful employment.
All in all, Ms Hassett categorises her former husband as a wastrel and big noter, who regularly purchased luxury items to impress others such as Scotch whiskey at $150.00 a bottle which neither she nor he could afford.
In this context and in order to preserve her savings, the wife asserts that the major item of property at the centre of these proceedings was purchased by her. It is a piece of real property located at Property I.
The purchase price of the property was $430,000.00. It was registered in the wife’s sole name. The wife provided a deposit of $50,000.00, from savings, with the balance borrowed from the (omitted) Bank, secured by way of mortgage on the property.
The husband contends that the property was purchased as a family home. The wife that it was always an investment property purchased in order to be tenanted. She deposes as follows:
“At the point of the purchase of the Property I property I had some $50,000.00 in the bank which was all as a result of my own saving from my own work income. The applicant was pestering to use this money to send to his parents in India. This was one of the main reasons why I purchased the Property I property so as to get the money out of my bank account and into my investment property to stop the arguments from the applicant and the pressure placed upon me by him to use the money saved in my bank account to be given to his parents.”[3]
[3] See wife’s affidavit filed 5 April 2013 at paragraph 27
The husband lived in Adelaide between July and October of 2010. He lived in one of the bedrooms of the Property I property with the other two bedrooms rented out to tenants. However, in October 2010, one of the tenants died in the house and thereafter Mr Simon returned to (omitted) to live with the wife.
The wife asserts that at this stage the marriage between the parties was to all intents and purposes at an end. She further alleges that the husband attempted to rape her whilst he was drunk upon his return to (omitted).
The wife complained to police about this incident which led to the arrest of the husband and an interim domestic violence restraining order being made in the wife’s favour by the Leigh Creek Magistrates’ Court.
Following this incident, the husband again departed from (omitted) in a Magna motor vehicle, which had previously been in the wife’s possession and registered in her name. The wife asserts that this came about because the Police at (omitted) urged her to give Mr Simon the car, so that he could leave town and end the conflict between them
Mr Simon continues to possess this vehicle which he estimates has a value of approximately $700.00. It is the husband’s evidence that the car was purchased, in 2008 for approximately $2,000.00. I accept that the vehicle is not in a good condition and is likely to have very little sale value.
The other significant item of property which creates controversy in these proceedings is a Mazda four-wheel drive motor vehicle which the wife purchased in May of 2010. The wife’s evidence is that this vehicle was purchased new for a sum between $45,000.00 and $48,000.00. The wife used cash to purchase the vehicle.
The wife asserts that she no longer owns the vehicle. It is her evidence that she sold the vehicle to her sister for the sum of $19,000.00, in July of 2013, which was following the husband’s institution of these proceedings. The husband is highly dubious about this transaction. However, I have not been provided with any current valuation evidence including a Red Book estimate, in respect of either the Mazda or the Magna motor vehicles.
During the proceedings, the husband continually asserted that if the wife was able to purchase property to the value of around $100,000.00 in the form of the Property I property and the Mazda motor vehicle, she was likely to have other pieces of property hidden away.
It is Ms Hassett’s position that she was compelled to sell the vehicle because she was unemployed and had many pressing debts, particularly credit card debts. She denies that the vehicle was sold to defeat any prospective claim by the husband or that she continues to utilise the motor vehicle and will recover it once these proceedings are concluded.
The wife ceased her employment, in (omitted), at the end of 2010. Thereafter, she obtained a six month (occupation omitted) contract in (omitted). The husband accompanied the wife to (omitted) and in February of 2011, Ms Hassett attended the Magistrates’ Court in Leigh Creek to withdraw the restraining order made earlier. The wife deposes as follows in respect of this decision:
“I did so purely out of concern about my parents being informed of the difficulties I was having in my marriage which was difficult for me given cultural issues, as divorce or going against the husband is frowned upon in Indian society. A woman is basically ostracised from her community in India if she opposes her husband in any way.”[4]
[4] Ibid at paragraph 38
It is the wife’s evidence that she agreed to the husband accompanying her to (omitted) because of pressure he placed upon her, particularly his threat to inform her family of the various marital problems which had arisen for the parties in Australia. In addition, it is the wife’s evidence that the husband promised her that he would not be violent towards her in future.
However, the evidence indicates that the South Australian Police applied to the Port Augusta Magistrates’ Court for a further domestic violence restraining order on the wife’s behalf on 8 March 2011. This order remains in force expiring in March of 2013. The wife is named as the protected person in the order.[5]
[5] See exhibit G
The wife returned to India in mid-2011 on the death of her father. Upon her return to Australia, she took up a (omitted) position in (omitted). It is her evidence that she wanted the husband to remain in (omitted), but he insisted on accompanying her to (omitted).
From the husband’s perspective, the marriage between the parties irretrievably broke down in January of 2012. The tenor of the wife’s evidence is that the marriage between the parties ended much earlier but she and the husband continued to cohabit in accommodation provided to her by the (employer omitted), as a result of the husband’s continual coercion of her.
The wife applied for a divorce on 2 January 2013 in this court. She indicated the date of the parties’ final separation as being 18 December 2011. In addition, she provided 16 April 2006 as the date of the parties' marriage, supported by the marriage certificate to which reference has already been made. The husband did not oppose the application which was granted on 25 February 2013. The marriage between the parties produced no children.
The husband commenced these property proceedings on 1 February 2013. It is his position that all matrimonial property assets should be divided equally between him and Ms Hassett. From his perspective, this property includes the Property I residence; the Mazda motor vehicle; the Magna motor vehicle currently in his possession; and the wife’s accrued superannuation entitlements.
In addition, as already indicated, the husband asserts that the wife is likely to have failed to make a full and frank disclosure of all her property and assets. In this sense his application has something of an ambit claims about it. He seeks the largest sum of money possible in settlement of his claim.
In addition, it is the husband’s position that on separation the wife retained the contents of the former matrimonial home including a number of items of his personal property. These items include the following: a (omitted) watch; a (omitted) laptop; a (omitted) camera; and a gold chain.
The wife responded to this application on 5 April 2013. She seeks the dismissal of the husband’s application. She denies that the parties ever accrued any joint savings together. It being her case that the husband retained whatever modest amounts of money which he earned and otherwise was entirely financially dependent upon her.
She denies that there are any extensive assets available to the parties or that she has concealed property from the husband. Essentially, it is her position that she is largely destitute. She accepts that the husband is in a similar situation.
It is also her position that there is currently a negative equity in the Property I property and she has expended significant moneys in maintaining the mortgage relating to the property without any contribution whatsoever from the husband.
Essentially, it is the wife’s position that there is no realisable property currently available to the parties to be divided between them and in all the circumstances of this case, it would be grossly inequitable to her to make any split in the husband’s favour from her modest superannuation holdings.
On both parties evidence, the circumstances surrounding their final separation were traumatic indeed. The wife’s evidence was that she was forced to enlist the police to evict the husband from both her home and life once and for all.
From the husband’s perspective, the police were involved for no proper reason whatsoever as he was not charged with any criminal offence arising from his relationship with the wife. The eviction left him homeless and destitute which the husband asserts led him to attempt suicide leading to his hospitalisation in (omitted).
The wife asserts that both the husband’s emotional distress and suicide attempt were feigned in order to persuade a community based organisation based in (omitted) to provide him with emergency accommodation. Essentially the wife asserts that the husband is capable of tricking anyone to achieve his personal objectives.
Since the parties separated, the husband has filed a caveat to prevent the wife dealing with the Property I property. The wife seeks an order, from this court directing the husband to withdraw the caveat at his own expense. Underpinning this aspect of her aspect is her assertion that the husband has no equitable interest in the property.
As this introduction indicates, the positions of the parties are polarised in the extreme. Accordingly, it is not surprising that attempts to resolve the matter through court based conciliation have proved fruitless. In spite of the limited asset pool, the matter must proceed to adjudication.
Both parties have remained living in (omitted), awaiting the outcome of the proceedings. The husband has had some brief periods of work as a (omitted), but is currently unemployed. He commenced a (omitted) course at the (omitted) School in October 2013. Earlier, he completed a (course omitted) at the same (omitted) School, but this did not lead to a permanent position.
The effect of the wife’s evidence is that she is currently struggling with depression and stress following the parties’ difficult marriage and their turbulent separation. In these circumstances, she deposes that she is currently not able to work full-time and is restricted to (position omitted), which is very limited in (omitted). She deposes that she is considering returning to India.
These proceedings are designed to resolve the various issues in dispute between the parties and finalise whatever financial relationship has existed between them up to this point.
The evidence
As previously indicated, both parties presented their own case in the trial of their competing applications which was listed in Mount Gambier on 5 December 2013.
The wife, understandably so given her tertiary qualifications in (omitted), speaks excellent English. Her case was competently prepared and she had collated records relating to the mortgage on the Property I property; her taxation history for the period of the marriage; and her current medical condition. Significantly she had an up-to-date printout from her superannuation fund – (omitted), which indicates that as at 4 December 2013 she has a preserved superannuation entitlement of $52,978.44.[6]
[6] See exhibit H
The husband appeared to speak English adequately but not as proficiently as the wife. He wished to conclude the proceedings by handing the court a statement summarising his case.
I indicated to him that this was not acceptable and it would be necessary for him to give sworn evidence and be available for cross-examination by the wife. Accordingly, Mr Simon entered the witness box and I led some evidence from him. He was also cross-examined by Ms Hassett. As a consequence of this process, I reached the view that he was able to acquit himself adequately in the court process and understood questions put to him.
He was also able to provide some documents to the court, the most significant of which were his tax returns for the years between 2008 and 2011.[7] Accordingly, there is concrete evidence available to me in respect of the parties’ respective earnings during the course of their marriage.
[7] See exhibit A
In addition, both parties had consulted solicitors and as a consequence, their formal court documents had been formally prepared. Accordingly, the parameters of the various issues in dispute between them currently are well delineated.
The major evidentiary issue concerns the nature of their marital relationship. Was it an essentially unhappy and exploitative one almost from its instigation, as Ms Hassett would have it, with the husband contributing nothing whatsoever by way of either income or home making duties.
Or, on the other hand, although without any significant level of skills or familiarity with the Australian workforce, did the husband do his best to contribute towards the well-being of the couple, by way of doing whatever work he could and performing the cooking and cleaning at home as the husband would have it.
Neither party called any other independent witness to corroborate his or her version of events. The wife was however able to produce documents indicating that the police had intervened in the parties’ relationship from time to time. However, in my view these documents cannot be regarded as being definitive of the issue.
Accordingly, the resolution of this issue must turn on my assessment of the credit of each of the parties and my view as to the overall veracity of their evidence. This is not an easy task to conduct in the context of a hearing where the parties were each self-represented and thus required to cross-examine a former spouse from whom he or she had separated in challenging emotional circumstances.
It was not an edifying process to observe the parties cross-examining one another, other than it demonstrated the depth of hostility between them. The process frequently degenerated into a squabble, with each of them talking over the other to make a point as to how reprehensibly the other had behaved, which forced me to intervene often to separate them in a metaphorical sense.
However, on balance, the wife appeared to me to be the more reasonable and measured witness. I find the husband to have exaggerated his case somewhat. In these circumstances, I do not believe that I am in a position to reject outright the wife’s categorisation of him as a manipulative and disingenuous person.
All in all, the wife’s chronology of events during the marriage rings more true for me than does the husband’s. The date of marriage propounded by her seems to be the more reliable one. Although Ms Hassett clearly now despises Mr Simon, I do not think her antipathy for him has caused her to fabricate her case, although perhaps she has exaggerated his level of malevolence and ability to manipulate circumstances.
In any event, as I have already observed at the end of the day, there are few if any actual assets available to be divided between the parties. In this sense the husband pursued his application with the intent to obtain some material advantage no matter how slight from the case. The wife was just as obdurate that he would receive nothing.
Specifically, I reject any assertion that the wife has failed to disclose material assets from the husband. The parties appear to have largely spent whatever income was received by them during their marriage.
Moneys earned during the marriage
The husband’s tax records indicate that he has earned the following sums of income from the financial year ending 30 June 2008 onwards:
Financial Year ending Amount 30 June 2008 $13,526 30 June 2009 $4,737 30 June 2010 $20,268 30 June 2011 $13,398 Total $51,929
For the same periods, the wife’s financial records indicate that she has earned the following sums:
Financial Year ending Amount 30 June 2008 $63,697 30 June 2009 $55,265 30 June 2010 $72,879 30 June 2011 $88,499 Total $280,340
I have not been provided with Mr Simon’s income tax return for the year ending 30 June 2012. The wife’s taxation return for this year indicates a gross income of $88,368.00.
Accordingly, the wife has earned approximately five times the amount derived by the husband in the period of the marriage in Australia. In addition for significant periods of time during the parties’ marriage as a result of the wife’s employment, she has provided accommodation for the husband.
At the present time, the husband’s major source of income is social security. He receives a newstart allowance of $620.00 per fortnight. He lives alone in subsidised accommodation. I accept his evidence that he has no assets of any significant value, apart from the Mitsubishi motor vehicle, which the wife agrees has a modest value of $700.00.
Property I property
It is the wife’s evidence, which I accept, that she is currently trying to sell the Property I property as she regards it as a millstone around her neck, particularly whilst she is not in regular employment. The evidence regarding the value of the property is far from satisfactory.
In this regard, the only evidence available comes from an email from an estate agent commissioned by Ms Hassett to sell the property which is dated 17 May 2013.[8] This email indicates that the property was first offered for sale in early April 2013, at a sale price of $425,000.00.
[8] See exhibit E
However, the property has attracted little interest, with the best offer being around $380,000.00. In these circumstances, the price has been reduced to $419,000.00. I accept that at the date of hearing the property remained unsold.
As previously indicated, the purchase price was $430,000.00. In addition, the purchase attracted stamp duty of around $25,000.00 and costs of around $500.00.
Accordingly, at the outset of the transaction the wife had only a modest equity in the property. As at 29 November 2013, the amount owed to the (omitted) Bank was $404,880.06.[9]
[9] See exhibit C
The wife’s most recent taxation return indicates that the annual expenses relating to the property total just over $45,000.00. The major component of this sum is interest paid on the relevant mortgage which amounts to $26,100.00.
The wife’s evidence is that the property is rented for $750.00 per fortnight. This is confirmed by her tax return, which indicates a gross rental income for the property of $19,261.00 for the year ending 30 June 2012.
It is the wife’s evidence, which I accept, that she has paid all the outgoings incurred in respect of the property. Necessarily, she has also received all the rent generated by the property and the taxation benefits arising from its negative gearing.
In this context, the wife estimates that she has paid around $150,000.00 in interest payments during her period of ownership of the property. This seems something of an exaggeration, but I otherwise accept her evidence that she is almost certainly likely to sell the property at a loss and thus will recoup nothing from the sale.
The parties’ present circumstances
It is the husband’s case that the wife has a proven track record of employment, as a (omitted), whilst she has been living in South Australia. I agree that the evidence indicates this to be the case. Up until recently, Ms Hassett has been able to earn an income of between $70,000.00 and $80,000.00 per annum.
It is the wife’s evidence that she has found it much more difficult to obtain (omitted) positions in (omitted). She deposes that, in the past, she has chosen to work in remote areas where (omitted) are in short supply.
That is not the case so far as the South East of South Australia is concerned, as it is an attractive location for (omitted) with more experience than she has. In these circumstances, I accept Ms Hassett’s evidence that she has experienced difficulty in obtaining a permanent (omitted) position in (omitted).
More importantly, I also accept her evidence that her psychological health has been compromised as a consequence of the circumstances surrounding the end of the parties' marriage. I specifically reject any suggestion that she has concocted these claims to frustrate the husband’s application for property settlement.
In this context, the wife has provided a brief medical report from her general medical practitioner, Dr J, dated 17 June 2013 which indicates she is currently suffering from depression. In addition, she has provided a GP mental treatment plan which delineates anxiety in respect of work difficulties; financial hardship; and a stressful situation; as being significant stress factors in her life. It does not appear to be the case that Ms Hassett has been prescribed any specific medication to do with her depression.
In these circumstances I accept the wife’s evidence that she has not been able to obtain a fixed (omitted) contract in the (omitted) area during the latter part of 2012 and the entirety of 2013. In these circumstances, she has only been able to obtain a few days of casual (omitted). Up to the end of 30 June 2013, she had received around $9,000.00 in wages.
I also accept that the husband’s current situation is difficult. He has few if any, sources of family or emotional support in the (omitted) area. His work skills are limited. In these circumstances I accept that at best, he is likely to be able to obtain poorly paid and casual work in future.
The wife’s evidence is that she is currently engaged to be married. She has not provided any details of her fiancé’s situation. As previously indicated, she is considering leaving Australia and returning to India. The wife is an Australian citizen.
Whether the husband will successfully complete his (omitted) School studies is unclear to me. I hope that he will and this will improve his chances of obtaining paid work in future. However, I am not sanguine in this regard.
In my view, the evidence does indicate that the husband has some capacity to work but does not always follow through with the opportunities which do appear before him. Certainly, this is the wife’s view. She regards Mr Simon as being lazy and unmotivated.
The husband too has either Australian citizenship or permanent residency in this country. Initially he indicated that this state of affairs disqualified him from obtaining employment in India. However, he subsequently indicated that this was not the case and he would be able to work in India if he returned there. However, I accept that that is not his current intention as he believes Australia is likely to provide him with more opportunities in future.
Contributions during the marriage
It is clearly the case that the wife earned significantly more than the husband did during the course of the parties' marriage in Australia which lasted approximately four and a half years. I also accept the wife’s evidence that at the current time, she has no clandestine savings as the husband has suggested.
Issues regarding the performance of home-making duties particularly in the context of the vituperative matrimonial proceedings are notoriously difficult to determine. It is rarely the case that objective independent evidence is available to the court to determine such issues. In addition, for obvious reasons in these circumstances, former spouses invariably view each other through a distorting prism of hostility.
In all these circumstances, I must be careful not to approach the issue of indirect and homemaking contributions with a stereotypical attitude. It being the wife’s position that Indian men are conditioned not to perform housework because they regard it as being the responsibility of women.
The husband’s evidence is that whilst the parties lived in remote areas of South Australia, he regularly cooked for the wife; drove her to work; and kept the parties’ joint household clean. The wife resolutely refutes these assertions and contends that Mr Simon did practically nothing during the relationship other than spend extravagantly, particularly on things such as Scotch whiskey.
To be frank, I did not believe the husband’s evidence in this regard. To my mind, the wife’s evidence was far more compelling. It was her evidence that she does not like the type of food which the husband prefers. On her evidence, this is because the parties have different backgrounds in India.
I found this aspect of her evidence to be convincing. The husband did not strike me as being a particularly adept home-maker. On balance, it seems to me more likely than not that the wife performed the vast majority of household tasks, as well as being the couple’s main bread-winner.
Motor vehicles
The husband retains the Magna motor vehicle which has been in his possession since he departed (omitted). It is an old vehicle which is in poor condition. I accept that it has a limited value.
From the husband’s perspective, the circumstances surrounding the disposal of the Mazda are suspicious. I agree that this is so. At first blush, the sale to the wife’s sister does not appear to be at arm’s length.
However, the husband has not been able to call any evidence in rebuttal of the wife’s case in this regard. In particular, I have not been provided with any evidence as to the current value of the vehicle. It is the wife’s case that new vehicles rapidly depreciate following their sale. In general terms, I accept that this is so.
In addition, and more importantly, the evidence indicates that the wife has been in a parlous financial situation since she relocated to (omitted). In these circumstances, I accept her evidence that financial necessity is likely to have compelled her to rationalise her financial circumstances, particularly in terms of the Mazda motor vehicle and the Property I property.
In this regard I accept the wife’s evidence that she is attempting to sell the Property I property for the best possible price. In these circumstances, I do not believe that I am in a position to reject her evidence that she sold the Mazda motor vehicle to her sister for a sum of approximately $19,000.00 and, given her limited income during 2013, she has utilised this sum in living expenses.
Other issues
The wife’s evidence is that she has never had the husband’s (omitted) watch. Her evidence is that the last time she saw the item, it was on the husband’s wrist and the fastening band was insecure. In these circumstances, she opines that the husband may have lost the watch.
Clearly, I am not in a position to determine definitively this aspect of the case. However, I do not disbelieve Ms Hassett’s evidence that she has not had possession of the husband’s (omitted) watch since the parties separated.
I do not assess her as being the type of person who would lie about such a matter to gain material advantage for herself. In this context, she concedes that she sold the husband’s (omitted) computer for $200.00.
The wife professed to have no knowledge of any gold jewellery purported to be owned by the husband. She indicated that she had returned his camera to him. It does however seem to be the situation that the circumstances surrounding the parties’ separation were, to say the least, somewhat turbulent.
In this regard, the wife’s evidence is that she packed up the husband’s clothes and other effects and left them for him at a friend’s home. However, Mr Simon returned the packages concerned and left them outside her home. After some days, Ms Hassett considered that she had no alternative but to dispose of them after warning the husband of this eventuality.
I can understand why the husband is aggrieved in respect of the situation, so far as his material circumstances are concerned. However, I accept that the wife does not have possession of the items in question and accordingly, it is fruitless to order her to deliver them up to the husband. I also accept that, in generic terms, the wife is in a materially more secure situation than is the husband.
Superannuation
The only sources of superannuation for each of the parties have been their employment in Australia. Given the parties’ different work history over the period of their marriage there is marked discrepancy in their respective holdings of superannuation.
In the husband’s case, he has modest superannuation holdings in an amount of $3,068.74. At present the wife’s superannuation held with (omitted) Fund, the fund for (employer omitted) employees, stands at $52,978.44 as at 4 December 2013.[10]
[10] See Exhibit H
Ms Hassett joined (omitted) Fund in January of 2006, when she commenced work in Australia. As at 1 July 2011, her superannuation stood at $33,516.64. At 1 July 2012, it stood at $42,648.44. Accordingly, it appears to be the case that the wife has accrued around 20% of her current holdings of superannuation in the period after the parties separated.
It is my finding after considering all the evidence available to me, that the only form of asset available to be divided between the parties currently, is the parties’ respective entitlements to superannuation.
No doubt each party also has some items of personal property and furniture. These items have not been valued. I accept that, in practical terms, the wife is likely to be better provided for in material terms than is the husband, given that he was evicted from the former matrimonial home. However, the reality of the current situation is that in practical terms, the only asset to which the court’s order can attach is the wife’s superannuation and this is a fairly modest sum.
It is necessary for me to consider how each of the parties has contributed to the wife’s acquisition of her superannuation holdings. Primarily, as is self-evident the wife has been able to accrue her superannuation as a consequence of her employment as a (omitted), in various locations within South Australia. Accordingly, the husband has made no direct financial contributions towards the acquisition of this superannuation.
In this context, the husband’s claim for a split to be made from this superannuation can only rest on his indirect contributions as a homemaker in the sense that he supported the wife whilst she was in the workforce to maintain her employment. I do not accept that this was the case.
The Legal Principles Applicable
Part VIII of the Family Law Act is the part of the Act dealing with property, spousal maintenance and maintenance agreement. The major provisions relating to marital property division are contained in sections 79(1); 79(2); 79(4); & 75(2) of the Act.
Pursuant to section 79(1) the court is authorised to make such order as it considers appropriate in order to alter the interest of the parties to a marriage in relevant property.
The expression “property” is defined in section 4(1) in relation to the parties to a marriage or either of them as meaning “…property to which those parties are, or that party is, as the case may be, entitled, whether in possession or reversion.”
Pursuant to section 79(2) the court is actively prevented from making such an order unless it is satisfied that it is just and equitable to do so in all the circumstances prevailing. This follows from the use of the prohibitory words “shall not” in the relevant section.
Section 79(4) provides the mechanics of how a court is to make an order altering marital property interests. It provides seven matters [in paragraphs (a) – (g)] to be considered, as relevant.
Paragraphs (a); (b); and (c); categorise contributions made by marital partners, which are relevant. Paragraph (d) directs the court to take into effect of any order upon the earning capacity of either party to the marriage concerned.
Paragraph (e) directs the court to consider a list of matters contained in section 75(2), which are germane to spousal maintenance or the prospective positions of the parties concerned by reference to their respective financial resources, means and needs.
Finally, Paragraphs (f) and (g) apply to child support and previously made parenting orders, as relevant. There is some overlap between these various provisions and not all will be applicable in every case.
Until recently, the position in respect of the process to be applied to the resolution of matrimonial property cases was said to be well settled, as it required the application of a preferred approach. This approach entailed a four step process, described by the Full Court as follows:
·identification and valuation of the property of the parties;
·identification and evaluation of contributions to the property (including property no longer owned by the parties) – the contribution phase – section 79(4) (a) to (c);
·identification and assessment of the various matters in section 79(4)(d) to (g) including to the extent they are relevant, the matters in section 75(2) – the prospective needs phase;
·considerations of justice and equity.[11]
[11] See Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143 at 78,386 [39] and Bevan & Bevan [2013] FamCAFC 116 at [60]
The general applicability of this four step process has been recast, to some extent, in the light of what has been said recently by the High Court in the matter of Stanford v Stanford. [12] In the case, the majority stated that:
“It will be recalled that s 79(2) provides that "[t]he court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order". Section 79(4) prescribes matters that must be taken into account in considering what order (if any) should be made under the section. The requirements of the two sub-sections are not to be conflated. In every case in which a property settlement order under s 79 is sought, it is necessary to satisfy the court that, in all the circumstances, it is just and equitable to make the order.
The expression "just and equitable" is a qualitative description of a conclusion reached after examination of a range of potentially competing considerations. It does not admit of exhaustive definition. It is not possible to chart its metes and bounds.” [13]
[12] Stanford v Stanford [2012] HCA 52
[13] Ibid at [35] – [36]
In Bevan the Full Court noted that the above paragraph was likely to encapsulate the vast majority of cases coming before courts such as this one, namely that the circumstances of the parties concerned, following the end of the marriage between them, made it readily apparent that it was just and equitable to make a property order and therefore it would be open to the court concerned to adopt the multi-stepped process endorsed by cases such as Hickey.
In Bevan & Bevan,[14] a case determined in the aftermath of Stanton, the majority of the Full Court (Bryant CJ and Thackeray J) said as follows:
[14] Bevan & Bevan [2013] FamCAFC 116 at [65] and [71]
“Although the High Court did not disapprove the four step process, we accept it did not approve it either... However, the High Court’s decision serves to refocus attention on the obligation not to make an order adjusting property interests unless it is just and equitable to do so.
…
Stanford will also serve as a reminder that the four step process ‘merely illuminates the path to the ultimate result’.”
From this, I take it, the four step process remains a valid approach in the vast majority of cases, provided care is taken not to overlook the requirement that all orders altering property interests in proceedings arising under the Act be justice and equitable.
Although I appreciate that Ms Hassett does not put it in these explicit terms, in the light of section 79(2) the fundamental question for the court in this particular case is whether is it is just and equitable to make any order altering the parties’ existing proprietary interest, particularly in the wife’s superannuation holdings, given the overall circumstances of this case.
In Stanford the High Court propounded three fundamental propositions, adhering to the application of section 79, which I will summarise as follows:
·Firstly, in order to ascertain whether it is just and equitable to make a property settlement order, it is necessary to identify:
“according to ordinary common law and equitable principles, the existing legal and equitable interests of the parties in the property.”
·Secondly, although the power to make a property order is broad. The power is not to be exercised according to an “unguided judicial discretion”. As such,
“whether it is just and equitable to make the order is not to be answered by assuming that the parties’ rights to all interests in marital property are or should be different from those that then exist.”
·Thirdly, whether the making of a property settlement order is just and equitable does not turn on the assumption that one or other of the parties to the marriage has the right to any interest according to a consideration of the matters (including financial and other considerations) arising under section 79(4). Rather the justice and equitable consideration under section 79(2) must also be considered. For:
“To conclude that making an order is ‘just and equitable’ only because of and by reference to various matters in section 79(4), without a separate consideration of section 79(2), would be to conflate the statutory requirements and ignore the principles laid down by the Act.”
In Bevan the majority of the Full Court considered it impossible to provide an exhaustive definition of circumstances, where it would be just and equitable to make an order altering the property interests of the parties concerned. However, it was also pointed out by the Full Court that it would potentially erroneous for a trial court to ignore the matters raised in section 79(4) in coming to such a decision.
The majority of the Full Court rejected any notion that the determination of whether it was just and equitable to make a property order was to be considered a threshold issue. It said as follows:
“First…the initial enquiry is to determine the existing legal and equitable interests of the parties. Secondly, although section s 79(2) is cast in the negative and amounts to a prohibition against making any order unless it is just and equitable to do so, the corollary is that if the court does make an order, such an order must be just and equitable.
…
It will be seen from this discussion that while the s 79(2) and s 79(4) issues must not be conflated, they are intertwined because the text of the Act links them.”[15]
[15] Ibid at [86] – [87]
Accordingly, although the court must be careful not to combine issues arising under section 79(2) with the exercise arising under section 79(4), it is artificial to divorce them from each other. Section 79(2) does not represent a threshold to be crossed prior to the undertaking of the section 79(4) exercise.
Rather, the overall task is a holistic one,[16] to be informed by the idiosyncratic circumstances of each case concerned. However, in most cases, it will be readily apparent that it is just and equitable to make an order altering the property interests of the parties concerned because of their circumstances or the manner in which each has presented their case and the orders sought.
[16] See Watson & Ling [2013] FamCA 57 at [13] per Murphy J
In this particular case, Mr Simon has made an ambit claim seeking 50% of what the court finds to be the parties’ pool of assets. He has not sought to attach his application to any particular piece of property. Rather, the underpinning of his case is that the wife has concealed sources of wealth, a notion which the court has rejected.
Accordingly, it would seem to me that the issue of whether it is just and equitable to make any order altering the parties’ respective proprietorial interests remains a live one. Certainly, Ms Hassett contends that it would not be fair to her for any such order to be made. Underpinning her case are what she would categories as the husband’s lack of contributions and the fact that, in reality, there is no property in respect of which any order can be made.
Contributions arising pursuant to section 79(4)(a)(b) & (c) (the so-called second step) can be broadly categorised under two headings. The first kind is contributions to the property: financial contributions and non-financial contributions, made directly or indirectly, by or on behalf of a party to the marriage to the acquisition, conservation or improvement of any of the property.
The second kind is contributions to the welfare of the family: in the words of the section, “the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage, including any contribution made in the capacity of home maker or parent.”[17]
[17] See Family Law Act s79(4)(c)
It is clear from the authorities that this second kind of contribution must be given appropriate weight and is not to be treated as a token matter or as a contribution which is inherently less valuable or important than a financial contribution to property.
Section 79(4)(e) mandates the court to have reference to the matters listed in section 75(2) of the Family Law Act 1975. In the main the factors there listed deal with each of the parties’ prospective needs (the so-called third step). Pursuant to section 75(2)(o), the court is entitled to take into account “any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account”.
As appears clear from the re-stated principles appearing in Stanton, the “overriding requirement” of section 79 is that considerations of justice and equity should inform the process envisaged therein. The exercise I must undertake is not a “process of social engineering”[18] or of equalisation of assets or financial resources.
[18] See Waters & Jurek (1995) FLC 92-635
Accordingly, Mr Simon is not entitled to some portion of Ms Hassett’s superannuation merely because the parties were married for a portion of the time during which Ms Hassett acquired it.
Conclusions
The marriage between the parties was a fairly short and unhappy one, from each of their perspectives. It produced no children. The husband came into the marriage with no assets and he has no assets at its conclusion. He has made what can only be considered as slight direct financial contributions relating to employment during the marriage and these have not resulted in the acquisition, conservation or preservation of any material asset.
The only tangible asset available to the parties is the Property I property. I accept the wife’s evidence that she currently has a negative level of equity in the property and her current dire financial circumstances dictate that the property must be sold at a loss. In addition, I accept that the husband made no direct contributions towards the property in any event.
I accept the wife’s evidence that she has disposed of her interest in the Mazda motor vehicle acquired by her during the course of the parties’ marriage. I also accept that, in practical terms, no orders can be made in respect of the husband’s watch and other items of personal property. At the end of the day, in practical terms, the only conceivable order altering the parties’ property interests which can be made by the court arises in respect of the wife’s superannuation interests.
As the Full Court observed in Bevan, issues as to whether it is it just and equitable to make an order and issues as to contribution are invariably interwoven. For reasons already provided, I do not consider that the husband has established that he has made any form of contribution towards this superannuation.
Superannuation is different in its nature to other forms of property. It is not immediately available to the person in whose name it is accumulated until some the satisfaction of some stipulated event in the future – either retirement from the workforce or some form of incapacity for employment.
Neither event has occurred in the wife’s case. If she remains in Australia, she is likely to have many years of paid employment before her. In the husband’s case, I accept that his employment future in this country can only be described as problematic but, notwithstanding this state of affairs he too has ample time before him to make preparation, for his retirement in the likelihood he elects to remain living in Australia.
In all these circumstances, particularly the absence of any relevant contribution attributable to the husband in respect of the accumulation by the wife of her future superannuation entitlements, I have come to the conclusion that it would not be just and equitable to make any order altering the parties’ existing interests in the relevant property in the case.
This means that the husband will retain the Magna motor vehicle and other chattels currently in his position, together with his superannuation. The wife will be in the same position. It must follow from this decision that the husband should be required to lift the caveat which he has lodged over the Property I property. If he does not do so within thirty days of the date of these orders, an officer of the court is directed to do so on his behalf pursuant to the provisions of section 106A of the Family Law Act 1975.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding one hundred and sixty-seven (167) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 24 January 2014
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