Singh and Dala
[2017] FCCA 2945
•29 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SINGH & DALA | [2017] FCCA 2945 |
| Catchwords: FAMILY LAW – Property – husband giving false and dishonest evidence – property allegedly in India – this court has no power to make orders about foreign land according to the Mozambique Principles [1893] AC 602. |
| Legislation: Evidence Act 1995 (Cth), s.174 Family Law Act 1975 (Cth) Hindu Succession Act |
| Cases cited: Applicants in V 722 of 2000 v Minister for Immigration and Multicultural Affairs [2002] FCA 1059 |
| Applicant: | MS SINGH |
| Respondent: | MR DALA |
| File Number: | MLC 6131 of 2016 |
| Judgment of: | Judge Wilson |
| Hearing date: | 6 October 2017 |
| Date of Last Submission: | 6 October 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 29 November 2017 |
REPRESENTATION
| Applicant in person |
| Respondent in person |
ORDERS
Within 30 days of the date of this order, the husband pay to the wife the sum of $15,000.00.
The parties do all such acts and things as may be required to forthwith sell the property situate at and known as Property A in the State of Victoria (“the property”).
Pending the payment or completion of the sale of the property –
(a)the husband have the sole right to occupy the property;
(b)during such right of occupation, the husband is to pay all instalments pursuant to the mortgage and rates, taxes and like outgoings of the property as they fall due; and
(c)neither party encumber the property without the prior written consent of the other party.
Upon completion of the sale of the property, the proceeds of the sale be applied as follows –
(a)first, to pay all costs, commissions and expenses of the sale;
(b)second, to discharge the mortgage secured against the property and any other encumbrance affecting the property; and
(c)third, the remainder divided between the parties in equal shares.
The parties do all such acts and things as may be required to forthwith sell the following property and divide the proceeds in equal shares –
(a)the motor vehicle; and
(b)the jewellery.
The wife return the husband’s calculator to the husband.
Within 42 days of the date of this order –
(a)the parties prepare a draft minute of order seeking a split of the husband’s superannuation in the sum of $11,632.00 to the wife and provide same to the trustee of the fund sought to be the subject of the superannuation splitting order; and
(b)provide to the court a copy of the draft minute of order, together with a letter confirming that the trustee of the fund has no objection to the superannuation splitting order contained in the draft minute of order.
Unless otherwise specified in these orders –
(a)each party is solely entitled, to the exclusion of the other, to all other property (including choses-in-action) in the possession of such party as at the date of these orders;
(b)each party relinquish to the other all and any claims they may have to any superannuation, long service leave, redundancy, retirement, retrenchment and like benefits belonging to or earned by the other;
(c)monies standing to the credit of the parties in any bank account are to become the property of the party in whose name such bank account is held;
(d)insurance policies remain the sole property of the party named therein;
(e)each party is solely liable for and indemnifies the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders;
(f)each party is solely liable for and indemnifies the other against any liability in that party’s sole name; and
(g)any joint tenancy of the parties in any real or personal estate is hereby expressly severed.
All extant applications are otherwise dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Singh & Dala is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 6131 of 2016
| MS SINGH |
Applicant
And
| MR DALA |
Respondent
REASONS FOR JUDGMENT
Introduction
Following a very short marriage, the applicant wife Ms Singh and the respondent husband Mr Dala, finally separated and commenced this proceeding for orders dividing their very limited assets. They did not seek or rely on legal assistance and instead conducted this litigation themselves, even at trial.
Despite the personal enmity towards one another displayed during the wife’s questioning of the husband, the issues in this case were confined. To the extent that any version of events on any particular matter was in issue, my assessment of credit was such that it is possible to state my reasons for decision quickly.
Synopsis
For the reasons that follow, in my judgment orders should be made dividing the property of the marriage in accordance with the wife’s submission, namely 50% each. I found the husband to have been an unreliable witness and, after carefully scrutinising his evidence, I have not accepted a large portion of his evidence.
Procedural issues
In accordance with the decision of the Full Court of the Family Court of Australia in Re F: Litigants in Person Guidelines,[1] prior to embarking on the substantive aspects of this trial of this proceeding I explained to the parties how the trial would unfold. Specifically, I told the parties about the essential elements and function of opening statements, evidence-in-chief, cross-examination and re-examination. I also instructed them on proper protocol and conduct in court. When each was asked whether each understood what I had told him and her, each answered in the affirmative. No language barriers existed in this case.
[1] [2011] FamCA 348.
A short factual recital
The husband was born in 1976 and the wife in 1983. They married in India in (omitted) 2010 pursuant to an arranged marriage. They finally separated in May 2016.
Following their marriage, the wife arrived in Australia under a spouse visa. She said in evidence that at the date of the trial of this proceeding she was unemployed. However, she is highly qualified and the holder of a (qualifications omitted). The husband was a qualified (occupation omitted), although he gave as his occupation (occupation omitted).
The wife devoted considerable effort in her affidavit material filed in this case towards recording incidents of family violence committed by the husband towards her during the marriage. I have canvassed those matters below.
The husband stated throughout this litigation that the major asset, the former matrimonial home, was an asset he acquired prior to the marriage, that it was registered in his name alone, that he paid all mortgage amounts and outgoings in relation to the former matrimonial home and that he should retain it. Aside from jewellery and small amounts of inconsequential value, the wife contended that the assets of the marriage should be divided so that she received an amount of the asset base equivalent to 50%.
The factual narrative in this case was not well recorded by the parties. The task of ascertaining factual matters of importance as opposed to the expression of vitriol was none too easy. Certain background facts may be shortly stated as follows –
a)the wife and husband married in India pursuant to an arranged marriage;
b)each was unknown to the other when they married;
c)in accordance with local Indian culture, the wife’s parents provided dowry to the husband and his parents, the amount being equivalent to AUD$100,000.00;
d)on (omitted) 2010 the wife joined the husband in Australia;
e)the wife left Australia and returned to India on (omitted) 2010, citing the husband’s abusive nature;
f)upon the insistence and advice of the wife’s parents, she returned to Australia on (omitted) January 2011;
g)the wife departed Australia on (omitted) 2012 for a 15-month absence;
h)the wife returned to Australia on (omitted) 2013;
i)the wife departed Australia for India on (omitted) 2013 for a 27-month absence;
j)the wife returned to Australia on (omitted) 2016; and
k)the husband and wife finally separated on 11 May 2016.
Those dates and events as recorded in the immediately preceding paragraph above were not disputed by the husband.
Ascertaining the assets
The wife contended that the assets set out below made up the totality of the assets that fell for my determination. They were –
a)the former matrimonial home;
b)the husband’s superannuation;
c)a motor vehicle;
d)real property in India;
e)jewellery; and
f)an amount of $30,000.00 allegedly transferred by the husband to his parents.
The wife said the liabilities were comprised of –
a)a mortgage debt of $286,200.00; and
b)a personal loan owed by the wife to her father.
In large measure, the husband agreed that the wife’s recital of the assets and liabilities was correct. However, he contended that the liabilities included a debt that was owed jointly to his father in the sum of $36,500.00.
Contributions were in issue.
When addressing each asset or each liability, the disputed version of events associated with that asset or liability has been recorded below.
The former matrimonial home
The wife contended that the estimated value of the former matrimonial home located at Property A was $320,000.00. The husband put that estimated figure at $300,000.00. No valuation evidence was given. Only $20,000.00 separated the parties in their respective estimations. No particular science supported either estimated value and the difference was negligible ($20,000.00). The uncontested amount of $300,000.00 was common to each so I have applied that sum. I have proceeded on the basis that the proper figure to be applied to the former matrimonial home’s value was $300,000.00.
The husband said he paid for the entire purchase price and thereafter became the sole registered proprietor and sole mortgagor. No evidence was adduced in the nature of a certificate of title, a copy of the mortgage or even a copy of the contract for the acquisition of the former matrimonial home. That did not matter as the husband’s registered proprietorship of the former matrimonial home and his status as sole mortgagor was not disputed, nor could it have been. As mentioned earlier, the real issue about the amount referrable to the former matrimonial home was the value of the wife’s financial and non-financial contributions to it. It is as well to address those matters immediately.
The wife said in paragraph 34 of the affidavit affirmed 30 June 2016 (exhibit B) that the husband controlled all finances and that he provided a small allowance of funds to enable her to purchase a few necessities or items of which he approved. She said she was wholly dependent upon him.
The wife said that by reason of the husband’s violent behaviour she sacrificed (not her word, mine) her ability to qualify as a (occupation omitted) to enable her to obtain gainful employment. She said that she consequently contributed to the household primarily in the role of homemaker pursuant to which she –
a)cooked meals;
b)performed all cleaning for the two of them;
c)vacuumed and undertook maintenance work; and
d)supported the husband in the pursuit of his career.
The wife said in paragraph 39 of the same affidavit that she performed her role as homemaker in difficult circumstances and was constantly and regularly subjected to instances of family violence such that, so she said, her contributions should be adjudged considerably greater. She emphasised that she lost her career opportunities.
Taking that last point first, she gave no details of the career opportunities that she said she lost. She cast this aspect of the case in very general terms. For example, she did not identify a specific opportunity that presented itself and which she said she lost on account of the pervasive nature of family violence to which she said she was subjected. Be that as it may, I accept that she was, in reality, conveying the notion that by reason or as result of the ongoing presence of a dominating influence of the husband that disapproved of her pursuing her own career, she was practically unable to advance her own interests by translating her higher qualifications (those being greater than his) into a more sophisticated occupational calling.
Instances of family violence were catalogued by the wife. They included the following –
a)in the period (omitted) 2010 to (omitted) 2010 the wife said the husband was very dominating and that he abused her verbally, emotionally, mentally and sexually;
b)a week prior to (omitted) 2016 the husband refused to give the wife money and he commenced physically striking her, verbally abusing, emotionally abusing and he forced her to have sex with him (to interpolate, he raped her);
c)on (omitted) 2011 the husband forced the wife against her will to have sex with him (likewise, rape);
d)on (omitted) 2011 the wife refused to have forced sex with the husband so he punched her several times resulting in her hospitalisation;
e)in (omitted) 2011, upon learning of her pregnancy, the husband insisted that she terminate the pregnancy;
f)on (omitted) 2012, when ill with morning sickness, the wife said the husband demanded she get off her sick bed, go to the kitchen and wash dishes;
g)on (omitted) 2012 the husband kicked the wife in her back with such force that she fell and he then refused to take her to a doctor for examination or for pain relief (she did not drive a car nor have a driver’s licence);
h)on (omitted) 2012 the wife suffered a miscarriage resulting in significant loss of blood for which the husband refused to take the wife to hospital;
i)during one of the three days of her hospitalisation following the miscarriage the husband struck her as a result of which she complained to a doctor;
j)on (omitted) 2012 police attended her home and warned the husband not to return to the former matrimonial home yet he did;
k)on (omitted) 2012 the wife obtained an intervention order against the husband;
l)despite the making of an intervention order, the husband forced the wife to have sex with him;
m)a few days after (omitted) 2013 the husband resumed his assaults upon the wife;
n)after conceiving for a second time, on and from (omitted) 2013 the frequency of the husband’s assaults on the wife increased;
o)the wife miscarried for a second time in response to which the husband asserted that the wife had been guilty of infidelity and adultery;
p)the wife consulted a psychologist by reason of what she described was abusive behaviour by the husband;
q)after telling the husband on 3 April 2016 that their relationship was over and remaining in the same house (being separated under one roof) the husband molested (her word) the wife several times;
r)on (omitted) 2016 the husband entered the room without consent and stole the wife’s mobile telephone, again accusing her of adultery, and he pushed her so that she fell on the TV table injuring her back;
s)the parties separated on a final basis on 11 May 2016; and
t)the wife obtained a further intervention order against the husband on 16 May 2016.
That was a lamentably long but graphic account of sustained family violence. The husband denied engaging in any form of family violence. However, at no stage did he isolate any of the specific incidents recorded above nor did he address them so as to convey his version of events. Coupled with his most unsatisfactory evidence about $30,000.00 to which I refer below, I reviewed his evidence very carefully, being cautious about receiving it as I took the view in relation of the $30,000.00 that he gave untruthful evidence, so I was suspicious about his entire evidence in this case.
That led me to conclude that wherever the evidence of the wife and the evidence of the husband conflicted and wherever, in relation to any such conflicting evidence there was no evidence that corroborated the husband’s version, I preferred the wife’s version of the evidence over that of the husband. To the extent that the wife’s version of family violence involved assertions that she was treated by a medical practitioner, the wife adduced some limited evidence, sufficient to verify that she sought medical assistance on one or more occasions and was provided with the medical assistance she sought. That said, detailed medical evidence was not given nor was the wife’s treating doctor called to give viva voce evidence.
The car
Returning to the task of ascertaining the asset base, the next item for consideration was a modestly priced motor vehicle. The wife did not give a figure for the car. The husband attributed $3,000.00 to it. In the absence of any better financial analysis, I have taken that amount of $3,000.00 as the best evidence of the value of the motor vehicle.
The transfer of $30,000.00
A highly contentious item in this litigation was the sum of $30,000.00 that the wife said the husband improperly transferred to his parents. The narrative accompanying the transfer called for detailed explanation.
In the course of the wife’s questioning of the husband she took the husband to certain copy bank statements. One of those statements (exhibit S-6 to the wife’s affidavit affirmed 6 September 2017) was produced by (omitted) Bank at a branch in (omitted), India. The account number was (omitted). The email address recorded at the top right corner of the statement in the husband’s name was the email address of the husband, as he admitted. The other joint holder of that account, according to the face of the document itself, was Mr G, later identified as the husband’s father. The wife took the husband to an entry on that bank statement corresponding to the date 14 June 2016. The bank statement recorded a transfer from the account in the name of the husband to an account in the name of Ms S. The amount of the transfer was in Indian currency and no evidence was given of its equivalent in Australian currency. However, it was the largest transfer of any amount that was recorded on the page of that bank statement. The husband admitted that the transferee was his mother. The wife’s questioning was more akin to a speech, so I asked the husband whether the account about which the husband was being asked was an account jointly held between him and his father. The husband said he had no accounts in India at all. The husband said he had no knowledge of that bank statement. When asked how the bank statement recorded, correctly, his email address the husband twice said the bank statement was fictitious.
The husband was asked about another account in India, the latter account being maintained with a financial institution called (omitted) Bank. The husband was shown an account in his name numbered (omitted). That account also correctly recorded the husband’s email address. Another (omitted) Bank account was put into evidence, this one being in the husband’s name, numbered (omitted). It also had the husband’s correct email address on it. The statement page exhibited to the wife’s affidavit revealed a significant sum withdrawn on 15 June 2016 in favour of the husband’s father followed the day after by an amount more than double that first sum, that transfer being in favour of the husband’s mother. When pressed about those two withdrawals the husband said several times he did not have an account with (omitted) Bank. In view of the husband’s evidence that he had no knowledge of accounts that appeared to be connected to him by the inclusion of his name as the account holder and his email address, I asked him about the (omitted) Bank accounts in the following terms –
HIS HONOUR: That’s what the document records. Do you know anything about those transactions? – No, your Honour.
Well, the account appears to be in your name, or at least the bank records it as such. Are you able to provide an explanation how transactions might be effected in the way this document records, one in favour of your mother, the other in favour of your father, with you as the account holder having no knowledge of the account and the transactions? – I have no knowledge of this.
It seems strange that an account in your name purports to be moving substantial amounts of money around about which you have no knowledge; can you help us with any aspect of it? –
I have no knowledge about it, your Honour.[2][2] Transcript of proceedings, 6 October 2017 at p.33.
I was concerned by the husband’s evidence that –
a)the (omitted) Bank statement was fictitious, as he said;
b)he had no knowledge of the two (omitted) Bank accounts that purported to record the movement of funds in favour of his parents; and
c)he denied having any overseas bank accounts.
The wife picked up on the husband’s apparently divergent evidence.
She asked him the following –
MS SINGH: But can you explain that the account number has your – the account has your name, has your Indian address, has your father’s name in there as a joint holder, and there’s a transaction in your mother’s name? Can you explain to me how that has happened and you have no knowledge and it has also got your email address in there? – It’s a fraudulent document. I don’t have any accounts like that.[3]
[3] Transcript of proceedings, 6 October 2017 at p.35.
In answer to the wife’s questioning, the husband described the bank documentation as fraudulent. It was at that point that I disbelieved his evidence about the transfers to his parents. It struck me that the husband had no legitimate or proper basis for describing as fraudulent or fictitious bank documents that purported to record every day entries for transactions that were not out of the ordinary. The husband had no answer for his email details being on bank statements from both banks. One may fairly and legitimately ask how the husband’s email address appeared on the records of both banks unless the husband supplied each bank with those details. That was most likely what happened here. Once that point in the forensic examination was reached, it rendered implausible the evidence the husband gave that he had no accounts in India. Self-evidently, he did. He had accounts with two banks, each in his name and each having recorded significant transfers out of the account and into one or more accounts owned or operated by his parents.
I was also troubled by the deliberateness of his denial about having overseas accounts. There could be no room to suggest he honestly gave a mistaken answer about overseas accounts. It seemed to me he deliberately gave me untrue evidence and was caught out in the falsity of his evidence.
The wife was correct in her contentions in this case about the sum of $30,000.00 transferred by the husband to his parents. It must be taken into account in the arithmetic by which the asset base in this case is reckoned.
Jewellery
The last asset which the parties disputed was jewellery. The husband said it was valued at $10,000.00 whereas the wife valued it at $20,000.00. No reliable evidence was given that set out the items of jewellery and their individual value or even their collective value. No evidence of a jeweller was given by which I could test the respective values the parties gave.
In view of my conclusion that the husband deliberately told untruthful evidence about the entries on the bank statements, I entertain real doubt that any evidence he gave about valuations or even estimated valuations of assets was likely to be suspect unless corroborated. He gave no supporting evidence of the figure for jewellery. It was more likely than not that he was seeking to minimise the amount of that figure.
Something of a curiosity emerged at an evidentiary level in relation to the jewellery component of the claim. First, the husband said the jewellery was physically in the wife’s possession. The wife did not say the same thing. Second, next to no evidence was given by either party about the circumstances of the acquisition of the jewellery, especially about –
a)when, where and by whom it was purchased;
b)the source of funds used for its acquisition;
c)what each item actually was; and
d)the cost of each item.
That did not seem to matter as between the parties because each recognised the jewellery was an asset that had to be divided and the only issue between them was the value of that asset. The question for me was whether the husband’s attribution of value ($10,000.00) or the wife’s attribution of value ($20,000.00) was to be preferred. It seemed to me that the wife’s version was preferable and I have proceeded with that in mind.
Real estate in India
In her case outline filed on 30 September 2017, the wife made extensive reference to the need to treat as an asset interests held by the husband in real estate in India. She submitted that any interest of the husband in property to which the husband may be entitled, whether in possession or reversion, satisfied the definition of “property” for the purposes of the Family Law Act 1975 (Cth) (“the Act”). She said the husband’s share of property in India fell for division in this case. She relied on the decision of the High Court in Kennon v Spry.[4]
[4] (2008) 238 CLR 366.
Several things must be said about the contentions of the wife in relation to land in India.
First, in accordance with very well established principles of private international law, it is not competent for this court to make enforceable orders in relation to real property under the jurisdiction of a foreign sovereign. That notion has its origin in the decision of the House of Lords in British South Africa Co v Companhia de Mocambique.[5] The lead judgment of Lord Herschell LC has not been disturbed, qualified or countermanded for over a century. Beyond any doubt, the principle espoused in that decision (also called the Mozambique Principle) applies to the circumstances of this case. In those circumstances, to the extent that the wife urged me to make orders against any property interests the husband actually held in India, I refuse to make such an order on the basis that the rules of private international law forbid me from doing so.
[5] [1893] AC 602.
Next, on the facts of this case, next to no evidence was adduced about the so-called interests the husband had or has in India, whether in possession or reversion. In other words, no evidence of a specific parcel of land was given, still less was there evidence of the nature of the husband’s interest in that parcel of land. I read the copy of the Hindu Succession Act that the wife attached to her case outline, being an act to amend and codify the law relating to intestate succession among Hindus. But the facts against which to construe that act were not given in this case. The wife referred me to exhibit SS-8 to her affidavit affirmed 6 September 2017. I was unable to interpret that document, nor even to understand what it purported be. Ordinarily, even if admissible evidence had been given about the husband’s landholdings in India, I would have required expert evidence of relevant Indian law to explain to me what the document tendered as exhibit S-8 actually meant. No such evidence was given. The wife referred to the decision of the Court of Appeal of the Supreme Court of Victoria in Re Tang[6] as supporting the proposition that expert evidence is not the only way to prove the existence and operation of foreign law. She also cited the decision of Ryan J in Applicants in V 722 of 2000 v Minister for Immigration and Multicultural Affairs[7] as supporting the proposition that s.174 the Evidence Act1995 (Cth) provides a simpler approach to the receipt of evidence about foreign law.
[6] [2017] VSCA 171.
[7] [2002] FCA 1059.
Whether those authorities say what the wife said they say was largely beside the point as no evidence in admissible form about the relevant land in which the husband was said to have had an interest was adduced.
In those circumstances, I reject the wife’s claim in that regard.
Liabilities - the mortgage debt
The parties agreed that the mortgage debt in relation to the former matrimonial home stood at $286,000.00. I have treated it as an agreed liability in that amount.
Loans alleged
The wife said a loan from her father in the sum of $20,000.00 should be included as a liability that needed to be taken into account.
The husband said a loan from his father in the sum of $36,500.00 should be included as a liability that needed to be taken into account.
In paragraph 17 of the affidavit affirmed on 30 June 2016 the wife said that on 29 June 2013 or thereabouts she borrowed $10,000.00 from her father. She said it was for “contingencies”.[8] She said that on 12 January 2016 her father advanced a further $10,000.00 so that she could plan a career. Neither advance was documented. That said, the husband did not dispute those amounts. In those circumstances, the issue that next arose was the characterisation of those advances. Specifically, the issue was whether they were gifts to the wife in which case they were not to be treated as joint assets of the marriage or whether they were advances to the wife on behalf of the husband and the wife jointly in which case they were to be treated as being joint assets of the marriage.
[8] Affidavit of Ms Singh affirmed on 30 June 2016 at [17].
In my view the $20,000.00 was a gift to the wife solely. Each advance making up the $20,000.00 was made at a time when the marriage was in dire circumstances. It was most unlikely that the wife’s father intended the husband to benefit from the advances. More likely, the father intended to assist his daughter through difficult times and that he was assisting her and her alone. Naturally, that is a deduction only because the wife’s father was not called to give evidence. No details sufficient to characterise the advances as a loan, properly so called, were given.
The husband asserted that his father made a loan to the husband of $36,500.00. Other than asserting that it was for educational purposes, the husband gave no evidence about the so-called loan. No documentation existed to support it. In my view, the amount of $36,500.00 was more correctly characterised as a gift, intended solely for the benefit of the husband. I have found that such a sum was a gift for the husband.
Future needs
A large issue in this case was the respective positions of the parties in relation to future needs. It is useful to distil their contentions.
For the wife, those future needs amounted to the following –
a)she was vocationally unskilled in Australia despite being highly qualified academically;
b)she was financially dependent on the husband and had been since arriving in Australia;
c)she does not drive a motor vehicle;
d)after suffering an injury to her collarbone, her scope for any form of manual lifting is extremely limited;
e)her present training may lead to a vocation as a (occupation omitted) as opposed to an occupation for which her academic qualifications might have led; and
f)she is 34 years of age.
For the husband, his future needs were as follows –
a)he is a qualified (occupation omitted);
b)he provides some form of care for his brother who suffers mental health issues;
c)for a time he received financial support from Centrelink;
d)after his working hours were reduced, he has been required to undertake casual work for which he receives a modest weekly stipend; and
e)he is required to rent the premises in which he now lives.
I was not persuaded that his asserted future needs were pressing. Compared to the wife’s, I was persuaded that it was appropriate to defer his future needs and to prefer hers. In my view the husband’s asserted future needs were more apparent than real. It must be remembered he has tertiary qualifications and the capacity to earn a very significant income on an annual basis for up to 30 remaining years. He gave no meaningful evidence of the care he has provided or will provide for his brother so I was unable to place any weight on that matter as a particular future need by reason of the absence of that evidence. The fact that the husband may, for a time, have been on Centrelink benefits told next to nothing about his future earning capacity. Likewise, the fact that the husband undertook some casual work was to be contrasted with his high earning potential. As for the payment of rent, very many people pay rent, even high income earners. I have taken that into account.
In my judgment, the wife’s future needs vastly outweighed the husband’s. That has been reflected in the orders I have made.
Contributions – financial
The husband asserted that he paid all outgoings related to the marriage. He cited his annual income over six years prior to 2017. He said he had even paid expenses since separation that he documented in paragraph 4 of his affidavit sworn 18 September 2017 totalling $37,033.00.
The wife recognised that her financial contributions during the marriage were modest. She said she was not permitted to work because the husband did not allow it. She said she was wholly financially dependent upon the husband. However, the wife said she paid certain outgoings. Her viva voce evidence on point was difficult to follow and it was unquantified as to amount.
It seemed to me that the husband provided most of the financial contributions during the marriage and met some post-separation expenses. However, the wife contributed the dowry of $100,000.00 which must be taken into account as a very significant direct financial contribution to the marriage.
No evidence was given by the husband as to the purchase price for the former matrimonial home. The husband was the registered proprietor of it. Applying principles of modern conveyancing practice, it was likely that he became the registered proprietor having purchased the property in his name and having paid a deposit for the acquisition of the former matrimonial home. The amount of the deposit was not given. I am prepared to infer that it was 10% of the purchase price, as was common practice in the acquisition of real estate. Having regard to the magnitude of the outstanding mortgage debt, that inference was well-founded. Accordingly, it might fairly be inferred that the husband provided his own funds for the acquisition of the former matrimonial home in the sum of $28,000.00 - $30,000.00 or thereabouts. The husband provided no evidence of the precise figure. It fell to him to have done so. He failed to do so.
At all events, in terms of pre-marriage contributions the wife’s dowry of $100,000.00 was to be contrasted with the husband’s contribution of up to $30,000.00. Overwhelmingly the wife’s contributions exceeded those of the husband’s prior to the marriage.
Contributions – non-financial
The wife made significant contributions that did not involve the payment of money during the marriage. She said that despite her significant education at a higher level, she was relegated to performing mundane tasks such as cooking, cleaning and homemaking. That may have had a cultural genesis. Whether or not that was true, I am persuaded that her non-financial contributions as homemaker were very considerable.
Conversely, on the wife’s account, the husband’s non-financial contributions were positively destructive. He beat the wife leading to several intervention orders.
Let me say a few things about non-financial contributions. The law recognises that two people living together in a domestic relationship may agree between them that one will work and earn an income while the other will not and instead will perform tasks as homemaker providing non-financial contributions to the relationship. The law attributes a value to non-financial contributions. Equally, it applies a value to quantifiable financial contributions.
By reason of the prevalence of family violence described above, the tasks the wife performed as homemaker was rendered all the more difficult, a matter that must be taken into account.
To express the above issues in arithmetical terms can be less than exact. However, doing the best I can it seemed to me the following propositions emerged –
a)the wife provided a very significant dowry to the marriage;
b)the husband provided the deposit for a house and became mortgagor pursuant to a mortgage in favour of the lender;
c)the former matrimonial home was and remains heavily burdened by a mortgage in which the equity is extremely modest;
d)during the marriage, the husband paid the majority of outgoings;
e)during the marriage the wife provided significant non-financial contributions;
f)during the marriage the husband physically assaulted the wife on a sustained basis on an extraordinarily large number of occasions;
g)the husband’s future earning prospects are very considerable;
h)the wife’s future earning prospects are poor;
i)the wife’s future needs are considerable and significantly greater than the husband’s;
j)the husband’s future needs are modest;
k)the marriage was relatively short and over it was little in the way of accumulation of joint assets; and
l)over the relatively short marriage the mortgage debt was not appreciably reduced.
In those circumstances, it seemed to me –
a)the wife’s initial contributions to the marriage were greater than those of the husband;
b)the financial contributions by the husband during the marriage were greater than those of the wife;
c)the non-financial contributions of the wife were greater than those the husband in the marriage;
d)the husband has vastly greater future earning prospects than does the wife; and
e)the wife’s future needs are more than those of the husband.
Superannuation
As to superannuation, in his affidavit filed 16 August 2016, the husband asserted that his superannuation stood at $23,264.00. The wife attributed a value of $24,000.00. It might fairly be inferred that the wife was estimating the extent of his superannuation whereas the husband purported to give a more accurate figure.
One could not know for certain because in an affidavit he swore on 29 September 2017 the husband valued his superannuation at $18,657.00. That squarely raised the question about the fate of $4,607.00 being the difference between the amount recorded as at 16 August 2016 and the amount recorded at 29 September 2017.
The wife did not give evidence of any amount by way of superannuation.
I have proceeded on the basis that the proper amount, supported by explicable arithmetic was the amount recorded in the husband’s 16 August 2016 affidavit, namely $23,264.00.
Extent of the asset base divisible in this case
The property to be divided consists of the net value of the former matrimonial home, the car and jewellery as well as superannuation. The amount of $30,000.00 that the husband transferred his parents must be brought to account. The gifts should be disregarded. The property in India should be disregarded.
The assets are to be divided as to 50% to each.
In my view, having regard to the short marriage and the relatively comparable contributions referred to above, it is appropriate to divide the net assets as to half to the husband and as to half to the wife.
The husband sought an order for the return of his calculator. Ridiculous and utterly indulgent as that request may appear to be, I am willing to make such an order.
I certify that the preceding seventy-three (73) paragraphs are a true copy of the reasons for judgment of Judge Wilson
Date: 29 November 2017
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