Sinha and Sinha

[2018] FCCA 2952

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINHA & SINHA [2018] FCCA 2952

Catchwords:
FAMILY LAW – Property – assessment of contributions – marriage of 18 years – where contributions during the marriage were equal – wife is primary carer of two children – where husband depleted assets by transferring funds outside the Commonwealth of Australia – s.75(2) matters require an adjustment in favour of the wife – partial costs order – orders made.

Legislation:

Family Law Act 1975, s.75(2)

Applicant: MS SINHA

Respondent: MR SINHA

File Number: AYC 99 of 2017

Judgment of: Judge Hartnett

Hearing dates: 30 May, 20 August 2018

Further affidavits, submissions and proposed orders last received: 9 October 2018

Delivered at: Melbourne

Delivered on: 19 October 2018

REPRESENTATION

Counsel for the Applicant: Mr Moffett

Solicitors for the Applicant: KPW Lawyers

Solicitor for the Respondent: Mr Newman

THE COURT ORDERS THAT:

1. All previous property orders including those of 7 December 2017 be and are hereby discharged.

2. The Respondent husband within 14 days hereof do all acts and sign all necessary documents to transfer to the Applicant wife his sole right title and interest in the motor vehicle, Motor Vehicle 1.

3. The Applicant wife do all acts and things and sign all necessary documents to transfer the Term Deposits with Bank 1, India jointly held in the name of the parties to the Respondent husband.

4. The Applicant wife retain the following assets to the exclusion of the Respondent husband:-

   (a)all bank accounts held solely in the name of the Applicant wife;

   (b)all monies held on trust on behalf of the Applicant wife by the Applicant wife’s solicitors in the sum of approximately $250,000 together with any interest accrued thereon;

   (c)Motor Vehicle 2; and

   (d)Super Fund S interest held solely in the name of the Applicant wife.

5. The orders below have effect from the operative time:-

   (a)in accordance with s.90MT(1)(a) of the Family Law Act 1975 (Cth), whenever a splittable payment becomes payable in respect of the Respondent husband’s interest in Super Fund S Savings Trust fund, member plan number, the Applicant wife is entitled to a base amount of seventy nine thousand, six hundred and fifty dollars ($79,650.00) and there is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for these orders;

   (b)having been accorded procedural fairness in relation to the making of this order, this order binds the Trustee of the Super Fund S Savings Trust fund;

   (c)the operative time for this order is 4 business days after the date of service of the orders on the Trustee of the Super Fund S Savings Trust fund.

6. The Respondent husband and Applicant wife do all acts and things and give all consents and execute all documents and writings necessary to give effect to the orders made herein.

7. In the event that either party refuses or neglects to execute any deed or instrument, the Registrar of the Court be appointed pursuant to s.106A of the Family Law Act 1975 (Cth), to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation of the deed and/or instrument.

8. The Respondent husband within 60 days hereof pay to the Applicant wife the sum of $7,500 being a payment toward the Applicant wife’s costs.

9. Unless otherwise specified in these orders and except for the purposes of enforcing the payment of any money under these or any subsequent orders:-

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

   (b)any money standing to the credit of the parties in a bank account are to be retained by the party in whose name the account appears;

   (c)each party hereby foregoes any claim they may have to any superannuation benefit that is belonging to or owned by the other save as provided for in these orders;

   (d)all insurance policies are to become the sole property of the owner named thereon;

   (e)each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and

   (f)any joint tenancy of the Respondent husband and Applicant wife in any real or personal estate is hereby expressly severed.

10. Otherwise all extant applications are dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

AYC 99 of 2017

MS SINHA

Applicant

And

MR SINHA

Respondent

REASONS FOR JUDGMENT

Preliminary

1. The proceedings between the parties involved the seeking, by both parties, of parenting orders and property orders.  On 30 May 2018 the Court made final parenting orders.  Those parenting orders were with respect to the parties’ two children, [X] born 2002 and [Y] born 2011.  [X] is now aged approximately 16 years and [Y] is now aged approximately 7 years.

2. The final parenting orders provided that each of the parties have equal shared parental responsibility for their children; that the children live with their mother; that [X] spend time with her father in accordance with her wishes (with her mother to use her best endeavours to encourage [X] to spend such time with her father); and that time spent between [Y] and her father be in accordance with orders of the Court. Those orders included time spent with each alternate weekend from the conclusion of school on Friday until 9.00am on Monday and for the first half of term and school holiday vacations. Other orders made on 30 May 2018 were of a usual and general nature, save order number 6 therein which is referred to in paragraph 4 hereafter.

3. The final parenting orders were made at a time when the husband was not physically present in the Commonwealth of Australia and was residing in (country omitted), his country of origin. The husband provided instructions to his Counsel who appeared on his behalf to conclude the parenting orders proceeding. He further provided instructions to his Counsel as to the orders he sought in respect of the property proceedings.

4. [Y]’s defined time spent with her father was to commence upon her father’s return from (country omitted) and provided he remained within 100 kilometres of the wife’s residence. This was provided for in an order made by the consent of the parties. The timing of the husband’s return to Australia, as at 30 May 2018, was unknown to the Court and the parties. It was not possible to make provision for regular time spent with between [Y] and her father unless the husband returned to Australia and, at least in the first instance, was located in some reasonably proximate geographical location to the wife and children. Additionally, the husband had ceased to be a resident of Australia for child support purposes in October 2017. Orders could only be made predicated on a return to Australia by the husband which included, in a practical sense, his again taking up residency in Australia. The husband now complains about this order, but as at 26 August 2018, he had no permanent address in Australia. Further, the husband makes no proper application to the Court in respect of any further parenting orders and/or child support orders. His current status with the Child Support Agency is that no child support is payable by him by virtue of his residency arrangements. If the husband was to make any application as to parenting orders, he would need firstly to establish a changed circumstance, as a threshold issue, and would have some exposure to a costs order  in the event he was unsuccessful.

5. Additional to the final parenting orders on 30 May 2018, the Court made property orders, relevantly, as follows:-

   “(1) The husband within 30 days of this date, transfer into the trust account of the wife’s solicitor, Ms Hall, the sum of $250,000 to be held on trust in the name of Ms Sinha (the wife in these proceedings) until further order.

   (2) In the event the husband fails to comply with order 1 herein the solicitors for the wife in writing advise the Court and the solicitor for the husband that such monies have not been so deposited with the wife’s solicitors.

   …

   (4) The injunction and other non-parenting orders made 7 December 2017 shall continue in full force and effect.

   (5) The wife’s costs of this day and 31 May 2018 are reserved.”

6. Order number 1 of the property orders made on 30 May 2018 (as described in paragraph 5 above), was necessitated by the husband having transferred funds out of the Commonwealth of Australia which remained in his possession and control at the time of the hearing on 30 May 2018.  He was required to return the sum of $250,000 to the Commonwealth of Australia to enable the Court to practically exercise its jurisdiction in respect of those funds.

7. The wife’s position with respect to the orders sought by her, was that if the husband returned the funds to the jurisdiction in accordance with order 1 of the orders made 30 May 2018, the wife would seek an adjustment of the agreed property pool, that being agreed as at the date of separation and adopted by the parties as the agreed value as at the date of trial, in the apportionment of 60 per cent to the wife and 40 per cent to the husband. This was a decrease of the percentage sought by her in her amended application filed 30 May 2018 wherein she sought a 65 per cent adjustment of the asset pool, including superannuation, to be apportioned to her. In the event the husband did not comply with order 1 of the orders made on 30 May 2018, the wife would seek property orders in an apportionment of the agreed pool as to 75 per cent to the wife and 25 per cent to the husband.

8. The husband sought orders on 30 May 2018, through his Counsel, Mr Newman, to effect an apportionment of the agreed asset pool of 51 per cent to the wife and 49 per cent to the husband. In written submissions filed by him and dated 4 September 2018 he sought a 50 per cent adjustment of the asset pool, including superannuation, as between the parties.

9. The husband complied with order number 1 of the orders made. Funds in the sum of $250,000 were duly returned to the Commonwealth of Australia on 21 June 2018.

10. The wife relied at trial upon affidavit evidence, deposed to by her, as follows:-

    a)affidavit sworn 22 March 2017;

    b)affidavit sworn 27 July 2017;

    c)affidavit sworn 4 December 2017;

    d)affidavit sworn 7 December 2017;

    e)affidavit sworn 17 January 2018;

    f)affidavit sworn 25 May 2018; and

    g)financial statement sworn 22 March 2017.

11. The husband’s Counsel cross-examined the wife. The husband, however, did not make himself available for cross-examination by the wife. Accordingly, the affidavit evidence sworn by the husband on 28 July 2017, 28 November 2017, 5 December 2017, 29 January 2018 and 27 May 2018, together with a financial statement sworn on that day, is given very little weight by the Court. The husband had no independent corroboration of his evidence.  The proceedings had been listed for final hearing on an earlier occasion, being in December 2017, but were adjourned at the husband’s request. The husband was also in (country omitted) at the time. The hearing of the matter as a final hearing on 30 May 2018, thus proceeded largely as an undefended matter. Material filed thereafter was solely for the Court to be appraised of the husband’s compliance with the orders made on 30 May 2018, and as a consequence the orders sought by the wife, and for the Court to be updated as to the husband’s payment or otherwise of child support together with any resolution of his place of ongoing residence. No provision was made for the husband to further argue his case as to a just and equitable property division between the parties.

History

1. Statements of fact in these reasons are findings of fact on the balance of probabilities.

2. The parties were married on 1999 in India.  They did not cohabitate prior to their marriage.

3. At the commencement of the parties’ marriage neither the husband nor the wife had assets of any significance.  They both had nominal savings.

4. Following their marriage in 1999, the husband and wife moved to (country omitted) where the wife began working full-time as a (occupation omitted) and where the husband commenced working full-time as an (occupation omitted).  In 2001 the husband moved to the (country omitted) to complete his (qualifications omitted). The wife remained (employment omitted) in (country omitted) and otherwise completed a distance (omitted) course she was then undertaking.

5. Following the parties’ daughter [X]’s birth, on 2002, the wife left her job in (country omitted) and moved to the (country omitted) so that [X] could be close to her father whilst he completed his (qualifications omitted).  The husband, at that time, was continuing to study but also worked part-time to support the family whilst the wife had the full-time care of [X].

6. In 2003, the parties and their daughter moved back to India.  The husband began working full-time and the wife began working part-time which was arranged around her care of the parties’ daughter.  After a few months, the wife also began working full-time.

7. In 2006 the husband moved to (country omitted) for work.  The wife moved back into her parents’ home in India with [X] while her and [X]’s (country omitted) visas were being processed.

8. In 2006 the wife and [X] moved to (country omitted) so that the parties could again live together as a family.  The husband continued to work as an (occupation omitted) in a full-time capacity whilst the wife was engaged in home duties and the care of [X]. After some time the wife commenced to work part-time as an (occupation omitted) before she eventually recommenced working full‑time as a (occupation omitted).

9. In 2010 the wife and [X] returned to India for the birth of the parties’ second child. The wife again took up residence in her parents’ home. The husband returned to India in 2011 due to the civil war in (country omitted).

10. Following the birth of the parties’ second child [Y], in 2011, neither of the parties worked for a period of some 12 months whilst they cared for their children and prepared their applications to immigrate to Australia.

11. The parties lived with the wife’s parents until June 2011. In July 2011 the parties rented a one bedroom unit, the landlord being the wife’s mother.  In 2012 the husband obtained a full-time job as an (occupation omitted) and the parties moved into a different and larger rental apartment.

12. From around 2012 to 2013, the husband worked full-time and the wife remained at home caring for the parties two children and engaging in home duties. In 2012, the parties and their two children were granted permanent resident visas in Australia.

13. In 2013 the parties and their two children moved to Australia.  They arrived in Sydney and resided with the wife’s brother.  In 2013 the family moved to Town A in New South Wales, where the husband began working full-time as an (occupation omitted) with (employer omitted).  Whilst the husband worked, the wife continued to care for the parties’ children and continued to be engaged full-time in home duties.

14. In 2013 the wife began part-time employment as a (occupation omitted) whilst continuing to be the primary carer for the children and primarily engaged in home duties.

15. In 2015 the wife commenced full-time employment as an (occupation omitted) at (employer omitted) in Town A, while primarily (as between the parties) continuing to care for the children and home.  The husband continued his full‑time employment as an (occupation omitted) which he had commenced in 2013.

16. The parties separated on 7 March 2017 when the wife left the former matrimonial home and moved to reside with the children, in separate rental accommodation in Town A.  The wife continued to work full-time and also to care for the two children.  At the time [X] was 14 years old and [Y] was five years old.  [X] was attending the Town A High School in year 10 and [Y] was in year 1 at Town A Public School.  [Y] attended after school care at OOSH five days a week during school terms and vacation care at OOSH during the school holidays.

17. Following separation, the husband continued to work full-time as an (occupation omitted). He refused to contribute toward any of the children’s expenses but paid child support for a six month period. Thereafter he ceased such payments. The children spent time with their father on an irregular basis, being when the husband wished to see the children.  The arrangement lacked consistency and was disruptive to the children’s daily routines. The wife encouraged the children’s relationship with their father, but there were some difficulties attending that relationship.

The Agreed Pool of Assets

1. The parties agreed at trial that the pool of assets owned by them as at May 2018 and as described below totalled $754,648. This was the sum accepted by them to be available for distribution at trial as between them. Those assets were as follows:-

   a)In Australia and in the possession and ownership of the wife:

Account Type              Account Bank          Account Number    Amount

Bank B$1,272

Bank B$2,001

Bank B$121

Term Deposit                Bank B  $10,000

Term Deposit                Bank B  $10,064

Motor vehicle 2 (registered in wife’s name)  $4,750

Total$28,208

b)In Australia and in the possession and ownership of the husband:

Account Type              Account Bank          Account Number    Amount

Bank B$1,543.19

Bank B$87.61

Bank B$181.11

Motor vehicle 1  $45,000.00

Total$46,811.91    (rounded up to $46,812).

c)In India and in the possession and ownership of the wife

Account Type      Account Bank          Account         Indian Rupee    Amount

Term Deposit       Bank A  566,562.03     $10,765

Term Deposit       Bank A  221,157.65      $4,202

Savings Account   Bank A  5,356.00         $102

Savings Account   Bank A  95,000.00      $1,805

Savings Account   Bank C  1,201,38.00     $22,826

AccountBank C  11,379.03         $216

Total$39,916

d)Superannuation

Account Holder     Account Name         Fund          Amount

WifeSuper Fund S  $10,015

HusbandSuper Fund T  $85,705

Total          $95,720

e)Outside the Commonwealth of Australia, being mostly in India, and in the possession and ownership of the husband the balance, which by reference to the agreed asset pool, which included superannuation, was the sum of $543,992.

1. The total share of assets, including superannuation, in the possession, ownership and/or control of the wife as described above was in the sum of $78,139.

2. The wife is seeking 60 per cent of the asset pool to be allocated to her.  That is the sum of $452,789.  The wife has already the sum of $78,139.  Thus, the wife is seeking an order that there be transferred to her from the remaining balance of the parties’ assets the sum of $374,650. Payment out to the wife of the monies now deposited by the husband in the wife’s solicitors trust account in the name of the wife and being in the sum of $250,000 (see paragraph 9 of these reasons) will leave an amount sought by the wife remaining of $124,650. The wife seeks the Court look to the husband’s interest in his superannuation, motor vehicle, and Bank B accounts to satisfy that sum.

3. There are, in Australia, cash assets available which are in the husband’s name, as described in paragraph 29 above, and which, by injunctive order made on 7 December 2017, the husband is unable, currently, to access. The order made on 7 December 2017 was, relevantly, in the following terms:-

   “(1) Pursuant to s.114 of the Family Law Act 1975 (Cth) (‘the Act’) and rr.14.01 and 14.05 of the Family Law Rules 2004 (Cth) (‘the Rules’), the Respondent must not remove from Australia or in any way dispose of, deal with or diminish the value of any monies held with the Bank B in accounts described in the following manner:

   (a) account bearing account number;

   (b) account bearing account number; and

   (c)  account bearing account number.

   …

   (3) Pursuant to s.114 of the Act and rules 14.01 and 14.05 of the Rules the Bank B must not permit or facilitate the respondent from disposing of, dealing with or diminishing the value of any account it holds open to be accessed by the Respondent including, but not limited to the accounts referred to at order 1 above.”

   These monies total $1811.91 (rounded up to $1812).

1. Secondly, the husband has ownership of superannuation entitlements with Super Fund T of $85,705 and a Motor vehicle 1 with a value of $45,000. The transfer of these entitlements and ownership to the wife together with the monies in the husband’s Bank B accounts as described above ($1,812) would result in the wife’s further receipt of $132,517.

2. As can be seen, a transfer of the entirety of the above described assets and/or superannuation will not be necessary. They total $132,517. A further payment of $124,650 is needed. The difference is $7,867. Thus a transfer of the husband’s car is required, but no order is required in respect of a transfer of the husband’s Bank B accounts nor the totality of the husband’s superannuation entitlements. Rather $79,650 is the required base amount.

Consideration

1. During the period of the parties’ marriage the Court finds their contribution to have been an equal one.  Each contributed monies from their respective incomes, the husband’s income being significantly greater than that of the wife.  Both contributed to the care of the children, with the wife making the overwhelming contribution in that regard.  Likewise, the wife’s contribution to home duties exceeded that of the husband.  Their respective contributions were matters agreed by them and determined by them to be the best way to manage their family life in an emotional, physical and financial sense.

2. It was only following the parties’ separation that the husband ceased to make any real financial contribution to the support of the wife and/or children. The husband did make some child support payments in the period from March to mid October 2017, but he ceased making any such payments in October 2017 and has not, to the present time, recommenced making any payments of child support to the wife.  Indeed, he removed himself from the jurisdiction of the Commonwealth, voluntarily became unemployed, and failed to exercise his significant earning capacity.

3. The wife’s earning capacity, which had been diminished throughout the course of the marriage by virtue of her care of the children, remains not as great as that of the husband.  She, as at March 2017, was in receipt of income as an (occupation omitted) in Town A in the sum of approximately $972 gross per week. Her receipt of income remained largely unchanged between that time and the time of trial.

4. The husband deposed in his financial statement sworn on 28 July 2017 that he was in receipt of income of $2,606 gross a week as a (occupation omitted) with (employer omitted).  He has, since that time, chosen to depart from that employment.

5. The husband claimed, in his material, that the wife had an interest in property in India.  The wife denied owning or having any interest in any property in India and the Court accepts the wife’s evidence.  No material other than a bland assertion from the husband was put before the Court to provide any basis for that allegation.

6. The wife alleged, in her affidavit material, that the husband had an interest in property in (country omitted).  The wife went on to describe that property as a home in (country omitted) and farmland in (country omitted) both of which have been registered in the husband’s name for several years. Since separation, the husband has made trips to (country omitted) including his recent lengthy trip, which the wife claimed related to, in part, matters going to his ownership of property in that country. The husband denied ownership of any properties in (country omitted) and, again, there is not sufficient evidence before the Court for the Court to conclude that the husband has such ownership. That is because the wife declined to obtain further evidence in respect of that claim, the wife making a commercial decision that she would not pursue that aspect of her application.

7. From 15 October 2017, the husband was overseas and made no attempt to contact or communicate with the children.  The children were left without any contact details for them to contact their father and no indication from him as to when he would return to the Commonwealth of Australia.  On 10 November 2017, the husband advised the wife that he was:-

   “Unable to return to Australia as scheduled due to a medical condition.”

   And that he had applied for:-

   “Leave without pay for an extended period.”

8. The husband had accumulated many hours of personal sick leave during his employment with (employer omitted) and the wife was at a loss as to why he would have applied for leave without pay as he claimed.

9. In mid-October 2017, the husband ceased meeting his child support payments and the wife was required to pay the ongoing expenses of the children including after school care and school holiday care, without any assistance from the husband.  That situation is likely, on the evidence, to continue into the future. As of 13 October 2017, the husband ceased to be a resident of Australia and/or a reciprocating country for the purposes of child support collection. The husband made no ongoing contribution to the children’s support despite receiving wages in the form of annual leave up to December 2017.

10. In 2018 the husband returned to Australia. He had been absent for almost 9 months. As at August 2018 he had no fixed address in Australia moving between Town A (briefly), Sydney, Region 1 and Brisbane.

11. The husband withdrew a total sum of approximately $260,000 from accounts in Australia and India and transferred those monies to accounts in his sole name in (country omitted). His depletion of funds in bank accounts in Australia and India was a planned action taken by him to deny the wife access to funds and/or an appropriate property settlement. Following Court order, he returned the sum of $250,000 to the trust account of the wife’s solicitor, to be held on trust pending the Court’s determination.

12. The s.75(2) of the Family Law Act 1975 (Cth) (‘the Act’) matters considerably favour the wife. Her income and earning capacity are less than that of the husband. Although his present income receipt is unknown to the Court, the husband has a considerably superior earning capacity. The wife has the full-time care of the children without any real assistance from the husband and that is a situation, perhaps, likely to continue. The elder child does not wish to spend any significant time with her father.

13. The wife will need some adjustment to her by virtue of the age of the younger child who remains in her care and her need to support that child whilst, herself, being gainfully employed on a full-time basis to make the rental and other living expense payments of herself and the two children.

14. The Court accepts the wife’s evidence that the husband’s allegation that he gifted her an amount of $250,000 prior to separation is untrue. The Court accepts the wife’s evidence that her husband has never given her an amount of $250,000.  In November 2017, he gifted the wife the sum of $3,000 to assist with her and the children’s expenses during the Christmas and holiday period.  The husband failed to provide any evidence at all to support his allegations.

15. The husband did not act in a reasonable way to negotiate property matters with the wife.  He sought an adjournment of the December listed final hearing over to May in the following year; transferred funds out of the jurisdiction; and failed to deal with the wife in any reasonable way to resolve property matters as between them.  This caused the wife to incur considerable legal fees.  It caused her significant disadvantage and financial hardship.  As at May 2018, the wife had already spent over $36,000 in legal fees.  She also had to take leave from work, sometimes without pay; make travel arrangements; and arrange for the care of the children while she was attending Court. The wife is seeking a costs order against the husband in respect of his non-attendance at the hearing on 30 May 2018 and for unnecessarily prolonging the proceedings. Her costs in respect of the final hearing exceeded $10,000.

16. The husband ceased to be a resident of Australia and/or a reciprocating country for child support purposes as at 13 October 2017.  In the 2017 year he had salary packaged his income such that his employer paid non-reportable fringe benefits which reduced his annual taxable income by approximately $14,000. This subsequently reduced his assessed child support payments. The husband essentially abandoned all his financial obligations toward his children in the period commencing October 2017.  He sought to harbour his assets in overseas accounts to keep them from the wife and children. He commenced another relationship and had necessary funds to travel to (countries omitted) with his girlfriend in 2017.

17. The Court will accede to the substantive application of the wife as to property orders for the reasons given above. That course is supported by the evidence before the Court. The Court is satisfied that in all the circumstances it is just and equitable to make the orders that it does.

18. In respect of the Court’s consideration of the wife’s limited costs application, again for the reasons stated above, and in the exercise of discretion, the Court shall order further that the husband pay to the wife a sum of $7,500 toward the legal costs incurred by her.

I certify that the preceding firty-two (52) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Date: 19 October 2018