ATWAL & DANI - [2020] FCCA 1106

FEDERAL CIRCUIT COURT OF AUSTRALIA

ATWAL & DANI

[2020] FCCA 1106

Catchwords:
FAMILY LAW – Property proceedings– whether amounts advanced to the parties constituted gifts or loans – whether amounts advanced to the wife post separation constitute loans such that should be included in the matrimonial asset pool – whether one party owns property or assets in India – dispute as to the financial contributions of the parties – what adjustment should be awarded relative to the factors contained in section 75(2) of the Family Law Act 1975.

Legislation:

Family Law Act 1975 (Cth), ss.75, 79

Cases cited:

Bevan v Bevan (2013) 279 FLR 1
Dickons v Dickons [2012] FamCAFC 154
Eufrosin v Eufrosin [2014] FamCAFC 191
Federal Commissioner of Taxation v Radilo Enterprises Pty Ltd (1997) 142 ALR 305
In the Marriage of CJ and TK Kessey (1994) 18 Fam LR 149
In the Marriage of CJ and V Biltoft (1995) 19 Fam LR 82
In the Marriage of FS and LM Petersens (1981) 7 Fam LR 402
In the Marriage of Gosper (1987) 11 Fam LR 601
In the Marriage of J and O Pellegrino (1997) 22 Fam LR 474
In the Marriage of Weir (1992) 16 FamLR 154
Lovine & Connor & Anor [2012] FamCAFC 168
Stanford v Stanford (2012) 247 CLR 108

Other sources:

Pannam, Clifford, The Law of Money Lenders in Australia and New Zealand (Sydney Law Book Co., 1965)

Applicant:

MR ATWAL

Respondent:

MS DANI

File Number:

MLC 2261 of 2019

Judgment of:

Judge Blake

Hearing date:

21 February 2020

Date of Last Submission:

14 March 2020

Delivered at:

Melbourne

Delivered on:

8 May 2020

REPRESENTATION

Counsel for the Applicant:

Mr Kiernan

Solicitors for the Applicant:

RRR Lawyers

Counsel for the Respondent:

Mr Richardson

Solicitors for the Respondent:

Vernon Da Gama and Associates

ORDERS

The matrimonial asset pool be divided so as to effect a split of 53% to the Husband and 47% to the Wife, comprising the following:
(a)To the Husband:
(i)     $58,274.09, being the proceeds of sale of the former matrimonial home;
(ii)$2,356, being the Motor Vehicle 1, valued at $15,500, less the    associated loan of $13,144;
(iii)   $400 being the value of the Husband’s shares in a Mutual Fund in India; and
(iv)   $12,554 being the Husband’s superannuation.
(b)To the Wife:
(i)     $56,253.81 being the proceeds of sale of the former matrimonial home; and
(ii)    $9,000 being the Wife’s superannuation.
Within 14 days of the date of this order, the parties do all things necessary to cause the amount of $114,527.90, being the proceeds of sale of the former matrimonial home, held in the trust account of RRR lawyers to be distributed as follows:
(a)$58,274.09 to the Husband; and
(b)$56,253.81 to the Wife.
Within 30 from the date of this order each party shall do all things necessary to transfer to the sole name of the Husband the Motor Vehicle 1, at the cost of the Husband, and the Husband hereby indemnifies, and shall keep indemnified, the Wife in relation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading ATWAL & DANI

Details

AGLC: ATWAL & DANI [2020] FCCA 1106
Case: [2020] FCCA 1106
Decision Date: 8 May 2020

CaseChat Overview and Summary

This matter concerned property proceedings between a husband and wife, heard by Judge Blake. The central dispute revolved around the characterisation of certain financial advances made to the parties, specifically whether they constituted gifts or loans, and whether amounts advanced to the wife post-separation should be included in the matrimonial asset pool. Further issues included the ownership of property and assets located in India, the parties' respective financial contributions, and the appropriate adjustment to be made under section 75(2) of the *Family Law Act 1975*.

The court was required to determine the extent to which certain advances constituted loans to be included in the asset pool, the valuation and treatment of Indian assets, and the overall division of the matrimonial property. The court also had to consider the impact of the parties' financial contributions and any relevant factors under section 75(2) of the *Family Law Act 1975* when making its final orders.

Judge Blake reasoned that the matrimonial asset pool should be divided with a split of 53% to the Husband and 47% to the Wife. This division encompassed the proceeds of sale of the former matrimonial home, a motor vehicle, shares in an Indian mutual fund, and superannuation entitlements for both parties. The court made specific orders for the distribution of the proceeds of sale of the former matrimonial home and the transfer of the motor vehicle. Furthermore, pursuant to section 78 of the *Family Law Act*, the court declared each party to be the sole and absolute owner of various items of property in their possession or control not otherwise dealt with in the orders, and each party was ordered to indemnify the other in respect of liabilities in their sole or joint names.

Orders

Orders of the court

The matrimonial asset pool be divided so as to effect a split of 53% to the Husband and 47% to the Wife, comprising the following:

(a) To the Husband:

(i) $58,274.09, being the proceeds of sale of the former matrimonial home;

(ii) $2,356, being the Motor Vehicle 1, valued at $15,500, less the associated loan of $13,144;

(iii) $400 being the value of the Husband’s shares in a Mutual Fund in India; and

(iv) $12,554 being the Husband’s superannuation.

(b) To the Wife:

(i) $56,253.81 being the proceeds of sale of the former matrimonial home; and

(ii) $9,000 being the Wife’s superannuation.

Within 14 days of the date of this order, the parties do all things necessary to cause the amount of $114,527.90, being the proceeds of sale of the former matrimonial home, held in the trust account of RRR lawyers to be distributed as follows:

(a) $58,274.09 to the Husband; and

(b) $56,253.81 to the Wife.

Within 30 from the date of this order each party shall do all things necessary to transfer to the sole name of the Husband the Motor Vehicle 1, at the cost of the Husband, and the Husband hereby indemnifies, and shall keep indemnified, the Wife in relation to all liabilities in respect of the motor vehicle whenever and however arising.

Pursuant to section 78 of the Family Law Act, each of the husband and the wife shall be and hereby are declared to be the sole and absolute owners at law and in equity of:

(a) all items of furniture, furnishings, personalty, chattels and jewellery;

(b) all monies (whether held in cash or in deposit with any financial institution);

(d) all contributions to or benefits or entitlements arising from membership of any fund of insurance or superannuation whether such interest be present, contingent or expectant;

in the possession, custody or control or each or in which either has an interest which are not otherwise dealt with in these orders.

Unless otherwise provided for in these orders, the Husband be entitled to be the sole legal and beneficial owner of all items of property including real property, money, motor vehicles, insurances, equities, superannuation entitlements and personal effects in his name, possession or control.

Unless otherwise provided for in these orders, the Wife be entitled to be the sole legal and beneficial owner of all items of property including real property, money, motor vehicles, insurances, equities, superannuation entitlements and personal effects in her name, possession or control.

The Husband indemnify the Wife in respect of all liabilities in his sole name or jointly with any other person, including but not limited to any credit card debt in his sole name or jointly with another person, and any loan or debt to any financial institution or other person in his sole name or jointly with another person.

The Wife indemnify the Husband in respect of all liabilities in her sole name or jointly with any other person, including but not limited to any credit card debt in her sole name or jointly with another person, and any loan or debt to any financial institution or other person in her sole name or jointly with another person.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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