Begbie & Narang

Case [2021] FamCA 140

FAMILY COURT OF AUSTRALIA

Begbie & Narang [2021] FamCA 140

File number(s): MLC 12593 of 2019
Judgment of: HARTNETT J
Date of judgment: 19 March 2021
Catchwords:

FAMILY LAW – PARENTING – where the Respondent wife sought an order to vary final parenting orders regarding changeover – where order to vary changeover arrangements made by consent.

FAMILY LAW – PROPERTY – where the Applicant husband sought enforcement of final property orders – where the wife made an application to set aside partially and/or entirely final property orders pursuant to s 79A of the Family Law Act1975 (Cth) on grounds of duress and a reconsideration by her of the justice and equity of the orders – where the wife sought final property orders in substitution pursuant to s 79A of the Act.

FAMILY LAW – SPOUSAL MAINTENANCE – where the wife sought an order for the Court to review and determine a just and equitable outcome in the matter of spousal maintenance.
Legislation:

Family Law Act 1975 (Cth) ss 45A, 74, 75, 77, 77A, 79, 79A, 106A, 117; and

Family Law Rules2004 (Cth) Pt 10.3, rr 1.10, 10.12 , 17.02(1)(h), 19.08.
Cases cited:

Bigg v Suzi (1998) FLC 92-799;
Bretton & Bondai [2013] FamCAFC 168;
Brewster & Brewster [2016] FamCA 465;

Ebner & Pappas [2014] FLC 93-619;
Pelerman & Pelerman (2000) FLC 93-037;
Karlsson and Karlsson [2020] FamCAFC 207;
Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd (2013) 42 VR 27;
Munnings v Australian Government Solicitor (1994) 68 ALJR 169;
Ritter & Ritter and Anor (2020) FLC 93-957;
Spencer v Commonwealth of Australia (2010) 241 CLR 118;

Suiker and Suiker (1993) FLC 92-436;
Thorne v Kennedy (2017) 263 CLR 85;

Werhan & Campagnola [2012] FamCAFC 137; and
Webster v Lampard (1993) 177 CLR 598.

Number of paragraphs: 53
Date of hearing: 11 January 2021
Place: Melbourne
Solicitor for the Applicant: RF Legal
Respondent: In person

ORDERS

MLC 12593 of 2019
BETWEEN:

MR BEGBIE

Applicant
AND:

MS NARANG
Respondent

ORDER MADE BY:

HARTNETT J

DATE OF ORDER:

19 MARCH 2021

THE COURT ORDERS THAT:

1.Within seven days hereof, the Respondent wife (‘the wife’) sign all documents necessary to complete the transfer of the real property situate at and known as B Street Suburb C in the State of Victoria from the joint proprietorship of the husband and the wife to the sole registered proprietorship of the husband as ordered in the final property orders made 23 July 2020.

2.In the event the wife fails to comply with order 1 herein, or fails to do all acts and things and execute all such documents as are necessary to give effect to the orders made 23 July 2020, a Registrar of the Family Court of Australia at Melbourne be appointed pursuant to s 106A of the Family Law Act 1975 (Cth) (‘the Act’) to execute all such documents in the name of the party in default and to…

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AGLC
Begbie & Narang [2021] FamCA 140
Case
[2021] FamCA 140
Decision Date

CaseChat Overview and Summary

In *Begbie & Narang*, heard by Hartnett J, the Applicant husband sought the enforcement of final property orders, while the Respondent wife applied to set aside those orders, in part or entirely, pursuant to s 79A of the *Family Law Act 1975* (Cth). The wife contended the orders were made under duress and sought a reconsideration of their justice and equity, proposing substituted property orders. The wife also sought review of spousal maintenance. Separately, the wife sought to vary final parenting orders concerning changeover arrangements, which had been made by consent.

The court was required to determine whether the wife had established grounds to set aside the final property orders under s 79A of the *Family Law Act 1975* (Cth), specifically considering allegations of duress and a subsequent reconsideration of the justice and equity of the consent orders. Additionally, the court needed to address the wife's application for spousal maintenance and the variation of parenting orders.

Hartnett J considered the wife's evidence regarding her financial circumstances and her alleged pressure during the consent order negotiations. The court noted that both parties were represented by experienced legal professionals and that negotiations occurred remotely due to COVID-19. The wife's claim of duress was weighed against the fact that she had accepted a significant portion of the settlement sum and had withdrawn funds from her superannuation prior to signing the consent orders. The court also observed that the wife had sought a substantially higher sum in her amended response before ultimately compromising. The court ultimately ordered the wife to sign documents to transfer the property within seven days, failing which a Registrar was appointed to execute the documents. The wife was also ordered to pay $2,000 towards the husband's costs, with a stay of payment for 24 months.

Orders

Orders of the court

MLC 12593 of 2019

BETWEEN:

MR BEGBIE

Applicant

AND:

MS NARANG

Respondent

ORDER MADE BY:

HARTNETT J

DATE OF ORDER:

19 MARCH 2021

THE COURT ORDERS THAT:

1. Within seven days hereof, the Respondent wife (‘the wife’) sign all documents necessary to complete the transfer of the real property situate at and known as B Street Suburb C in the State of Victoria from the joint proprietorship of the husband and the wife to the sole registered proprietorship of the husband as ordered in the final property orders made 23 July 2020.

2. In the event the wife fails to comply with order 1 herein, or fails to do all acts and things and execute all such documents as are necessary to give effect to the orders made 23 July 2020, a Registrar of the Family Court of Australia at Melbourne be appointed pursuant to s 106A of the Family Law Act 1975 (Cth) (‘the Act’) to execute all such documents in the name of the party in default and to do all such acts and things necessary to give validity and operation to these orders and those of 23 July 2020.

3. The wife pay a part of the costs of this proceeding incurred by the Applicant husband (‘the husband’) pursuant to s. 117 (2) of the Act. The quantum of such costs shall be in the sum of $ 2,000 and there be a stay on the payment of 24 months.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 of the Family Law Rules 2004 (Cth).

Background

Background to the litigation

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Evidence

Evidence Before The Court

The means by which the issue is determined, as was said by the Full Court of the Family Court of Australia in Ritter & Ritter and Anor (2020) FLC 93-957 :-66….must only take into account the material on which the respondent seeks to make out the case, or as often expressed takes the respondent’s case “at its highest” unless the respondent’s version is inherently incredible or unreliable (see Munnings v Australian Government Solicitor (1994) 68 ALJR 169 at 171; Bigg & Suzi (1998) FLC 92-799; Webster v Lampard (1993) 177 CLR 598 at 608).THE WIFE’S EVIDENCE It is the wife’s evidence that she has not signed the necessary documents to effect the transfer of ownership of the Suburb C property because she has had “a change of mind that it was not a fair and equitable outcome”[23]. Further, it is the wife’s evidence that, relevantly:a)the wife “ felt under extreme pressure to sign without enough time for better judgement. Considering the wife stopped receiving financial assistance for the children, from the father. And, that all payments stopped once consent orders were signed in the husband’s favour. The father has not paid a cent towards our children’s expenses, no child support at all, on 23 July 2020 the mother was paying a babysitter by the hour, my barrister kept telling me to sign, the mother felt extreme pressure and confused”;b)the wife “was under financial duress when signing the consent orders on 23 July 2020. The bills from her solicitor were building, and financially supporting herself, X and Y on Pension payments from Centrelink and Single parent Centrelink payments, Mr Begbie is not paying child support or spousal maintenance”;c)the wife “moved out of the former marital home in May 2020 and is now renting with the children further adding financial strain. The husband has sole use of the former marital home B Street, Suburb C (sic). However, the husband is residing at R Street, Suburb C. Neither properties have mortgages”;d)the wife “was strongly advised to settle with the monies offered by Mr Begbie as she was told that “Mr Begbie and Mr S were “raging” and “climbing the walls” in the interview room, my barrister Tim Puckey told my solicitor Carly Boekee that Mr Begbie’s barrister did not want to be in the same room as them”. The wife is intimidated and frightened of the husband especially when he is raging and angry, he is 6’4” tall and the wife is 5’2”…….. Ms Narang is the stay home parent since X was born in 2015. Mr Begbie controlled all the money, and gave her an allowance. If she was to ask for more money Mr Begbie would ask “what I needed it for?”, “Do we really need it?”, “Don’t I give you enough money”;e)the wife “is solely responsible for all payments for the children she has 100% care of the children, receiving pension payment and single parent payment from Centrelink. …. The mother is terrified for the children and herself of further violent behaviour from the father if asked for child support or spousal maintenance. The father’s state of mental health is of great concern in recent months as his actions and violent behaviour is erratic and passive aggressive”;f)the husband made payments to the wife of $275 per week for the support of herself and the children. Additionally, the wife “applied for and was approved for the government grant to take two lots of $10,000 from her superannuation fund” to cover weekly expenses as claimed by her. In August 2020, the weekly payments of $275 previously made by the husband to her, ceased;g)the $200,000 payment made by the husband to her in accordance with the orders was deposited into the wife’s solicitor’s account. After payment of her own outstanding legal costs, the wife received a sum of $114,000;h)the husband received a wage prior to COVID-19 of approx. $75,000 per year ($1100 per week clear in his account). He is currently living with his father Mr T at R Street, Suburb C. There is no mortgage on his father’s house nor is there a mortgage secured by the property at B Street, Suburb C.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The evidence of the wife includes further, as set out in her financial statement that :-i.her average weekly income is Centrelink payments of $763;ii.her mother resides with her and contributes to one half of the rental expenditure in the sum of $320 (total rental per week is $640);iii.the total weekly expenditure incurred by her for the support of herself and the children is $1,190 together with payment of private health in the weekly sum of $115, comprehensive car insurance in the weekly sum of $23, and motor vehicle registration in the weekly sum of $34;iv.she has savings in the Commonwealth Bank of $4,884 together with total bank savings from various other accounts of $1,180;v.she has ownership of 2 motor vehicles with a total value of $12,200 and;vi.she has CBA credit card debt of $6,420.CONSIDERATION At the time of seeking final property orders by consent before Justice Wilson, the wife sought, through her Counsel, as did the husband, through his Counsel, to have the Court find that s. 79 (2) of the Act was satisfied. That section is as follows:-The 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.The Court declared itself to be so satisfied. The wife, some five months later, determined that the orders, in part and not in their entirety, did not produce, to her mind, a fair and equitable outcome. She has nevertheless, in that period of reflection by her, accepted and dealt with $200,000 as received from the husband, together with the monies received by her by way of transfer of the superannuation monies of the husband to a nominated superannuation fund of the wife. Superannuation monies of $20,000 had been withdrawn by her from her own entitlements prior to her signing the consent orders. The parties were both represented by experienced family law barristers and solicitors at the time of the making of the orders. They also each had with them a family member for support. The negotiations between the parties through their respective legal representatives did not occur in a face-to-face context as the Court was not holding face-to-face hearings at the relevant time due to the effects of the COVID-19 pandemic. Thus there was some distance between the parties. The negotiations also followed earlier Court events and hearings, including a conciliation conference. The proceeding had first been filed on 7 November 2019. During the course of the litigation, the wife filed a second further Amended Response. That document is dated 16 July 2020. In that further amended Response the wife sought a payment to her of $250,000 to be made contemporaneously with the transfer by her to the husband, of her interest in the Suburb C property. She ultimately compromised her position, accepting a figure in the range, being $200,000. Following the wife’s receipt of monies from the husband, the wife paid her legal costs and deposited (as on her affidavit of evidence (annexure 4)) the sum of $100,000 with a company known as V Pty Ltd. Those funds appear to now be deposited with W Group.