Bensaid & Fasih

Case [2021] FamCA 512

FAMILY COURT OF AUSTRALIA

Bensaid & Fasih [2021] FamCA 512

File number(s): PAC 2686 of 2009
Judgment of: FOSTER J
Date of judgment: 16 July 2021
Catchwords: FAMILY LAW – PROPERTY – property adjustment – where only asset remaining for division is the husband’s half interest in a property as tenants-in-common – where discussion of applicable principles – where contributions assessed as equal – where adjustment in favour of wife by reason of s 75(2) considerations.
Legislation: Family Law Act 1975 (Cth) ss 75(2), 79, 102NA
Cases cited:

Bevan & Bevan [2014] FamCAFC 19

Chapman & Chapman [2014] FamCAFC 91

Figgins & Figgins [2002] FamCA 688

Horrigan & Horrigan [2020] FamCAFC 25

Russell & Russell (1999) FLC 92-877

Scott & Danton [2014] FamCAFC 203

Stanford v Stanford [2012] HCA 52

Teal & Teal [2010] FamCAFC 120

Number of paragraphs: 90
Date of last submission/s: 5 May 2021
Date of hearing: 3 and 4 February 2021 and 29 and 30 March 2021
Place: Parramatta
Counsel for the Applicant: Mr Pickering
Solicitor for the Applicant: H K Husseini & co
Counsel for the Respondent: Mr Cairns
Solicitor for the Respondent: Crimcorp Defence Lawyers Pty Ltd
Intervener – unrepresented litigant: The intervener attended in person

ORDERS

PAC 2686 of 2009
BETWEEN:

MS FASIH

Applicant
AND:

MR BENSAID

Respondent

MR WARDI

Intervener

ORDER MADE BY:

FOSTER J

DATE OF ORDER:

16 JULY 2021

THE COURT ORDERS THAT:

1.Within six weeks from this date the second respondent pay to the wife the sum of $121,000 and to the husband $99,000 less any Westpac Bank mortgage balance in excess of $380,000.

2.In consideration of such payments the husband do all things necessary to transfer his interest in the property at B Street, Suburb D to the second respondent; and

3.Concurrently with such transfer the second respondent procure a discharge or refinance of the present mortgage encumbrance in favour of the Westpac Bank.

4.In default of the payments as provided for in Order 1, the husband and second respondent forthwith do all things necessary to sell the property at B Street, Suburb D for the best price reasonably obtainable and upon sale the proceeds be paid as follows:

(a)in payment of selling costs including agent’s commission and legal expenses;

(b)in payment of one half of the balance then remaining to the second respondent;

(c)in discharge of the mortgage in favour of Westpac Bank provided always that the husband shall from his share of the proceeds of sale pay any mortgage balance in excess of $380,000;

(d)in payment of 55 per cent of the balance then remaining to the wife;

(e)in payment of the balance then remaining to the husband less any sum to be paid by the husband in relation to any mortgage balance over $380,000.

5.Liberty to apply as to implementation or enforcement of these orders.

6.The matter be removed from the active pending cases list.

7.All subpoenaed documents produced and all exhibits tendered in these proceedings, be returned at the expiration of one calendar month…

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AGLC
Bensaid & Fasih [2021] FamCA 512
Case
[2021] FamCA 512
Decision Date

CaseChat Overview and Summary

In the matter of *Bensaid & Fasih*, Foster J of the Family Court of Australia considered a property adjustment dispute between the applicant wife, Ms. Fasih, and the respondent husband, Mr. Bensaid. The primary asset for division was the husband's half interest in a property located at B Street, Suburb D. The proceedings also involved an intervener, Mr. Wardi.

The court was required to determine the appropriate property adjustment between the parties. This involved assessing their respective contributions to the marriage and considering various factors under section 75(2) of the relevant Act, which include the age and health of the parties, their financial resources and earning capacities, and the responsibilities each party has to support themselves and any other persons. The court also had to consider the impact of the husband's conduct on the wife's financial position and well-being.

Foster J assessed the parties' contributions as equal. However, after considering the factors under section 75(2), particularly the wife's circumstances and the husband's conduct, the court determined an adjustment in favour of the wife was warranted. The court ordered that within six weeks, the second respondent (Mr. Wardi) was to pay $121,000 to the wife and $99,000 to the husband, less any Westpac Bank mortgage balance exceeding $380,000. In consideration of these payments, the husband was to transfer his interest in the property to the second respondent, and concurrently, the second respondent was to procure a discharge or refinance of the existing mortgage. In the event of default in payment, the property was to be sold, with proceeds distributed according to a specified order of priority, including payment to selling costs, the second respondent, the Westpac Bank mortgage, and then a division of the remaining balance between the wife (55%) and the husband (45%), with adjustments for any excess mortgage balance.

Orders

Orders of the court

PAC 2686 of 2009

BETWEEN:

MS FASIH

Applicant

AND:

MR BENSAID

Respondent

MR WARDI

Intervener

ORDER MADE BY:

FOSTER J

DATE OF ORDER:

16 JULY 2021

THE COURT ORDERS THAT:

1. Within six weeks from this date the second respondent pay to the wife the sum of $121,000 and to the husband $99,000 less any Westpac Bank mortgage balance in excess of $380,000.

2. In consideration of such payments the husband do all things necessary to transfer his interest in the property at B Street, Suburb D to the second respondent; and

3. Concurrently with such transfer the second respondent procure a discharge or refinance of the present mortgage encumbrance in favour of the Westpac Bank.

4. In default of the payments as provided for in Order 1, the husband and second respondent forthwith do all things necessary to sell the property at B Street, Suburb D for the best price reasonably obtainable and upon sale the proceeds be paid as follows:

(a) in payment of selling costs including agent’s commission and legal expenses;

(b) in payment of one half of the balance then remaining to the second respondent;

(c) in discharge of the mortgage in favour of Westpac Bank provided always that the husband shall from his share of the proceeds of sale pay any mortgage balance in excess of $380,000;

(d) in payment of 55 per cent of the balance then remaining to the wife;

(e) in payment of the balance then remaining to the husband less any sum to be paid by the husband in relation to any mortgage balance over $380,000.

5. Liberty to apply as to implementation or enforcement of these orders.

6. The matter be removed from the active pending cases list.

7. All subpoenaed documents produced and all exhibits tendered in these proceedings, be returned at the expiration of one calendar month unless an appeal is lodged.

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 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

There are six children of the parties’ relationship, who are now all adults. Background At the commencement of cohabitation the husband and wife had no assets of any significant value save for some items of gold jewellery gifted to the wife by her mother. The wife asserts that the items of jewellery would have a value of about $80,000 at present. The wife asserts that the husband has retained these items of jewellery since 2000. The husband now asserts that the jewellery has been stolen. At that time the husband was in the Country F armed services. He remained in the armed services until about 1994 when he and the family fled Country F to Country G before migrating to Australia. Subsequent to marriage the wife did not work and was responsible for the home and the primary care of the children. Whilst in the army, the husband would only be home for a few days each month. Subsequent to marriage the wife’s mother purchased land for the husband and wife in City H, Country F. The property was sold some time later with the husband receiving 50 per cent of the sale proceeds and the balance being paid to the wife’s mother. In about 1977 the husband purchased land in City J, Country F and a building was constructed on the property. In 1994 this property was transferred to the husband’s cousin Mr K Bensaid. The property was later sold in 2013 with the proceeds of sale retained by the husband with which he purchased a home at City L in Country F. The wife’s relationship with the husband was characterised by coercion, financial control and significant physical abuse, including serious assaults including sexual assault. As a consequence of the husband’s conduct the wife suffers ongoing depression and anxiety and has been attending upon a psychologist since 2009. It was the husband’s conduct that resulted in him being removed from the matrimonial home by the police in February 2001. The wife’s assertions as to the husband’s conduct are well supported by the second respondent. Subsequent to migrating to Australia the family lived on government benefits notwithstanding that the husband worked as a tradesperson with a number of employees from arrival until separation in 2001 and thereafter remitting funds to Country F. The wife, otherwise, asserts that he retained a business in Country M (referred to by the husband in an earlier affidavit as a “small business”) and other business interests in Country F and Country N. The second respondent asserted that the husband received regular remittances from Country M. From 1999 the husband appears to have lived at times with his eldest son, then with his girlfriend Ms O from 2001 until 2013 in her public housing accommodation then with another woman, Ms P, until the hearing in her public housing accommodation. He has had a poor relationship with his children since 2001. Subsequent to separation the wife received virtually no child support from the husband as he commenced to receive Centrelink unemployment benefits in early 2009 that continued until August 2013. His Centrelink benefits then became the Aged Pension when he was 65 years of age. His pensions were the only payments into a discrete NAB account with funds withdrawn in cash the same day as paid. His entitlement to these benefits is circumspect after 2013 by reason of his half interest in the investment property at Suburb D and, as he asserts, his money transferred in from Country F.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Overall, it is proper to assess the parties’ contributions as equal. The wife would be entitled to $110,000.Section 75(2) considerations The Court is required to consider the various relevant factors as set out in s 75(2) of the Act:(a) the age and state of health of each of the parties; and(b)the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and(c)whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and(d)commitments of each of the parties that are necessary to enable the party to support:(i) himself or herself; and(ii) a child or another person that the party has a duty to maintain; and(e) the responsibilities of either party to support any other person; and(f)subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:(i)any law of the Commonwealth, of a State or Territory or of another country; or(ii)any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia;and the rate of any such pension, allowance or benefit being paid to either party; and(g)where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and(h)the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and(ha)the effect of any proposed order on the ability of a creditor of a party to recover the creditor's debt, so far as that effect is relevant; and(j)the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and(k)the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and(l)the need to protect a party who wishes to continue that party's role as a parent; and(m)if either party is cohabiting with another person--the financial circumstances relating to the cohabitation; and(n)the terms of any order made or proposed to be made under section 79 in relation to:(i) the property of the parties; or(ii) vested bankruptcy property in relation to a bankrupt party; and(naa)the terms of any order or declaration made, or proposed to be made, under Part VIIIAB in relation to:(i) a party to the marriage; or(ii)a person who is a party to a de facto relationship with a party to the marriage; or(iii)the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or(iv)vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); and(na)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and(o)any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and(p)the terms of any financial agreement that is binding on the parties to the marriage; and(q)the terms of any Part VIIIAB financial agreement that is binding on a party to the marriage.