Bhasin & Handa

Case [2021] FCCA 1446

Federal Circuit Court of Australia

Bhasin & Handa [2021] FCCA 1446

File number(s): MLC 6009 of 2019
Judgment of: JUDGE A KELLY
Date of judgment: 29 June 2021
Catchwords: FAMILY LAW – Property – final hearing – adjustment of parties’ interests in property between applicant wife and first respondent husband – where orders bind third party, second respondent who is husband’s brother – where first respondent owned a unit which he retained following divorce from his first wife – where marriage had been arranged and solemnised in India – where family of applicant gave dowry to first respondent’s parents and friends – where until after marriage applicant was unaware first respondent had been previously married and divorced – where reparations were made to wife and her family upon discovery of husband’s earlier marriage, divorce and manner in which he had dealt with Department of Immigration when applying for spousal visa – where parties made an agreement entitled Memorandum of Arrangements of Marriage – duration of parties’ relationship separation not agreed – where after being separated under one roof applicant and child vacate property and move to rental accommodation – where respondent brothers purchased vacant land and construct a dwelling – where second respondent sought orders to exclude applicant from making claim upon his 50% share of the property – where the first and second respondent are joint proprietors – whether order should be made in respect to property interests affecting persons who are not parties to a marriage – whether order should be made for the first respondent to pay a monetary amount to the applicant – orders made for an adjustment of property interests – where rights and interests of a third party may be altered.
Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 4, 72, 75, 79, 80, 81, 90AB, 90AC, 90AE, 102D, 102E, 90AE, 90XE, 90XZA, 90AE, 90AF, 90AG, 90AH, 90AI, 90AJ, 90AK, 106A, 114, 117B
Family Law Amendment Act 2003 (Cth) Sch 6
Family Law Regulations 1984 (Cth) reg 15AA
Federal Circuit Court of Australia 1999 (Cth) ss 3, 42
Explanatory Memorandum, Family Law Amendment Bill 2003 (Cth) cll 134, 135, 138, 154, 155
Supplementary Explanatory Memorandum, Family Law Amendment Bill 2003 (Cth) cll 47, 48, 49, 50, 51, 52
Cases cited:

AC & VC (2013) 49 Fam LR 276
Arthurman & Arthurman [2013] FamCAFC 70
Ascot Investments v Harper (1981) 148 CLR 337
Atkins & Hunt [2017] FamCAFC 79, (2017) FLC 93-774
B Pty Ltd v K [2008] FamCAFC 113
Bell & Nahos [2016] FamCAFC 244
Briginshaw v Briginshaw (1938) 60 CLR 336
Bulleen & Bulleen [2010] FamCA 187
ASIC v Rich & Rich (2003) FLC 93-171
Hickey & Hickey (2003) FLC 93-143
Kennon v Spry (2008) 238 CLR 366
Chester & Chester [2020] FamCA 515
CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384
Clausen & Clausen (1995) FLC 92-595
Commissioner of Taxation v Tomaras [2018] HCA 62
Corin v Patton (1990) 167 CLR 590

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Bhasin & Handa [2021] FCCA 1446
Case
[2021] FCCA 1446
Decision Date

CaseChat Overview and Summary

In *Bhasin & Handa*, heard by Judge A Kelly, the applicant wife sought property adjustment orders against the first respondent husband, with the second respondent brother, who was a joint proprietor of a property with the first respondent, also involved. The dispute arose following the parties' marriage, which was arranged in India and involved a dowry. The applicant was unaware of the first respondent's previous marriage until after their own marriage, leading to reparations being made. The parties separated, with the applicant and child vacating the matrimonial home. The first and second respondents jointly purchased vacant land and constructed a dwelling. The second respondent sought to exclude the applicant from making a claim on his share of this jointly owned property.

The court was required to determine whether orders could be made affecting the property interests of a third party, the second respondent, who was not a party to the marriage. It also needed to consider whether an order for the first respondent to pay a monetary sum to the applicant was appropriate, and how to address the potential sale of the jointly owned property in the event of default in payment, which would impact the second respondent. The court also had to consider the adjustment of property interests between the applicant and first respondent, and the implications of any such orders on the rights and interests of the second respondent.

Judge A Kelly applied the principles of property adjustment under the *Family Law Act 1975* (Cth), considering the net asset pool and the parties' respective entitlements. The court found that while the second respondent's rights and interests could be altered, this was only to the extent reasonably necessary and appropriate to effect a just and equitable division of property between the married parties. The court determined that the applicant was entitled to 45% of the net asset pool, which amounted to $153,000. Taking into account the applicant's existing assets, the court ordered the first respondent to pay the applicant the sum of $116,500 within 90 days. In default of this payment, further orders were to take effect, including the sale of the jointly owned property, with the proceeds to be applied first to sale costs, then to discharge the mortgage, then to the applicant's outstanding payment with interest, and finally, any balance to the first and second respondents. The court also made orders for the first and second respondents to indemnify the applicant against liabilities related to the mortgage and outgoings on the property.

Orders

Orders of the court

MLC 6009 of 2019

BETWEEN:

MS BHASIN

Applicant

AND:

MR HANDA

First Respondent

MR B HANDA

Second Respondent

order made by:

JUDGE A KELLY

DATE OF ORDER:

29 June 2021

THE COURT ORDERS THAT:

1. Pursuant to ss 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth) and

ss 102D-102E of the Family Law Act 1975 (Cth) (Act), direct that the parties be allowed to appear and to make submissions before the court by video and audio link.

2. On or before 4.00pm on 29 September 2021 (due date), the First Respondent pay the Applicant the sum of $116,500 (payment).

3. The First Respondent and Second Respondent indemnify the Applicant against all payments and liabilities of whatsoever nature and kind pursuant to the mortgage registered No. … (dated 29 June 2017 to Westpac Banking Corporation), and all apportionable rates, taxes and outgoings of or with respect to the property situate at C Street, Suburb D, Victoria, being the land more particularly described in Certificate of Title, Volume …, Folio … (property).

4. Pursuant to ss 90AE(2) and (3) of the Act, if the whole or any part of the payment has not been made by the due date, the Applicant thereupon be appointed trustee for sale of the property and the First and Second Respondents, whether by themselves their servants or howsoever otherwise do all things necessary and sign all documents for the property to be forthwith sold altogether out of court (the sale) and upon completion of the sale, the proceeds of the sale be applied:

(a) first, to pay all costs, commissions and expenses of the sale;

(b) second, to discharge the mortgage and any encumbrance affecting the property;

(c) third, so much of the payment as is then outstanding together with interest thereon from the due date until payment at the current interest rate in accordance with s 117B of the Act to the Applicant; and

(d) fourth, the balance to the First and Second Respondents.

5. Pending the payment or completion of the sale pursuant to paragraph (4) of this Order:

(a) the parties hold their respective interest in the property upon trust pursuant to these Orders; and

(b) no party may charge or otherwise encumber the property without the consent in writing of each other party.

6. If any party refuses or neglects to execute any deed or instrument, pursuant to s 106A of the Act, the registrar of the court be appointed to execute each such deed or instrument in the name of such party and to do all acts and things as may be necessary to give validity to the operation to such deed or instrument.

7. Unless otherwise specified in this Order 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, as may be in the possession of such party as at the date of this Order;

(b) any money standing to the credit of the parties in a bank account is 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;

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

(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 this Order; and

(f) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

8. All other extant applications be dismissed.

COSTS DIRECTIONS

9. If either party seeks to make any application for the costs of or incidental to this proceeding, within 14 days of the date of this Order, such party shall file and serve any affidavit and submissions (not exceeding three pages) in relation to such costs.

10. Upon service of any such affidavit and submissions pursuant to paragraph 9 of this Order, any other party may file and serve any affidavit in reply and submissions (not exceeding three pages) in relation to such costs.

AND THE COURT NOTES:

A. Pursuant to Reg 15AA(2) of the Family Law Regulations 1984 (Cth), the Second Respondent may charge reasonable fees (to be shared equally between the Applicant and First Respondent) of the reasonable expenses incurred as a necessary result of complying with paragraphs (4) to (6) of this Order.

B. Insofar as it is practicable to do so, this Order is made having regard to the provisions of s 81 of the Family Law Act 1975 with a view to determining for all time the financial relationship between the parties and avoiding further proceedings between them.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

Where the parties had agreed upon a fact or circumstance in their affidavits or case outlines, I have taken account of that matter. Where issues of dispute arose, I have addressed them separately in a later section of these reasons. In deciding disputed issues of fact, I have applied the civil standard of proof to the resolution of that issue: Evidence Act 1995 (Cth), s 140. The more serious the allegation, the more necessary it was that I took into account the gravity of the allegation in deciding whether it was made out: Evidence Act 1995 (Cth), s 140(2); Johnson v Page (2007) FLC 93-344, [72]; Briginshaw v Briginshaw (1938) 60 CLR 336. Where the evidence does not permit the court to make an affirmative finding either way on a particular issue, the court is not bound to do so, and may find that the party which bears the evidentiary onus of proof has failed to discharge it: Kuglioski v Metrobus (2004) 220 CLR 363. The court may well accept some parts of a witness’s evidence and reject other parts of it: Jabour & Jabour [2019] FamCAFC 78, [110] and cases cited. The court is not required in reaching a decision to refer to every piece of evidence or submission presented during a trial: Bell & Nahos [2016] FamCAFC 244.Background Each of the parties is of Indian Hindi ethnicity. The applicant, born in 1984 and now aged 43 years, works on a full-time basis as a professional and is in good health. The respondent, born in 1978 and now aged 37 years, works as a manager at Employer E, and is also in good health. Both the first respondent and his brother have lived in Australia since about 2001, first coming here on student visas before obtaining citizenship soon afterward and settling with their careers, in the first instance, in Perth, Western Australia. Relatedly, for at least some time after the husband’s arrival in Australia, he lived with his elder brother. It was common ground that the husband paid his brother no rent or other monies for upkeep and it appeared the brother sought to make much in this proceeding of his beneficence towards his younger brother. Before the parties’ relationship began, in 2007 the husband purchased a unit in the Region F which he retained following the divorce from his first wife. Until her marriage to the first respondent the applicant had worked as a professional in India. The parties, whose relationship began in 2011, were married in 2011. Their marriage, which had been arranged, was solemnised in India. The wife’s evidence was that apart from the cost of a lavish wedding her family had been obliged to give dowry to the husband’s parents and their guests, “especially to his close family members”, the total expense of which was said to exceed the sum of $70,000. Although the husband adhered to (and not infrequently repeated) a position in relation to this, and other aspects, of his evidence that he had “not requested it” or “not asked for it”, photographic evidence of the wedding ceremony confirms it was a somewhat lavish affair. However, his evidence was that it was his family who had paid $50,000 for the function.

Evidence

Evidence Before The Court

Given the relief being sought by the applicant pursuant to ss 90AE and 90AF of the Act, a direction was made affording the parties a further opportunity to address this issue. Specifically, the parties were asked to consider what orders may be appropriate to be made to address the possibility that if default was made respecting any order for the payment of money, an order was being sought for the sale of the C Street, Suburb D property which was jointly owned by the respondents. As the granting of such relief had potential implications for each of the respondents, they were afforded an extended opportunity to consider their positions and to file any written submissions. It is convenient to note three matters. First, at the time that the provision of further submissions was raised with the parties and as appears below, the implications of a sale of the property were squarely in issue. Secondly, while procedural fairness had been afforded to, and taken by, the respondents, including by making provision for them to file a response, evidence, submissions and participate in mediation (each of which they did), the respondents chose to be self-represented. Thirdly, their decision to be self-represented arose in the context that each of the respondents is employed as a manager. Their incomes appear to be roughly three times the amount of the applicant.Evidence The following findings are based upon an analysis of the parties’ affidavits, viva voce and documentary evidence and the inferences which I consider are properly made. The matters set out below include both matters that were common ground, including from their materials and my findings of fact upon particular issues. Matters addressed above in my summary of the procedural history are incorporated, to the extent necessary, in my findings. Given the parties’ tendency to debate much of their history, and having regard to their definition of the issues in dispute, in many cases it has not been necessary to decide, as a matter of probability, which of the parties’ allegations or counter allegations are to be preferred. Where the parties had agreed upon a fact or circumstance in their affidavits or case outlines, I have taken account of that matter. Where issues of dispute arose, I have addressed them separately in a later section of these reasons. In deciding disputed issues of fact, I have applied the civil standard of proof to the resolution of that issue: Evidence Act 1995 (Cth), s 140. The more serious the allegation, the more necessary it was that I took into account the gravity of the allegation in deciding whether it was made out: Evidence Act 1995 (Cth), s 140(2); Johnson v Page (2007) FLC 93-344, [72]; Briginshaw v Briginshaw (1938) 60 CLR 336. Where the evidence does not permit the court to make an affirmative finding either way on a particular issue, the court is not bound to do so, and may find that the party which bears the evidentiary onus of proof has failed to discharge it: Kuglioski v Metrobus (2004) 220 CLR 363. The court may well accept some parts of a witness’s evidence and reject other parts of it: Jabour & Jabour [2019] FamCAFC 78, [110] and cases cited. The court is not required in reaching a decision to refer to every piece of evidence or submission presented during a trial: Bell & Nahos [2016] FamCAFC 244.Background

Decision

Reasons for decision

I have revisited, to the extent necessary or relevant, each of the considerations in s 75(2). Left to consider the matter for myself I do not regard the orders that have been made which, operate only in the event of default by the husband, will alter the rights and interests of the second respondent other than in a manner and to an extent that is reasonably necessary or reasonably appropriate and adapted to effected division of property between the parties to this marriage in a manner which is otherwise just and equitable.Conclusion Having regard to my conclusion upon the net asset pool of $340,000 and the parties’ relative entitlement to share in that pool, I consider it appropriate that an order be made for the husband to pay a monetary amount to the wife. Upon the findings that have been made, and upon the principle that it is generally undesirable to avoid the sharing of particular assets, I do not consider any orders should be made disturbing the superannuation interests of either party. Allowance must be made for the assets already held by each of the parties. Based upon my findings the applicant already holds an amount of cash in her bank account of $18,700 together with superannuation interests of $17,800 (in all the sum of $36,500). I have further found that she is entitled to 45% of the net asset pool; namely, $153,000. Upon that basis, an order will be made that the first respondent pay to the applicant the sum of $116,500. Upon the submissions made by the first respondent, I accept he should be allowed 90 days in which to pay that sum. In default of compliance with that Order, the further machinery orders which have been pronounced will take effect including for the sale of the C Street, Suburb D property and the consequential effect that that will have upon the second respondent.

Ratio Decidendi

Legal Principle Established

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