Bhasin & Handa - [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
Dillon & Dillon [2011] FamCA 409
Gallieni & Gallieni [2012] FamCAFC 205
Hunt & Hunt (2007) 36 FamLR 64
Jabour & Jabour [2019] FamCAFC 78
John Alexanders Clubs v White City (2010) 241 CLR 1
Johnson v Page (2007) FLC 93-344
Kuglioski v Metrobus (2004) 220 CLR 363
Lacey & Lacey [2020] FamCAFC 73
Nevill & Nevill [2016] FamCAFC 41
Ng v Van der Velde [2011] FCAFC 35
Norbis v Norbis (1986) 161 CLR 513
Owners of Ship Shin Kobe Maru v Empire Shipping Co Inc (1094) 181 CLR 404
Patton & Patton [2015] FamCA 1083
Rand & Rand [2008] FamCAFC 50
Roda & Roda [2013] FamCAFC 27
Sieling & Sieling [1979] FamCA 23, (1979) FLC 90-627
Singh v Dala [2017] FCCA 2945
Spender & Spender [2011] FamCA 499
Stanford v Stanford (2012) 247 CLR 108
Tomaras v Tomaras (2017) 265 CLR 434
Trustee of the Bankrupt Estate of Hicks & Hicks [2018] FamCAFC 37
Yavuz & Yavus [2017] FamCAFC 74

Pearce, Dennis & Robert Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 8th ed, (2014))

Number of paragraphs: 206

Dates of hearing: 10-11 May 2021

Date of last submissions: 25 May 2021

Place: Melbourne

Counsel for the Applicant: Ms A Juneja

First Respondent: In person

Second Respondent: In person

ORDERS

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.
IT IS NOTED that publication of this judgment under the pseudonym Bhasin & Handa is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE A KELLY
Introduction

This judgment explains the orders made by way of final adjustment of property interests between the applicant wife and first respondent husband, which, for the reasons which follow, also bind the second respondent who is the husband’s brother.
The proceeding has not been conducted with the greatest level of cooperation and has been attended by difficulty respecting financial disclosure and other matters. Whereas the applicant had initially sought final orders framed on a 60/40 adjustment of interests in her favour, upon appointing counsel who represented her at trial, her modified claim was for a 55/45 regime. By contrast, by his amended response the first respondent had sought an order that the applicant repay a credit card debt and for there to be no adjustment of interests, whether in respect of real or personal property or superannuation interests. By his outline of case filed very shortly before the hearing, the first respondent had modified his stance somewhat. Moreover, the second respondent sought dismissal of the proceeding against him and urged that the Court should find, and not interfere in what he claimed to be a 50% interest in a property purchased with his brother in April 2017 situate at C Street, Suburb D, being land more particularly described in Certificate of Title, Volume …, Folio … (C Street, Suburb D property).
In summary, I have concluded that it is just and equitable for orders to be made pursuant to ss 79 and 90AE of the Family Law Act 1975 (Cth) (Act) which effect final adjustment as to 45% to the applicant and 55% to the first respondent. Ancillary orders are required to effect the result that a final adjustment of property interests is achieved.
Before detailing my findings upon the evidence it is convenient to identify that each of the wife and husband, who gave their evidence upon an affirmation, endeavoured to give evidence in a relatively candid manner. While they were undoubtedly aligned to their view of what orders were appropriate, each of them sought to give evidence as best they could. The second respondent who is the husband’s older brother (by about four years) gave evidence on oath and also impressed me as seeking to give evidence in a forthright manner. I was generally assisted by the approach which each of them took when giving evidence in making submissions.
Procedural History
By an initiating application filed on 3 June 2019, the applicant wife sought both parenting and property orders following the failure of the parties’ marriage. As appeared from Part C of the application, the parties’ relationship commenced in late 2011 following which, in 2011 they were married. The relief claimed in the initiating application was framed in orthodox terms which, relevantly, sought final property orders confined to a claim upon the husband’s “two businesses”, an order for the sale of the C Street, Suburb D property and superannuation splitting orders. Notably, nothing in the initiating application contained any suggestion that the wife sought relief so as to set aside or restrain any transaction pursuant to s 106B of the Act.
As concerned property, the applicant sought detailed final (and interim) orders which would result in an adjustment of property interests in her favour. The applicant joined as second respondent to the application the brother of her former husband, a resident of Western Australia and who, as the brothers contended, had together purchased the C Street, Suburb D property in April 2017 which, they said, occurred after separation.
On 31 July 2019, at a first directions hearing, an order was made that the proceeding be set down for final hearing. Certain interim orders, which are of no immediate relevance were also made. On 3 October 2019, the husband filed a notice of objection to a subpoena issued by the applicant seeking production of his bank records. On 24 October 2019, orders were made respecting that subpoena, the preparation of a family report and for mediation.
By his amended response filed on 5 August 2020, the first respondent sought orders whereby the applicant would repay him a sum of $21,000 respecting a credit card debt and that she be “excluded” from any claim in relation to the C Street, Suburb D property on the stated basis that it had been “built in June 2018 after separation.” So too, the first respondent sought that the applicant be excluded from any claim in relation to his “two businesses started in 2016 and 2017” and also be “excluded from equal super split given short span of relationship.”
To similar effect, in affidavits which were affirmed by the second respondent on 31 July 2020 and 18 February 2021, he sought orders that the applicant be excluded from making any claim upon his “50% (Fifty Percent) share of [the] property.”
On 21 August 2020, final parenting orders were made by consent.
On 23 February 2021, an order was made vacating a final hearing listed for 3 March 2021 and the matter was refixed for hearing with priority. Given the paucity of information that had been provided for the final hearing, notations were made that the parties were expected to file detailed outlines of case and that if the matter was not ready to proceed the applicant would be at liberty to proceed on an undefended basis.
As matters evolved, only the applicant prepared an outline of case in accordance with the orders, whereas the first respondent filed an outline of case, belatedly, on the last business day before trial. Although the second respondent had filed no response, when asked about this he confirmed his affidavits accurately detailed the position that he adopted in the proceeding. Again, nothing in the wife’s outline of case contained any reference to s 106B of the Act. Consistently with the way in which the case had been initiated and brought forward for trial, the wife’s minute of proposed final orders was likewise confined (albeit in modified terms), to relief reflecting a claim for payment of a sum equal to 55% of the husband’s equity in the C Street, Suburb D property and ancillary orders including that in default of payment there be orders “pursuant to section 79AE (sic)” of the act for the sale of the C Street, Suburb D property. The minute further pursued a claim for the transfer of 25% of the shares held by the husband in two companies together with superannuation splitting orders and consequential relief as necessary to effect a final adjustment of the parties’ property interests. Immediately before closing addresses, and thus after the evidence had closed, a further revised minute of proposed orders was submitted by the wife which, in effect, reiterated in a refined form the orders proposed at the opening of the case (and corrected the reference from s 79AE to s 90AE of the Act). Again, nothing in either of the wife’s minutes of proposed final orders contained any suggestion that the wife sought to impugn any transaction or to obtain relief under s 106B of the Act.
In the result, each of the parties filed trial affidavits, having earlier filed financial statements. Neither party filed an updated financial statement. Given the dated content of the parties’ 2019 financial statement, they were of limited assistance in the consideration of the matter.
Although the wife complained of a failure by the husband to properly make financial disclosure, over the course of the trial a number of important documents were eventually produced. It was a matter of regret that they had not been disclosed earlier. Had that been done, they could have been included in the court book and the matter might have proceeded in a more orderly and efficient way. It appears the husband also complained of a failure by the wife to make proper financial disclosure.
In light of a foreshadowed costs application, I note the husband attended a mediation convened on 25 January 2021. He expressed frustration that the matter had not been resolved.
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

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.
In a similar vein, the husband maintained he had not asked for a dowry to be paid and variously stated he was unsure of the detail and in no position to contradict the wife’s evidence upon this issue. Contemporaneous photos were also adduced in evidence which supported a conclusion that the wife’s family had given dowry to the husband’s family and friends. Photographs of apparently generous gifts were in evidence. Perhaps the most graphic confirmation of the giving of dowry were photographs of the golden trays upon which were placed wads of cash. The quantity of those monies was sufficient to warrant that they be tied in bundles. Expressing no view as to the value of the Indian rupee, nonetheless I regarded this evidence as serving to explain why, rather than denying the dowry (as the second respondent sought to do indignantly in a reply submission). Again, the husband adopted the stance in cross-examination that he had “not asked for it.” An inference that dowry had been given is also supported by the parties’ execution of the memorandum as referred to below. It may be noted the dowry was not given to the husband but to his family, relatives and friends.
The arrangements for the parties’ marriage were not without incident. While the detail was not precise, it was agreed that the wife and husband were interviewed by an official from the Australian Department of Immigration in circumstances where the husband had made application on behalf of his intended wife for a spousal visa. Contrary to her understanding of the matter, the husband had in fact already been married and was now divorced. From her affidavit she provided an account, albeit in generalised terms, that the husband was a man with an entrenched habit of telling lies about every aspect of his life including, his occupation, his marital status, age, number of siblings, job profile and salary.
It is not entirely clear when the applicant first became aware that the first respondent had already been married. Whatever arrangements had been made at the time of the wedding in 2011, within about eight months the true position had been discovered. It was then addressed between the parties, and it seems, their respective families. This was not to be the only occasion where, on the applicant’s case, her husband had misrepresented the true position to other parties. While he was pressed upon the issue in cross-examination, the husband denied, repeatedly, that he had also forged the wife’s signature on a marriage certificate. I was less than persuaded of his denials but cannot make any affirmative finding on the issue.
At all events, it appears that the wife’s discovery of these matters led to an immediate impasse and that it was necessary to address the resolution of a dispute including with the families of both the husband and wife. In cross-examination, the husband stated that the parties had reached an agreement in the terms described below and that he had agreed to those terms “to make sure that the relationship would work.” As the terms of the agreement demonstrate, the husband, and his family agreed to make reparations to the wife and her family which, I infer, came about upon the discovery of the husband’s earlier marriage, divorce and the manner in which he had dealt with the Department of Immigration when applying for a spousal visa.
On 14 February 2012, the parties attested before a notary public their agreement in the terms of a document entitled “A Memorandum Of Arrangements Of Marriage” expressed to be made as including the parties, their heirs, nominees and ‘substitutes’ respecting their readiness and willingness to agree to the written conditions of their marriage as solemnised in 2011 and comprised what might be commonly understood as recitals and the following elements: (a) the husband owned a property in the Region F, Australia, which he would gift to her within one month of her “reaching” Australia; (b) the husband would gift his car to the wife on similar terms; (c) the husband would give 40% of his monthly salary to the wife who “shall have full authority to spend on her own wish”; (d) the husband and his parents would, within 10 days, transfer 50% of their interests in a bungalow to the wife; (e) the husband agreed that the wife had received cash and ornaments from her and his parents at the time of marriage which was to be returned to her immediately as “Stridhan: of her property”; (f) the husband would not oppose but instead facilitate the wife if she wished to meet with her relatives in India; (g) if the wife desired to undertake higher studies in Australia or India he would make the necessary kinds of arrangements to assist; (h) the parties acknowledged their marriage and that if default was made in observance of the terms of their memorandum, the husband would “pay rupees 10 lakhs as Compensation in addition to actual loss caused to the wife”; (i) the terms of the memorandum would be enforceable both in a court in Australia or India; (j) the parties were agreed that the memorandum had been executed “with the good conscious (sic) and wisdom and free will” and that its terms were also binding upon the husband’s parents.
Further, by a statutory declaration made on 28 May 2012, the husband declared that he would:
33“financially support (40% of my salary) my wife Ms Bhasin and my child living with me in Australia I will do everything possible to fulfil the need”;
34“if my wife Ms Bhasin considers that she wants to live in India with our child I will financially support (40% of my salary) during her stay in India.”
In cross-examination, the husband agreed that he had not adhered strictly to the terms embodied in the Memorandum of Arrangements of Marriage or his statutory declaration, explaining that he “had no money left” and that he “did what I could.” Further, although the memorandum recorded that the husband would transfer the Queensland property to the wife, the reasons below make it clear this did not occur.
For completeness, I note that neither party sought relief pursuant to, or submitted that, their claims should be resolved or enforced pursuant to the terms of that Memorandum of Arrangements of Marriage or, for that matter, the husband’s Statutory Declaration. Instead, these documents were relied upon as contemporaneous evidence recording the parties’ agreements upon the issues which they addressed. It was the wife’s evidence that she regarded the husband’s conduct leading up to the execution of this memorandum as constituting a fraud upon her and her family who had intervened on her behalf with the result that the parties had executed that document. Her evidence was that despite its terms, the husband did not improve his conduct and that she found his compulsive lying caused her to lose confidence in him. More particularly, she deposed that the husband failed to transfer monies to her while she was in India and that she had had to borrow monies amounting to AUS$30,000 from a friend. Cross-allegations were made by the husband against the wife, including of her having humiliated and taunted him and of refusing every attempt that was made at reconciliation.
It was common ground that the parties maintained separate bank accounts. By her outline of case the wife asserted her belief that the husband had “15 accounts both credit and debit savings accounts that have not all been disclosed.” Viewing the matter broadly, this evidence seemed somewhat exaggerated, particularly as the wife had issued a subpoena to the husband’s bank. A limited attack was made on the husband in the course of cross-examination but no additional evidence emerged as to the existence of so many other accounts and I cannot make a finding of any such accounts beyond those which were produced either in the interlocutory phase or during the trial of the proceeding. On the second day of hearing, the husband produced a large volume of Westpac bank documents. However, it is well-settled that the court is not required or to be expected to conduct an audit of the parties financial affairs and I do not regard the court as being obliged to examine every entry in the multiple accounts which were produced. I have considered the particular entries upon which the parties focused in the conduct of their hearing.
The parties, or one or other of them, lived for a time, both in India and in Australia.
The wife became pregnant in mid-2012 and against the background of the matters above, in 2012 returned to India by reason of her ill-health with morning sickness and stayed with her mother at this time. The parties’ only child was born in 2012. Insofar as the husband made an attempt in the course of cross-examination to suggest that he had been, somehow, excluded from the life of the child I do not accept his evidence. As he ultimately conceded he had been able to, and had in fact, participated in all important ceremonies and other milestones considered, culturally, to be of any significance.
In early 2013, the wife and her mother travelled to Australia with the child where they remained for some months. Whether or not it had been agreed, a decision was then made by the wife and husband that she and the child would return to India for a further 12 months.
I interpolate that the second respondent was separated from his wife by 2013 and with whom he has had two children. Although not divorced, the second respondent (who regards himself as having no dependents), stated that he pays child support as assessed. I infer from his evidence that he has little if anything to do with his children.
It is the husband’s case that on 30 January 2014, the parties agreed to separate on a final basis. He gave this evidence on oath in his trial affidavit. Although I am not satisfied of any such agreement, in the event, the parties’ relationship continued. While the date of separation was in dispute, in January 2018, the wife and child vacated the parties’ property and they moved to rental accommodation. On one view, the parties remained separated under the one roof for one year from January 2017, doing so on the basis that it would be as well to serve out the term of the lease on their existing premises.
In the event, by the time of closing submission, the husband accepted the parties’ relationship had been of 5½ years duration. To be clear, the wife did not accept this concession and an understanding of the context is not unimportant. As will appear, in December 2016 the second respondent travelled from Perth to Melbourne in order to consult with the husband and wife respecting disputes in their marriage. Further, the respondents maintained that the marriage had broken down irretrievably by December 2016. The particular importance of the date emerges from the respondents’ further contentions that a property which they purchased as joint proprietors pursuant to a contract made in April 2017 and which purchase was completed in June 2017 had, as the argument ran, been acquired by them after the failure of the marriage. By contrast, the wife’s case is that the respondent’s conduct was little more than a ruse, the design of which was to make more difficult any application for a final adjustment of property interests given the shaky ground of the marriage.
In September 2014, the husband travelled to India and met with the wife and child with whom he stayed until December 2014 when he returned to Australia.
In the course of cross-examination, the wife agreed that in the period June 2012 to March 2015, the husband had transferred AUS $57,600 to an account for her use in India. The parties were in dispute whether the husband has access to the monies deposited to this account. They were also in dispute whether the husband had taken wads of cash from Australia to India which had then been converted to Indian currency and given to the wife. The generality of this evidence was not assisted by the lack of any direct evidence from the husband’s bank accounts. The husband agreed that he had travelled to India in the period 2012 to 2015 to visit and stay with the wife and his child on a least four occasions. As he agreed, his only income at this time was from his earnings as a professional, which income was paid to his bank accounts by his employer. Had large sums of cash been withdrawn by him immediately prior to his trips to India, it would have been a relatively simple thing for him to have identified those withdrawals from his accounts but no proof was forthcoming.
In March 2015, the wife and child returned to Melbourne and lived with the husband. Despite this, the husband’s contention was that the parties lived separately under the one roof from March 2015 to January 2018. Although it is clear the parties continued to reside in their rented premises until expiry of the lease in January 2018, and that they were living in separate bedrooms by late 2016, other evidence indicates that this arrangement was explained on the basis that the wife occupied a separate bedroom with their child who slept badly.
The wife described in the most conclusory way that the husband was controlling, stating there were a lot of things she was not allowed to do and, being from a different country, regarded the husband’s conduct as being a very standard Indian arrangement. In cross-examination the husband denied that he was controlling, adding that he had initially rented a property in a “bad suburb” and simply warned his wife (in a new country) that she “might be a little bit careful”. His evidence was that he did not prevent her from speaking to neighbours or making friends.
The parties gave conflictual evidence of the support, including financial support that had been provided to the wife after she had come to Australia including in learning to drive, obtaining education at TAFE, learning English and acquiring a car. It was common ground however, that the husband, and to some extent the second respondent had each assisted the applicant with respect to matters such as making job applications, providing references and completing course assignments for her study (on the stated basis of her own limited capacity to write English). On one view, the assistance being provided resulted in the wife becoming able to apply for and obtain employment which would benefit the husband and wife accordingly. Stated in more clinical terms, the ‘assistance’ so provided might have been regarded by them as an investment. Some support for that conclusion may be gleaned from the husband’s evidence in cross-examination that he had completed no less than “100 to 150” job applications on her behalf. He also gave evidence that he had in fact written up some of the wife’s assignments for her TAFE course by reason of her limited English skills at that time. I am prepared to infer that the husband was actively supportive of the idea that the wife should get to work. Although the applicant’s earnings were somewhat modest as a result of her only being able to hold down casual employment while she maintained responsibility for the care of the child, I do not accept the husband’s dismissive attitude towards the financial contribution she made. Once she was able to earn an income I accept that such monies were applied towards household expenses, the care of the child and for her own personal needs.
In June 2015, the wife and husband commenced occupation at rental premises in Suburb G. From this time, in addition to caring for the child, she also worked in various casual jobs on a part-time basis. Although the lease of the Suburb G property was not in evidence, on one version the parties’ relationship had become strained by late 2016 to the point where they were living separately under the one roof.
On 12 July 2016, ANZ approved a home loan application made in the parties’ joint names. From that time they commenced and looking for a property to purchase. The loan approval was for a sum of $532,000. While the relationship may have been difficult, I do not accept the parties had separated at this point. Indeed, the husband accepted that from at least mid-2016, the parties were “driving around” and looking for properties for some time. The husband added in cross-examination that a reason the parties were driving around looking for a home was that rentals were very high at this stage.
On the case advanced by the applicant, the parties’ marriage was not at an end and far from seeking to assist the parties in identifying terms on which they might resolve the breakdown of the relationship, her brother-in-law (whose relationship had also failed), was merely seeking to identify means by which he could extricate the husband from the failure of his own marriage. At all events the parties were agreed that by late 2016, the husband and wife were sleeping in separate bedrooms. They were in dispute as to the reasons for this. The husband agreed he was sleeping in the former matrimonial bedroom and that the wife was sleeping in a second bedroom. He stated that the reason for this arose from the fact that the wife slept with the child and that there were difficulties with the child sleeping.
In cross-examination the wife stated that the parties only communicated by texts and messages, explaining that there was no cordiality in the relationship and that the parties were constantly fighting. In addition, the wife stated that she employed the practice of using texts and emails because, as she asserted, the husband would resile from statements he had made. There was some suggestion that because of the conflictual nature of the relationship the maternal grandmother had been utilised as the via media to broker a resolution of the parties’ dispute.
The applicant agreed that in late 2016 her mother had contacted the second respondent, asking him, in effect, to mediate some form of settlement in the parties’ matrimonial disputes. The husband’s evidence in his trial affidavit was that the wife’s mother was living with them at this point and that in light of the parties’ conflictual relationship he had asked for family mediation. I accept that the maternal grandmother had requested the second respondent to intervene and travel from Perth to Melbourne to see if the dispute could be resolved, by some other means.

To that end, the husband purchased an air ticket for his brother who travelled from Perth to Melbourne in December 2016 to address the issue, doing so in circumstances where, as he said, the parties were in separate rooms (I assume at the Suburb G rental property). In an email to the husband and wife from his brother, dated 30 December 2016, entitled Separation – Family Court of Australia, the brother identified a number of issues obtained from the Court’s website that the parties should consider in relation to stages of separation, how it could affect people and what they should consider including with respect to decisions that needed to be made.
In cross-examination the wife agreed that the second respondent had travelled from Perth to Melbourne to discuss the parties’ matrimonial disputes. She seemed to suggest that her brother in law assumed a role in discussing the dispute with her in the circumstance that she did not have a father or brother who could do so. She accepted that the husband and herself were in separate rooms and that an attempt was made to devise a plan to resolve the dispute. It was not wholly clear, but suggested that the applicant wanted “more money” and that the applicant’s mother had also been involved, with several discussions taking place but that no reconciliation was achieved. The applicant stated that she had initially thought the brother-in-law was helping to address the dispute between her husband and herself but when she took time to consider the proposals being made, concluded that “there would be no help and no family support.”
It was the second respondent’s evidence that as far as he was concerned, the parties’ marriage was over and that they had agreed to live under the one roof from the end of 2016 until the expiry of their lease on the Suburb G property and that they did so until late 2017. He was insistent that it had been the applicant’s mother – not the husband – who had contacted him with the request that he intervene in the parties marital dispute and to assist in resolving it. When he cross-examined him, the husband agreed that he had made the purchase of an air-fare for the brother to fly from Perth to Melbourne in December 2016.
Upon the whole of the evidence, I reject this aspect of the wife’s case and conclude the parties’ relationship had effectively come to an end by December 2016.
The husband agreed that since obtaining his academic qualifications he has progressively worked in management of health care industries and is now the manager of Employer H. His evidence is that his income has not been paid to him in cash but instead deposited by his employer to his bank account. Of some relevance is that the husband maintained he had taken cash from Australia to India which he then converted and gave this cash to the wife in addition to the sums which had been deposited to her account.
In addition to his employment as manager of a department, the husband has explored two entrepreneurial undertakings. In late 2016, the husband commenced the first of his business ventures with a second such venture being commenced in late 2017. As to these:
(a)the first venture is to provide an online service which has some connection to the healthcare industry and has been established with a friend. From documents tendered in evidence, those parties established a company, J Pty Ltd on 3 November 2016 and which has a fully paid up capital of $100 comprising 100 ordinary shares. Each shareholder owns 50 shares in the company. The husband gave evidence that the venture began slowly but is now achieving some sales;
(b)the second venture was described as a kiosk platform which provides online services and has been established with another friend. From documents tendered in evidence, those parties established a company, K Pty Ltd on 12 October 2017 and which has a fully paid up capital of $100 comprising 100 ordinary shares. In this company, the husband holds 5 shares with the other 95 shares being held by the other shareholder. The husband’s evidence was that K Pty Ltd did not commence operations until the end of 2017 and did not win a client until 2018.
While the parties were in dispute in relation to the value of each of those enterprises, there was no agreement or independent expert evidence of value. While some time was occupied in cross-examination in an endeavour to suggest that the wife had provided indirect support for the establishment of these ventures, doing so in the role of homemaker and parent, it was the husband’s evidence that the majority of meetings or discussions held between the husband and his respective partners occurred on weekends in which they had been attending and observing the participation of their children in sports and like events or otherwise at home.
No specific findings were sought, and none are made, as to the precise earnings of either company in any particular year since the ventures were established. Suffice to say I accept that the husband has produced bank statements for each of the years 2016, 2017 and 2018 and that the businesses have no office, no staff and are run out of the garage of the “partners” homes. Somewhat tellingly, although no more recent discovery of the earnings of these enterprises has been provided, when on the second day of trial the husband transmitted a further, final, minute of proposed orders, he advanced a claim that contemporaneously with a payment to the wife of $25,000 which he proposed as being a just and equitable adjustment of property interests, she should surrender any claim upon his shareholdings in either of the subject companies.
The parties are in dispute as to the circumstances which led to the purchase of the property, however, it appears that in early to mid-2017 the husband and his brother decided to acquire it. At that time, the property comprised a lot on a recent subdivision created on 9 June 2017. From a Westpac loan application made by the husband and his brother, the parties sought a loan for the specified purpose of purchasing residential land with funds to be required by 15 June 2017 and the sum of $312,538 sought to be borrowed.
The loan application was initiated by the husband and the application was completed by the applicant in Melbourne and by his brother in Perth. There was some, self-serving, evidence that without the addition of his brother as joint applicant, the husband could not have borrowed the monies needed to purchase the property. There was further evidence that if the brother had not agreed to join in execution of the mortgage and thereby assume joint and several liability for repayment of the loan, the husband could not have purchased the property.
Other aspects of the loan application may be noted. First, each of the loan applicants had only been customers of Westpac since 1 December 2016. Secondly, in each case the brothers stated that they were not first home buyers. Thirdly, each of the brothers stated that they were “Divorced” with the husband stating he had one dependent and the brother stating he had no dependents. Pressed in cross examination various explanations were offered by the brothers as to the falsity of the information recorded in the loan application, however, each of them agreed that the statement “Divorced” was not true as both parties were in fact still married at that time. In the case of the husband he proffered that the mistake had been made by someone other than himself and at one point seemed to suggest that the difference between a statement “Separated” as opposed to “Divorced” was a mere typographical error. In other evidence it was said that the application had been arranged by a mortgage broker. Although the applicant had taken certain steps to obtain documents on subpoena, the original loan application – as distinct from the loan approval – was not in evidence. Each of the brothers insisted that the application in the form submitted to Westpac, had designated that they were separated from their wives. On the whole of their evidence, I find this version of events to be highly doubtful.
The wife made generalised complaints that the husband was secretive and kept her in ignorance of his financial affairs. Equally, it appears the wife kept her own financial position to herself.
The respondents signed a contract in April 2017 to purchase the C Street, Suburb D property. It was the evidence of the second respondent that at the time of purchase in April 2017, he was aware his brother and the wife had separated and “they were living separated under one roof arrangement till end of rental term of their accommodation.” He was not challenged upon that proposition.
In cross-examination the husband agreed that in 2017 he had placed a $60 limit upon the wife’s credit card, stating that his take-home salary was $5,000, he was struggling and it was a step he needed to take. Later in cross-examination, it was demonstrated by reference to one bank statement that the husband had accumulated a sum no less than $73,000 at this time. He then gave evidence that those monies had been used in the purchase of the C Street, Suburb D property.
He agreed, however, that he had a cordial relationship with the maternal grandmother throughout the period 2014 to 2017. He agreed that she had provided him in 2015 with a sum of $10,000 and in 2017 with a further sum of $2,000 and that she had, in total, provided him with $15,000.
With the apparent object of facilitating the purchase of a property, the husband sold his Region F property with settlement of such sale occurring in late November 2016 and from which he received net proceeds of $25,000. While the evidence was less than complete, the husband stated that the source of funds for the purchase of the property comprised the following:
(a)       sale of Queensland property   $25,000
(b)       refinance of motor vehicle (salary packaging)  $25,000
(c)       term deposit  $17,000
(d)      loan from wife’s mother  $10,000
(e)       monies transferred by second respondent  $ 5,000
While the husband gave evidence that he had also borrowed some monies from a sister, there was a dearth of evidence as to what this borrowing actually represented.
Perhaps the most reliable evidence is the contemporaneous record in a bank statement which confirms that the applicant had accumulated $73,000 by the time of completion of the purchase. I find that this sum was paid from this account by the husband toward the purchase.
Relatedly, by her outline of case, the applicant characterised the sum of $10,000 as being a loan to the husband from the wife’s mother.
As appears from the title to the C Street, Suburb D proceeding, the subdivision was complete and the title to the property was created on 9 June 2017 with the husband and his brother being registered as joint proprietors of the fee simple estate on 29 June 2017. On the same date, Westpac became registered as proprietor of the interest of first mortgagee. On the evidence adduced at trial the property is now worth $900,000 and is encumbered by the Westpac mortgage.
At the time of purchase, the subject property was vacant land and, following such purchase, a home was constructed. The valuer describes the property as comprising “a detached 2018 era double story brick veneer dwelling in as new condition with five bedrooms, study, three bathrooms, double garage, covered alfresco area and established gardens which is located in the developing outer metropolitan suburb of C Street, Suburb D.” I find that the liability representing the cost of constructing the dwelling was incurred after final separation and that the improvement effected to the property was the consequence of that increased mortgage liability.
What was not in dispute was that the applicant had made no financial contribution to the property, however, this may be explained in part by at least four matters. First, is the fact that the parties kept their financial affairs separate with neither knowing what sums were held in their respective accounts. Secondly, it was common ground that the husband concealed the fact of the purchase from the wife and she only discovered such purchase at a later point. Thirdly, the wife was unable to earn for much of the marriage as she had responsibility for the care of the parties’ infant child. Fourthly, to accept that the wife made no financial contribution to the purchase cannot be permitted to mask the fact that she had clearly made indirect contributions, including by her role as homemaker and her contributions to the welfare of the child. Contextually, whatever view be taken of the matter, the property was purchased very late in the period, the subject of the proceeding. To say as much is to draw attention to the fact that the monies that were available to be applied by the husband toward the purchase were represented by funds that were contributed by him at the beginning and during the course of the relationship and which he had been able to obtain, including by working after mid 2011. It is also necessary to recognise that, with the passing of years, the individual character of initial contributions become progressively less significant.
A further indication of the failure of the parties’ relationship may be gleaned from the transfer of the sum of $16,000 by the wife to the husband. Although he cavilled at the suggestion that this payment had been made, after an initial denial, he agreed that such a sum had been paid by the wife in the discharge or refinance of a loan he had obtained to purchase her vehicle in 2015. He agreed that this payment had been made by her in August 2017.
In 2017, the wife secured full-time permanent employment as a professional with Employer L. She has been in full-time employment from that time. Her annual income from this employment is relatively modest at $53,000 per annum.
As noted above, on the wife’s case the parties’ final separation occurred on 10 January 2018 and at that time she moved into shared rental accommodation. Similarly, it was the husband’s evidence that he too shared accommodation upon separation and slept on a couch.
As disclosed in cross-examination, following separation the husband undertook the liability of constructing a home upon the property. For the purposes of the preparation of a trial in 2020, the wife’s evidence was that the mortgage liability as at 21 September 2020 was $591,000. By contrast, at the conclusion of the first day of the hearing, the husband suggested that the mortgage liability was now $690,000. The parties appeared to accept as much, and, in particular, that it should be included in that amount in their asset pool on the basis that the husband bore a 50% share in that liability. Further, it was not submitted that the increase in the mortgage liability since separation was a sum which should be quarantined from the parties’ asset pool. The acceptance of that liability may, perhaps, be understood as a corollary of the wife’s position that she made a claim against the husband’s equity in the C Street, Suburb D property.
On 18 December 2019, the husband applied for a divorce which application was granted and the divorce becoming operative from 19 January 2020. As appears below, in the interim, in mid-2019 the wife had applied for final parenting and property orders. The husband appeared to assert (but then retreated from) a contention that he had capitulated to the wife’s demands to agree upon final parenting orders which were more advantageous than those proposed by a family report. The issue was not explored in any particular detail.
While he accepted that the wife had been the primary carer of the child during her infancy, some attempt was made by him to assert that he had “contributed equally” by cooking meals on Monday to Friday nights and also on Saturday. He also referred, albeit inconsistently and persuasively, to his having picked up or dropped off the child from day care.
The husband agreed that the wife, who had moved from India to live with him in Australia, had had to start from scratch following the failure of the parties’ marriage. He responded that he too had slept on a couch in shared accommodation after the failure of the marriage.
As noted above, in 2018 a house was constructed on the C Street, Suburb D property. Upon completion, the husband has moved into, and remained in occupation of, this property. While he has not serviced the mortgage, at the same time the wife has been in rental accommodation.
The wife has not re-partnered and has the vast majority of the care of the child who is now aged 8.5 years. They continue to reside in rented accommodation. In all of the circumstances, it is more likely that the wife’s future income earning capacity will remain modest.
The husband has now re-partnered and has another child who is eight weeks of age. The husband and his family continue to reside in the C Street, Suburb D property. His evidence is that he earns $60 per hour or $115,000 per annum with certain salary sacrifice options. Although it was not explored at trial, the extent of the salary sacrifice may be gauged, in part by the apparent growth of the husband’s superannuation since mid-2019 to date. To the extent the wife advanced a contention that the husband had capacity to increase his income I am satisfied that he is working full-time and will continue to do so. I also accept his evidence that he is in the senior role in her department with the result that he has “no clinical role” and no opportunity to gain additional income by working overtime. He accepted that he had a salary package which included a car and a fuel account. He seemed to suggest there may be some assistance by way of an advantageous home loan but this was not investigated in detail.
While each of the parties’ current incomes from their employment has been identified, it remains the fact that their circumstances are relatively modest, notwithstanding that the husband earns considerably more than the wife. At the same time, the wife did not contradict the husband’s evidence that she holds tertiary qualifications and has full-time employment in management (a role for which, it appears, the second respondent acted as referee).
In the course of evidence, the court explored with the husband whether he had given consideration to obtaining finance for the purposes of meeting any obligation of the kind being sought by the wife by way of final property orders. Contextually, as was made plain to the husband by the wife’s outline and her counsel’s opening of the case, the relief being sought was for a sum of about $150,000. While the husband remonstrated with such a proposal, when an attempt was made for him to focus upon the issue he responded that he expected he would be able to ascertain if he could refinance his borrowings within “two to three weeks” and embraced the proposition that he might be permitted 60 to 90 days in which to meet such a monetary obligation to the wife if it was considered appropriate to grant such relief. Further, the husband stated that the bank had allowed him an LVR of 90% at the time of purchase and he clarified this evidence so as to make plain he was referring to a loan to value ratio. The husband’s clear understanding of the meaning of LVR was apparent.
The husband was cross-examined by his brother in terms that might be aptly, or mis-described as ‘friendly fire’. He readily conceded the correctness of the various propositions being put to him which included, amongst others, the following:
(a)the husband’s earning capacity was not such that he, alone, could purchase a property for $800,000. One might assume the question was framed in those terms so as to refer to the first joint valuation. Whether or not that was so, it ignored that $800,000 had not been the purchase price of the C Street, Suburb D property. It also ignored that in July 2016 the husband and wife had secured lending approval for $532,000 from ANZ Bank;
(b)the husband could not have secured finance for more than $400,000 at that time. For the same reasons as above, the question masked the true position in July 2016 and, by extension, April 2017 (when the husband and his brother had obtained loan approval);
(c)the husband had been in a dire financial and emotional situation in early 2017 and could not have proceeded with the purchase on his own. Again, ignoring the generality of the proposition, the objective contemporaneous bank records confirm that: (i) the husband had been able to lay his hands on at least $73,000 for the purchase; (ii) the only contributions made by his brother amounted, in aggregate, to $7,000;
(d)further, insofar as the second respondent had made payments to the husband amounting to $7,000 these had been made: (i) as to $5000 in 2016, and; (ii) as to $2000 in 2017. In each case, they were paid by the second respondent to the husband into his personal account. While the second respondent stated that the money could not have been paid directly to the bank as the mortgage had not yet been executed, of some greater relevance is that although the brothers are registered as joint proprietors and are jointly and severally liable under the mortgage, all other payments under the mortgage have been made by the husband, not the second respondent. Quite why it should be concluded to be just and equitable to accept the broad assertion that each of the brothers is to be treated as having a 50% interest in the C Street, Suburb D property bears some scrutiny. To say as much is not to deny the fundamental proposition that the legal concept of joint proprietorship is to an equal undivided share in the subject property;
(e)between 2008 – 2011, the husband had lived with his older brother in Perth and had paid no rent or, it was said (and agreed) nothing towards food. Quite why this was thought to be relevant, other than perhaps to confirm the older brother’s altruism, was not immediately apparent. If it was intended to suggest that the brother had indirectly contributed to the husband’s financial position at the commencement of the relationship this was not explored in any detail;
(f)the second respondent himself would be in a dire financial position if default was made in performance of the obligations under the mortgage. Accepting that the consequences of default would crystallise a joint and several liability in each of the brothers pursuant to the terms of the mortgage, those legal consequences came into existence immediately upon execution and registration of the mortgage. If it is to suggest that such an inchoate liability was somehow to be regarded as the responsibility of the wife I fail to see how this could be so;
(g)the second respondent wished to preserve what he characterised as his 50% interest in the C Street, Suburb D property and the husband agreed that he respected that wish.

The second respondent gave evidence on oath. Like the husband, the second respondent is the manager of department (in Perth). He stated that in December 2016, he believed the parties’ marriage was over and said that he assisted his brother to buy the C Street, Suburb D property because, at the time rent was high and added “I will help you before the market” rises. He stated that the loan documentation had been arranged by his brother and that it had been executed by him in Perth at a branch of the bank. He too disavowed responsibility for the inclusion of the word “Divorced” on the loan document that was in evidence and maintained that he had told the bank he was “Separated”. The second respondent agreed that he was aware a five bedroom property had been constructed on the C Street, Suburb D property. He also suggested that, because “Melbourne was an employment hub”, it had been his intention to move to Melbourne and live with his brother at the C Street, Suburb D property. Having reflected on his evidence, I found it was rehearsed.
In his affidavits, the second respondent stated that he had purchased the C Street, Suburb D property with his brother as an investment and that “we built house on this block is investment (construction was completed in July 2018) total mortgage for this property is $662,194 my share is 50%.” He proceeded to state that the husband was indebted to him for an unstated sum and that he had no dealings with the wife, having met her in person on only a few occasions.
Submissions
The wife acknowledged that at the time of cohabitation she had been employed in India working as a professional but had minimal assets. Insofar as a contention was made that a dowry of $70,000 had been paid by the wife’s mother to the husband, for the reasons below I have concluded that it should not be treated as a contribution in this case.
The wife also accepted that the husband was working full-time in Australia as a manager and that, on her case he owned a property in Queensland which he had retained following the divorce from his first wife and to which she attributed an equity of $36,000. By contrast, it will be recalled that when this property was sold in order to complete the purchase of the C Street, Suburb D property, net proceeds of sale received by the husband were only $25,000. It was also common ground that before their relationship began, the husband had placed monies ($10,000) on a term deposit “for a rainy day” which had been brought into the marriage and which continued to accrue interest until it was redeemed in 2017 and applied toward the purchase of the C Street, Suburb D property. The wife accepted each of those matters.
The wife also acknowledged that during their relationship, the husband had been the primary income earner but qualified this as having occurred in the circumstance of the parties having conceived their child in 2012. While there was some debate upon the issue, it is equally clear the mother was the primary caregiver of the child and that she will continue to be so.
Counsel for the wife also drew attention to the two enterprises which the husband had established and, while accepting the absence of any evidence of concrete value of either company, identified these undertakings as representing a financial resource which remained available to the husband, particularly in circumstances where the discovery of bank statements said to demonstrate a steady an increasing revenue stream from these enterprises. My attention was not drawn to such statements, and for that reason do not accept, the latter submission.
The wife submitted that a significant adjustment should be made in her favour for future needs.
The husband contended for an initial contribution of $42,000 represented by savings and his equity in the Region F property. He submitted that he had no credit card debt at that time. As concerned the position of the wife at the commencement of the relationship, he agreed that she had no financial assets of any moment and disputed her claim to the giving of dowry. The husband also pressed upon the court his view that she had made no financial contributions during or after the relationship. He was equally dismissive of her indirect contributions at any time. Indeed, when regard is had to the way in which his case evolved progressively throughout the proceeding (for instance, by claiming relief for the repayment of credit card and dismissal of any other claims), the position he ultimately adopted was to: (1) accept that the wife had made indirect contributions, but immediately asserted that his own indirect contributions had been of equal, or greater, measure; (2) concede the relationship had been of at least 5½ years duration; (3) accept that it was appropriate there should be some adjustment of property interests; (4) to transmit by email, in the course of closing oral submissions, a further minute of proposed order and which I have now had an opportunity to consider. In substance, the husband’s ultimate position was that a final adjustment of property interests should be made on the basis of: (a) payment to the wife of $25,000 within 60 days; (b) the surrender by the wife of any claims to his property or business interests; (c) the husband foregoing a claim for 50% of the accrued credit card liability; (d) the wife to forego any claim to his interests in either company; (e) for each of the respondents to indemnify the applicant against the Westpac mortgage and any other liability arising in connection with the client property; (f) to allow in favour of the wife a 50% interest in so much of his superannuation as accrued in the period “from June 2011 – December 2017 which equates to $49,006 $29 of superannuation balance”; (g) other ancillary orders.
As set out above, in each of his affidavits, the second respondent made clear that he opposed the wife making any claim against his equity in the C Street, Suburb D property. While each of his affidavits concluded by respectfully seeking the orders “in my Response to Initiating Application”, he had filed no such response. When this issue was investigated at the commencement of the hearing, the second respondent stated that his affidavits were his response (a fact supported by par [3] of his second affidavit). Otherwise, the second respondent’s affidavits were largely in mirror form and I have examined them. He states that he is now 40 years of age, of good health and working on a full-time basis (being as the manager of a department in Employer E).
Asset pool
The court cannot determine property settlement proceedings pursuant to s 79 of the Act without having first identified and determined the legal and beneficial interests of the husband and wife in any property (as defined): Act, s 4; Skye & Saidel [2020] FamCA 18, [22] (Macmillan J) and cases cited. In Skye, Macmillan J observed that those principles were equally applicable where, as here, a justiciable controversy which included a third party was to be determined. It may be of passing interest that as in this case, her Honour was concerned with the determination of a dispute where certain property was held in a joint tenancy by one party to the marriage.
The parties’ asset pool is modest. Set out below are my findings in relation to the items of property including where they are agreed or disagreed. At the outset, I record that I accept there has been a most untimely and incomplete attention to the giving of financial disclosure by the husband in this proceeding. Upon that basis I apply the principle that the court is entitled to adopt a more robust view in the findings which it makes. Where appropriate I have done so.
Although it was entirely understandable why the applicant sought to characterise the circumstances respecting the purchase of the C Street, Suburb D property as being a calculated design and ruse which was conceived and implemented by the brothers, it is not necessary to decide whether or not that is so. For the reasons below, I have concluded that this court is not authorised to increase the parties’ asset pool or to augment it by effectively taking the property of a third party. Upon my consideration of the matter, the further powers conferred by Pt VIIIAA of the Act are constrained in a variety of ways including that when making orders pursuant to s 79 or granting an injunction pursuant to s 114, it may do so in a way which can affect the position of a third party. However, the court is not authorised to make an order or grant an injunction the effect of which would result in the acquisition of property from a third party otherwise than on just terms. Furthermore, having regard to the basis on which the parties sought to conduct their case, I do not consider that any attempt was being made by the wife to acquire any part of the second respondent’s interest in the C Street, Suburb D property. In all of those circumstances, the suggested ruse, however likely, is irrelevant.
Of more immediate and direct concern is the fact the husband was able to make a substantial financial contribution toward the purchase of the C Street, Suburb D property. This arises for consideration in the context that those monies had been acquired by him from the sources he identified and in large part over the period of the parties’ relationship such that the parties benefited from the direct and indirect contributions of the wife over that period also.
The parties retained a single expert, Mr M, who prepared a valuation in relation to the property. By his report prepared on 12 November 2020, the property was valued at $800,000. By a further report prepared at 20 April 2021, the property was valued at $900,000. Neither party sought to cross-examine their single expert. I accept his current valuation. However, it is of no little importance that the respondents are registered as joint proprietors of the fee simple estate in the property. As Stanford confirms, an application for an adjustment of property interests does not commence or operate upon an a priori assumption that the legal interests in property should not be recognised or are automatically subject to alteration.
The wife further contends for a contribution made by her family, in particular her mother, represented by dowry of $70,000 and about which the husband was unable to proffer any view or to contradict it. His attempt to deny any knowledge of the dowry arrangements was inherently implausible and contradicted by the contemporaneous photographic evidence adduced by the wife. Moreover, the contention that any such dowry had been given proceeded upon the explicit statement in the wife’s evidence that it had been given by the wife’s family to the husband’s family and friends. From this perspective, it would be difficult to conceive how the delivery or transfer of dowry to the husband’s family could be categorised as property of the husband for the purposes of the Act. No legal submissions were advanced on this issue.
However, in the unique circumstances of this case, the matter was further complicated in the circumstance that following the parties’ marriage in 2011 and the subsequent discovery of the husband’s hitherto undisclosed earlier marriage and divorce, in February 2012 the parties had entered into their Memorandum of Arrangements of Marriage. By cl 5 of that memorandum the husband agreed that the wife had received from her parents and his parents also “the cash and ornaments at the time of Marriage. This will be returned immediately to [the wife] as “Stridhan: of her property.” If the intent of this provision in the agreement was that the dowry was to be returned by the husband’s family to the wife and thereupon to become her own property, the evidence, such as it was, did not clearly establish that the obligation had been performed or discharged or that any part of the dowry and in fact been redelivered. Contrastingly, a part of the wife’s cross-examination demonstrated successfully that a series of other obligations in the Memorandum had not been performed or observed. Against that background there seems good reason to doubt that the dowry was redelivered.
Upon the whole of the evidence, the most probable conclusion is that whatever property may have been delivered as dowry by the wife’s family to the husband’s family had ultimately been agreed would be returned to her. In the course of a reply, the second respondent made a submission which, in effect, took umbrage at the very suggestion his family, being qualified professionals, would ever engage in the practice of dowry. He had not raised the issue at any earlier stage and agreed that his trial affidavit did not address the point in any way.
No evidence was adduced as to the laws of India respecting the legal status of the interest which may be transferred in property comprised in a dowry. While it may be generally permissible to take judicial notice of foreign legislation including, for example, the Indian Penal Code 1860 (India) and the Dowry Prohibition Act 1961 (India), absent evidence and the opportunity for it to be tested at trial, I do not consider it is open to this court to go further and speculate upon the implications of a dowry being given by one family to another in India or elsewhere. Counsel for the wife referred me to a decision which, she submitted, would be of assistance and which I have considered: Singh v Dala [2017] FCCA 2945.
For all of those reasons, I decline to include dowry as an asset which was brought by the wife into the parties’ marriage.
Of the remaining assets, in several cases there was no, or no independent, evidence of value. Neither of the parties cavilled at the suggestion that assets which had not been properly valued should not be included in the pool and I have not done so.
As outlined above, the parties adduced no independent or expert evidence as to the value of either company. While they were in dispute as to the reasons for the absence of value, the wife appeared to criticise the husband for his failure in not obtaining valuations or providing financial disclosure in a manner that would have facilitated the preparation of any such valuation in a timely way. By contrast, the husband’s evidence was that he had made discovery of the annual earnings of each company by the provision of bank statements and that the cost of obtaining valuation for either company was prohibitive, particularly in circumstances where the ventures had been at an embryonic stage of their existence which, in effect, coincided with the failure of the parties’ marriage. Furthermore, the financial disclosure as made in relation to both of these enterprises confirms that they generated little if any revenue for several years and have only begun to make any kind of modest profit in more recent times.
I also accept the husband’s evidence that in relation to each company and each “partner” with whom the enterprises have been established, the parties are engaged in active full-time employment and the pursuit of the respective enterprise is conducted from the garage of one or other of the partners’ homes. Contextually, the husband gave evidence that neither venture operates from any other premises and has no independent financial resources. Rather, the “partners” have provided their own personal resources for the purposes of pursuing the objects of their enterprises, including most relevantly by paying the cost of acquiring stock from overseas, and recouping such monies as and when sales have been achieved. Finally, the wife’s case proceeded upon a misconception in relation to the husband’s interest of the second venture now operated by K Pty Ltd Solutions. Contrary to her assumption, the husband does not have a 50% but rather a 5% beneficial interest in this enterprise which was only established in October 2017. She was, however, correct in contending that he held a 50% beneficial interest in J Pty Ltd but that this too had only been established in late 2016.
In all the circumstances, I am not satisfied that either company was of any significant value upon incorporation or, accepting the wife’s case at its highest, when the parties left the Suburb G property and each of them moved to rental accommodation. I cannot make any finding as to the value of either shareholding as at the date of trial. Counsel for the wife accepted as much and assented in the proposition that the husband’s shareholdings should be treated as a financial resource for the purposes of s 75(2)(o) of the Act. In all of those circumstances, I am unable to include either shareholding in the asset pool.
The wife owns a bank account which presently has a credit balance of $18,700 while the husband bank account is in credit for $4,500.
Each of the parties is registered as the owner of a motor vehicle, the value of which was not proved and to which I attribute no value for the purpose of the proceeding.
The wife asserts that there remains in the husband’s possession an amount of jewellery to which she attribute a value of $13,000. Again, this value is not proven. The assertion that the husband has retained this jewellery stands somewhat in contrast with the terms embodied in the parties’ 2012 memorandum pursuant to which it had been agreed that certain jewellery which had been given to the wife’s family as part of a dowry and been returned to them (i.e. following the discovery by the wife and her family that the husband had already been married and divorced). Viewed more broadly, the issue of this jewellery claim did not loom large in the trial. Nothing was put to the wife in relation to this in cross-examination. Nothing was put to the husband upon this issue either. Absent sufficiently cogent evidence I cannot make any findings as to the issue and am unable to place any value upon, or included, it in the asset pool.
Next, the wife complains of the husband’s failure to make proper disclosure of his financial accounts and asserts that the value of his accounts is unknown. The husband made a mirror complaint against the wife and in cross-examination was insistent that the only bank accounts which he owned were those disclosed in his affidavit
It seems that there is something to be said for the wife’s contention that the husband has been less than forthcoming in relation to financial disclosure and for that reason the court is entitled to be more robust in the approach which he takes respecting the issue. At the same time, I cannot ignore that the wife who has been legally represented at all times by competent practitioners with experience in family law have issued a subpoena upon the husband’s bank.
Very few liabilities were in issue, however, they require some comment.
As disclosed in the course of cross-examination, following separation the husband undertook the liability of constructing a home upon the property. As at the date of separation, the mortgage balance was $Nil. As the respondent had not entered into the contract for the purchase of the C Street, Suburb D property until April 2017, no mortgage liability existed. The subject Westpac account shows that on 21 June 2017, a sum of $312,538 was drawn down and that the subject loan has now been split to two accounts. For the purposes of the preparation of a trial in 2020, the wife’s evidence was that the mortgage liability as at 21 September 2020 was $591,000. By contrast, at the conclusion of the first day of the hearing, the husband suggested that the mortgage liability was now $690,000. Further, on the husband’s contentions he acknowledges a liability for only 50% of the mortgage. As stated above, the second respondent adopts a like position.
In addition, the husband sought to include a credit card liability of $41,000 in the asset pool. The wife did not seek to include any such liability. There was no proof of the parties’ liability for such debts as at the date of separation.

It remains the fact that (as occurs not infrequently throughout the Act), par 90AE(4)(h) and 90AF(4)(h), each constrain the availability of power under those provisions by requiring that the court be satisfied that the order in contemplation takes into account “any other matter that the court considers relevant.” How that provision may operate, must depend upon the unique circumstances of a particular case, including the submissions that were made.
Finally, as concerns the injunctive power, attention may be drawn to ss 34, 90AF and 114. Essentially, an applicant for injunctive relief must demonstrate (1) an existing or potential claim to an order altering property interests under s 79; (2) an objective risk that the claim may be prejudiced unless an injunction be granted. It is settled that there is neither a fundamental nor threshold question to be addressed whether the evidence demonstrates the existence of a scheme to defeat a judgment before such relief can be granted. Instead, that is “but one of a number of factors relevant to the objective risk of disposition to defeat an order.” In addition, the court “is required to take into account the balance of hardship and the balance of convenience between the parties and in that context the Court will not usually restrain a party from ordinary business dealings unless there exists a substantial risk of dissipation of assets or some substantial reason justifying such a restriction.” Moreover, an injunction should be framed in terms “limited to that which is in the reasonable protection of a legal or equitable right and it is not the function of an injunction to provide an applicant with security in advance of a judgment”: Patton & Patton [2015] FamCA 1083, [25]-[29]; Sieling & Sieling (1979) FLC 90-627; Chester & Chester [2020] FamCA 515, [26]-[27].
I apply these principles in the determination of the relief which is appropriate in this case.
Resolution
The power to make orders affecting persons who are not parties to a marriage “is significantly curtailed, specifically when any such orders [would] deprive a third party of an existing right or to impose on a third party a duty which the party would not otherwise have to perform”: Ascot Investments v Harper (1981) 148 CLR 337, 354 (Gibbs J); Dillon & Dillon [2011] FamCA 409, [40]. In the latter case, the court acknowledged that exceptions to the general principle were to be found, for example, in the court’s accrued jurisdiction and, as relevant, to the present case, under Part VIIIAA of the Act: [2011] FamCA 409, [41]. Murphy J identified the power conferred by s 106B, which is contained within Part XIII of the Act, Enforcement of decrees, as another example: [2011] FamCA 409, [42]-[46]. However, his Honour recognised that s 106B did not provide a cause of action and held, correctly with respect, that if it was to be said that a separate cause of action lay against a third party arising from conduct (including acquiescence) by that party “in and about the attacked dispositions, any such cause of action must be specifically set out (and, preferably, pleaded) and approved in the usual way.” His Honour emphasised that if it was said that the court had power to deal with any such claims and make orders in respect of it, “the facts constituting the basis for the courts power must be specifically set out and established by admissible evidence.” Undoubtedly, considerations of good case management and procedural fairness may require that in an appropriate case some form of pleading or clearly articulated claim may be required so that a third party is on proper notice of the claim alleged and the relief sought: B Pty Ltd v K [2008] FamCAFC 113, [43]ff.
In evaluating what relief might be granted or withheld including as may affect third parties under s 90AE, the court is entitled to consider the matter on the basis of submissions which are made to it: see, e.g., Lacey & Lacey [2020] FamCAFC 73, [34]-[43]; Arthurman & Arthurman [2013] FamCAFC 70, [57]-[58]. Such an approach is not without complications where parties have made a choice to be self-represented.
Having regard to the way in which the wife has conducted her case I treat her has having not raised or pressed a distinct cause of action against the second respondent. Rather, his joinder was effected in aid of the relief sought under ss 79 and 114 of the Act against the husband: cf John Alexanders Clubs v White City (2010) 241 CLR 1, [131]-[133] (The Court); Spender & Spender [2011] FamCA 499 and cases cited; Trustee of the Bankrupt Estate of Hicks & Hicks [2018] FamCAFC 37, [216]-[220]. Nor do I consider that either respondent ultimately pressed an objection to the grant of relief (which included provisions for a sale of the C Street, Suburb D property in default of the payment of the monetary sum to the wife as a final adjustment of property interests), provided the second respondent’s joint interest was respected.
This Court, the objects of which are to enable it to operate as informally as possible in the exercise of judicial power and to use streamlined procedures, is not a court of pleading: Federal Circuit Court of Australia Act 1999 (Cth), ss 3(2)(a)-(b), 42. The business of this Court is now a matter of notoriety and the idea that the wife should be regarded as having been required to ‘plead’ a case would be inimical to the objects of the legislation establishing this court and would in a very real and effective way stultify the objects of Pt VIIIAA of the Act, particularly having regard to the history and context giving rise to the insertion of that part in the Act.
The present case is not, and to be distinguished from, a case in which the wife seeks to impugn or set aside the interest of the second respondent or to set aside a particular dealing or transaction. While such claims may need to be specifically pleaded and established in some jurisdictions, I consider that the relief sought in the present case falls within the ambit of powers conferred by Pt VIIIAA of the Act to make orders or grant injunctions in a proceeding that has been brought under ss 79 and 114 of the Act respectively. No pleading is required in this case.
Furthermore, putting aside that these respondents have elected to proceed to trial and to be self-represented throughout (notwithstanding their circumstances), I consider that they are bound by the manner in which they have conducted the case. I regard the second respondent as having been both a necessary and proper party having regard to the nature of the relief sought as against the husband in the proceeding brought against him under ss 79 and 114 of the Act. Insofar as the respondents may have been understood as seeking dismissal of the claims for relief pursuant to ss 90AE or 90AF on the basis that the joinder of the second respondent was unwarranted (on a basis which was never articulated), their applications are dismissed.
As concerns the substantive relief sought in the proceeding, power is conferred on the court to make an order or injunction under ss 79 and 114 that is directed to, or alters the rights, liabilities or property interests of a third party. For the purposes of Pt VIIIAA, the second respondent is a third party in relation to the marriage of the applicant and first respondent. He was a person who could be joined to the proceeding as his interests were apt to be affected by reason of the orders being sought in the proceeding, including any orders which were considered necessary to do justice: Act, ss 79(10), 80.
As described above, a number of steps were taken and opportunities afforded so as to ensure that the second respondent would be afforded procedural fairness. First, he has been served with the initiating process and all other documents relied upon by the parties. Secondly, he has been afforded, and taken, opportunities to participate fully in the proceeding, including by adducing evidence, cross-examining, making submissions and, in the event, filing submissions directed to the issues that could potentially arise under Pt VIIIAA of the Act in consequence of the relief he has opposed. For a significant time, the second respondent has been on notice of the relief being sought. Included in that relief was that the parties “shall do all acts and things and sign all necessary documents to effect the sale of the [C Street, Suburb D] property.”
Although the second respondent had been joined to the proceeding, the relief initially sought by the wife was for a division of the net proceeds of sale of the C Street, Suburb D property as to 60/40 in her favour. The relief as framed did not take account of the second respondent’s interest as joint proprietor. However, by the time of trial, and notwithstanding some infelicities and errors in the drafting of a proposed minute, it was plain that the applicant sought orders which were framed by reference to s 79, 90AE and 90AF of the Act. In particular, the applicant was clear that her claim included the husband’s joint interest in the C Street, Suburb D property and which was intended to both respect the second respondent’s half interest in the property and to pursue a claim for 55% of the husband’s interest. Insofar as the wife had made a post-hearing written submission containing reference to s 106B, for the reasons above I do not accept that any such claim had been advanced at any earlier point and I decline to consider any such claim in all of the circumstances. Although he contested the wife’s claim, the first respondent recognised it was being said by the wife that his joint interest comprised a part of their asset pool.
Whatever conceptual issues might arise respecting the distinctions between the interests held by joint tenants and tenants in common, it was clear that, in practical effect, each of the parties were focused upon orders which did not otherwise seek to disturb the second respondent’s claim to a half interest in the C Street, Suburb D property and at the same time sought to achieve a final adjustment of interests in property of the parties to their marriage (as defined): Act, s 4. The present case, from one perspective, mirrored the parameters of the parties’ agreement and contest in Yavuz & Yavuz [2017] FamCAFC 74, [38]. In Yavuz, there was no dispute that the husband held a 50% interest in a partnership. What was in dispute was the extent of any further interest. So here, this proceeding was conducted on a basis which accepted the second respondent’s claim as joint proprietor and focused upon the extent of any entitlement to an adjustment of property interests respecting the husband’s joint interest in the C Street, Suburb D property.
In particular, by the direction which was given, the respondents’ attention was drawn to the matters in sub-section 90AE(4) of the Act and of their opportunity to make any submissions which they consider to be relevant to the matters in pars s 90AE(a) to (h) of the Act, inclusive.
As concerned ancillary relief, I note that the husband’s final minute of proposed orders indicated his assent to orders requiring that the parties do all acts and things and give all consents and execute all documents as may be necessary to give effect to the parties’ final orders including, in default, for the making of orders pursuant to s 106A of the Act. Relatedly, at no stage has the second respondent advanced a submission opposing orders of that kind and has not done so including in circumstances where he had been asked to consider the minutes of final orders being proposed.
Having regard to the facts and circumstances of this case, I find that the making of orders that will only operate in default of payment by the husband to the wife (of the sum of $116,500) so as to direct the respondent’s and each of them to join in a sale of the C Street, Suburb D property and thereby alter their rights in property interests in that property is reasonably necessary; alternatively, is reasonably appropriate and adapted, so as to effect a final adjustment of the property interests of the husband and wife. That is because, having concluded that it is just and equitable for an adjustment of property interests to occur and upon consideration of the matters required by ss 79(4) and 75(2) insofar as relevant, it is clear that the parties’ asset pool is confined to relatively few assets and interests. The circumstance that there are no other assets against which the wife’s claim can be answered requires a conclusion that the making of the order proposed is reasonably necessary for the purposes of effecting a property division.
Although I did not have the benefit of any submissions upon this or other points arising under ss 90AE or 90AF, in the present case the only debt which is owed by a party to the marriage is the debt created by the order made under s 79 so as to achieve a final adjustment of property interests between the husband and wife. I have concluded such relief is just and equitable. At the time the order was made it was not foreseeable that the making of the order would result in the debt not being paid in full. No basis was demonstrated for a contrary conclusion. It is also useful to distinguish the present case from one in which the relief being sought would result in a debt being transferred or assigned by one party to another. That is not this case.
I have addressed in some detail above the question of, and how, procedural fairness has been afforded to the second respondent. I am also satisfied that it is just and equitable in the circumstances of this case to make the order. The reasoning in Stanford at [42], which assists in the analysis of how it may be determined that it is just and equitable for there to be an adjustment of property interests between parties to a marriage does not readily adapt itself to a consideration of why it is just and equitable for an order to be made which alters the rights in property interests of the second respondent in the C Street, Suburb D property. Perhaps it is of some use to adapt the reasoning in Stanford that the assumption the respondents might consensually effect an adjustment of their interests has lost its validity. Even if that were wrong, the equity of framing orders in the terms that have been made has a number of features that should be borne in mind. First is that if the husband takes the steps necessary, and is able, to refinance his position and pays the wife the sum of $116,500 within 90 days, the default order will never be activated. Secondly, some emphasis should be placed upon the fact that if the default regime is engaged, it will not diminish but instead alter the second respondent’s rights and interests respecting the C Street, Suburb D property. More precisely, upon the sale of the C Street, Suburb D property, the respondents’ joint interest in the property will be converted to a joint interest in the sale proceeds: Roda & Roda [2013] FamCAFC 27, [22] and cases cited. Such a result will enable the husband to satisfy the claim of the wife and at the same time will not diminish his brother’s interest. To the contrary it will do no more than that which is authorised by par 90AE(2)(b) and 90AF(2)(b); namely to alter his rights and interests in that property. Thirdly, this was not a case in which it was suggested or there was any evidence in favour of a conclusion that the C Street, Suburb D property was for some reason, unexplained, unique. Fourthly, to yield to the respondent’s submissions would, in effect, subvert the principal object of Pt VIIIAA and the mischief with which it is concerned.
I have considered the matters in pars 90AE(4)(a)-h) and 90AF(4)(a)-(h) respectively.
I am prepared to assume that the taxation effects of a sale upon each of the respondents will be different. The C Street, Suburb D property is presently the husband’s and I will assume the net proceeds of sale will not be subject to a CGT liability in his hands. The position of the second respondent may be different but there is no evidence which enables me to see how that issue can be addressed other than perhaps by an injunction which restrains dissipation of so much of the net proceeds of sale as may remain after satisfaction of the husband’s liability to the wife. I am not satisfied of the necessity for doing so in this case. Otherwise the alteration in interests in the C Street, Suburb D property effected by a sale would be revenue neutral.
No submissions were made to suggest that a sale of the C Street, Suburb D property may affect the social security position of any party. In the circumstances I am prepared to infer that there would be no such effect where each of the respondent is engaged in full-time employment and the wife is seeking an order for payment and so must accept the consequences of any receipt.
Concerning the question of the second respondent’s administrative costs in relation to the order, I have identified the provisions in Pt VIIIAA which are protective of a third party including the entitlement to seek an order for the payment of reasonable expenses as may be incurred as a necessary result of the order for sale and related injunctive relief. As s 90AJ(3) makes plain, the parties to the marriage should bear equally the reasonable expenses of the second respondent which are incurred as a necessary result of the orders and injunctions.
The Act and Regulations make provision for the recovery by a third party who has incurred expenses a necessary result of an order or injunction. Essentially two courses are open: (1) the Court may make such order as it considers just for the payment of the reasonable expenses of a third party incurred as a necessary result of the order or injunction as governed by ss 90AJ(2)-(3) of the Act; (2) alternatively, where the court does not make an order pursuant to those provisions, a third-party may charge reasonable fees to cover the reasonable expenses incurred as a necessary result of an order made or injunction granted in accordance with Pt VIIIAA which cover only the reasonable expenses so incurred in complying with such order or injunction and for which each of the parties are liable for one half of the total fees so charged. The entitlement to recover such fees is controlled inasmuch as the Court retains jurisdiction to decide whether the fees so charged are reasonable: Regulations, Reg 15AA(1)-(5).
In this case, I have concluded that the Court should make no order in this proceeding. Instead, should the first respondent default in payment of the sum that I have determined to be a just and equitable means of achieving a final adjustment of the parties property interests, with the result that the C Street, Suburb D property is to be sold, it is at this point, upon settlement of the sale that the second respondent would be in a position to submit any claim for recovery of fees actually incurred and so covering his reasonable expenses in complying with the orders that will be incurred as a necessary result of doing so.
Returning to the subject of debt, and treating the order is creating a liability in the husband for payment to the wife of $116,500 I accept that the husband’s capacity to pay that debt may be informed by considerations such as whether he is able to procure finance to do so. Viewed in a somewhat wider context, a corollary of the making of the order creating that liability is that the husband’s accrued superannuation interests have been left intact. I acknowledge that if the husband fails to pay that debt it will immediately engage the default provisions of the order.
Nothing was said to indicate that there would be an economic, legal or other impact upon the second respondent arising from compliance with the order. Furthermore, for the reasons above, the only immediate effect of the order for sale will be to convert his joint interest in real property to a joint interest in cash. Insofar as he may reasonably incur expenses as a necessary result of the sale then it is open to him to seek recourse to both parties for an equal apportionment of such expenses as he in fact incurs.

The second respondent has not raised any other matters in consequence of being accorded procedural fairness in relation to the making of the order.
No submissions were made as to suggest that any other matter was relevant to be taken into account in the consideration of whether an order should be made which would direct the second respondent to join in doing all things as may be necessary to sell the C Street, Suburb D property and thereby alter his interest in that property as described above.
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.

I certify that the preceding two hundred and six (206) numbered paragraphs are a true copy of the Reasons for Judgment of Judge A Kelly.
Associate:
Dated: 29 June 2021

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 Dillon & Dillon [2011] FamCA 409 Gallieni & Gallieni [2012] FamCAFC 205 Hunt & Hunt (2007) 36 FamLR 64 Jabour & Jabour [2019] FamCAFC 78 John Alexanders Clubs v White City (2010) 241 CLR 1 Johnson v Page (2007) FLC 93-344 Kuglioski v Metrobus (2004) 220 CLR 363 Lacey & Lacey [2020] FamCAFC 73 Nevill & Nevill [2016] FamCAFC 41 Ng v Van der Velde [2011] FCAFC 35 Norbis v Norbis (1986) 161 CLR 513 Owners of Ship Shin Kobe Maru v Empire Shipping Co Inc (1094) 181 CLR 404 Patton & Patton [2015] FamCA 1083 Rand & Rand [2008] FamCAFC 50 Roda & Roda [2013] FamCAFC 27 Sieling & Sieling [1979] FamCA 23, (1979) FLC 90-627 Singh v Dala [2017] FCCA 2945 Spender & Spender [2011] FamCA 499 Stanford v Stanford (2012) 247 CLR 108 Tomaras v Tomaras (2017) 265 CLR 434 Trustee of the Bankrupt Estate of Hicks & Hicks [2018] FamCAFC 37 Yavuz & Yavus [2017] FamCAFC 74 Pearce, Dennis & Robert Geddes, Statutory Interpretation in Australia (LexisNexis Butterworths, 8th ed, (2014))
Number of paragraphs:	206
Dates of hearing:	10-11 May 2021
Date of last submissions:	25 May 2021
Place:	Melbourne
Counsel for the Applicant:	Ms A Juneja
First Respondent:	In person
Second Respondent:	In person

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