Dajani & Dajani

Case [2024] FedCFamC1F 605

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Dajani & Dajani [2024] FedCFamC1F 605

File number(s): SYC 3672 of 2020
Judgment of: ALTOBELLI J
Date of judgment: 12 September 2024
Catchwords: FAMILY LAW – PROPERTY – Where the wife seeks a 70:30 split in her favour and the husband seeks a 60:40 split in his favour – Where there was a long marriage – Where the wife made submissions about her contributions citing Kennon & Kennon (1997) FLC 92-757 – Where the Court finds that the wife made greater contributions – Where the Court finds that the wife’s contributions were made significantly more arduous by the family violence perpetrated by the husband – Where a small adjustment is made in favour of the wife under s 75(2) of the Family Law Act 1975 (Cth) – Where the Court orders a division of property as to 62.5 per cent in the wife’s favour.
Legislation:

Evidence Act 1995 (Cth) ss 91, 135(a), 178

Family Law Act 1975 (Cth) ss 4AB, 75(2), 79, 114(1)(a)

Supreme Court (Criminal Appeal) Rules 2021 r 3.1

Crimes (Administration of Sentence) Act 1999 (NSW) s 77
Cases cited:

Alston& Alston [2021] FedCFamC1A 96

ASIC v Hellicar (2012) 247 CLR 345; [2012] HCA 17

Baranski & Baranski [2012] FamCAFC 18

Benson & Drury (2020) FLC 93-998; [2020] FamCAFC 303

Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116

Britt & Britt (2017) FLC 93-764; [2017] FamCAFC 27

C & C [1998] FamCA 143

Chorn & Hopkins (2004) FLC 93-204; [2004] FamCA 633

Cirillo & Cirillo [2021] FedCFamC1A 45

Cisek & Farrah(No 2) [2023] FedCFamC1F 804

Crampton & Robinson(No 2) [2013] FamCA 856

Damiani & Damiani [2010] FamCA 217

Gabel & Yardley (2008) FLC 93-386; [2008] FamCAFC 162

Gadhavi & Gadhavi (2023) 67 Fam LR 174; [2023] FedCFamC1A 117

Ghazal v Government Insurance Office of New South Wales (1992) 29 NSWLR 336

Hickey and Hickey and Attorney General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143; [2003] FamCA 395

Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78

Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8

Keating & Keating (2019) FLC 93-894; [2019] FamCAFC 46

Kennon v Kennon (1997) FLC 92-757; [1997] FamCA 27

Kowaliw & Kowaliw (1981) FLC 91-092; [1981] FamCA 70

Kozovska & Kozovski [2009] FMCAfam 1014

Lowe v Harrington (1997) FLC 92-747

M & M [1998] FamCA 42

Maine & Maine (2016) 56 Fam LR 500; [2016] FamCAFC 270

Marcin & Marcin (2020) FLC 93-956; [2020] FamCAFC 85

Martell & Martell (2023) 66 Fam LR 650; [2023] FedCFamC1A 71

Patterson & Patterson (1979) FLC 90-705

S & S [2003] FamCA 905

Scaletta & Scaletta [2024] FedCFamC1A 87

Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52

Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173

Willis & Willis [2007] FamCA 819
Division: Division 1 First Instance
Number of paragraphs: 193
Date of last submission/s: 31 May 2024
Date of hearing: 22–24 and 26 April 2024
Place:

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Dajani & Dajani [2024] FedCFamC1F 605
Case
[2024] FedCFamC1F 605
Decision Date

CaseChat Overview and Summary

This case involves an application by the wife seeking a division of property in her favour under section 79 of the Family Law Act 1975 (Cth). The husband opposed the wife's application and sought a 60:40 division in his favour. The parties were married for 36 years, separated in 2019 and divorced in 2021. They have two adult children, Mr B and Ms C. In mid-2019, the husband was arrested and charged with sexual assault offences against Ms C, including when she was a child. The husband was found guilty in relation to all charges and sentenced to 17 years imprisonment with a non-parole period of 12 years. The parties' main asset was a property located at Suburb D in New South Wales, which they purchased in 2013 and extensively renovated. The property is now worth approximately $4 million. Both parties made financial and non-financial contributions to the marriage. The wife cited Kennon & Kennon (1997) FLC 92-757 in support of her submissions regarding her contributions to the marriage. The Court found that the wife made greater contributions, which were significantly more arduous due to the family violence perpetrated by the husband. Under section 75(2) of the Family Law Act 1975 (Cth), the Court made a small adjustment in favour of the wife, ordering a division of property as to 62.5 per cent in the wife's favour.

The Court considered the parties' financial and non-financial contributions to the marriage, the effect of the proposed order on the earning capacity of either party, and the matters referred to in section 75(2) of the Act. The Court also took into account the husband's criminal proceedings and sentence. The Court found that the wife made greater contributions to the marriage, which were significantly more arduous due to the family violence perpetrated by the husband. The Court made a small adjustment in favour of the wife under section 75(2) of the Family Law Act 1975 (Cth), ordering a division of property as to 62.5 per cent in the wife's favour. The Court ordered the sale of the Suburb D property and the distribution of the sale proceeds between the parties in accordance with the order. The Court also made orders regarding the parties' personal property, the Dajani Family Trust, G Pty Ltd, and the payment of a sum of money to each of the children.

Orders

Orders of the court

SYC 3672 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS DAJANI

Applicant

AND:

MR DAJANI

Respondent

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

12 SEPTEMBER 2024

THE COURT ORDERS THAT:

1. The property situated at and known as C Street, Suburb D in the State of New South Wales, being the whole of the land comprised in Certificate of Title Folio Identifier Lot … Deposited Plan … (“the Suburb D property”) be sold in accordance with these orders.

2. The Applicant Wife (“the wife”) be appointed as trustee for herself and the Respondent Husband (“the husband”) for the sale of the Suburb D property pursuant to Order 3, up to and including settlement pursuant to Order 4.

3. The wife do all acts and things and sign all documents necessary to list for sale, and cause to be sold, the Suburb D property as follows:

(a) Within three business days of the date of the making of these orders, appoint a licenced real estate agent of her choice (“the agent”) to act as agent on the sale of the Suburb D property and execute all documents requested by the agent for the sale of the Suburb D property, including but not limited to the agent’s contract in its standard terms and with the standard fees (“the Agency Agreement”);

(b) As soon as it is practicable, organise repairs and/or improvements as advised by the agent in writing to ready the Suburb D property for sale at the wife’s expense in the first instance, to be adjusted on settlement pursuant to Order 4(d);

(c) Cause the Suburb D property to be marketed for sale (“the listing”), taking into account the agent’s recommendation in writing as to:

(i) Whether such listing is by way of private treaty or by way of auction; and

(ii) The listing/reserve price.

(d) Give instructions as are necessary to a legal practitioner or licensed conveyancer nominated by the wife to act on the sale (“the conveyancer”);

(e) In the event the Suburb D property is listed for auction pursuant to Order 3(c) (“the first auction”) and it does not sell, the wife will do all acts and things to cause the listing of the Suburb D property for sale by private treaty for a period of four weeks from the date of the auction (“the first private treaty period”), in which time any offer made to purchase the Suburb D property within five per cent of the reserve price of the first action will be accepted;

(f) In the event the Suburb D property is not sold at the first auction and is not sold in the first private treaty period, the wife will cause the Suburb D property to be listed for sale by further public auction with the agent on a date within six weeks of the date of the conclusion of the first private treaty period (“the second auction”) at such reserve price, taking into account the recommendation of the agent, provided that such auction falls not less than six weeks before 25 December and if it does not sell, the Suburb D property is to be listed for auction no later than1 February in the year immediately following;

(g) Attend (or have her nominee attend) any auction pursuant to these orders and in the event the reserve price set for that auction is not reached, negotiate with the highest bidder and the second highest bidder and accept the highest offer to purchase made within five per cent of the reserve price set for that auction;

(h) In the event that the Suburb D property is not sold at the second auction, as soon as practicable thereafter, cause the Suburb D property to be listed for sale on the same conditions as provided for in Order 3(f) and (g), successively until it is sold;

(i) Execute the contract for sale in the form advised by the conveyancer;

(j) Cooperate in every way with the agent in relation to the Suburb D property at all times requested by the agent and ensure that the Suburb D property is in a neat and clean condition; and

(k) Keep the husband informed of the progress of the sale, by instructing the agent to provide the husband, via an email or postal address nominated by the husband as soon as practicable, with:

(i) A copy of the signed Agency Agreement;

(ii) A copy of the final draft contract for sale;

(iii) The agent’s recommendations as to the method of sale and listing price;

(iv) Notice of any offers made by a prospective purchaser;

(v) Notice of the date, time and place of any auction; and

(vi) Notice of the outcome of any auction.

4. On settlement of the sale of the Suburb D property, the wife shall do all acts and things and give all instructions necessary to cause the distribution of the sale proceeds of the Suburb D property in the following manner and priority:

(a) In payment of the agent’s commission, marketing and advertising costs and auctioneer fees, and in reimbursement to the wife of any upfront marketing or other costs required by the agent;

(b) In payment of the legal or conveyancing costs of sale;

(c) In payment to the supplier of any unpaid costs of the preparation of the Suburb D property for sale, where such costs were incurred pursuant to Order 3(b) and verified by a tax invoice;

(d) In payment to the wife of such amount by way of reimbursement for any expense incurred pursuant to Order 3(b), paid by her in advance of the settlement of the sale and verified by tax invoice;

(e) Payment of any amount outstanding to any water authority or local council in respect of the Suburb D property, not otherwise taken up in favour of the vendor; and

(f) The amount then remaining to be divided between the parties, such as to achieve an overall division of the net matrimonial asset pool, in the following percentages:

(i) 62.5 per cent to the wife; and

(ii) 37.5 per cent to the husband, with the husband to provide the wife a cash adjustment, in a sum to be determined, if the amount then remaining is insufficient to achieve the 62.5:37.5 distribution of the net matrimonial asset pool in the wife’s favour.

5. Pending the sale and settlement of the Suburb D property pursuant to Orders 1–4, the parties equally bear the cost of all outgoings, rates, taxes, charges, insurances, mortgages, repairs, improvements and any other sums due or accruing in respect of it, with the exception of the repairs and improvements stipulated in Order 3(b).

6. Pending the parties’ compliance with Orders 1–4, the parties are restrained from encumbering, further encumbering or otherwise dealing with the Suburb D property other than in accordance with these orders.

7. The wife retains the following property to the exclusion of the husband:

(a) Her CBA account ending #89;

(b) Her CBA account ending #70;

(c) Her Super Fund 1 accounts ending #13 and #82;

(d) Her Motor Vehicle 1; and

(e) All jewellery in her possession.

8. The husband retains the following property to the exclusion of the wife:

(a) The crystal collection;

(b) All plant and equipment including the machinery located at the Suburb D property, subject to Orders 9–11 below;

(c) His Motor Vehicle 2;

(d) His F Bank Controlled Monies Account ending #06; and

(e) The Super Fund 1 accounts ending #81 and #83.

9. At least 35 days prior to the settlement date of the sale of the Suburb D property, the husband shall arrange for a third party to collect, at his expense, his personal property in their current state and condition from the shed, garage and garden area of the Suburb D property on a date and at a time as agreed in writing between the wife (or a nominated third party) and the husband’s legal representatives.

10. Failing the husband’s compliance with Order 9, the wife shall otherwise be permitted to sell, dispose of and/or retain any other personal property at the Suburb D property.

11. In the event the wife sells any personal property at the Suburb D property pursuant to Order 10, she shall pay to the husband the net proceeds of sale within seven days after the payment of reasonable expenses of the sale, removal and/or disposal of this property.

12. Simultaneously with the parties’ compliance with Order 4(f), the parties shall, at the expense of the husband, do all such things and sign all documents necessary to:

(a) Have the wife resign or have her removed from any positions held in the Dajani Family Trust; and

(b) Have the wife disclaim her interest and relinquish any entitlement as an object of the Dajani Family Trust.

13. From the date of these orders, the husband, whether in a personal capacity or as trustee of the Dajani Family Trust, shall indemnify the wife or cause her to be indemnified in relation to any liability to the Dajani Family Trust or for or in relation to her actions as director or in any other capacity or actions of the trustee.

14. The husband, whether in a personal capacity or as trustee of the Dajani Family Trust on the one part, and the wife on the other part, each jointly and severally release and forever release or discharge the other from any claim, action, suit or demand of any kind whatsoever that they have or may have against each other arising from the Dajani Family Trust.

15. Simultaneously with the parties’ compliance with Order 4(f), the parties shall do all such things and sign all documents necessary to:

(a) Remove the wife from any positions held in the company G Pty Ltd; and

(b) Disclaim her interest and relinquish any entitlement in G Pty Ltd.

16. From the date of these orders, the husband, whether in a personal capacity or as a director of G Pty Ltd shall indemnify the wife in relation to any liability to G Pty Ltd or for or in relation to her actions as a director or in any other capacity, or the actions of the directors and/or secretary.

17. Both the husband and the wife release the other from all actions, proceedings, claims, demands, costs and expenses whatsoever and howsoever arising which either of them had or may have against the other.

18. Within 14 days of the date of these orders the parties shall each pay or cause to be paid the sum of $30,000 to each of the children, Mr B born in 1994 (“Mr B”) and Ms C born in 1996 (“Ms C”), to the effect that each child receives a total of $60,000.

19. The wife is declared to hold the following property on trust:

(a) The Motor Vehicle 3 for the benefit of Mr B; and

(b) The Motor Vehicle 4 for the benefit of Ms C.

20. Within 28 days of the date of these orders, the wife transfer, at her cost, legal title to the Motor Vehicle 3 and Motor Vehicle 4 to the beneficiaries named in Order 19.

21. Subject to the above orders, the husband and the wife shall each respectively retain all interest in and entitlement to:

(a) All personal property now in his or her respective possession or control;

(b) All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his or her sole name; and

(c) All interests in life insurance policies and superannuation funds standing in his or her sole name.

22. Subject to the above orders, within seven days of the date of these orders, the parties shall do all acts including the signing of all documents to close and distribute the parties’ joint accounts, including the Super Fund 1 cash account ending #24 and any joint accounts not appearing on the balance sheet, as to 62.5 per cent in favour of the wife and 37.5 per in favour of the husband.

23. In the event that either party fails, refuses or neglects to execute any deed, document or instrument necessary to give effect to these orders, then pursuant to s 106A, a registrar of the Federal Circuit and Family Court of Australia is hereby appointed to execute all deeds, documents and instruments in the name of the defaulting party and to do all such acts and things necessary to give validity and operation to such deeds, documents and instruments.

24. Pursuant to s 114(1)(a) of the Family Law Act 1975 (Cth), the husband be and is hereby restrained from communicating with the wife directly or indirectly by any means whatsoever other than through his legal representatives.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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

Background

Background to the litigation

These reasons for judgment explain the orders the Court has made between the applicant wife (“the wife”) and the respondent husband (“the husband”) about alteration of property interests. BACKGROUND The wife is 62 years of age and is retired. The husband is 65 years of age and is also retired. The parties married in 1983, separated on 19 August 2019, and divorced in 2021. They are both originally from the Country J, are New Zealand citizens, and have resided in Australia since 2008. There are two adult children of the marriage, Mr B aged 30 (“Mr B”) and Ms C aged 28 (“Ms C”) (“the children”). In mid-2019, the husband was arrested, taken into custody and charged with offences in relation to the sexual assault of Ms C, including when she was a child. The husband entered a plea of not guilty. After a criminal trial he was found guilty in relation to all charges and received an aggregate sentence of 17 years with a non-parole period of 12 years. His earliest release date is 2031. The husband filed a Notice of Intention to Appeal on 18 November 2022 (Exhibit R2) but has not yet filed an appeal. These issues will be discussed below. In early 2013 the parties purchased a property at C Street, Suburb D New South Wales (“the Suburb D property”) for just under $1,700,000. Various renovations were carried out to the property in the period 2015 to 2019, organised by both parties. It is now worth approximately $4 million. The wife lived in the Suburb D property until mid-2021, after which she lived in rental accommodation. The parties were until recently both beneficiaries of the Dajani Family Trust (“the Trust”), which has a current value of $173,369. K Pty Ltd, of which the husband is sole director and shareholder, is the sole corporate trustee of the Trust and the husband is now the sole beneficiary of the Trust. Both parties own a vehicle and have cash savings. The husband owns plant and equipment including machinery (“the machinery”) worth $163,260. Each party has superannuation over $1.5 million. There are contended addbacks, and minimal liabilities. This matter has a complex procedural history, owing to the husband’s criminal proceedings. The wife filed an Initiating Application on 10 June 2020. On 17 May 2022 the final hearing was listed for three days commencing 28 November 2022. On 31 October 2022, the final hearing was vacated after a request for an adjournment by the husband, to allow for the husband to be sentenced in the criminal proceedings and for any criminal appeal to be filed and heard (which was estimated to be at the end of 2022). The Court notes the wife opposed this request given the uncertainty of the timeline of the criminal proceedings. The matter was listed for mention in the new year to ascertain whether there was any more clarity regarding the husband’s criminal proceedings and to decide whether the matter should be re-listed for final hearing. At the next Court event on 1 February 2023, the wife pressed for the allocation of final hearing dates, given that the matter had already been on foot for two and a half years, and the husband’s appeal would further delay the hearing of the matter by almost another year. The Court declined to do so, however, because this would cause injustice to the husband in circumstances where he was sentenced to incarceration with a non-parole period of 12 years and his solicitor told the Court that he had filed an “all-grounds appeal” that may be heard towards the end of 2023 at the earliest, the outcome of which would impact the Court’s determinations under s 75(2) of the Act. The Court notes the husband had in fact only filed a Notice of Intention to Appeal on 28 November 2022.

Evidence

Evidence Before The Court

The sentencing decision of Judge Flannery in the District Court of New South Wales was provisionally admitted as Exhibit A32 (“the Sentence Remarks”) after counsel for the husband objected to its tender, referring to s 91 of the Evidence Act 1995 (Cth) (“the Evidence Act”), which states:91 Exclusion of evidence of judgments and convictions(1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.(2) Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose. To rule on the objection, the document will be briefly described. Judge Flannery commenced her Sentence Remarks by reciting that on 11 April 2022 the offender (the husband in this case) was arraigned on an indictment containing multiple counts to which he pleaded not guilty to each count. A jury found him guilty of multiple counts. Judge Flannery recited that the offender was, therefore, to be sentenced for a number of offences, which carry a variety of maximum penalties ranging from seven years to life imprisonment. It is agreed between the parties to the present case that the offender was the husband, the victim was Ms C, and that the husband was convicted and sentenced in relation to the counts referred to above. It is agreed that the wife was present during the delivery of the Sentence Remarks. The sentence imposed on the husband was also agreed. Indeed, a document setting out a summary of the convictions and sentence became Exhibit A33. A Certificate of Conviction under s 178 of the Evidence Act became Exhibit A31. The husband was sentenced for a period commencing 2019, expiring 2036. His non-parole period is 12 years, expiring 2031. The latter was acknowledged as being his earliest possible release date. Relevant factors in considering the admissibility of Exhibit A32 are the above agreed facts and Exhibits A31 and A33. The Sentence Remarks is a 15-page document. Judge Flannery recites the facts, including the details of the offences perpetrated by the husband on Ms C. Her Honour summarises the Victim Impact Statement of Ms C, and the submissions made as to sentencing by counsel for the husband, as well as for the Crown. Judge Flannery then considers all of the above and formulates the sentence described above. It is informative to explain what Exhibit A32 potentially adds to the evidence contained in Exhibits A31 and A33. The statement of facts provided by Judge Flannery provides details about the unlawful sexual acts perpetrated by the husband on Ms C, and a timeframe. The facts are confronting and reciting them in these reasons for judgment could be traumatising for any reader, let alone members of this family. By way of summary, Judge Flannery found in relation to one count that the husband committed unlawful sexual acts towards Ms C between the ages of eight and almost 16. The remaining counts cover the period in Ms C’s life between ages 15 or 16, to 22 or 23. Exhibit A32 also refers to the fact of the husband’s plea of not guilty. The Court notes, however, that this fact was accepted by the husband himself and, in any event, was self-evident.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

This is an application under s 79 of the Family Law Act 1975 (Cth) (“the Act”) which relevantly provides:79 Alteration of property interests(1)In property settlement proceedings, the court may make such order as it considers appropriate:(a)in the case of proceedings with respect to the property of the parties to the marriage or either of them—altering the interests of the parties to the marriage in the property; or(b)in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the marriage—altering the interests of the bankruptcy trustee in the vested bankruptcy property;including:(c)an order for a settlement of property in substitution for any interest in the property; and(d)an order requiring:(i) either or both of the parties to the marriage; or(ii) the relevant bankruptcy trustee (if any);to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines.…(2)The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.(4)In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account:(a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and(b)the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and(c)the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and(d)the effect of any proposed order upon the earning capacity of either party to the marriage; and(e)the matters referred to in subsection 75(2) so far as they are relevant; and(f)any other order made under this Act affecting a party to the marriage or a child of the marriage; and(g)any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage.