Desai and Desai - [2018] FamCA 812

FAMILY COURT OF AUSTRALIA

DESAI & DESAI

[2018] FamCA 812

FAMILY LAW – PROPERTY–where the only assets of substance are a house and the husband’s superannuation–where the contributions are found to be equal albeit a gift is made by the wife’s parents to enable the acquisition of the house–where at the end of the marriage, the husband contributes his injury compensation money–where the wife wants cash not superannuation–where it is not just to make such an order–where a “loading” is given to the wife because of her poorer financial future.

Family Law Act 1975 (Cth)

C and C [2005] FamCA 429
Kennon and Kennon [1997] FamCA 27
Kowaliw and Kowaliw (1981) FLC 91-092
Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513
Townsend & Townsend [1994] FamCA 144)

APPLICANT:

Mr Desai

RESPONDENT:

Ms Desai

FILE NUMBER:

MLC

4086

2016

DATE DELIVERED:

9 October 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

27 September 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Boden

SOLICITOR FOR THE APPLICANT:

Starnet Legal Pty Ltd

THE RESPONDENT:

In Person

Orders

If by 30 November 2018, the wife pays to the husband $305,000, and provides to him a discharge of any obligation he has under the mortgage encumbering B Street, Suburb C (“the B Street property”) then the husband transfer to the wife all of his interest in that property.
If the wife fails to make the payment referred to in Order 1 by 30 November 2018 both husband and wife forthwith do all things necessary to place the B Street property on the market for sale on terms and conditions to be agreed and otherwise, as ultimately ordered by the court on application.
Upon the sale of the B Street property, the proceeds be applied as follows:
(a)       First to pay all costs, commissions and expenses of the sale;
(b)       Secondly, to discharge the mortgage with the wife being responsible for any increase after 1 December 2018;
(c)       Thirdly, to pay the husband 40 per cent of the net balance; and
(d)       Fourthly, to pay the balance to the wife.
Pursuant to s 90MT(1)(a) of the Family Law Act 1975 (Cth) (“the Act”), the amount of $35,000 is allocated as the base amount to be deducted from the interest of the husband in D Super (the Superannuation Fund) and whenever a splittable payment becomes payable out of the interest of the husband in the superannuation fund, the wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 and there shall be a corresponding reduction in the entitlement of the husband to whom the splittable payment would have been made but for these orders and this order shall have effect forthwith.
This order is only operative upon the husband serving upon the trustee named in it, a copy of these orders requesting their agreement to them.
To the extent that the said trustee agrees to implement the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Desai and Desai

Details

AGLC: Desai and Desai [2018] FamCA 812
Case: [2018] FamCA 812
Decision Date: 9 October 2018

CaseChat Overview and Summary

In Desai and Desai, the parties sought final property orders from Cronin J of the Federal Circuit and Family Court of Australia. The dispute concerned the division of property, including a property located on B Street, Suburb C, and a superannuation interest held by the husband in D Super.

The court was required to determine how the B Street property should be dealt with, including whether the wife should retain it, or if it should be sold. Further, the court needed to determine the division of the net proceeds of sale, including the allocation of mortgage responsibilities. The court also had to consider the division of the husband's superannuation interest in D Super, specifically the allocation of a base amount to the wife. Finally, the court was asked to make declarations regarding the parties' sole legal and equitable interests in other property in their possession.

Cronin J made orders that provided the wife with an option to retain the B Street property by paying the husband $305,000 and discharging his obligation under the relevant mortgage by 30 November 2018. If this condition was not met, the property was to be placed on the market for sale, with proceeds to be applied first to sale costs, then to discharge the mortgage (with the wife responsible for any increase after 1 December 2018), and the remaining balance to be split 40 per cent to the husband and 60 per cent to the wife. The court also ordered, pursuant to s 90MT(1)(a) of the Family Law Act 1975 (Cth), that $35,000 be allocated as a base amount from the husband's interest in D Super to the wife, with a corresponding reduction in the husband's entitlement. These superannuation orders were contingent on service upon the trustee and their agreement.

The court further ordered, by consent, that the wife make available the husband's motorcycle and personal effects by 31 October 2018. Pursuant to s 78 of the Act, the court declared that each party had the sole legal and equitable interest in property in their possession as at the date of the orders, to the exclusion of the other. The husband's application and the wife's response were otherwise dismissed.

Orders

Orders of the court

If by 30 November 2018, the wife pays to the husband $305,000, and provides to him a discharge of any obligation he has under the mortgage encumbering B Street, Suburb C (“the B Street property”) then the husband transfer to the wife all of his interest in that property.

If the wife fails to make the payment referred to in Order 1 by 30 November 2018 both husband and wife forthwith do all things necessary to place the B Street property on the market for sale on terms and conditions to be agreed and otherwise, as ultimately ordered by the court on application.

Upon the sale of the B Street property, the proceeds be applied as follows:

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

(b) Secondly, to discharge the mortgage with the wife being responsible for any increase after 1 December 2018;

(d) Fourthly, to pay the balance to the wife.

Pursuant to s 90MT(1)(a) of the Family Law Act 1975 (Cth) (“the Act”), the amount of $35,000 is allocated as the base amount to be deducted from the interest of the husband in D Super (the Superannuation Fund) and whenever a splittable payment becomes payable out of the interest of the husband in the superannuation fund, the wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 and there shall be a corresponding reduction in the entitlement of the husband to whom the splittable payment would have been made but for these orders and this order shall have effect forthwith.

This order is only operative upon the husband serving upon the trustee named in it, a copy of these orders requesting their agreement to them.

To the extent that the said trustee agrees to implement the said orders, they shall become operative 3 business days after service upon them.

The trustee has liberty to apply in the event that it disagrees with the making of this order based upon some inaccuracy of information provided to the Court by the husband.

BY CONSENT, the wife make available to the husband his motorcycle by 31 October 2018 and his personal effects (if she can find them).

That pursuant to s 78 of the Act, the court otherwise declares that each party otherwise has the sole legal and equitable interest in the property in their possessions as at the date of these orders to the exclusion of the other party.

10.

The application of the husband filed on 31 May 2018 and the response thereto by the wife filed 22 July 2016 are otherwise dismissed

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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