Desai and Desai

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.