HANSI & HANSI - [2020] FCCA 2087

FEDERAL CIRCUIT COURT OF AUSTRALIA

HANSI & HANSI

[2020] FCCA 2087

Catchwords:
FAMILY LAW – Property – parties divorcing in 2018 after 41 year marriage – matrimonial home being the only ascertainable asset of the parties – major dispute about parties’ assets in Sri Lanka – wife’s assertion that husband retains significant assets in Sri Lanka denied by the husband – husband selling house in Sri Lanka and retaining entire proceeds of sale to his own benefit – sale proceeds roughly commensurate with equity in the matrimonial home – husband failing to disclose and not complying with orders for financial disclosure – Court’s conclusion that it is just and equitable for the wife to retain the matrimonial home to the exclusion of the husband.

Legislation:

Family Law Act 1975 (Cth), s.75(2)

Cases cited:

Baglio v Baglio [2013] FamCA 105

Chang & Su (2002) FLC 93-117

Stanford v Stanford [2012] HCA 52

Applicant:

MS HANSI

Respondent:

MR HANSI

File Number:

DGC 731 of 2019

Judgment of:

Judge Burchardt

Hearing date:

10 July 2020

Date of Last Submission:

10 July 2020

Delivered at:

Dandenong

Delivered on:

5 August 2020

REPRESENTATION

Counsel for the Applicant:

Ms Teicher

Solicitors for the Applicant:

Lawyers By The Bay

Counsel for the Respondent:

Self-represented

Solicitors for the Respondent:

Not applicable

ORDERS

The parties forthwith do all things and sign all documents necessary to transfer the Respondent’s interest in the real property situate at C Street, Suburb D in Victoria to the Applicant at a time the Applicant requests and that the costs of such transfer be paid by the Respondent.
Pending the transfer contemplated by Order 1 above, the Applicant have the sole right to occupy the real property situate at C Street, Suburb D in Victoria and during such right of occupation the Applicant shall pay all instalments pursuant to the mortgage together with all rates, taxes and like apportionable outgoings of the real property as and when they fall due and maintain all insurances in respect of the real property.
In the event that the rules of lending change such that the Applicant becomes unable to obtain permission from a lending institution that will allow her to take full title to the real property situate at C Street, Suburb D, the parties shall forthwith do all such acts and things and sign all such documents required to list the real property situate at C Street, Suburb D for sale at a time and by a method of the Applicant’s choosing. The sale proceeds shall be applied as follows:
(a)Firstly to pay all costs, commissions and expenses of the sale and conveyancing;
(b)Secondly to discharge any mortgage and any other encumbrance affecting the real property; and
(c)Thirdly the remainder to be paid 100% to the Applicant
Unless otherwise specified in this Order except for the purposes of enforcing payment of any money due under these or any subsequent Orders:
(a)Each party shall be solely entitled to the exclusion of the other to all property in 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 HANSI & HANSI

Details

AGLC: Hansi and Hansi [2020] FCCA 2087
Case: [2020] FCCA 2087
Decision Date: 5 August 2020

CaseChat Overview and Summary

In the matter of HANSI & HANSI, Judge Burchardt of the Federal Circuit Court of Australia considered a property dispute between parties divorcing after a 41-year marriage. The primary asset in contention was the matrimonial home, with a significant disagreement arising over alleged substantial assets held by the husband in Sri Lanka. The wife asserted that the husband had sold a property in Sri Lanka and retained the entire proceeds, which were roughly equivalent to the equity in the matrimonial home. The husband had failed to disclose these assets and had not complied with court orders for financial disclosure.

The court was required to determine how to equitably divide the parties' assets, particularly in light of the husband's alleged undisclosed assets in Sri Lanka and his non-compliance with disclosure obligations. The central legal issue was whether it was just and equitable to make an order that would effectively exclude the husband from any interest in the matrimonial home, given the circumstances surrounding the Sri Lankan property and the husband's conduct.

Judge Burchardt concluded that it was just and equitable for the wife to retain the matrimonial home to the exclusion of the husband. This decision was informed by the husband's failure to disclose significant assets and his non-compliance with court orders. The court ordered the transfer of the husband's interest in the matrimonial home to the wife, with the costs of the transfer to be borne by the husband. The wife was granted sole occupation of the property pending transfer, with responsibility for mortgage payments, rates, taxes, and insurance. Provisions were made for the sale of the property if the wife could not obtain full title, with the net proceeds to be paid entirely to the wife. The court also made orders regarding the division of other property and liabilities, and included provisions for enforcement, including the execution of documents by a Registrar in the event of the husband's non-compliance.

Orders

Orders of the court

The parties forthwith do all things and sign all documents necessary to transfer the Respondent’s interest in the real property situate at C Street, Suburb D in Victoria to the Applicant at a time the Applicant requests and that the costs of such transfer be paid by the Respondent.

Pending the transfer contemplated by Order 1 above, the Applicant have the sole right to occupy the real property situate at C Street, Suburb D in Victoria and during such right of occupation the Applicant shall pay all instalments pursuant to the mortgage together with all rates, taxes and like apportionable outgoings of the real property as and when they fall due and maintain all insurances in respect of the real property.

In the event that the rules of lending change such that the Applicant becomes unable to obtain permission from a lending institution that will allow her to take full title to the real property situate at C Street, Suburb D, the parties shall forthwith do all such acts and things and sign all such documents required to list the real property situate at C Street, Suburb D for sale at a time and by a method of the Applicant’s choosing. The sale proceeds shall be applied as follows:

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

(b) Secondly to discharge any mortgage and any other encumbrance affecting the real property; and

Unless otherwise specified in this Order except for the purposes of enforcing payment of any money due under these or any subsequent Orders:

(a) Each party shall be solely entitled to the exclusion of the other to all property in the possession of such party as at this date including any jewellery, furniture, furnishings, shares and motor vehicles;

(b) Monies standing to the credit of the parties in any bank accounts to be the property of the party in whose name such bank account is held;

(c) 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.

Either party have liberty to apply as to implementation or enforcement of these orders upon the giving of 7 days written notice to the other.

In the event that the husband fails to comply with orders 1-3 hereof, pursuant to s.106A of the Family Law Act 1975 (Cth), a Registrar of the Federal Circuit Court of Australia at Dandenong forthwith execute the necessary documents in the name of the husband.

Any application for costs supported by written submissions of no more than 3 pages be filed and served on or before 12 August 2020.

Any written submissions in reply of no more than 3 pages be filed and served on or before 19 August 2020.

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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