FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Kalita & Sachar [2021] FedCFamC1F 187
File number(s): MLC 5428 of 2018 Judgment of: GILL J Date of judgment: 11 November 2021 Catchwords: FAMILY LAW – PROPERTY – Undefended hearing – Application to set aside sale of property – Unable to establish the transaction was not bona fide – Application for alteration of property interests – Tracing proceeds of sale to determine property pool – Inference as to sum of undisclosed cash in the control of the respondent – Adjustment made in favour of applicant – Orders made for transfer of 90 per cent of property pool to the applicant
FAMILY LAW – PRACTICE AND PROCEDURE – Application for a vexatious proceedings order – Several applications filed by the respondent deemed devoid of merit – Frequency not established – Application dismissed
Legislation: Family Law Act 1975 (Cth) ss 75, 79, 102Q, 102QB, 106B Cases cited: Benson & Drury (2020) FLC 93-998
Bevan & Bevan (2013) FLC 93-545
Chang v Su (2002) FLC 93-117
Dickons & Dickons (2012) 50 FamLR 244
Kennon v Kennon (1997) FLC 92-757
Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398
Pencious & Searle (2017) FLC 93-805
Rilak & Tsocas [2020] FamCA 49
Stanford v Stanford (2012) 247 CLR 108
Weir & Weir (1993) FLC 92-338
Division: Division 1 First Instance Number of paragraphs: 100 Date of hearing: 6 October 2021 Place: Canberra Counsel for the Applicant: Mr Stagg Solicitor for the Applicant: Legal Aid, ACT Solicitor for the First Respondent: No appearance Solicitor for the Second Respondent: No appearance ORDERS
MLC 5428 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS KALITA
Applicant
AND: MR SACHAR
First Respondent
MR B SACHAR
Second Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
11 NOVEMBER 2021
THE COURT ORDERS THAT:
Monies to be paid
1.That the money currently held in the ANZ Progress Saver account ending #...05 is the property of MS KALITA (the wife) and shall be forthwith paid to the Legal Aid ACT Trust account as follows:
BSB: …
Account Number: …98
Account Name: Legal Aid ACT Commission Trust Account
2.That the money currently held in the AA Bank Direct Saver account ending #...49 is the property of MS KALITA (the wife) and shall be forthwith paid into the Legal Aid ACT Trust account as follows:
BSB: …
Account Number: …98
Account Name: Legal Aid ACT Commission Trust Account
Monies in trust
3.That the money currently held by BB Lawyers in their trust account is the property of MS KALITA (the wife) and shall be forthwith paid to the Legal Aid ACT Trust account as follows:
BSB: …
Account Number: …98
Account Name: Legal Aid ACT Commission Trust Account
Superannuation
4.That Order 1 of the Orders made 20 April 2020 be discharged.
5.That the Applicant Wife’s solicitor cause a copy of these Orders to be served on the Trustee of CC Pty Ltd (‘the Trustee’).
6.In accordance with section 90XT(1)(a)…
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- Kalita & Sachar [2021] FedCFamC1F 187
- Case
- [2021] FedCFamC1F 187
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CaseChat Overview and Summary
The court had to determine whether the husband had provided proper and adequate financial disclosure to the wife, and whether the wife could establish that a $104,000 allowance made to the husband's brother was other than a genuine debt. The husband had made various assertions about his financial circumstances in affidavits he filed, but these assertions were inconsistent and undermined his candour. For example, the husband claimed to have $29,000 in an ANZ account in October 2018, but later claimed to have made a payment to his brother of $104,000 from the proceeds of the sale of the C Street property. The husband also claimed to have made payments for legal fees, credit card expenses, and food expenses, but did not provide any evidence to support these claims.
The court found that the husband had not provided proper or adequate financial disclosure to the wife, and that it had not been established that the $104,000 allowance made to the husband's brother was other than a genuine debt. The court found that the husband had not left the proceeds of the sale of the Suburb D property in his control, and that it could not be determined what had happened to the shortfall in the payment of the purchase price. The court ordered the husband to provide proper and adequate financial disclosure to the wife, and to pay the wife's costs of the application.
Orders
Orders of the court
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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
Ultimately the parties separated on 19 December 2017, the wife leaving the home with nothing following an assault by the husband upon her for which he was later convicted. Post separation conduct and events Shortly following separation, and ever since, the wife has had the full care of all four children of the relationship, a situation set to continue pursuant to the final orders of the Federal Circuit Court. The husband has engaged in ongoing stalking behaviour of the wife, making her contributions in respect of caring for the children more arduous post separation. A divorce order was ultimately made on 6 October 2021. The husband had opposed such an order being made. The husband did not attend to contest the order being made. Due in part to the hurried circumstances of the separation the wife was not in possession of documents and information evidencing the financial arrangements of the parties. This rendered the requirement for the husband to provide disclosure as a matter of importance to the just determination of the dispute. The husband, despite multiple requests and orders of the court, has not provided proper or adequate financial disclosure to the wife. He has, however, set out various assertions as to his financial circumstances in affidavits that he has filed. Following the end of the relationship the husband sold the Suburb D property to his brother. The sale price was $504,000, which was accepted at the trial by the wife to approximate market value. Of that sum $170,000 was required to discharge the mortgage. However, the balance paid to the husband on the settlement date (16 February 2018) was $227,530.15, constituting a significant shortfall in the payment of the purchase price. This shortfall was explained on the basis that an allowance of $104,000 was made to the brother in relation to contributions supposedly made. No support or verification, or even particularisation of such contributions was produced. That left the $104,000 with little by way of explanation, although it was conceded by the wife that she was unable to affirmatively establish that the $104,000 was other than a genuine debt. As to the balance actually received by the husband there were various descriptions proffered as to its disposal that left no confidence in the husband’s candour and ultimately lead to a conclusion that while it has been established that the husband received the monies, it has not been established that they have left his control. For example, on 4 October 2018 the husband filed a financial statement asserting that he had an amount of approximately $29,000 in an ANZ account but no other savings. This assertion as to the diminution of the proceeds of sale held by him to $29,000 was undermined by the husband’s later assertions as to the disposal and whereabouts of the proceeds. Subsequently, on 5 November 2018 the husband filed an affidavit indicating that from the proceeds of the sale of the C Street property he had made a payment to his brother of $104,000 (“adjusted into the property for contributions”), $93,000 to himself, a further $60,000 remaining in the bank, legal fees of $17,350, credit card expenses of $24,409 and incurred food expenses of just under $30,000.