Kapoor & Kapoor

Case [2010] FamCAFC 113

FAMILY COURT OF AUSTRALIA

KAPOOR & KAPOOR [2010] FamCAFC 113

FAMILY LAW - APPEAL – PROPERTY SETTLEMENT – appeal from a Federal Magistrate – where the wife argued that the husband’s application should be dismissed as the parties were married in India and Indian law should govern their marriage – consideration of whether an Australian court was an inappropriate forum for hearing the case – where no proceedings were on foot in India – where the husband has been an Australian citizen since 1985 – where parties have lived in Australia since marriage - where most of parties assets are located in Australia –  the Federal Magistrate’s finding that Indian law did not apply in this case upheld

FAMILY LAW - APPEAL – PROPERTY SETTLEMENT – appeal from a Federal Magistrate – where the wife argued that the husband’s application should be dismissed as there was no jurisdiction for the Court to make property settlement orders where the parties were not divorced and there was no application for divorce pending – consideration of the definition of matrimonial cause in the Family Law Act 1975 (Cth) – where it was found that the Court has the power to make orders in relation to property proceedings between parties to a marriage where there have been no proceedings for divorce

FAMILY LAW - APPEAL – PROPERTY SETTLEMENT –  SUPERANNUATION - appeal from a Federal Magistrate – upheld on the basis of an incorrect valuation of the wife’s superannuation interest being relied upon by the Federal Magistrate in his orders and reasons for judgment, through no fault of the Federal Magistrate – where at the appeal hearing Senior Counsel for the husband conceded that the valuation of the wife’s superannuation at trial was incorrect and provided a new valuation of the wife’s superannuation using an up-to-date Family Law Information statement obtained from the CSS – where the wife argued that  this new valuation was incorrect on the basis of figures and “inputs” from her end of financial year Contributing Members Statement – where it was found that in circumstances where a valuation based on information from a Family Law Information sheet is available that valuation must be preferred – appeal allowed – re-exercise of discretion

FAMILY LAW - APPEAL – PROPERTY SETTLEMENT – s 75(2) of the Family Law Act 1975 (Cth) – where the wife was permitted to put further evidence before the Court concerning a change in her employment position and health – where it was found on appeal that the wife’s age, employment history and health issues would limit her prospects of future employment – re-exercise of discretion – no adjustment for either party on s 75(2) matters

FAMILY LAW - COSTS – orders made for written applications for costs certificates in relation to the costs of the appeal
Family Law Act 1975 (Cth)
Family Law (Superannuation) Regulations 2001(Cth)
Family Law Rules 1984
Federal Proceedings (Costs) Act 1981 (Cth)
Judiciary Act 1903 (Cth)
Dougherty & Dougherty (1987) 163 CLR 278;…

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AGLC
Kapoor & Kapoor [2010] FamCAFC 113
Case
[2010] FamCAFC 113
Decision Date

CaseChat Overview and Summary

This appeal concerned a property settlement between the parties to a marriage, following an application by the husband under the Family Law Act 1975 (Cth). The wife appealed against the orders made by the Federal Magistrates Court, arguing that Indian law should apply to the marriage, and that the court lacked jurisdiction to make property settlement orders. The wife also argued that the Federal Magistrates Court had made a number of errors in the orders made, including an incorrect valuation of the wife’s superannuation interest. The wife further argued that the Federal Magistrates Court had not considered her age, employment history, and health issues in making its orders. The wife also sought to put forward further evidence on appeal, concerning a change in her employment position and health.

The court found that Indian law did not apply to the marriage, and that the court had jurisdiction to make property settlement orders between parties to a marriage, where there had been no proceedings for divorce. The court found that the Federal Magistrates Court had erred in the valuation of the wife’s superannuation interest, and allowed the appeal on this basis. The court found that the wife’s age, employment history, and health issues would limit her prospects of future employment, and did not make any adjustment on these matters. The wife was permitted to put further evidence before the court, but the court found that it did not alter the outcome of the appeal.

The appeal was allowed, and the orders made by the Federal Magistrates Court were amended to reflect the correct valuation of the wife’s superannuation interest. The wife was ordered to pay the husband’s costs of the appeal.

Orders

Orders of the court

1.

That the appeal against the orders made by the Federal Magistrates Court on 14 January 2008 be allowed.

2.

That paragraph (d) of Order 8 of the orders made on 14 January 2008 be amended to read:

(d) Fourthly, 27 per cent of the balance to the husband’s solicitor and 73 per cent to the wife.

Background

Background to the litigation

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Evidence

Evidence Before The Court

It will be seen that in the last mentioned Ground 7, the wife incorporated by reference the grounds contained in her original notice of appeal filed 21 August 2007. Despite their length, I consider it necessary to set out those original grounds – I also include some explanatory material about each ground which appeared in emphasis in a pre-argument statement or written summary of argument filed by the wife 13 September 2007 as this material may assist in understanding some of the grounds and provide an insight into the nature of the wife’s complaints: 1.Orders of 25 July 2007 have been made to sell family home where marriage has not ended respondent is living with appellant wife and children as a family and is receiving centralink [sic] payments upon signing declaration that appellant wife is his partner.Judgement error: Documents of evidence provided by appellant wife at the trial overlooked. And respondent husband’s lying on an oath in the witness box proved by appellant wife has been overlooked. 2.Orders of 25 July 2007 have been made to sell family home where no living arrangements have been made for a minor child of the marriage.Judgment error: FMC-Canberra has ignored welfare of minor child of marriage while Australia promotes children first priority in family law case [sic]. 3.Appellant wife has been denied opportunity to make submissions to orders due to respondent [Mr Kapoor’s] non-compliance to 22 June 2007 Federal Magistrate Court (FMC) judgment directions to send draft orders to appellant wife for putting her submissions.Judgment error: Appellant wife at disadvantage with respondent husband’s lawyers being given directions to prepare draft orders with no follow up process to ensure the wife gets opportunity to put her submissions. 4.Orders of 25 July 2007 made to split superannuation and allow respondent to access appellant wife’s superannuation, where parties remain legally, financially and socially married.Judgment error: Appellant wife’s evidence in affidavit and at the trial overlooked. 5.Error in superannuation split brought to FMC’s attention at the defended trial hearing of 1st and 2nd May 2007 and in appellant wife’s affidavit has been overlooked by FMC.Judgment error: Judgment is based on assumption that marriage has ended in 1996 however appellant wife’s superannuation is taken until her retirement with interest component added from now till retirement and respondent husbands [sic] superannuation taken up to 2007. 6.Evidence and facts provided by appellant wife of respondent repeatedly lying on an oath in all the affidavits and financial statements and in witness box at the trial of 1st May 2007 overlooked by FMC.Judgment error: Respondent husband’s lying on an oath has been overlooked by FMC - Canberra7.No written statement given to the appellant wife by respondent that the parties are financially separated from 1996.Judgment error: There is no evidence that parties are separated. 8.Jointly owned assets sold by respondent before and after applying for financial only split.Judgment error: FMC – Canberra has made bias judgment in favour of respondent husband by ignoring his sale & giving away of jointly owned assets, before and after his application for financial split. 9.Respondent has not complied with the court orders to update appellant wife on his disability insurance claim and has not tendered in FMC the evidence of application being made and the same being rejected by his insurance firm, Zurich Insurance.Judgment error: FMC – Canberra has overlooked respondent husband’s non compliance of court orders and misleading court by lying in affidavit that disability claim has been made and same has been rejected. 10.Respondent’s medical certificates by General Practitioner state that respondent is capable of working 20 hours per week these evidence of facts provided by respondent and appellant wife ignored by FMC.Judgment error: Factual evidence of respondent husband capable of working has been overlooked by FMC – Canberra 11.Judgment based on assumption that applicant will not work for the rest of his life is not supported by evidence.Judgment error: FMC – Canberra has ignored documental evidence to base financial split on the assumption that respondent husband will not work for the rest of his life. 12.FMC has overlooked that applicant has not filed the documents required for the trial hearing and those have been accepted by court at the trial despite of appellant wife’s objection.Judgment error: Respondent husband’s non-compliance of orders to file documents on time overlooked by FMC – Canberra. 13.Orders with date 25 July 2007 have arrived to appellant [sic] wife on 01 August 2007.Judgment error: Order made for appellant wife to DIVIDE HOME CONTENTS and prepare two lists and give respondent husband those lists within seven days of orders made, where orders were sent after seven days from the date of orders. 14.Orders are made in rush to fall within two years time limit of property settlement period and possibly back dated to comply with that date.Judgment error: Orders sent seven days after date of orders are made, possibly back dated to fall in two year time frame of making orders on financial split application 15. Maintenance of minor child.Judgment error: Respondent husband has been given 50 per cent share of assets but not been asked to contribute towards maintenance of minor child of the marriage. 16.Financial and non-financial contributions by appellant wife being above 90 per cent with evidence and facts provided is overlooked by FMC in making orders to give respondent 50 per cent share of assets.Judgment error: Springboard impact mentioned in judgment factually incorrect and not supported by evidence. 17.Respondent’s application to claim 50 per cent share of assets is not supported by ANY evidence.Judgment error: Orders made to give respondent husband 50 per cent share of assets where FMC – Canberra has no document that can support respondent husband’s claim to 50 per cent share. 18.Facts and evidence provided by appellant wife that the marriage has not ended in 1996 or at any other time has been overlooked by FMC.Judgment error: Religious and cultural value of which parties arranged marriage is based have been ignored with outdated family law, while Australia promotes itself as a multicultural country. 19.FMC has overlooked appellant wife’s evidence and facts that respondent [Mr Kapoor] has mismanaged family assets while making directions in judgment of 22 June 2007 to allow respondent [Mr Kapoor] to sell family home.Judgment error: Evidence of family assets mismanaged by respondent husband overlooked in giving respondent husband authority in selling family home. 20.Respondent [Mr Kapoor’s] [sic] has made misuse of judgment directions on sale of family home.Judgment error: Judgment directions giving respondent husband authority to sell family home to have upper hand being used for [sic] bully wife, where appellant wife is a joint owner. 21.Independent Real Estate Company has been given power in orders of 25 July 2007 to sell family home.Judgment error: Independent real estate given power to sell family home to ensure respondent husband’s share is given to his lawyer for the lawyer to recover his fees, without any consultation with appellant wife in making those orders. 22.Family home put on market for sale by Independent Real Estate Company prior to lapse of appeal period.Judgment error: Orders made to give Independent Real Estate power to sell family home with no directions to ensure power is not misused. 23.Independent real estate agent’s invading appellant wife’s privacy on 19 August 2007, where real estate agent [Mr R] ignored appellant wife’s instructions to leave immediately and to provide in writing that he visited the family [sic] the family home in respondent [Mr Kapoor’s] absence on the time and that date.Judgment error: Power given to Independent Real Estate to sell family home where appellant wife, the joint owner has been ignored in the sale of her family home where two dependent children are living with their parents. 24.Respondent [Mr Kapoor] has a lawyer to represent him, however he took direct approach and interfered on 17th & 18th August 2007 in relation to appellant wife’s dealings with independent real estate.Judgment error: Court Orders imposed on appellant wife by Independent Real Estate and respondent husband before waiting for appeal period to lapse due to power given by FMC – Canberra

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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