Sattar & Hayati
[2023] FedCFamC2F 1213
•15 September 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Sattar & Hayati [2023] FedCFamC2F 1213
File number(s): PAC 3925 of 2019 Judgment of: JUDGE OBRADOVIC Date of judgment: 15 September 2023 Catchwords: FAMILY LAW – PROPERTY – Adjustment of property interests- 10 year marriage – 3 children – only one asset of significance being former matrimonial home which held in respondent’s sole name – assessment of contributions – future needs – property adjustment in applicant’s favour of 55/45 Legislation: Family Law Act 1975 (Cth) ss.44(3), 79, 75(2) Cases cited: Bevan & Bevan [2013] FamCAFC 116
Chapman & Chapman [2014] FamCAFC 91
Halstron & Halstron [2022] FedCFamC1A 65
Hickey & Hickey & Anor [2003] FamCA 395
Russell & Russell [1999] FamCA 1875
Scott & Danton [2014] FamCAFC 203
Stanford & Stanford [2012] HCA 52
Teal & Teal [2010] FamCAFC 120
Division: Division 2 Family Law Number of paragraphs: 65 Date of last submission/s: 30 May 2023 Date of hearing: 29-30 May 2023 Place: Parramatta Counsel for the Applicant: Mr Hill Solicitor for the Applicant: The Peoples Solicitors Counsel for the Respondent: Ms Ryan Solicitor for the Respondent: Farah Lawyers, Solicitors & Barristers ORDERS
PAC 3925 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS SATTAR
Applicant
AND: MR HAYATI
Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
15 SEPTEMBER 2023
THE COURT ORDERS THAT:
1.Within 21 days the parties do all such acts and sign all documents necessary so as to effect a sale of the property known as B Street, Suburb C, and more particularly described in Certificate of Title Folio Identifier … (“the Suburb C property”), with an agent and using a solicitor at a price agreed between the parties and failing agreement:
(a)At a price nominated by a valuer appointed by the President of the Real Estate Institute of New South Wales (“the valuer”);
(b)With an agent nominated by the President of the Real Estate Institute of NSW; and
(c)A solicitor/conveyancer nominated by the President of the NSW Law Society.
2.The parties shall each cooperate in every way with the agent including (without limiting the generality of the following):
(a)Making the keys available to the agent;
(b)Allowing inspection of the Suburb C property at all reasonable times as requested by the agent;
(c)Not doing or saying anything to hinder the sale being effected;
(d)Ensuring that the Suburb C property including the grounds are of a reasonably clean and tidy condition at the time of inspection by the agent and prospective purchasers; and
(e)Signing all documents requested by the agent in relation to the listing for sale of the Suburb C property except a contract or agreement for sale which has not been authorised by the parties’ solicitors.
3.Neither party may confer on any agent without the consent of the other party at any right to any sole or exclusive agency in respect of the Suburb C property or to any commission.
4.In the event the Suburb C property is not sold by private treaty within 3 months from the date of these Orders then:
(a)The parties shall list the home for sale by public auction;
(b)The reserve price for the purpose of such auction shall be such as the parties agree upon within 14 days after the date upon which the Suburb C property is first listed for sale in accordance with Order 1.
(c)In the event that the bidding at the auction does not reach the reserve price, the parties may negotiate with the highest bidders or any other interested persons and effect a sale of the Suburb C property at a price which is not more than 10% below the reserve price or as agreed between them;
(d)If the Suburb C property remains unsold, the parties shall do all acts and things and sign all documents necessary to relist the Suburb C property for sale by public auction again at intervals of no more than 6 weeks with the reserve price to be reduced by 10% each auction.
5.That simultaneously with the sale of the Suburb C property, the parties shall do all such acts and sign all documents as are necessary to discharge any mortgage registered on the title of the Suburb C property.
6.That on settlement of the sale of the Suburb C property, the proceeds of sale be paid in the following manner and priority:
(a)All costs and expenses of sale including but not limited to legal costs and disbursements, valuer’s fees, agent’s commission, and auction expenses (including repayment of any such expenses as have been paid by either or both of the parties);
(b)The amounts required to discharge the mortgage;
(c)The amounts required to pay all municipal and water rates outstanding with respect to the Suburb C property;
(d)The amounts required to pay any other liabilities as agreed; and
(e)The balance then remaining shall be divided between the parties as follows:
(i)To the Applicant 55%; and
(ii)To the Respondent 45%.
7.That, as between the parties and subject to the above Orders, each party shall retain all right, title and interest to the exclusion of the other party in:
(a)All other personal property in their respective possession or control as at the date of these Orders, including any motor vehicles, furniture, furnishings and effects;
(b)All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in their sole name; and
(c)All interests in life insurance policies and financial resources, including superannuation funds standing in their sole name respectively as at the date thereof.
8.That each party shall, subject to the above Orders, be responsible for:
(a)All loans, debts, leases, hire purchases and other liabilities standing in their sole name;
(b)All credit cards in their sole name;
(c)Any and all taxation liabilities in their sole name; and
(d)Each party shall indemnify and keep indemnified the other party in respect of any and all such liabilities.
9.That in the event that either party refuses or neglects to execute any deed, document or instrument within 14 days of a request to do so, the Registrar of the Court in which these Orders are made be appointed pursuant to Section 106A of the Family Law Act 1975 (Cth) to execute such deed, or instrument in the name of such party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of Affidavit.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:
These are Reasons for Judgment in respect of an application for property adjustment orders.
The applicant, Ms Sattar, and the respondent, Mr Hayati, were married in 2006 and divorced in 2016. There are three children of the marriage. The applicant has since re-married and has had two more children to her second husband.
The only property which is the subject of the application is a house in Suburb C, New South Wales, where the respondent has been residing since the parties’ separation. The house is in the respondent’s sole name.
At the commencement of the final hearing, leave was granted to the respondent pursuant to s.44(3) Family Law Act 1975 (Cth) for proceedings to be commenced out of time.[1] Following the making of this order, the Court’s jurisdiction to make property adjustment orders was enlivened.
[1] The applicant also pressed for orders that proceedings be commenced out of time, which the respondent opposed although he himself sought orders for property adjustment proceedings to be commenced out of time, which the applicant did not oppose.
The applicant moves the Court for orders that the Suburb C property be sold and that the proceeds of sale be split 70/30 in her favour. The respondent opposes the application and submits that there should be an order adjusting the parties’ property interests such that he simply retains the house in Suburb C.
For reasons which are explained, the Court has determined that there will be an order adjusting the parties’ property interests to 55/45 in favour of the applicant.
PROCEDURAL HISTORY
There were initially separate proceedings in respect of the divorce, which was granted in September 2016. The divorce application was filed on 16 June 2016, together with a number of affidavits.
The property adjustment proceedings have an unusual procedural history, and the competing applications which are the subject of this judgment are the second proceedings which have been commenced in respect of the same property.
On 25 September 2017, the applicant had initially filed an application for property adjustment orders in the Sydney Registry (“first property proceedings”).[2] A short history of those proceedings is as follows:
(a)On 7 November 2017, it was the first return date;
(b)On 5 February 2018, there was a mention which was adjourned;
(c)On 28 March 2018, there was a mention which was adjourned with no appearance by the respondent;
(d)On 26 April 2018, there was a mention which was adjourned;
(e)On 14 September 2018, there was a mention which was adjourned;
(f)On 31 January 2019, there was a mention which was adjourned with no appearance by the applicant;
(g)On 9 July 2018, there was a mention which was adjourned as the parties indicated they had reached an agreement with no appearance by respondent; and
(h)On 14 May 2019, the proceedings were dismissed for want of prosecution with no appearance by the applicant or respondent.
[2] SYC6325/2017.
The parties’ filed documents across the three different court files contain a number of discrepancies and inconsistencies, not only as between that party’s own documents but also as between them. Where relevant, those inconsistencies and discrepancies have been discussed in these Reasons for Judgment. It is not clear whether the inconsistencies and discrepancies arise as a result of the parties’ mistakes, or the shear lack of attention to detail by those taking instructions. It is more than disappointing that the discrepancies and inconsistencies were not explained.
RELEVANT LEGAL PRINCIPLES
The overall approach to the determination of an application for property adjustment orders pursuant to s.79 of the Act was set out by the High Court in Stanford & Stanford.[3] Such approach was subsequently considered by the Full Court of the then Family Court in Bevan & Bevan,[4] Chapman & Chapman[5] and Scott & Danton.[6]
[3] [2012] HCA 52 (“Stanford”).
[4] [2013] FamCAFC 116 (“Bevan”).
[5] [2014] FamCAFC 91 (“Chapman”).
[6] [2014] FamCAFC 203 (“Scott”).
Once the issue of whether it is just and equitable to make any order is resolved, the Court is to then consider the contributions made by the parties as defined in s.79(4)(a) to (c), the matters set out in s.79(4)(d) to (g) and, in particular, the subjective considerations as to the parties by having regard to the provisions of s.75(2) in so far as they are relevant.
The Court is then to consider the justice and equity of the actual orders to be made, in the context of the Court’s obligations to make appropriate orders as provided for in s.79(1) of the Act.[7]
[7] Russell & Russell [1999] FamCA 1875; Teal & Teal [2010] FamCAFC 120.
The just and equitable requirement is “one permeating the entire process”. [8]
[8] Bevan at [86].
The “preferred” approach to the determination of an application under s.79 of the Act remains the well-known four-step approach, namely:[9]
(a)Firstly, making findings as to the identity and value of the property, liabilities and financial resources of the parties as at the date of the hearing.
(b)Secondly, the Court identifying and assessing the contributions of the parties within the meaning of ss.79(4)(a), (b) and (c), and determining the contribution-based entitlements of the parties expressed as a percentage of the net value of the parties’ property.
(c)Thirdly, identifying and assessing the relevant matters referred to in ss.79(4)(d), (e), (f) and (g) including, as a result of s.79(4)(e), the matters referred to in s.75(2) so far as they are relevant, and determining the adjustment (if any) that should be made to the contribution-based entitlements of the parties established at step two above.
(d)Fourthly, considering the effect of those findings and determinations, resolving what order is just and equitable in all the circumstances of the case.
FINDINGS OF FACT
[9] Hickey & Hickey & Anor [2003] FamCA 395 at [39] cited in Halstron & Halstron [2022] FedCFamC1A 65 at [29].
Background
The respondent was born in 1970, and is presently 53 years old.
The applicant was born in 1978, and is presently 44 years old.
According to the Divorce Order made in 2016, the parties were married in 2005. The parties were married in Country D by agents. They did not meet each other until the applicant migrated to Australia following the granting of a spouse visa.
In 2006, the parties commenced cohabitation in Australia.
In 2007, the parties’ first child, X, was born and is currently 16 years old.
In 2009, the parties’ second child, Y, was born and is currently 14 years old.
In 2010, the property at B Street, Suburb C, NSW (“Suburb C property”) was purchased in the respondent’s name for $278,000.
In 2012, the parties’ third child, Z, was born and is currently 10 years old.
In 2016, the parties’ divorce took effect.
In 2019, the applicant married her new partner in Country D and, in 2019, they had their wedding in Australia.
On 14 August 2019, the applicant filed a new Initiating Application, commencing the current proceedings.
In 2019, the applicant visited her new partner in Country D, returning to Australia in late 2019.
In 2020, the first child of the applicant and her new partner was born. Their second child was born in 2022.
In 2021, the applicant’s new partner moved to Australia.
Date of separation
In her application for divorce, the applicant affirmed that the parties separated on 4 May 2014, and that, at the time the divorce application was filed in 2016, they were living separated under the one roof at the Suburb C property.
The applicant deposed in an affidavit in the first property proceedings that the parties separated in or around June 2014, and that they remained living under the one roof until March 2017, when the applicant moved out with the children following assistance and intervention by the police. The Initiating Application in the first property proceedings noted the date of separation as 28 June 2014, and the date of divorce as 2017.
The applicant deposes in these proceedings that the parties decided they would separate and divorce in or around 2015. She also deposes that from early 2018 until mid-2019, she and the children moved back into the Suburb C property, but that the parties remained separated but living under the one roof.
The respondent deposes that the parties separated in about 2015, but that the applicant remained living in the Suburb C property until 2017.
As such, the Court finds that the parties separated no later than early-mid 2015 (i.e. not less than 12 months before mid-2016), and that they remained living separated under the one roof until early 2017. There was then a further period of time, from early 2018 to mid-2019, when the parties and the children again resided in the Suburb C property, although the parties were not living as a de facto couple and were not in a relationship. During this period of time the applicant travelled overseas.
Contributions
At the commencement of cohabitation neither party had any significant assets.
The respondent had been living in Australia since 2000, but he had not worked from 2003 and was in receipt of the Newstart allowance. Between 2013 and 2015, the respondent worked as a carer.
The applicant has been living in Australia since late 2006, and apart from some very short and sporadic periods, she has not been in paid employment since she migrated.
Between late 2006 and late 2010, the parties lived in rental properties.
In late 2010, the parties and children moved into the Suburb C property.
While the Suburb C property was purchased in the respondent’s sole name, the respondent was exempt from paying stamp duty and he received a $14,000 first home buyer’s grant towards the purchase price. The property was subject to a mortgage of $222,400 at the time of purchase.
The contract for the sale of land, dated 2010 as attached to the respondent’s affidavit, recorded a deposit of $27,800. Therefore, noting the purchase price was $278,000 and the borrowings of $222,400, there was an initial contribution of some $55,600 towards the purchase price, with $14,000 coming from the grant. It appears, therefore, that there was a cash contribution of some $41,600. At this stage, the parties had been cohabiting for nearly 4 years.
The respondent’s affidavit has attached to it the home loan application. It is clear from the respondent’s evidence that the information in that loan application was misleading and untruthful, at least in part. According to the loan application the respondent had savings of $49,000. No bank statement is relied upon to corroborate this assertion.
However, it must be that the parties had access to at least $41,600 at the time of purchase, and it is likely that most of these funds accumulated during the parties’ first four years of cohabitation and were contributed to, in part, on the parties’ behalf by members of their respective extended families.
The applicant was the primary homemaker and parent. She took on the bulk, if not all, of the homemaker and parental duties during all periods of time the parties lived under the one roof, including after separation. The applicant made some minor contributions of this kind. The respondent was mostly responsible for the upkeep and maintenance of the property.
The applicant has remained the primary carer for the parties’ children post separation.
While living in the Suburb C property, the parties carried out some minor renovations. There is very little reliable evidence about the costs of the renovations and indeed no evidence about the value added to the property as a result of the renovations.
During the parties’ relationship, the applicant was responsible for handling and managing the parties’ finances. While the parties had their own bank accounts into which they received benefit payments, as well as income from other sources from time to time, their money was essentially pooled to meet the costs of the family, including various overseas trips.
The Court finds that the respondent grossly exaggerated in his evidence his financial contributions, noting his limited income over the years.
After the parties separated, the respondent remained living in the Suburb C property. He has been responsible for the maintenance and upkeep of the property, as well as meeting all of the mortgage repayments. He has, however, had the benefit of sole occupancy for all of these years as well.
The Pool
At final hearing the pool consisted of the Suburb C property, the parties’ household contents, a motor vehicle each and some small savings. While each of the parties has a house full of furniture and contents, none of these assets have been valued. Each party also has a motor vehicle, once again, which have not been valued.
Indeed, there is no valuation evidence as to the Suburb C property. However, the evidence is that if there are any property adjustment orders made, the property must then be sold as the respondent does not have the capacity to refinance the loan and pay the applicant out.
Doing the best that it can, based on the parties’ documents, the Court finds that at final hearing the pool consisted of the following:
Ownership Description Value Applicant Motor Vehicle 1 Not known Applicant Cash in bank Not known Applicant Household contents Not known Respondent B Street, Suburb C Not known Respondent Motor Vehicle 2 Not known Respondent Cash in bank Not known Respondent Household contents Not known
Without any evidence to the contrary, it is inferred that the household contents, moneys in bank and motor vehicles of each of the parties are on par.
There remains an outstanding loan with Westpac Banking Corporation for $180,100.
Assessment as to Contributions
Having regard to the totality of the evidence, the Court assesses that the parties’ contributions have been equal throughout their relationship, including post separation when the parties continued to reside in the Suburb C property.
However, once the applicant left the Suburb C property, she made significant post separation contributions towards the care of the parties’ three children.
The overall contributions are assessed as 52% to the applicant and 48% to the respondent.
Future Needs
The parties are both middle aged and relatively healthy.
The applicant continues to be the parties’ three children’s primary care giver. The respondent pays minimal child support, if any.
The applicant has re-partnered and has the care of two more very young children. While she is upgrading her skills with a view to returning to paid employment, her earning capacity is limited by her skills, qualifications and lack of English proficiency.
The respondent does not have any significant earning capacity.
There will be a modest adjustment in favour of the applicant of 3%.
Overall Adjustment
In many matters which come before this Court, the requirement of whether it is just and equitable to make any orders is readily satisfied by the fact of the parties’ separation; as there is not, and will not thereafter, be the joint use of property by the parties. The requirement is primarily so satisfied in this instance.
Noting the earlier findings, there will be an overall adjustment in the applicant’s favour of 55%, to be satisfied by a payment to the applicant of 55% of the net proceeds of sale of the Suburb C property, and the balance to the respondent.
CONCLUSION
In all of the circumstances, the proposed adjustment and consequential orders are just and equitable.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 15 September 2023
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