Sinha & Kapil - [2022] FedCFamC2F 1595

Federal Circuit and Family Court of Australia
(DIVISION 2)
Sinha & Kapil [2022] FedCFamC2F 1595

File number(s): PAC 6972 of 2021

Judgment of: JUDGE MURDOCH

Date of judgment: 23 November 2022

Catchwords: FAMILY LAW – PROPERTY SETTLEMENT – Application for property adjustment – Undefended hearing – Proceedings on foot for over a year – Where the husband failed to attend court on multiple occasions - orders made adjusting the interests of the parties.

Legislation:
Family Law Act 1975 (Cth) ss79, 75(2), 74

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 rr1.04, Ch 6

Cases cited:
Bevan and Bevan; [2013] FamCAFC 116

Black v Kellner (1992) FLC 92-287

Fields & Smith [2015] FamCAFC57

Horrigan & Horrigan [2020] FamCAFC 25

Stanford and Stanford [2012] HCA 52

Weir v Weir [1992] FamCA 69

Division: Division 2 Family Law

Number of paragraphs: 78

Date of hearing: 8 September 2022

Place: Parramatta

Solicitor for the Applicant Mr Roberts of Counsel

Solicitor for the Respondent Litigant in Person (did not participate)

ORDERS

PAC 6972 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS SINHA

Applicant

AND:
MR KAPIL

Respondent

order made by:

JUDGE MURDOCH

DATE OF ORDER:

23 NOVEMBER 2022

THE COURT ORDERS THAT:
1.That within 28 days of the date of these Orders, the husband shall do all things and sign all documents necessary to transfer to the wife all his right, title and interest in:-
(a)The property situated at and known as B Street, Suburb C being the whole of the land contained within certificate of title folio identifier …; (“ the B Street, Suburb C property”); and
(b)The property situated at and known as D Street, Suburb E being the whole of the land contained within certificate of title folio identifier … (“the D Street, Suburb E property”).

2.That simultaneous with the husband’s compliance with Order 1, the parties do all such things as is required including signing all necessary documents to refinance the mortgage to the Australian and New Zealand Banking Group Limited secured over the D Street, Suburb E property into the sole name of the wife so as to remove the husband as borrower and guarantor, with the costs arising from such discharge to be shared equally between the parties.
3.In the event that the wife is unable to refinance the D Street, Suburb E mortgage into her sole name pursuant to Order 2 the parties shall do all acts and things and sign all such documents necessary to cause the D Street, Suburb E property to be sold in a manner determined by the wife and thereafter cause the proceeds of sale to be distributed upon settlement of the sale of said property in the following manner and priority:
(a)In payment of the costs associated with the sale including but not limited to the agent's commission, advertising and conveyancer's fees;
(b)In payment of any rates adjustment associated with the D Street, Suburb E Property;
(c)In payment of such amounts as required to…

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 Sinha & Kapil

Details

AGLC: Sinha & Kapil [2022] FedCFamC2F 1595
Case: [2022] FedCFamC2F 1595
Decision Date

CaseChat Overview and Summary

These are proceedings for alteration of property interests pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”). The parties separated in 2016 and a divorce order was granted on 22 July 2021. The wife seeks orders for property adjustment and the husband has not appeared in the proceedings. The Court found that it was just and equitable to make orders pursuant to s 79 of the Act adjusting the financial interest of the parties. The Court found that the wife’s contributions to the property pool were significantly higher than those of the husband. It also found that there were factors pursuant to s 79(4)(d)-(g) of the Act which favoured the wife. The Court accepted that the wife’s claim was just and equitable and made orders as sought by the wife. The husband shall transfer his interest in the properties at B Street, Suburb C, New South Wales (“the B Street, Suburb C property”) and D Street, Suburb E, New South Wales (“the D Street, Suburb E property”) and these properties will be refinanced into the wife’s sole name. The husband is restrained from doing anything to destroy, damage or otherwise diminish the value of the said properties. The wife is to retain the net proceeds of sale of the property situated at and known as Unit K, L Street, City M, Country J (“the Country J unit”). Each party is to retain all their items of personal property and be responsible for all debts in their sole names.

Orders