Abdoo and Abdoo - [2010] FMCAfam 1117

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ABDOO & ABDOO

[2010] FMCAfam 1117

FAMILY LAW – Property settlement – parties married and divorced twice – credit – full and frank disclosure – findings in favour of innocent party – notional asset pool – attributing value to assets in Turkey that were not valued – compensation award for injury – contributions – neither party in employment – just and equitable.

Family Law Act 1975 (Cth) ss.44, 75, 79
Evidence Act 1995 (Cth) s.140

Lee Steere and Lee Steere (1985) FLC 91-626
Ferraro and Ferraro (1993) FLC 92-335
Clauson and Clauson (1995) FLC 92-595
Hickey (2003) FLC 93-143
C v C (2005) FLC 93-220
Russell v Russell (1999) FLC 92-877
JEL and DDF (2001) FLC 93-075
Phillips and Phillips (2002) FLC 93-104
Giunti and Giunti (1986) FLC 91-759
Briese and Briese (1986) FLC 91-713
Oriolo and Oriolo (1985) FLC 91-653
Black and Kellner (1992) FLC 92-287
Weir and Weir (1993) FLC 92-338
Tate v Tate (2000) FLC 93-047
Gollings & Scott (2007) FLC 93-319
Chang v Su (2002) FLC 93-117
Re NHC and RCH (2004) FLC 93-204
Milankov and Milankov (2002) FLC 93-095
Aleksovski (1996) FLC 92-705

Zubcic and Zubcic (1995) FLC 92-609

Hayne and Hayne (1977) FLC 90-265
Garrett and Garrett (1984) FLC 91-539
Reifek v McElroy (1965) 112 CLR 517
Helton v Allen (1940) 63 CLR 691
Briginshaw v Briginshaw (1938) 60 CLR 336

Applicant:

MS ABDOO

Respondent:

MR ABDOO

File Number:

MLC4987 of 2007

Judgment of:

Roberts FM

Hearing dates:

15, 16 March, 7 & 8 July 2010

Date of Last Submission:

8 July 2010

Delivered at:

Launceston

Delivered on:

13 October 2010

REPRESENTATION

Counsel for the Applicant:

Ms R Stoikovska

Solicitors for the Applicant:

Faram Ritchie Davies

Counsel for the Respondent:

Mr G Jackson

Solicitors for the Respondent:

Hartleys Lawyers

ORDERS

That pursuant to sub-section 44(3) of the Family Law Act 1975 (“the Act”) MS ABDOO (“the wife”) is granted leave to institute proceedings for alteration of property interests as between herself and MR ABDOO (“the husband”) pursuant Part VIII of the Act.
That the balance proceeds from the sale of the parties’ property at Property D in Victoria inclusive of interest (“the balance proceeds”) be divided as follows:
(a)the sum of $238,000 to the wife; and
(b)the entirety of the remaining balance to the husband.
That the wife’s solicitors are hereby authorised to distribute the balance proceeds in accordance with Order No.2 hereof.
That other than as is specifically provided for in these Orders the husband and the wife are each solely entitled to the exclusion of the other to all other property and chattels in the possession of each of the parties as at the date of these Orders.

IT IS NOTED that publication of this judgment under the pseudonym Abdoo & Abdoo is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
MELBOURNE

MLC4987 of 2007

MS ABDOO

Applicant

And

MR ABDOO

Respondent

REASONS FOR JUDGMENT

Applications

The applicant…

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 Abdoo and Abdoo

Details

AGLC: Abdoo and Abdoo [2010] FMCAfam 1117
Case: [2010] FMCAfam 1117
Decision Date

CaseChat Overview and Summary

In the Federal Magistrates Court, Roberts FM heard a case concerning the property settlement between MS ABDOO and MR ABDOO, who had been married and divorced twice. The wife sought leave to institute proceedings for the division of property and the transfer of her ex-husband's interest in their former matrimonial home. The husband responded that the assets should be distributed as deemed appropriate by the court. The wife submitted that all the remaining proceeds from the sale of their former matrimonial home should be awarded to her. The husband submitted that the assets should be divided 75% to him and 25% to the wife. Roberts FM found that the husband had not made full and frank disclosure of his assets and that he had deliberately tried to avoid such disclosure. The court held that it is the justice and equity of the actual orders that the court must consider, and that in the absence of full disclosure it is open to the court to make findings in favour of the innocent party. The court determined that the wife's evidence was more credible than the husband's, and that the husband had tried to deprive the wife of her entitlement to a just and equitable property settlement. The court ascertained the nature and extent of the asset pool, and attributed values to the assets in Turkey that had not been valued. The court also considered the contributions made by each party, and found that the husband made significantly greater direct financial contributions than the wife, but the wife's contributions to the welfare of the family were considerably greater than those of the husband. The court also took into account the matters referred to in sub-section 75(2) of the Act, and concluded that there should be a 7.5% adjustment in favour of the wife. The court decided that the notional asset pool was $505,000, and that the wife should receive $238,000 from the remaining proceeds of the sale of their former matrimonial home, with the remaining balance inclusive of any further interest going to the husband.

Orders