Anwari & Anwari - [2008] FamCA 431

FAMILY COURT OF AUSTRALIA

ANWARI & ANWARI

[2008] FamCA 431

FAMILY LAW – PROPERTY – alteration of property interests

Family Law Act 1975 (Cth)

APPLICANT:

Mrs Anwari

RESPONDENT:

Mr Anwari

FILE NUMBER:

SYF

5380

1993

DATE DELIVERED:

23 June 2008

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

20 - 22.8.2007

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Stomo

SOLICITOR FOR THE APPLICANT:

Klonis & Co Lawyers

COUNSEL FOR THE RESPONDENT:

Ms Carr

SOLICITOR FOR THE RESPONDENT:

Hakki Nami Solicitor

Orders

Declaration

As between the parties, the wife holds the debt owed by R Anwari to herself in respect of which she has lodged a caveat on a property at W Street, on trust so that both R Anwari and W Anwari are entitled to a equal share in that debt.

Orders

Pursuant to s.79 of the Family Law Act an order be made in the terms of paragraphs 3 to 8 as set out below.
Within 14 days the parties do all things and sign all necessary documents so that the husband receives 70 percent of the funds held in the controlled money account (Account No. …) held with Bank of Queensland including accumulated interest and after State and statutory fees are deducted and that the wife receive 30 percent of the net monies in the controlled money account including interest and after the deduction of fees.
Whenever a splitting payment is payable in respect of the superannuation interest of the wife in the National Australia Bank Group Super Fund A:
4.1.The husband is entitled to be paid an amount calculated in accordance with the Family Law (Superannuation) Regulations 2001, using a base amount in the sum of $135,881 at the operative time of four (4) days from the date of this order upon the trustee;
4.2.There is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for this order.
The above order binds the trustee or trustees from time to time of the superannuation fund.
The parties be equally liable and for the payment of a liability of $3,679 to R Sand & Cement and in the event that either party has paid that account then the other party will pay the party who has paid the account the amount of $1,840.
Each party be solely entitled to the exclusion of the other to all other property, chattels and superannuation in their respective names or possession as at the date of these orders and that each party indemnify the other in relation to any debt associated with any asset that is kept by each of them respectively.
In the event that R Anwari and W Anwari each give her instructions to do so, the wife shall do all things necessary to withdraw her caveat on the W Street property.
If either party refuses or neglects to sign (within fourteen (14) days of a written request to do so) any documents necessary to effect…

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 Anwari & Anwari

Details

AGLC: Anwari & Anwari [2008] FamCA 431
Case: [2008] FamCA 431
Decision Date: 23 June 2008

CaseChat Overview and Summary

In *Anwari & Anwari*, Watts J of the Family Court of Australia considered a dispute between a husband and wife concerning the division of their property. The wife had lodged a caveat on a property at W Street in relation to a debt owed to her by R Anwari. The proceedings also involved the division of funds in a controlled money account, a superannuation interest of the wife, and other assets and liabilities.

The court was required to determine how the debt owed by R Anwari to the wife should be treated for the purposes of property settlement, and to make orders for the division of the parties' financial resources pursuant to section 79 of the *Family Law Act 1975* (Cth). This included determining the respective entitlements to funds in a controlled money account, a specific superannuation interest, and other assets and liabilities.

Watts J reasoned that the debt owed by R Anwari to the wife, in respect of which a caveat had been lodged, should be held on trust for the equal benefit of both R Anwari and W Anwari. The court then made orders for the division of the controlled money account, granting the husband 70 percent and the wife 30 percent of the net funds. The wife's superannuation interest was to be split, with the husband entitled to a specific calculated amount. The parties were to share equally liability for a debt to R Sand & Cement. All other property, chattels, and superannuation were to remain with the party in whose name or possession they were held, with each party indemnifying the other for associated debts. The wife was to withdraw her caveat upon joint instruction from R Anwari and W Anwari. Finally, the Registrar was appointed to execute documents if either party failed to do so within 14 days of a written request.

Orders

Orders of the court

Declaration

As between the parties, the wife holds the debt owed by R Anwari to herself in respect of which she has lodged a caveat on a property at W Street, on trust so that both R Anwari and W Anwari are entitled to a equal share in that debt.

Orders

Pursuant to s.79 of the Family Law Act an order be made in the terms of paragraphs 3 to 8 as set out below.

Within 14 days the parties do all things and sign all necessary documents so that the husband receives 70 percent of the funds held in the controlled money account (Account No. …) held with Bank of Queensland including accumulated interest and after State and statutory fees are deducted and that the wife receive 30 percent of the net monies in the controlled money account including interest and after the deduction of fees.

Whenever a splitting payment is payable in respect of the superannuation interest of the wife in the National Australia Bank Group Super Fund A:

4.1. The husband is entitled to be paid an amount calculated in accordance with the Family Law (Superannuation) Regulations 2001, using a base amount in the sum of $135,881 at the operative time of four (4) days from the date of this order upon the trustee;

4.2. There is a corresponding reduction in the entitlement of the person to whom the splittable payment would have been made but for this order.

The above order binds the trustee or trustees from time to time of the superannuation fund.

The parties be equally liable and for the payment of a liability of $3,679 to R Sand & Cement and in the event that either party has paid that account then the other party will pay the party who has paid the account the amount of $1,840.

Each party be solely entitled to the exclusion of the other to all other property, chattels and superannuation in their respective names or possession as at the date of these orders and that each party indemnify the other in relation to any debt associated with any asset that is kept by each of them respectively.

In the event that R Anwari and W Anwari each give her instructions to do so, the wife shall do all things necessary to withdraw her caveat on the W Street property.

If either party refuses or neglects to sign (within fourteen (14) days of a written request to do so) any documents necessary to effect the terms of these Orders, the Registrar of the Sydney Registry of the Family Court of Australia is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act to execute such documents on behalf of such party.

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

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