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Asad & Asad

Asad & Asad

Case [2021] FedCFamC2F 557 14 December 2021

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Asad & Asad [2021] FedCFamC2F 557

File number(s): PAC 1903 of 2016

Judgment of: JUDGE NEWBRUN

Date of judgment: 14 December 2021

Catchwords: FAMILY LAW – property adjustment - final Orders made

Legislation:
Family Law Act 1975 (Cth), ss. 79A (1) (b), (c) and (d), 78, 79A, 79(2), 75(2), 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021, r. 10.13

Cases cited:
Cominos v Cominos [1972-73] ALR 581; (1972) 46 ALJR 593

1 Kennon v Kennon [1997] FamCA 27; (1997) FLC 92-757

Lotta & Lotta [2017] FamCA 50

Marras & Marras [1984] FamCA 56; (1985) FLC 91-635

2 Simpson & Hamlin [1984] FamCA 62, (1984) FLC 91-576, 9 Fam LR 1040

S & S [2003] FamCA 905

Division: Division 2 Family Law

Number of paragraphs: 74

Date of last submission/s: 13 October 2021

Date of hearing: 13 October 2021

Place: Parramatta

Counsel for the Applicant: Mr Schroder of Counsel

Solicitor for the Respondent No appearance for the Respondent
ORDERS

PAC 1903 of 2016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS ASAD

Applicant

AND:
MR ASAD

Respondent

ORDER MADE BY:

JUDGE NEWBRUN

DATE OF ORDER:

14 DECEMBER 2021

THE COURT ORDERS THAT:
1.That pursuant to section 79A (1) subsections (c) and (d) of the Family Law Act 1975 (Cth), the Orders made the 2^nd of August 2016 be set aside and the following Orders be made.
2.That the parties do all such things and execute all necessary documents
(a)To sell the property at B Street, Suburb C being the whole of the land contained in Folio Identifier … (hereinafter referred to as the “B Street, Suburb C property”) utilising D Real Estate, Suburb E as the agent and Rafton Family Lawyers as Solicitors acting on the sale.
(b)The parties shall sell the B Street, Suburb C property by either private treaty or public auction at the election of the Wife.
(c)On sale of the property to cause the proceeds of sale to be disbursed:
(i)In payment of agent fees, sale fees and commissions and adjustments under the terms of the contract for sale
(ii)In payment of any registered mortgage
(iii)In payment to the Wife 60% of the balance
(iv)In re-payment to the Wife any costs associated with the sale involving necessary preparation, restoration, or remedial work in relation to the property incurred by the Wife as per these Orders.
(v)In payment of the balance to the Husband.

3.That the Applicant Wife be and is hereby appointed as trustee for sale on behalf of the Husband, Mr Asad, of the property at B Street, Suburb C being the whole of the land contained in Folio Identifier ….
4.As a trustee for sale the Wife may exercise the following powers on behalf of the Husband:
(a)The trustee shall be entitled to sell the B Street, Suburb C property either by private treaty or public auction subject to the following provisions:-
(i)The offering…

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 Asad & Asad

Details

AGLC: Asad & Asad [2021] FedCFamC2F 557
Case: [2021] FedCFamC2F 557
Decision Date

CaseChat Overview and Summary

This was an undefended final hearing of property related proceedings between the parties. The wife sought certain orders against the husband who had not appeared to defend the wife’s proceedings. The wife sought orders under section 79A (1) (b), (c) and (d) of the Family Law Act 1975 (Cth) (“the Act”) setting aside final consent property orders of this Court made on 2 August 2016. The wife also sought certain property adjustment orders under section 79 of the Act. The court was satisfied that it was in the interests of justice for the wife’s applications to be heard on an undefended final basis. The court found that the husband had defaulted in carrying out obligations imposed upon him by orders 1 and 6 of the court’s orders of 2 August 2016; the husband failed within six months of those orders to pay the wife $225,000, and not having paid her that sum of money, failed to “do all acts and things and sign all documents to sell the B Street, Suburb C property by private treaty”. The husband had rejected every offer made between January 2018 and March 2018. The property went to auction in April 2018 with a new real estate agent and offers were placed. However, the husband did not consent to the property being sold. Since the last auction in April 2018 nothing had happened in relation to the property and the husband continued to not engage in any discussions with the wife about its sale. The court found that in the circumstances that had arisen as a result of the husband’s above defaults of the court’s orders of 2 August 2016, it was just and equitable to set those orders aside and make another order in substitution for the order, so as to take into account the present value of the property which was significantly greater than its likely lower value as at 2 August 2016. The court found that the husband had not seen the child since October 2017, being only about one year and two months since the making of the property orders of 2 August 2016, and the wife had been the sole carer of the child since that time. The husband had ceased to pay any child support since about August/September 2017, and the wife had solely maintained the child since that time. The court found that the husband ceasing to spend any time with the child in October 2017, and ceasing to pay any child support since about August/September 2017, being events relatively close to the making of the property orders of 2 August 2016, and related to the care, welfare and development of the child, were, in the court’s view, exceptional circumstances such as to take the matter out of the normal vicissitudes of life. The court found that the wife would suffer hardship if the court did not set aside the property orders of 2 August 2016 and make another order in substitution for such orders. It was likely that the consent final property orders of 2 August 2016, again noting the parties were legally represented, took into account the content of the final consent parenting orders providing, ultimately, for an equal time shared care arrangement. Had the final consent parenting orders provided for the husband to spend no time with the child from October 2017, and had it been known that the husband would cease to pay child support in August/September 2017, it was likely that a significantly greater property adjustment order in favour of the wife would have been made compared to the orders in fact made on 2 August 2016. The court found that the wife’s contributions during the relationship were considerable and she made the majority contribution in these respects compared to the husband. Post separation and up to October 2017, the wife again made the majority contributions in these respects. After October 2017 she solely made such contributions. The court found that there should be an adjustment in favour of the wife of 10%. This resulted in an adjusted contributions finding of 60% in favour of the wife, creating a disparity in her favour of $292,400. The court found that its proposed property adjustment orders would represent a just and equitable property settlement between the parties. The property should be sold. The net proceeds of sale of the property, after payment of the mortgage debt, and sale expenses, shall be divided between the parties as to 40% to the husband and 60% to the wife.

Orders