ASGAR & KASSAB - [2020] FCCA 391

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASGAR & KASSAB

[2020] FCCA 391

Catchwords:
FAMILY LAW – Property – assessment of contributions – justice and equity.

FAMILY LAW – Parenting – no opposition to orders sought.

Legislation:

Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 60CG, 61DA, 65DAA, 79
Evidence Act 1995 (Cth), s.140

Cases cited:

Bevan & Bevan [2014] FamCAFC 19
Black & Kellner (1992) FLC 92-287
Chapman & Chapman [2014] FamCAFC 91
In the Marriage of Weir (1992) 16
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR v GR [2010] HCA 4
Russell & Russell (1999) FLC 92-877
Salah & Salah [2016] FamCAFC 100
Scott & Danton [2014] FamCAFC 203
Slater & Light [2011] FamCAFC 1
Stanford & Stanford [2012] HCA 52
Teal & Teal [2010] FamCAFC 120

Applicant:

MS ASGAR

Respondent:

MR KASSAB

File Number:

PAC 654 of 2016

Judgment of:

Judge Obradovic

Hearing date:

11 November 2019

Date of Last Submission:

11 November 2019

Delivered at:

Parramatta

Delivered on:

2 March 2020

REPRESENTATION

Counsel for the Applicant:

Mr Fermanis

Solicitors for the Applicant:

Phillip A Wilkins & Associates

Appearing for the Respondent:

Mr Livers

Solicitors for the Respondent:

Slattery Thompson Solicitor

ORDERS

The applicant shall have sole parental responsibility for the children X born in 2004, Y born in 2005 and Z born in 2009.
The children shall live with the applicant.
The children shall spend time with the respondent as agreed between the parties.
The respondent shall do all acts and things and sign all documents necessary to transfer his right, entitlement and interest in the land situate and known as A Street, Suburb B in the State of Victoria; and being the whole of the land situate in Crown Allotment to the applicant and the respondent shall be responsible for all costs associated with such transfer.
Within 28 days of the date of these orders, the respondent shall pay to the applicant the amount of $8,820 to an account nominated by the applicant.
Subject to the orders herein each party is declared to be the sole and beneficial owner of all property whether in the sole name of that party or jointly with anyone else that is in the possession or control of such party including but not limited to bank accounts, motor vehicles, and interest in any superannuation fund.
In the event that either party refuses or neglects to sign or execute any document, instrument or writing or comply with any order herein after seven (7) days of being requested to do so by the other party in writing, then the Registrar of this Court be empowered pursuant to s.106A of the Family Law Act 1975 to sign and execute such document, instrument or writing on behalf of either party as may be necessary to give full force and effect to the Orders herein.
Remove all outstanding issues from the list of cases awaiting finalisation.

IT IS NOTED that publication of this judgment under the pseudonym Asgar & Kassab is…

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 ASGAR & KASSAB

Details

AGLC: ASGAR & KASSAB [2020] FCCA 391
Case: [2020] FCCA 391
Decision Date: 2 March 2020

CaseChat Overview and Summary

In the matter of *Asgar & Kassab*, heard before Judge Obradovic, the court dealt with applications concerning both parenting and property matters. The parenting orders sought by the applicant were not opposed by the respondent. The property dispute involved the assessment of contributions and considerations of justice and equity.

The primary legal issues before the court were to determine the appropriate parenting orders regarding the children X, Y, and Z, and to make final orders concerning the division of the parties' property, specifically addressing the family home and a monetary sum. The court was also required to consider the mechanism for enforcing compliance with its orders.

Judge Obradovic made orders granting the applicant sole parental responsibility for the children, with the children to live with the applicant. The children were to spend time with the respondent as agreed. In relation to property, the respondent was ordered to transfer his interest in the property at A Street, Suburb B, Victoria, to the applicant, bearing all associated costs. Additionally, the respondent was to pay the applicant $8,820 within 28 days. Each party was declared the sole and beneficial owner of all property in their possession or control, including bank accounts, motor vehicles, and superannuation interests, subject to the specific orders made. The court also empowered the Registrar to execute documents on behalf of a party who refused or neglected to comply with the orders, pursuant to section 106A of the *Family Law Act 1975*. All outstanding issues were removed from the list of cases awaiting finalisation.

Orders

Orders of the court

The applicant shall have sole parental responsibility for the children X born in 2004, Y born in 2005 and Z born in 2009.

The children shall live with the applicant.

The children shall spend time with the respondent as agreed between the parties.

The respondent shall do all acts and things and sign all documents necessary to transfer his right, entitlement and interest in the land situate and known as A Street, Suburb B in the State of Victoria; and being the whole of the land situate in Crown Allotment to the applicant and the respondent shall be responsible for all costs associated with such transfer.

Within 28 days of the date of these orders, the respondent shall pay to the applicant the amount of $8,820 to an account nominated by the applicant.

Subject to the orders herein each party is declared to be the sole and beneficial owner of all property whether in the sole name of that party or jointly with anyone else that is in the possession or control of such party including but not limited to bank accounts, motor vehicles, and interest in any superannuation fund.

In the event that either party refuses or neglects to sign or execute any document, instrument or writing or comply with any order herein after seven (7) days of being requested to do so by the other party in writing, then the Registrar of this Court be empowered pursuant to s.106A of the Family Law Act 1975 to sign and execute such document, instrument or writing on behalf of either party as may be necessary to give full force and effect to the Orders herein.

Remove all outstanding issues from the list of cases awaiting finalisation.

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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