Attar & Melidis (No 2) - [2023] FedCFamC1F 444

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)

Attar & Melidis (No 2) [2023] FedCFamC1F 444

File number(s): BRC 3102 of 2020

Judgment of: CAREW J

Date of judgment: 2 June 2023

Catchwords: FAMILY LAW – PROPERTY – Where there is a dispute about whether the husband has a legal and equitable interest in multiple properties in Country K – Where there is an absence of corroboratory evidence – Where the husband has failed to comply with his duty to make full and frank disclosure and it is necessary to adopt a broad brush approach in assessing the parties’ assets and liabilities – Where the contributions made by each party over their 19 year marriage should be considered equal – Where there is to be no adjustment under s 75(2) as there are factors favouring each party which effectively cancel each other out – Where, to achieve equality, an order is made for the wife to pay the husband the sum of $388,245

Legislation:
Family Law Act 1975 (Cth) ss 45, 79, 75(2), 106A

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 25(2)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 6.01, 7.22, 7.23(c)

Cases cited:
Black & Kellner (1993) FLC 92–338

Hickey & Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93–143

In the Marriage of Townsend and Townsend (1995) FLC 92–569

M & M [1998] FamCA 42

Stanford v Stanford (2012) 247 CLR 108

Weir & Weir (1992) FLC 92–287

Number of paragraphs: 140

Date of hearing: 2 – 5 May 2023

Place: Brisbane

Solicitor for the Applicant: Mr Senior, solicitor advocate - Senior Legal Pty Ltd

Counsel for the Respondent: Mr Shoebridge

Solicitor for the Respondent: Stewart Family Law
ORDER

BRC 3102 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MR ATTAR

Applicant

AND:
MS MELIDIS

Respondent

order made by:

CAREW J

DATE OF ORDER:

2 JUNE 2023

THE COURT ORDERS THAT:
1.Within sixty (60) days of the date of this Order, the applicant shall do all necessary things and sign all necessary documents to transfer to the respondent his right, title and interest in the property situated at B Street, City C in the State of Queensland, more particularly described as Lot … on registered plan … and all land contained within title reference number … ("the City C Property").
2.Contemporaneously with the applicant complying with the terms of paragraph 1 of this Order:
(a)The applicant and the respondent shall do all necessary things and sign all necessary documents to enable the respondent to refinance into her name the mortgage owing to ANZ with mortgage account number …;
(b)The respondent shall pay to the applicant the sum of $388,245; and
(c)Any joint bank accounts shall be closed with the funds to be divided equally.

3.The applicant shall retain to the exclusion of the respondent all assets, liabilities and financial resources in the name, possession or control of the applicant, including…

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 Attar & Melidis (No 2)

Details

AGLC: Attar & Melidis (No 2) [2023] FedCFamC1F 444
Case: [2023] FedCFamC1F 444
Decision Date

CaseChat Overview and Summary

The case of Attar & Melidis (No 2) involves a dispute between a husband and wife regarding the division of their property following their separation. The wife argues for the inclusion of an apartment in City L in the balance sheet, the addition of funds withdrawn by the husband post-separation, and the exclusion of her legal fees. She also contends for equal contributions and seeks an equal division of the property. The husband, on the other hand, has his own set of claims and counterclaims regarding the property and financial arrangements. The legal issues before the court were to determine the appropriate valuation and inclusion of specific assets, the effect of post-separation financial withdrawals, and the calculation of legal fees to be included in the property settlement.

The court examined the submissions and evidence provided by both parties to ascertain the true value and contribution of each asset. It also considered the impact of the husband's health and business conditions on the financial standing of the parties. The court had to weigh the arguments regarding the inclusion of the apartment in City L and the notion of adding back the husband's post-separation withdrawals. Additionally, the court deliberated on the wife's request for an equal division of assets, taking into account the overall contributions of both parties. The court's reasoning was based on the principles of fairness and equality in property division as per the Family Law Act. The court found that the contributions of both parties were not equal, but adjustments for specific factors such as health and business impact led to a balanced outcome.

The outcome of the case resulted in a property settlement that reflected the unique circumstances of each party. The court ordered that the apartment in City L be included in the balance sheet, and a portion of the husband's post-separation withdrawals be notionally added back. However, the wife's legal fees were not included in the settlement. The final orders were based on a detailed assessment of the contributions and specific circumstances of both parties, leading to a property division that the court deemed fair and equitable.

Orders

Orders of the court

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Background

Background to the litigation

In summary, the wife submits that the apartment in City L should be included in the balance sheet, that the entirety of the sum withdrawn by the husband subsequent to separation should be notionally added back and that none of her legal fees should be added back. The wife submits that contributions should be assessed as equal and that any adjustments cancel each other out so that the division of the property should be 50/50. The precise terms of the order sought by the wife are set out in her amended Response filed on 1 April 2023 (save that the wife abandoned her claim for 52 percent of the assets in favour of an equal division). BACKGROUND The husband and wife met and married in 1998. They separated on a final basis on 5 November 2017 and a divorce order was made in Australia in 2019. There are two adult children of the relationship, Ms M born in 1999 and Ms N born in 2003. The husband is 68 years of age. He was born in Country K and travelled to the United Kingdom to complete his senior school and university education before immigrating to Australia in 1982. He was granted Australian citizenship in 1987. The husband is self-employed through his business, O Pty Ltd. The business involves advertising, particularly in Country K. The husband has operated the business for 23 years. It is common ground that the impact of the Covid-19 pandemic and the deterioration in the husband’s health has significantly impacted his business. The husband contends that his business has “ceased” although there was some suggestion during his oral evidence that he may have been undertaking some work on a limited basis. The husband is currently in receipt of an Australian pension from Centrelink of $610.50 per week. As at 28 April 2023, it was common ground that the husband had deposits in his Westpac Bank accounts of about $11,000. According to the husband, he was diagnosed with a serious illness in 2017 and was listed as a transplant patient in late 2017 (although the husband also gives an alternative year of that diagnosis being in 2014). The husband underwent a transplant in 2022 and suffers from a medical condition resulting from a post-operative complication. The husband is required to take about 17 medications daily. The wife is 58 years of age. She was also born in Country K and immigrated to Australia with the children in 2007 in the company of the husband. The wife is a health professional employed at the Q Centre. It is common ground that the wife has an earning capacity of $400,000 to $440,000 per annum. The wife graduated from the R University with a degree in 1995. Following graduation, the wife proceeded to work as a health professional from 1995-1997, before undertaking further specialist training in 1998. The wife completed her specialist training in 2000 and graduated in early 2001. The wife thereafter worked as a health professional until shortly prior to her immigration to Australia in 2007. On her relocation to Australia, she passed the necessary assessments by her professional organisation and gained employment with P Company commencing in mid-2011.

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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File number(s):	BRC 3102 of 2020
Judgment of:	CAREW J
Date of judgment:	2 June 2023
Catchwords:	FAMILY LAW – PROPERTY – Where there is a dispute about whether the husband has a legal and equitable interest in multiple properties in Country K – Where there is an absence of corroboratory evidence – Where the husband has failed to comply with his duty to make full and frank disclosure and it is necessary to adopt a broad brush approach in assessing the parties’ assets and liabilities – Where the contributions made by each party over their 19 year marriage should be considered equal – Where there is to be no adjustment under s 75(2) as there are factors favouring each party which effectively cancel each other out – Where, to achieve equality, an order is made for the wife to pay the husband the sum of $388,245
Legislation:	Family Law Act 1975 (Cth) ss 45, 79, 75(2), 106A Federal Circuit and Family Court of Australia Act 2021 (Cth) s 25(2) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 6.01, 7.22, 7.23(c)
Cases cited:	Black & Kellner (1993) FLC 92–338 Hickey & Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93–143 In the Marriage of Townsend and Townsend (1995) FLC 92–569 M & M [1998] FamCA 42 Stanford v Stanford (2012) 247 CLR 108 Weir & Weir (1992) FLC 92–287
Number of paragraphs:	140
Date of hearing:	2 – 5 May 2023
Place:	Brisbane
Solicitor for the Applicant:	Mr Senior, solicitor advocate - Senior Legal Pty Ltd
Counsel for the Respondent:	Mr Shoebridge
Solicitor for the Respondent:	Stewart Family Law

BRC 3102 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MR ATTAR Applicant
AND:	MS MELIDIS Respondent

order made by:	CAREW J
DATE OF ORDER:	2 JUNE 2023