Baddour & Baddour - [2023] FedCFamC2F 711

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Baddour & Baddour [2023] FedCFamC2F 711

File number(s): PAC 1048 of 2021

Judgment of: JUDGE NEWBRUN

Date of judgment: 14 June 2023

Catchwords: FAMILY LAW – PROPERTY – Court not satisfied that it would be unjust and inequitable if financial agreement were not binding on parties – Just and equitable property Orders made

Legislation: Family Law Act 1975 (Cth) ss 75(2), 79(2), 90G

Cases cited:
Hoult & Hoult [2013] FamCAFC 109

Lotta & Lotta [2017] FamCA 50

Division: Division 2 Family Law

Number of paragraphs: 139

Date of hearing: 22–23 May 2023

Place: Parramatta

Counsel for the Applicant: Mr Mathews

Solicitor for the Applicant: Khouzame Legal

Counsel for the Respondent: Mr Cairns

Solicitor for the Respondent: Legal Aid NSW Parramatta Family Law
ORDERS

PAC 1048 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR BADDOUR

Applicant

AND:
MS BADDOUR
Respondent

order made by:

JUDGE NEWBRUN

DATE OF ORDER:

14 June 2023

THE COURT ORDERS THAT:
1.Within 10 weeks the wife pay to the husband the sum of $175,427.
2.Failing the wife complying with the above Order, the matrimonial home located at C Street, Suburb D NSW, be then forthwith sold at a public auction by an agent agreed to and appointed by both parties with the proceeds of the sale of the former matrimonial home being distributed in the order set out below after the usual adjustments (up to completion) are made for any land tax, council rates or water rates:
(a)In discharge of the mortgage.
(b)Payment of all selling estate fees and marketing expenses in respect of the sale of the matrimonial home.
(c)Payment of all solicitor’s professional fees and disbursements in respect of the sale of the matrimonial home.
(d)As to the balance:
(i)The wife shall receive $347,199 less her half share of the expenses in b) and c) above,
(ii)The husband shall receive $175,427 less his half share of the expenses in b) and c) above.

3.The wife retain any motor vehicle which is currently registered in her name.
4.The husband retain any motor vehicle which is currently registered in his name.
5.That except as otherwise specified above, each party be declared the sole legal and beneficial owner, to the exclusion of the other party, of all furniture, household items, personal effects and belongings which is in his or her current possession or control.
6.That except as otherwise specified above, each party be declared the sole legal and beneficial owner, to the exclusion of the other party, of all superannuation entitlements, assets and financial resources of which he or she is the legal, registered or equitable owner or which is in his or her respective names or is in his or her current possession or control.
7.That except as otherwise specified above, each party shall be responsible for all outstanding debts and liabilities that may currently be held in their own name and such party shall release the other party from all liabilities with…

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 Baddour & Baddour

Details

AGLC: Baddour & Baddour [2023] FedCFamC2F 711
Case: [2023] FedCFamC2F 711
Decision Date

CaseChat Overview and Summary

The case of Baddour & Baddour was a final property hearing held before Judge Newbrun. The husband sought orders regarding the sale of the matrimonial home and the division of assets. The wife sought a declaration that a financial agreement dated 7 March 2016 was binding on the parties, and in the alternative, that the husband's application for relief be permanently stayed. The Court found that the wife's evidence was unreliable and accepted the husband's evidence where it conflicted with the wife's evidence. The Court concluded that it was not unjust or inequitable to enforce the financial agreement, as the parties had intended it as a device to secure financial security for the family during a vulnerable time. The Court then turned to the husband's application for alteration of property interests. The Court found that it was just and equitable to alter the property interests of the parties due to the breakdown of their relationship. The Court assessed the parties' contributions to the net assets and made an adjustment under section 75(2) of the Family Law Act 1975 (Cth) in favour of the wife. The Court made Orders for the sale of the C Street, Suburb D property if the wife did not pay the husband the sum of $175,427 within 10 weeks. The Court also made Orders for the division of personal property between the parties.

Orders