Daghers & Daghers
[2021] FedCFamC1F 299
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Daghers & Daghers [2021] FedCFamC1F 299
File number(s): SYC 2657 of 2020 Judgment of: REES J Date of judgment: 14 December 2021 Catchwords: FAMILY LAW – INTERIM FINANCIAL RELIEF – Competing applications for partial property settlement – Orders made in favour of the wife. Division: Division 1 First Instance Number of paragraphs: 18 Date of hearing: 13 December 2021 Place: Sydney Counsel for the Applicant: Mr O’Reilly Solicitor for the Applicant: Newnhams Solicitors Counsel for the Respondent: Mr Johnston Solicitor for the Respondent: Eakin McCaffery Cox ORDERS
SYC 2657 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS DAGHERS
Applicant
AND: MR DAGHERS
Respondent
ORDER MADE BY:
REES J
DATE OF ORDER:
14 DECEMBER 2021
THE COURT ORDERS:
1.That from the proceeds of sale of the property at B Street, Suburb C, the parties cause the sum of $750,000 be paid to the wife by way of partial property settlement.
2.That each party is at liberty to provide a copy of the sealed orders to D Solicitors when they provide their signed authority and direction to pay to give effect to Order 1 (for the attention of the Chief Executive Officer and the Chief Financial Officer, respectively by email to …).
THE COURT ORDERS BY CONSENT:
3.That within 14 days of the date of these orders, the husband shall provide to the wife the names of 3 remuneration experts and the wife shall select 1 of those experts to provide their expert opinion as a single expert under the Family Law Rules 2021 as to an appropriate market salary that would be paid to any person or persons fulfilling the work and roles undertaken by the husband in the business operated by Daghers & Partners trading as F Business with the costs of such expert report to be shared equally between the parties.
4.That the parties are granted liberty to relist before a Judicial Registrar if the parties cannot agree on an expert under order 3 above.
5.That pursuant to section 106A of the Family Law Act 1975 that in the event that a party to these orders refuses or neglects to execute any deed or instrument required to be executed to give validity or effect to these orders, a Registrar of this Court is appointed to execute such deed or instrument in the name of the party who neglects or refuses to sign any such deed or instrument upon the Registrar being provided with evidence of such refusal or neglect by way of affidavit sworn by any other party or parties or their legal representatives on the record.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Daghers & Daghers has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
REES J:
Ms Daghers (“the wife”) and Mr Daghers (“the husband”) separated in October 2018 (according to the wife) or March 2020 (according to the husband) after a marriage of some
41 or 43 years.
There is a dispute as to the net asset pool available for distribution between them.
The wife has filed a balance sheet in which she asserts that the amount available is:
Non-superannuation assets $7,072,524
Add backs of partial property
distributions and costs $1,233,686
Superannuation $1,333,720
Total $9,639,930
Less liabilities $ 374,207
Net $9,265,723
The husband disputes that assertion. The largest asset of the parties is the business which, at the time of separation, was owned by a corporation, Daghers Pty Ltd in which the shares were owned by the husband and the wife as equal shareholders and controlled by them as the two directors.
After separation, the husband, without reference to the wife, transferred her shares in the company to himself.
A single expert has valued the husband’s shares in the company at $5,292,000. The husband disputes that valuation and the wife has agreed to the appointment of a single remuneration expert to further the determination of that issue.
Before me, the husband contends for a value of some $2,300,000 for Daghers Pty Ltd which would bring the net pool of assets, for which the husband contends to $6,273,723.
The wife’s substantive position is that she would receive 60 per cent of the assets and the husband contends for an equal division.
Thus, on the husband’s case, the wife and the husband would each receive some $3,137,000.
The wife’s application before me is for a partial property settlement of $750,000 from the proceeds of sale of the jointly owned home at Suburb C, the net proceeds being $1,480,000.
The husband’s position is that the wife can have $750,000 but only on the basis that he receives, by way of partial property settlement, the balance of $730,000 and a further amount of $965,000, a total of $1,695,000.
The husband’s substantive application is that he would retain the shares in Daghers Pty Ltd valued by him at $2,300,000. It is immediately apparent that, if the husband receives a partial property settlement of $1,695,000 and retains the Daghers Pty Ltd shares, he will have received $3,995,000 which exceeds that to which he is entitled pursuant to his own case by some $858,000.
He does not contend for a lesser amount if his application is unsuccessful.
It is agreed that the wife has already received a partial property settlement of $965,000 and that, of that sum, $150,000 was to be used by the wife for her own support. The husband, however, contends that is not all the wife has received. He contends that she has also withdrawn $343,638 from the home loan account between June 2019 and June 2021. I infer that it is his case that those funds would be added to the partial property settlement and considered in the substantive proceedings as funds already received by the wife.
The wife has used some of the funds she received by way of partial property settlement to purchase a property in which to live for $700,000 and to purchase a small business for $115,000.
On the husband’s case then, the wife has already received some $1,308,638. If she receives $750,000, then she will have had $2,058,638 which is still less, by more than one million dollars, than the husband contends she should receive by way of substantive orders. Of that amount, at least the $700,000 she used to buy a house still will exist at the time of the hearing and can be brought back into the balance sheet if necessary.
Orders will be made as proposed by the wife.
There are a number of procedural orders sought by the husband to which the wife agrees and those orders will be made by consent.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Rees. Associate:
Dated: 14 December 2021
0
0
0