Easom and Burhan - [2019] FamCA 861

FAMILY COURT OF AUSTRALIA

EASOM & BURHAN

[2019] FamCA 861

FAMILY LAW – PROPERTY SETTLEMENT – Interim – significant amounts involved – dispute about whether husband or his sister was properly entitled to $11m – husband having access to a loan facility of up to $3m – that source of funds was well capable of meeting the wife’s claim to spousal maintenance and interim property orders – wife’s applications granted.

Child Support (Assessment) Act 1989 (Cth), pt 7 div 5
Family Law Act 1975 (Cth) ss 72, 74, 75(2), 77

Family Law Rules 2004 (Cth), ch 13

Bing & Bing [2007] FamCA 418
Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95
Foreman v Great Western Railway Co (1878) 38 LT 851
Gabel & Yardley (2008) 40 Fam LR 66

Hall v Hall (2016) 257 CLR 490
In the Marriage of Redman & Redman (1987) 11 Fam LR 411
In the Marriage of Stein (2000) 25 Fam LR 727

L’Estrange v F Graucob Ltd [1934] 2 KB 394
Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451
Parker v South Eastern Railway Co (1877) 2 CPD 416
Strahan & Strahan (2009) 42 Fam LR 203
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165
Whelpdale’s Case (1604) 77 ER 239

Zschokke & Zschokke (1996) 20 Fam LR 766

APPLICANT:

Ms Easom

FIRST RESPONDENT:

Mr Burhan

PROSPECTIVE SECOND RESPONDENT:

Ms Burhan

PROSPECTIVE THIRD RESPONDENT:

C Pty Ltd

PROSPECTIVE FOURTH RESPONDENT:

C Family Trust

PROSPECTIVE FIFTH RESPONDENT:

C2 Pty Ltd

PROSPECTIVE SIXTH RESPONDENT:

C2 Unit Trust

FILE NUMBER:

MLC

11409

2018

DATE DELIVERED:

25 November 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Wilson J

HEARING DATE:

12, 18 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr G Dickson of One of Her Majesty's Counsel

SOLICITOR FOR THE APPLICANT:

DSA Law

COUNSEL FOR THE FIRST RESPONDENT:

Mr M Wilson

SOLICITOR FOR THE FIRST RESPONDENT:

Lander & Rogers

COUNSEL FOR THE PROSPECTIVE SECOND RESPONDENT:

Not applicable

SOLICITOR FOR THE PROSPECTIVE SECOND RESPONDENT:

Pigdon Norgate Family Lawyers

COUNSEL FOR THE PROSPECTIVE THIRD RESPONDENT:

Not applicable

SOLICITOR FOR THE PROSPECTIVE THIRD RESPONDENT:

Pigdon Norgate Family Lawyers

COUNSEL FOR THE PROSPECTIVE FOURTH RESPONDENT:

Not applicable

SOLICITOR FOR THE PROSPECTIVE FOURTH RESPONDENT:

Pigdon Norgate Family Lawyers

COUNSEL FOR THE PROSPECTIVE FIFTH RESPONDENT:

Not applicable

SOLICITOR FOR THE PROSPECTIVE FIFTH RESPONDENT:

Pigdon Norgate Family Lawyers

COUNSEL FOR THE PROSPECTIVE SIXTH RESPONDENT:

Not applicable

SOLICITOR FOR THE PROSPECTIVE SIXTH RESPONDENT:

Pigdon Norgate Family Lawyers

Orders

The husband pay to the wife by way of lump sum spousal maintenance in the sum of $50 000.
Pursuant to Part 7 Division 5 of the Child Support (Assessment) Act1989 (Cth) the applicant husband is responsible for and pay all of the private school fees and associated educational expenses for the children of the marriage namely X born in 2003, Y born in 2005 and Z born in 2011, and such payments not be credited against any administrative assessment of child support in…

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 Easom and Burhan

Details

AGLC: Easom and Burhan [2019] FamCA 861
Case: [2019] FamCA 861
Decision Date: 25 November 2019

CaseChat Overview and Summary

In the matter of *Easom and Burhan*, heard by Wilson J, the dispute concerned financial and property matters arising from the dissolution of a marriage. The proceedings involved an application by the husband, which was largely dismissed, and a referral to the Senior Registrar for directions to progress the matter to trial.

The court was required to determine the appropriate orders regarding spousal maintenance, the payment of private school fees and associated educational expenses for the parties' children, responsibility for mortgage repayments and associated property outgoings on multiple properties, the exchange of motor vehicles, reimbursement for a significant payment made by the wife, and the provision of litigation funding for the wife's legal and accounting costs.

Wilson J ordered the husband to pay the wife a lump sum of $50,000 by way of spousal maintenance. The husband was also made responsible for all private school fees and associated educational expenses for the three children, with these payments to be made in addition to any administrative child support assessment. Further orders stipulated that the husband must continue to meet all mortgage repayments, rates, taxes, and body corporate fees for three specified properties. The husband was also directed to return the wife's motor vehicle, fully repaired, and in exchange, the wife was to return her motor vehicle to the husband. The husband was ordered to reimburse the wife $20,000 for a recently paid balloon payment and to provide $100,000 for the wife's litigation funding. The husband's interim application was otherwise dismissed.

Orders

Orders of the court

The husband pay to the wife by way of lump sum spousal maintenance in the sum of $50 000.

Pursuant to Part 7 Division 5 of the Child Support (Assessment) Act 1989 (Cth) the applicant husband is responsible for and pay all of the private school fees and associated educational expenses for the children of the marriage namely X born in 2003, Y born in 2005 and Z born in 2011, and such payments not be credited against any administrative assessment of child support in force from time to time.

The husband continue to meet all mortgage repayments, rates, taxes and body corporate fees (if applicable) on the properties situated at:

(a) D Street Suburb E (“The Suburb E Property”);

(b) F Street, Suburb G, with the associated two car parks (“the Suburb G Property”); and

(Jointly referred to as “the properties”).

The husband forthwith return to the wife her Motor Vehicle O, fully repaired and contemporaneously the wife shall return the Motor Vehicle P to the husband.

The husband reimburse the wife the sum of $20 000 for the balloon payment recently paid by the wife.

The husband pay by way of litigation funding the sum of $100 000 to the trust account of the solicitors for the wife, such funds to be utilised by the said solicitors to meet the wife’s legal and accounting costs of these proceedings.

The husband’s interim application is otherwise dismissed.

I refer the proceeding to the Senior Registrar for directions so as to expeditiously progress the proceeding to trial.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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