El Maalouf and Issa - [2020] FamCA 76

FAMILY COURT OF AUSTRALIA

EL MAALOUF & ISSA

[2020] FamCA 76

FAMILY LAW – DE FACTO PROPERTY – Where consideration of applicable principles – Where significant contributions by the de facto wife – Where de facto husband at hearing was in custody for third party fraud offences –Where assessment of contributions significantly favours the de facto wife – Where further adjustment in favour of de facto wife by reason of section 90SF(3) considerations in the Family Law Act 1975 (Cth).

Family Law Act 1975 (Cth) ss 90SF, 90SM

Bevan & Bevan [2014] FamCAFC 19
Brandt v Brandt [1997] FamCA 21; (1997) FLC 92-758
Chapman & Chapman [2014] FamCAFC 91
Farmer and Bramley [2000] FamCA 1615
Fontana & Fontana [2018] FamCAFC 63
Harris & Harris (1991) 104 FLR 458
Kessey and Kessey (1994) FLC 92-495
Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513
Russell & Russell (1999) FLC 92-877
Scott & Danton [2014] FamCAFC 203
Stanford v Stanford [2012] HCA 52
Teal & Teal [2010] FamCAFC 120

APPLICANT:

Ms El Maalouf

RESPONDENT:

Mr Issa

FILE NUMBER:

PAC

2389

2017

DATE DELIVERED:

14 February 2020

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

24 and 25 October 2019 and by way of written submissions last received on 30 January 2020

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Jones of Adam Jones Solicitor

SOLICITOR FOR THE RESPONDENT:

Mr Morris of Circle Bridge Legal

Orders

That within six months from this date the applicant pay to the respondent the sum of $60,000.
That in default of the sum provided for in Order 1 being paid by the due date, the applicant and respondent sign all necessary documents and do all things necessary to sell the said property at H Street, Suburb J at the best price reasonably available and that from the net proceeds of sale the respondent be paid a sum that would then represent 12.5 per cent of the asset pool for adjustment as set out at [64] of these reasons for judgment.
That the wife do all things necessary to permit the husband or his nominee within one month from this date to collect the motorbike presently in her possession and such items of his clothing and personal effects that she agrees remain in her possession.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym El Maalouf & Issa has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 2389 of 2017

Ms El Maalouf

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 El Maalouf and Issa

Details

AGLC: El Maalouf and Issa [2020] FamCA 76
Case: [2020] FamCA 76
Decision Date: 14 February 2020

CaseChat Overview and Summary

In *El Maalouf and Issa*, Foster J of the Federal Circuit and Family Court of Australia considered a dispute concerning property adjustment. The applicant was ordered to pay the respondent a sum of $60,000 within six months. In the event of default, the parties were to take all necessary steps to sell a specified property, with the respondent to receive a sum representing 12.5 per cent of the asset pool from the net proceeds of sale.

The court was required to determine the appropriate property adjustment between the parties, including the valuation and division of assets. This involved considering the contributions of each party to the asset pool and making orders for the payment of a sum of money and the sale of property to achieve a just and equitable outcome.

Foster J applied principles of family law concerning property settlement, aiming to achieve a fair distribution of the parties' assets. The court's reasoning led to orders that included a lump sum payment and, as a fallback, the sale of a property to satisfy the respondent's entitlement. The court also made ancillary orders regarding the collection of a motorbike and personal effects.

Orders

Orders of the court

That within six months from this date the applicant pay to the respondent the sum of $60,000.

That in default of the sum provided for in Order 1 being paid by the due date, the applicant and respondent sign all necessary documents and do all things necessary to sell the said property at H Street, Suburb J at the best price reasonably available and that from the net proceeds of sale the respondent be paid a sum that would then represent 12.5 per cent of the asset pool for adjustment as set out at [64] of these reasons for judgment.

That the wife do all things necessary to permit the husband or his nominee within one month from this date to collect the motorbike presently in her possession and such items of his clothing and personal effects that she agrees remain in her possession.

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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