FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Essa & Azghar [2024] FedCFamC2F 255
File number(s): PAC 1502 of 2022 Judgment of: JUDGE MURDOCH Date of judgment: 5 March 2024 Catchwords: FAMILY LAW - PROPERTY SETTLEMENT - Where the wife seeks significant notional add backs to the property pool – Where such add backs are rejected - Where it is just and equitable to make an adjustment – Where a two pool approach is appropriate noting the substantial amount of superannuation held by the husband and where the husband seeks a superannuation splitting order – Where the husband has made higher financial contributions – Where the wife has been and continues to be the primary carer for the children, one of whom has special needs – Where at issue is the mix of superannuation and non-superannuation property each party is to receive - Where the children spend significant and substantial time with the husband – Contribution finding made in favour of the husband – Adjustment made in favour of the wife for future needs. Legislation: Evidence Act 1995 (Cth) s140
Family Law Act 1975 (Cth) ss 75(2), 79, 79(4)(d)-(g)
Cases cited: AJO & GRO [2005] FamCA 195
Edgehill & Edgehill [2007] FamCA 1102
Fields & Smith [2015] FamCAFC 57
Gollings & Scott [2007] FamCA 397
Horrigan & Horrigan [2020] FamCAFC 25
In the Marriage of Harrison (1996) 20 Fam LR 322
In the Marriage of Whitehead (1979) 5 Fam LR 308
Kowaliw and Kowaliw [1981] FamCA 70
Mayne & Mayne [2011] FamCAFC 192
NHC & RCH [2004] FamCA 633
Pierce & Pierce [1998] FamCA 74
Robb & Robb (1995) FLC 92-555
Stanford & Stanford (2012) FLC 93-518
Trevi & Trevi [2018] FamCAFC 173; and
Weir & Weir (1993) FLC 92-338
Division: Division 2 Family Law Number of paragraphs: 140 Date of hearing: 4-5 December 2023 Place: Sydney Counsel for the Applicant: Mr Mathews Solicitor for the Applicant: Unified Lawyers Counsel for the Respondent: Ms Cantrall Solicitor for the Respondent: Koffels Solicitors & Barristers ORDERS
PAC 1502 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ESSA
Applicant
AND: MS AZGHAR
Respondent
ORDER MADE BY:
JUDGE MURDOCH
DATE OF ORDER:
5 MARCH 2024
THE COURT ORDERS THAT:
1.The Wife have the first option to retain the property situated at B Street, Suburb C (“the Suburb C property”) and to this end the Wife is to notify the Husband in writing by no later than 4:00 pm on 15 March 2024 of her decision to exercise such option.
2.In the event the Wife elects to retain the Suburb C Property pursuant to Order 1 above the following is to apply:
(a)By no later than 4:00 pm on 15 April 2024 the Wife is to pay the Applicant Husband the sum of $522,683.
(b)Contemporaneously with Order 2(a) above the parties shall do all things as are necessary to discharge the loan secured by mortgage upon the Suburb C Property and the…
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CaseChat Overview and Summary
The court found that while the wife's request for notional add backs was rejected, an adjustment was warranted given the substantial amount of superannuation held by the husband. The court concluded that a two-pool approach was appropriate. The husband was found to have made higher financial contributions, but the wife's role as the primary caregiver, particularly for a child with special needs, warranted consideration. The court made a contribution finding in favour of the husband but also made an adjustment in favour of the wife for her future needs.
In summary, the court ordered that the wife had the first option to retain the Suburb C property, with specific conditions if she chose to do so or if she declined. The husband was granted the right to retain the property if the wife did not exercise her option or was unable to meet the conditions. The court also ordered a superannuation splitting arrangement, allocating a base amount to the wife. Both parties were required to indemnify each other for retained property and liabilities not addressed by the orders. Costs were reserved for 28 days, and all other applications were dismissed except for the issue of costs.
Orders
Orders of the court
PAC 1502 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR ESSA
Applicant
AND:
MS AZGHAR
Respondent
ORDER MADE BY:
JUDGE MURDOCH
DATE OF ORDER:
5 MARCH 2024
THE COURT ORDERS THAT:
1. The Wife have the first option to retain the property situated at B Street, Suburb C (“the Suburb C property”) and to this end the Wife is to notify the Husband in writing by no later than 4:00 pm on 15 March 2024 of her decision to exercise such option.
2. In the event the Wife elects to retain the Suburb C Property pursuant to Order 1 above the following is to apply:
(a) By no later than 4:00 pm on 15 April 2024 the Wife is to pay the Applicant Husband the sum of $522,683.
(b) Contemporaneously with Order 2(a) above the parties shall do all things as are necessary to discharge the loan secured by mortgage upon the Suburb C Property and the Wife shall pay all monies necessary to refinance such loan into the Wife’s sole name.
(c) Contemporaneously with Order 2(b) the parties shall do all things and sign all documents necessary to transfer the Husband’s right, title and interest in the Suburb C property to the Wife at the wife’s expense and the Wife shall thereafter retain this property to the exclusion of the Husband and forever indemnify him in respect of this property.
3. In the event the Wife elects not to retain the Suburb C property as contemplated by Order 1 or is unable or unwilling to comply with Order 2 then the Husband shall have the right to retain the Suburb C property subject to the Husband within forty-two (42) days of either receiving notification from the Wife that she does not intend to retain the Suburb C Property pursuant to Order 1 or is unable or unwilling to comply with Order 2 the Husband shall pay the Wife the sum of $508,461.
4. Contemporaneously with Order 3:
(a) The parties will do all things reasonably necessary required and sign all documents necessary and the Husband will pay all monies necessary to refinance the loan secured by way of mortgage over the Suburb C property into the sole name of the Husband.
(b) The parties shall do all things and sign all documents necessary to transfer the Wife’s right, title and interest in the Suburb C property to the Husband at the Husband’s expense and the Husband shall thereafter retain this property to the exclusion of the Wife and forever indemnify her in respect of this property.
5. In the event that the Husband is unwilling or unable to comply with Order 4, then within twenty-one (21) days of the Husband’s non-compliance, the parties shall do all things and sign all documents necessary to cause the Suburb C property to be listed for sale and the following shall apply:
(a) The Suburb C property shall be listed for sale by a method to be determined by the nominated agent, as agreed between the parties and failing agreement:
(b) The Husband shall nominate three (3) agents and within seven (7) days of the Husband nominating three (3) agents, the Wife shall select one (1) of the nominated agents to act and that agent shall be appointed by the parties.
(c) In the event the Husband fails to nominate an agent pursuant to Order 5(b) above, the agent will be nominated by the Wife and shall be appointed to act on the sale.
(d) The listing price of the Suburb C property shall be agreed as between the parties, but failing agreement shall be determined by the real estate agent.
(e) In the event the parties fail to agree on the conveyancer to act on the sale of the Suburb C property, then within seven (7) days of such disagreement occurring, the following shall occur:
(i) The Husband shall nominate three (3) conveyancers and within seven (7) days of the Husband nominating three (3) conveyancers, the Wife shall select one (1) to act and that conveyancer will be deemed to be appointed by the parties.
(ii) In the event the Husband fails to nominate a conveyancer pursuant to Order 5(e)(i) above, the conveyancer will be nominated by the Wife and shall be appointed to act on the sale.
6. In the event that the Suburb C property does not sell by way of private treaty or auction, the property shall be relisted for auction within a further two (2) months of the date of the previous auction, with reduced reserve price as agreed between the parties and failing agreement, as determined by the nominated agent.
7. Upon the settlement of the sale of the Suburb C property, the proceeds of the sale shall be applied in the following priority:
(a) Any adjustment of rates, taxes and charges;
(b) Agent’s costs and commission;
(c) Legal costs incurred in relation to the sale;
(d) Discharge of the joint mortgage account with the ANZ bank, being the account bearing the number …;
(e) In payment of the remainder of the balance in the following priority:
(i) In payment of $522,683 of the balance to the Husband;
(ii) In payment of the balance to the Wife.
8. Within twenty-eight (28) days of the date of the making of these Orders, the parties shall do all things necessary to cause the following:
(a) The monies held in the ANZ Account ended #...31 to be paid evenly to the parties;
(b) The monies held in the ANZ Access Advantage Account ended #...86 to be paid evenly to the parties; and
(c) The parties do all things necessary and sign all required documents so as to close the above accounts.
9. There be a superannuation splitting Order affecting the interest of the Applicant Husband, Mr Essa (“the Applicant”) in Super Fund 1 (“the Fund”) Member Number … in the following terms:
(a) That a base amount of $118,775 is allocated, as required by Section 90XT(4) of the Family Law Act 1975 (Cth) (“the Act”) to the Respondent Wife, Ms Azghar (“the Respondent”) out of the Applicant’s interest in the Fund.
(b) In accordance with Section 90XT(1)(a) of the Act, whenever a splitable payment within the meaning of Section 90XE of the Act becomes payable in respect of the Applicant’s interest in the Fund:
(i) The Respondent is entitled to be paid by the Trustee of the Fund the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth) using the base amount specified in Order 9(a); and
(ii) There shall be a corresponding reduction in the entitlement of the person to whom the splitable payment would have been made but for this Order.
(c) That whenever a splitable payment is made out of the Applicant’s interest in the Fund, Super Fund 1 (“the Trustee”) shall do all acts and things and sign all documents as may be necessary to pay the entitlement created in Orders 9 and 10 of these Orders in accordance with the requirements of the Act and the Family Law (Superannuation) Regulations 2001.
10. That this Order have effect from the operative time and the operative time is the fourth (4th) business day after an original certified copy of the sealed Orders is served on the Trustee.
11. This Order binds the Trustee, namely Super Fund 1.
12. Otherwise as provided for above, the Husband be solely entitled to the exclusion of the Wife to the following:
(a) All bank accounts in the Husband’s name or control;
(b) All motor vehicles in the Husband’s name or control;
(c) All superannuation in the Husband’s name;
(d) All other property and financial resources in the title, possession and/or control of the Husband as at the date of the making of these Orders.
13. Otherwise as provided for above, the Wife to be solely entitled to the exclusion of the Husband to the following:
(a) All bank accounts in the Wife’s name or control;
(b) All motor vehicles in the Wife’s name or control;
(c) The contents of the Suburb C property;
(d) All superannuation in the Wife’s name; and
(e) All other property and financial resources in the title, possession and/or control of the Wife as at the date of the making of these Orders.
14. Otherwise each party shall forever indemnify the other in relation to the property they are to retain pursuant to these Orders and in relation to any liability in their name not dealt with by these Orders, including but not limited to any liabilities, taxes and/or claims of whatsoever nature.
15. The parties shall do all acts and things necessary and give all consents and execute all documents and writings to give effect to these Orders in the time periods prescribed.
16. In the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, a Judicial Registrar of the Court be at liberty to sign on the non-compliant party’s behalf upon the filing of an affidavit by the complying party evidencing such failure or refusal.
17. The costs of both parties be reserved for a period of 28 days. Any costs application is to be by way of an Application in a Proceeding.
18. Other than the issue of costs, all extant applications are otherwise dismissed.
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.
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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