Fazil & Fazil

Case [2023] FedCFamC1F 1015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Fazil & Fazil [2023] FedCFamC1F 1015

File number PAC 917 of 2019
Judgment of WILSON J
Date of judgment 29 November 2023
Catchwords FAMILY LAW – MAJOR COMPLEX FINANCIAL PROCEEDINGS LIST – two pools sought – one pool involving land in Country B the other involving property situated in Australia – “financial resource” – review of authorities – held, one pool approach adopted.
Legislation

Family Law Act 1975 (Cth) ss 75, 79

Federal Circuit and Family Court of Australia (Family Law) Rules 2021  
Cases cited

Bacall & Zagar [2020] FamCA 350

Black v Kellnar (1992) 15 Fam LR 343

British South Africa Co v Companhia de Mocambique [1893] AC 602

Fazil & Fazil [2021] FamCA 16

Galea v Galea (1990) 19 NSWLR 263

Girlock (Sales) Pty Ltd v Hurrell (1982) 149 CLR 55

Hall v Hall (2016) 257 CLR 490

Hurst & Weber [2009] FamCAFC 137

In the Marriage of Bonnici (1991) 15 Fam LR 138

In the Marriage of Kelly (No 2) [1981] FamCA 78

In the Marriage of Pierce (1998) 24 Fam LR 377

In the Marriage of Pittman [2010] FamCAFC 30

In the Marriage of Reynolds [1984] FamCA 67

In the Marriage of Zappacosta (1976) 2 Fam LR 11,214

In the Marriage of Zyk (1995) 19 Fam LR 797

Jabour v Jabour (2019) 59 Fam LR 475

Kannis v Kannis (2002) 30 Fam LR 406

Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361

Lloyd v Guibert (1865) LR 1 QB 115

Luxton v Vines (1952) 85 CLR 352

National Mutual Holdings Pty Ltd v Sentry Corporation (1989) 222 FCR 209

Neilson v Overseas Projects Corporation of Victoria (2005) 223 CLR 331

Richard Evans & Co v Astley [1911] AC 674

Paviello & Paviello [2022] FedCFamC1F 592

Stanford v Stanford (2012) 247 CLR 108

The Duchess Di Sora v Phillips (1863) 11 ER 1168

White and Tulloch v White (1995) 19 Fam LR 696

Zaruba & Zaruba [2017] FamCAFC 91

Division Division 1 First Instance
Number of paragraphs 182
Date of last submissions 2 November 2023
Date of hearing 3, 4 and 5 April 2023
Place Parramatta
Counsel for the applicant Mr D. Maddox
Solicitor for the applicant Hammond Nguyen Turnbull
Counsel for the respondent Mr A. Givney
Solicitor for the respondent John & Co Lawyers

ORDERS

PAC 917 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN

MR FAZIL

Applicant
AND

MS FAZIL

Respondent

ORDER MADE BY

WILSON J

DATE OF ORDER

29 NOVEMBER 2023

THE COURT ORDERS THAT –

Superannuation Split

1.In relation to the husband’s superannuation interest in Superannuation Fund 1 –

(a)there be an allocation for the purposes of s 90XT(4) of the Family Law Act 1975 a base amount of $53,328 to the wife from the husband’s interest in the Superannuation Fund 1 Fund;

(b)pursuant to s 90XT(1)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable in respect of the husband’s entitlements in the…

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AGLC
Fazil & Fazil [2023] FedCFamC1F 1015
Case
[2023] FedCFamC1F 1015
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of Fazil & Fazil involved the division of assets following a marriage breakdown. The central issue was the allocation of the parties' financial resources, including real properties in both Australia and Country B, and superannuation interests. Specifically, the court had to determine whether to create one or two separate pools for the division of assets and how to best allocate the financial resources between the parties.

The court examined the concept of "financial resource" as outlined in the Family Law Act 1975 and considered the authorities on the matter. It concluded that a one-pool approach was appropriate for this case, given the interconnectedness of the parties' financial situations. The court scrutinized the husband's claims about the wife's property interests in Country B, noting that the evidence provided was insufficient to substantiate his assertions. The wife denied these claims, and the court found her testimony credible. Consequently, the court adopted a one-pool approach for the division of assets, ensuring a fair and equitable distribution based on the evidence presented.

In its final orders, the court allocated specific amounts from the husband's superannuation funds to the wife, mandated the sale of the former matrimonial home under certain conditions, and outlined the division of proceeds from the sale of properties in Country B. The court also detailed the division of remaining assets and liabilities, ensuring each party retained ownership of specified assets and financial resources. The orders provided clear directives for the execution of these terms, including the appointment of agents and solicitors, and stipulated consequences for non-compliance.

Orders

Orders of the court

PAC 917 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN

MR FAZIL

Applicant

AND

MS FAZIL

Respondent

ORDER MADE BY

WILSON J

DATE OF ORDER

29 NOVEMBER 2023

THE COURT ORDERS THAT –

Superannuation Split

1. In relation to the husband’s superannuation interest in Superannuation Fund 1 –

(a) there be an allocation for the purposes of s 90XT(4) of the Family Law Act 1975 a base amount of $53,328 to the wife from the husband’s interest in the Superannuation Fund 1 Fund;

(b) pursuant to s 90XT(1)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable in respect of the husband’s entitlements in the Superannuation Fund 1 fund, the wife will be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount specified in paragraph 1(a) and there will a corresponding reduction to the entitlement the husband would have had in the Superannuation Fund 1 fund but for this order;

(c) paragraph 1(b) will take effect from the operative time bring four business days after the day a sealed copy of this order is served upon the trustee of the Superannuation Fund 1;

(d) having been afforded procedural fairness the trustee of Superannuation Fund 1 will be bound to observe the provision in paragraph 1 and the requirements pursuant to the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001; and

(e) there be liberty to apply to each party and the trustee of Superannuation Fund 1 in relation to the implementation of the orders affecting the superannuation interest.

2. In relation to the husband’s superannuation interest in Superannuation Fund 2 –

(a) there be an allocation for the purposes of s 90XT(4) of the Family Law Act 1975 a base amount of $61,420 to the wife from the husband’s interest in his Superannuation Fund 2;

(b) pursuant to s 90XT(1)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable in respect of the husband’s entitlements in his Superannuation Fund 2, the wife will be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount specified in paragraph 2(a) and there will a corresponding reduction to the entitlement the husband would have had in his Superannuation Fund 2 but for this order;

(c) paragraph 2(b) will take effect from the operative time bring four business days after the day a sealed copy of this order is served upon the trustee of the Superannuation Fund 2;

(d) having been afforded procedural fairness the trustee of Superannuation Fund 2 will be bound to observe the provision in paragraph 2 and the requirements pursuant to the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001; and

(e) there be liberty to apply to each party and the trustee of Superannuation Fund 2 in relation to the implementation of the orders affecting the superannuation interest.

3. In relation to the husband’s superannuation interest in Superannuation Fund 3 –

(a) there be an allocation for the purposes of s 90XT(4) of the Family Law Act 1975 a base amount of $31,344 to the wife from the husband’s interest in his Superannuation Fund 3;

(b) pursuant to s 90XT(1)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable in respect of the husband’s entitlements in his Superannuation Fund 3, the wife will be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount specified in paragraph 3(a) and there will a corresponding reduction to the entitlement the husband would have had in his Superannuation Fund 3 but for this order;

(c) paragraph 3(b) will take effect from the operative time bring four business days after the day a sealed copy of this order is served upon the trustee of the Superannuation Fund 3;

(d) having been afforded procedural fairness the trustee of Superannuation Fund 3 will be bound to observe the provision in paragraph 3 and the requirements pursuant to the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001; and

(e) there be liberty to apply to each party and the trustee of Superannuation Fund 3 in relation to the implementation of the orders affecting the superannuation interest.

Sale of former matrimonial home

4. By no later than Friday 24 May the parties shall do all acts and things and execute all documents necessary to effect a sale of the property situate J Street, Suburb K, New South Wales (“the Suburb K Property”) and so as to give effect to this paragraph, the following shall occur –

(a) the parties agree to appoint L Agent, City M (“the agent”) to sell the Suburb K Property;

(b) the parties agree to appoint N Lawyers, as the solicitors to act in relation to the conveyance of the Suburb K Property and their fees shall be born equally by the parties;

(c) the wife and husband must do all things to list the Suburb K Property for public auction or private treaty in the first instance, whichever may be recommended by the agent.

(d) in default of agreement, the wife and husband must accept the reserve price recommended by the agent;

(e) in the event the bidding at auction does not reach the reserve price, the wife and husband may jointly negotiate with the highest bidders or any other interested person and effect a sale of the Suburb K Property at a price which is not more than 10% below the reserve price or any other price as agreed between the wife and husband in writing; and

(f) in the event that any offers at private treaty do not reach the reserve price after a period of 6 months, the wife and husband may jointly negotiate with the highest bidders or any other interested person and effect a sale of the Suburb K Property at a price which is not less than 10% below the reserve price or any other price as agreed between the wife and husband in writing.

5. The wife and husband cooperate in every way with the agent (including without limiting the generality of the foregoing) –

(a) making the key available to the agent;

(b) allowing inspection of the property at all reasonable times requested by the agent;

(c) doing or saying nothing to hinder or prevent a sale being affected;

(d) doing all acts and things necessary to have a contract for sale prepared by N Lawyers; and

(e) doing all acts and things as required by the agent, except as provided for in these orders.

6. The husband shall ensure that the Suburb K Property is in a neat and clean condition at any time of inspection by the agent and prospective purchasers and provide vacant occupancy on settlement of the sale.

7. The husband shall be responsible to the exclusion of the wife, for payment of all outgoings and utilities for the Suburb K Property up until and including the date of settlement.

8. If the Suburb K Property is not sold within three months from the date of listing, the wife and husband shall within a further three months do all acts and things necessary to list the property for sale a second time by way of private treaty or private auction , whichever may be recommended by the agent appointed in the first sale (or a substitute agent agreed by the parties) , with the reserve price to be determined in the manner adopted in the first attempted sale.

9. Upon completion of the sale of the Suburb K Property in accordance with these orders, the proceeds of the sale shall be distributed as follows –

(a) in payment of an amount sufficient to discharge the mortgage over the Suburb K Property;

(b) to pay all costs and disbursements incurred in respect of the sale of the Suburb K Property including but not limited to agency fees, legal fees and valuers’ fees;

(c) in full payment of the council and water rates up to and including the date when the Suburb K Property is sold; and

(d) the total remaining amount of the proceeds of sale shall be transferred by way of payment to the wife’s solicitor’s trust account as follows –

O Bank

Hammond Nguyen Turnbull

BSB …

Account ….

10. In the event that either party refuses or neglects to execute any deed or instrument, a registrar of this court is appointed pursuant to s 106A of the Family Law Act 1975, to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation of the deed or instrument.

Sale of the C Street property, Country B

11. By no later than 28 June 2024 the wife shall do all acts and things and execute all documents necessary to effect a sale of the property situate at C Street, City F, Country B by appointing an agent, or listing the property for public auction (or the Country B equivalent).

12. The net proceeds of the sale shall be divided in the following manner –

(a) The wife shall retain 60% from the net proceeds of sale; and

(b) The husband shall retain 40% from the net proceeds of sale.

Sale of the D Street Property Street, Country B

13. By no later than 28 June 2024 the wife shall do all acts and things and execute all documents necessary to effect a sale of the property situate at, D Street, City F, Country B by appointing an agent, or listing the property for public auction (or the Country B equivalent).

14. The net proceeds of sale shall be divided in the following manner –

(a) The husband shall retain 40% from the proceeds of sale; and

(b) The wife shall retain 60% from the net proceeds of sale.

Sale of the real properties generally

15. For the avoidance of doubt, the wife shall pay 60% and the husband shall pay 40% of any fees and taxes including any capital gains taxes associated with the disposal of the real properties referred to in paragraphs 4 to 14 of these orders.

Division of remaining assets

16. The wife shall otherwise retain, to the exclusion of the husband, all her right, title and interest in the following assets –

(a) all funds in all of her bank accounts including but not limited to –

(i) Commonwealth Bank account ending …74;

(ii) Commonwealth Bank account ending …14

(b) all shares held in the wife’s name including but not limited to the P Shares;

(c) the Motor Vehicle 1 Registration number …;

(d) her superannuation entitlements; and

(e) all furniture, effects and personal belongings in her possession.

17. On or before 4pm Wednesday 7 February 2024 the husband shall do all acts and things to execute the transfer of the following sums to the wife into the wife’s solicitor’s trust account as nominated in paragraph 11(d) –

(a) $657 from the husband’s ANZ account ending …86;

(b) $33,356 from the husband’s ANZ account ending …37;

(c) $91,278 from the husband’s ANZ account ending …86;

(d) $86,461 from the husband’s Commonwealth Bank offset account ending …90;

(e) $76,000 from the husband’s Commonwealth bank offset account ending …11; and

(f) $500 from the husband’s ANZ account ending …03.

18. The parties shall do all acts and things required to ensure the husband retains full effective control of the company Q Pty Ltd and that the wife be discharged of any liability of Q Pty Ltd.

19. The husband shall otherwise retain, to the exclusion of the wife, all his right, title and interest in the following assets –

(a) all bank accounts in his name, subject to paragraph 17 above;

(b) his superannuation entitlements, subject to paragraphs 1 to 3 above;

(c) all furniture, effects and personal belongings in his possession; and

(d) his 25% share in the property situate R Street, City F.

20. Save as otherwise provided in these orders, the parties shall each pay, be liable for and forever indemnify the other against all liabilities, whether past, present or future and however arising in their sole names including but not limited to credit card and tax liabilities.

21. Unless otherwise specified in these orders and except for the purposes of enforcing compliance with the terms of theses orders –

(a) each party shall be solely entitled to the exclusion of the other to all property (including choses-in-action) and financial resources in the possession of such party as the date of these orders;

(b) each party hereby foregoes any claim they may have to any superannuation benefits or other employment related benefit belonging to or earned by the other;

(c) all insurance policies shall become the sole property of the owner named in the policy;

(d) each party shall be solely liable for and indemnify the other against any liability encumbering an item of property to which that party is entitled pursuant to these orders; and

(e) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

The wife left the former matrimonial home. The husband presently lives there. THE HUSBAND’S EVIDENCE ABOUT PROPERTIES IN COUNTRY B The husband is also known under another name.[21] His trial affidavit was made on 30 January 2023. He deposed to what he said were the wife’s property interests in Country B prior to his marriage to the wife, namely –(a)the C Street Property;(b)the D Street Property; (c)3 S Street, Suburb T;(d)2 S Street, Suburb T; and(e)1 S Street, Suburb T.[21] CB 352, 354 and 356. Before going any further with the narrative, it is important to point out that the wife was cross‑examined only faintly about her alleged ownership of land in Suburb T. The husband relied on a translated document that became exhibit “C” to his trial affidavit. The husband exhibited that document as being the certificates of title for the whole of the land at 3, 2 and 1 S Street, Suburb T. In other words, the husband relied on the document which was exhibit “C” to demonstrate that the wife had an interest in the land known as 3, 2 and 1 S Street, Suburb T. Even the most cursory reading of that document reveals that the wife appears to have no connection with the land described in exhibit “C”. Her name is not used at all. Nor are the property addresses used. Mr Givney cross-examined the wife about land in Suburb T. His question related to paragraph 45 of the husband’s trial affidavit which read as follows –When we lived in [Country B] between 1986 until 1991 I repaired the hot water boiler system, repaired the lighting system, oversaw the installation of air conditioning units, installed a backup power generator, and secured the water tank cluster during the […] War. I attended to these tasks on a weekly basis. In particular, I also attended to carrying out maintenance works across all three lots of the [S Street], [Suburb T] farmland property. This included performance and maintenance of the tractor, attendance to the water pumps and other machinery, maintenance and repair of the irrigation system, service of the trucks on the property, service of the air-conditioning unit and backup power generators, ploughing of the land, and spraying of pesticides on the crops. I attended to the maintenance of the [3], [2] and [1 S Street] proprieties on a weekly basis. The wife was cross-examined on that passage. She denied the husband’s version. The exchange was as follows –MR GIVNEY – All right. He talks about in paragraph 45 of his affidavit, which is the period between 1986 and ’91. He said that he carried out maintenance works across three lots, which are – which was a farming property at [Suburb T]. Do you remember that happening?[MS FAZIL] – Never happened.MR GIVNEY – So he has just made that up; is that right?[MS FAZIL] – Yes, I do.MR GIVNEY – All right. Okay. So he goes on to say he carried out various works, but you say that never happened? [MS FAZIL] – My brother used to live in that property, and we - - - [22][22] T 93 L 4 – 12.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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