Gaber & Jabara

Case [2021] FCCA 210

FEDERAL CIRCUIT COURT OF AUSTRALIA

Gaber & Jabara [2021] FCCA 210

File number(s): PAC 106 of 2019
Judgment of: JUDGE OBRADOVIC
Date of judgment: 9 February 2021
Catchwords:

FAMILY LAW – Interim spousal maintenance – whether applicant demonstrated unable to support himself adequately.

FAMILY LAW – Interim property distribution – litigation funding – whether just and equitable.
Legislation: Family Law Act 1975 (Cth), ss 72, 75.
Cases cited:

Brown & Brown [2007] FamCa 151
Garston & Yeo (No. 2) [2019] FamCAFC 139
Hall v Hall [2016] HCA 23
Hanas & Jolaha (No. 4) [2019] FamCA 483
MS & PS [2006] FamCA 588
Strahan & Strahan [2009] FamCAFC 166
M v M [2006] FamCA 868
Maroney & Maroney [2009] FamCAFC 45
Osferatu & Osferatu [2012] FamCA 408

Williamson & Williamson [1978] FamCA 57

Number of paragraphs: 51
Date of hearing: 27 January 2021
Place: Parramatta
Counsel for the Applicant: Mr Fowler
Solicitors for the Applicant: Watts McCray
Appearing for the Respondent: Ms Ralston
Solicitors for the Respondent: Coleman Greig Lawyers

ORDERS

PAC 106 of 2019
BETWEEN:

MR GABER

Applicant
AND:

MS JABARA

Respondent

ORDER MADE BY:

JUDGE OBRADOVIC

DATE OF ORDER:

9 FEBRUARY 2021

THE COURT ORDERS THAT:

1.Pending further order, pursuant to section 74 of the Family Law Act 1975 (Cth), the Respondent pay to the Applicant, by way of spousal maintenance, the sum of $500 per week.

2.The spousal maintenance referred to in order (1) herein shall be paid in cash directly to the Applicant.

3.The first payment of spousal maintenance be made within 7 days from the date of these orders and thereafter on Wednesday of each week.

4.Within 14 days from the date of these orders, by way of partial property distribution, the Respondent do all acts and things to cause the sum of $100,000 to be paid to the Applicant or at his direction to the solicitors for the Applicant.

Pending further order, the Applicant is restrained by injunction from encumbering, selling, disposing or otherwise dealing with his legal interest in the property situated at and known as B Street, Suburb C in the State of New South Wales being more fully described in the Certificate of Title Folio Identifier ....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 under the pseudonym Gaber & Jabara is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

JUDGE OBRADOVIC

INTRODUCTION

  1. The applicant husband and the respondent wife were married for 20 years, from 1997 to 2017. They were divorced in April 2019.

  2. The parties have 4 children together, three of whom are now adults. The youngest is 16 years old and lives with the applicant, as do two of the three adult children.

  3. The applicant moves the Court for orders that the respondent pay him interim spousal maintenance in the amount…

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Gaber & Jabara [2021] FCCA 210
Case
[2021] FCCA 210
Decision Date

CaseChat Overview and Summary

In the matter of *Gaber & Jabara*, heard before Obradovic J of the Family Court of Australia, Mr Gaber (the applicant) sought spousal maintenance and an interim property distribution from Ms Jabara (the respondent). The respondent conceded her capacity to pay spousal maintenance.

The court was required to determine whether to make orders for spousal maintenance and an interim property distribution. Specifically, the court considered the appropriateness of ordering the respondent to pay $500 per week in spousal maintenance and to make a partial property distribution of $100,000 to the applicant. The court also considered whether to restrain the applicant from dealing with his interest in a property located at B Street, Suburb C, New South Wales.

Obradovic J applied section 74 of the *Family Law Act 1975* (Cth) to the spousal maintenance claim, finding it appropriate to order the respondent to pay $500 per week in spousal maintenance, pending further order. In relation to the interim property distribution, the court considered the overarching principle of the interests of justice, noting that special or compelling circumstances were not required. The court referred to *Strahan & Strahan* and *Osferatu & Osferatu* for the proposition that an interim property order requires some assessment of section 79 factors, ensuring the remaining property is sufficient for both parties or that the order can be reversed. The court noted the parties had cohabited for approximately 20 years, with significant disagreements regarding the valuation of assets, including a property owned by the applicant, funds withdrawn from a business account, and the respondent's property in City K, Country D.

The court ordered that, pending further order, the respondent pay the applicant $500 per week by way of spousal maintenance, to be paid directly to the applicant in cash, with the first payment due within 7 days and thereafter on Wednesdays. Additionally, within 14 days, the respondent was ordered to cause $100,000 to be paid to the applicant or his solicitors as a partial property distribution. The applicant was also restrained by injunction from encumbering, selling, disposing of, or otherwise dealing with his legal interest in the property at B Street, Suburb C, New South Wales.

Orders

Orders of the court

PAC 106 of 2019

BETWEEN:

MR GABER

Applicant

AND:

MS JABARA

Respondent

ORDER MADE BY:

JUDGE OBRADOVIC

DATE OF ORDER:

9 FEBRUARY 2021

THE COURT ORDERS THAT:

1. Pending further order, pursuant to section 74 of the Family Law Act 1975 (Cth), the Respondent pay to the Applicant, by way of spousal maintenance, the sum of $500 per week.

2. The spousal maintenance referred to in order (1) herein shall be paid in cash directly to the Applicant.

3. The first payment of spousal maintenance be made within 7 days from the date of these orders and thereafter on Wednesday of each week.

4. Within 14 days from the date of these orders, by way of partial property distribution, the Respondent do all acts and things to cause the sum of $100,000 to be paid to the Applicant or at his direction to the solicitors for the Applicant.

Pending further order, the Applicant is restrained by injunction from encumbering, selling, disposing or otherwise dealing with his legal interest in the property situated at and known as B Street, Suburb C in the State of New South Wales being more fully described in the Certificate of Title Folio Identifier ....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

The respondent has conceded that she has the capacity to pay spousal maintenance as sought by the applicant. Conclusion as to spousal maintenance In all of the circumstances, it is appropriate that an order be made, pending further order, that the respondent pay to the applicant spousal maintenance in the amount of $500 per week.INTERIM PROPERTY DISTRIBUTION When considering whether to exercise the power to make an interim property order, the overarching consideration is the interests of justice. The Court does not need to find any special or compelling circumstances. All that is required is that in the circumstances it is appropriate to exercise the power. However, in order to establish an appropriate case for interim property distribution, more is required than the mere fact that upon final hearing the applicant would receive the property being sought, or an amount in excess of what is sought (Strahan & Strahan [2009] FamCAFC 166 (“Strahan”); at [132], [139]). Whilst a detailed enquiry is not required, there must be some assessment of s.79 factors, “either the remaining property needs to be sufficient to meet the legitimate expectations of both parties at the final hearing, or the order that is contemplated needs to be capable of being reversed or adjusted if it is subsequently considered necessary to do so” (Osferatu & Osferatu [2012] FamCA 408 at [41]). In Strahan the Court has said:[79] The need for a party to proceedings under the Act to seek an order for the provision of funds to enable the payment of his or her legal costs of participating in the proceedings has been recognised for many years. It is a reflection of an important matter that distinguishes litigation under the Act from civil litigation between parties who are not parties to a marriage, namely that “very often the wealth of the parties is controlled by one rather than both of them”: (citation omitted)Determination as to interim property adjustment The parties lived together for approximately 20 years. At the commencement of the relationship, the husband did not have any assets while the wife says that she had an interest in a property in City K, Country D. The parties each assert financial and non-financial contributions during the period of their cohabitation. The parties do not agree as to the value of the asset pool. There appear to be three major points of disagreement, as follows:a.The applicant is the registered legal owner of a property at B Street, Suburb C, where he presently resides. He says that he holds this property on trust for himself, his mother, and his five siblings. The applicant says his share of the interest in that property is worth approximately $105,883, whilst the respondent says that as he is the legal owner the entire value of the property should be ascribed to him, which she estimates at $635,000.b.The respondent asserts that there should be an amount of $143,140 added to the asset pool being the pre-distribution to the applicant of funds from the business bank account (operated by J Pty Ltd). As noted earlier, the applicant does not concede receiving this amount, and says in any event that whatever moneys he spent between March 2017 and April 2018 was for the purposes of usual living expenses for him and the children. c.The respondent has property in City K, Country D the value of which is not agreed. The applicant asserts that the respondent’s interest in worth over $630,000 whilst the respondent asserts that her interest is worth approximately $300,000.

Ratio Decidendi

Legal Principle Established

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