Girum & Kabede

Case [2023] FedCFamC1F 728

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Girum & Kabede [2023] FedCFamC1F 728

File number(s): MLC 3674 of 2021
Judgment of: CARTER J
Date of judgment: 25 August 2023
Catchwords:  FAMILY LAW – PROPERTY – modest pool – assessment of contributions – assessment of s 75(2) factors – child with special needs – whether there should be a superannuation splitting order – determination that orders enabling the wife to retain the home were just and equitable
Legislation: Family Law Act 1975 (Cth) ss 75, 79
Cases cited:

Aleksovski v Aleksovski (1996) FLC 92-705

Bevanv Bevan (2013) 279 FLR 1

Dickons v Dickons (2012) 50 Fam LR 244

Kennon v Kennon (1997) FLC 92-757

Kowaliw & Kowaliw (1981) FLC 91-092

Mallet v Mallet (1984) 156 CLR 605

Stanford v Stanford (2012) 247 CLR 108
Division: Division 1 First Instance
Number of paragraphs: 38
Date of hearing: 10 – 11 July 2023
Place: Melbourne
Counsel for the Applicant: Cameron Allen
Solicitor for the Applicant: MMH Lawyers
Counsel for the Respondent: Timothy Byrne
Solicitor for the Respondent: Shapra Lawyers

ORDERS

MLC 3674 of 2021

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

MR GIRUM

Applicant
AND:

MS KABEDE

Respondent

ORDER MADE BY:

CARTER J

DATE OF ORDER:

25 AUGUST 2023

THE COURT ORDERS THAT:

B Street, Suburb C

1.Within 60 days of these orders the husband do all things necessary to transfer to the wife all his right, title and interest in the property located at B Street, Suburb C VIC (‘the real property’).

2.Contemporaneously with the transfer;

(a)the wife refinance any mortgage secured over the real property into her sole name; and

(b)the husband remove at his expense any caveat lodged by him or on his behalf with regard to the real property.

Personal Loan

3.The wife assume responsibility for, and indemnify the husband fully against, the joint personal loan of the parties as owed to the Commonwealth Bank (being loan number …53).

Collection of chattels

4.Within 14 days of these orders, the parties agree on a date and time for the husband’s nominee, or for the husband in the presence of Victoria Police to personally attend the real property to collect such of the following chattels as the wife is able to locate:

(a)the husband’s vocational certificates including the certificate acquired in Country D;

(b)the husband’s photo albums that he brought from Country F including all his sporting career photos and family photos of his adult children; and

(c)the husband’s shoes and clothes.

Property to be retained by the husband

5.The husband retain for his sole use and benefit to the exclusion of the wife all other assets, resources and liabilities in his sole name and possession including, but not limited to, the following: 

(a)any monies in bank accounts in his sole name;

(b)any superannuation entitlements in his name;

(c)any motor vehicles in his name; and

(d)his personal effects and chattels in his possession.

Property to be retained by the wife

6.The wife retain for her…

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AGLC
Girum & Kabede [2023] FedCFamC1F 728
Case
[2023] FedCFamC1F 728
Decision Date

CaseChat Overview and Summary

In the case of Girum & Kabede, the court was asked to determine the appropriate division of assets and liabilities between the parties following their separation. Both parties submitted evidence and financial statements, with the wife relying on her affidavit and the husband on his. Both parties testified in court, with the husband making several concessions. The asset pool in question included a personal loan taken out by the wife in 2015, which the husband initially contested but ultimately conceded would be included as a joint liability. The wife agreed to continue repaying the loan.

The primary legal issue before the court was whether it was just and equitable to make an order for the division of property between the parties. The court noted that there is no presumption in favour of altering the parties' existing entitlements, but if it was just and equitable to do so, the court could make an appropriate order under the Family Law Act 1975 (Cth). Both parties agreed that it was just and equitable to make such an order, and the court found that this was one of the cases where the requirements of section 79(2) of the Family Law Act were fairly readily satisfied.

The court considered the proposals made by both parties for the division of assets. The husband proposed that the wife should pay him $19,304, and that each party should otherwise retain their assets and superannuation. The wife's counsel conceded that there was insufficient evidence to argue for a Kennon adjustment. The court noted that the husband's proposal would result in the wife retaining approximately 59% of the asset pool and the husband 41%. The court also considered the contributions of each party post-separation, including an incident in June 2018 when the husband crashed his vehicle into the former matrimonial home. The court ultimately determined that the incident was an accident and did not warrant an adjustment in favour of the wife.

The court made an order for the division of property between the parties, taking into account the asset pool, the contributions of each party, and the circumstances of the case. The specific details of the order were not provided in the text.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The parties were not able to agree whether there would be any further adjustment to achieve an appropriate division of the parties’ assets and liabilities on the basis of the parties’ respective contributions and needs. THE EVIDENCE The wife relied on her trial affidavit and Financial Statement filed 2 July 2023. The husband relied on his trial affidavit and Financial Statement filed 4 July 2023. Each party gave brief evidence, with the assistance of an interpreter. Both gave their evidence in a straightforward manner and appeared to answer questions directly. The husband in particular made appropriate concessions. THE ASSET POOL The parties were able to agree the asset pool comprised as follows: Whilst there was some suggestion from the husband that he did not know about the procurement of the personal loan taken out in around 2015, it was conceded that there was no evidence to suggest the funds were used other than for the benefit of the family unit. In those circumstances, it was further agreed that the loan would be included in the pool as a joint liability. As indicated, the wife has agreed she will continue to be responsible for the repayment of that loan, as she has been doing to date. IS IT JUST AND EQUITABLE TO MAKE AN ORDER? Prior to making any order that alters parties’ interests in property, I must be satisfied that it is just and equitable that such an order be made: Stanford v Stanford (2012) 247 CLR 108. There is no presumption that parties’ existing entitlements should be altered, or that one party has the right to have the parties’ property divided between them only on the basis of the considerations in s 79(4). If I am satisfied it is just and equitable for an order to be made, I am then empowered to make such order as I consider appropriate taking into account a number of factors as set out in s 79(4) and 75(2) of the Family Law Act 1975 (Cth), insofar as they are relevant. The parties both agree it is just and equitable that an order be made. I agree. In my view this is one of the “vast majority of cases” referred to by the plurality of the Full Court in Bevanv Bevan (2013) 279 FLR 1 at [164] in which the requirements of s 79(2) of the Family Law Act are fairly readily satisfied. If no adjustment is made, there could be no consideration as to the parties’ circumstances, including the wife’s primary care and support of the parties’ six children. In my view, it is plainly just and equitable to make an order pursuant to s 79 of the Family Law Act in these proceedings for a division of property between the parties.THE PARTIES’ PROPOSALS It was the husband’s case that the wife should pay him the sum of $19,304, and that each party otherwise retain their assets and superannuation. Counsel for the husband submitted that resulted in the wife retaining a little over 62% of the asset pool, on the assumption that the equity in the home was $210,000. However, on the pool as set out, this proposal equates to the wife receiving approximately 59% of the pool, and the husband 41%. On his proposal, the husband would receive or retain about 19% of the tangible pool, and almost the entire superannuation pool.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Counsel for the wife sensibly conceded there was insufficient evidence in his client’s affidavit material to provide a foundation for a Kennon argument (Kennon v Kennon (1997) FLC 92‑757). Contributions post-separation There is some dispute regarding contributions post separation. Part of that dispute relates to an incident which occurred in June 2018, being the date of separation. At that time, a vehicle the husband was driving crashed into the former matrimonial home, causing substantial damage. The wife was in the front bedroom with some of the children at that time. The police were called to the home and conducted an investigation. Ultimately, the husband was charged with an infringement. No criminal charges were laid. The wife and children moved into rental accommodation at that time. About four months after the accident, the wife received around $12,000 from the home insurance claim. Her evidence is that a modest amount of that claim was used to effect temporary repairs on the Suburb C property, but that most of the funds were used to house her and the children elsewhere in rental accommodation for a period. She and the children returned to live in the Suburb C property about six months later. The damage caused to the property in June 2018 has only been temporarily repaired. I note the husband asserted the wife used at least part of the insurance monies to fund an overseas holiday for herself and the children, which was denied by the wife. It was the wife’s evidence that the husband deliberately and repeatedly drove into the house, in what she said was an attempt to kill her. It was the wife’s contention that the husband’s actions that day, whether deliberate or reckless, damaged the property and reduced the value of the former matrimonial home. She said that should be treated as wastage by the husband. Her counsel referred to the case of Kowaliw & Kowaliw (1981) FLC 91-092. The Court in that matter determined that losses incurred by one party are generally to be shared by the parties, save where one party has embarked on a course of conduct aimed to reduce the matrimonial pool, or where one party has acted recklessly, negligently or wantonly such that the pool has been reduced. The husband objected to that approach. He said the incident was an accident, and occurred in circumstances where he had been working long hours, had consumed some alcohol and fallen asleep in the car. Whilst it is plain that substantial damage had been caused to the property, I was not provided with any evidence as to:(a)what impact the damage had on the value of the property; or(b)the costs of repairing the damage. In the absence of that evidence, it is impossible to quantify the loss the wife asserted to the value of the pool. It does appear from the photographs provided that there would need to be quite a large amount of work to repair and restore the property. Having heard the parties’ evidence about that evening, and in circumstances where there was a police investigation and the husband was not charged with any offences more serious than an infringement, I am not prepared to find that the husband deliberately damaged the home. I was more inclined to accept the husband’s evidence, that this was an accident. In those circumstances, I do not regard it as appropriate to make an adjustment in favour of the wife on the basis of the damage done to the home, particularly in circumstances where the wife has also had the benefit of a modest insurance claim being paid to her.