Goudarzi and Bagheri - [2016] FamCA 205

FAMILY COURT OF AUSTRALIA

GOUDARZI & BAGHERI

[2016] FamCA 205

FAMILY LAW – PROPERTY SETTLEMENT – Where the central dispute concerned the former matrimonial home – Where the former matrimonial home is the only jointly owned property – Where it is just and equitable to consider an adjustment to interests – Where the contributions by the husband’s father must be given proper recognition – Where the injection of such significant capital on behalf of the husband must move the assessment of contributions in his favour – Where the wife has the majority care of the parties’ two children – Where a significant adjustment in favour of the wife is justified as a result of one of the husband’s superannuation funds, which is in payment phase – Where otherwise the parties are to retain their own superannuation – Where the husband’s income earning capacity is greater than that of the wife – Where taking all the matters into account, a substantial adjustment should be made in the wife’s favour – Where the former matrimonial home is to be sold and the proceeds divided in such a way that there is an overall division of the identified asset pool in a ratio of 55 per cent to the wife and 45 per cent to the husband – Otherwise parties to retain all other assets in their respective name and possession

Family Law Act 1975 (Cth), ss 75, 78, 79, 106A

Bevan & Bevan [2013] FamCAFC 116
Semperton & Semperton (2012) 47 Fam LR 626
Stanford & Stanford (2012) 247 CLR 108

APPLICANT:

Ms Goudarzi

RESPONDENT:

Mr Bagheri

FILE NUMBER:

SYC

7646

2008

DATE DELIVERED:

4 April 2016

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Sydney

JUDGMENT OF:

Cleary J

HEARING DATE:

20-24 July 2015 &
30 November 2015

REPRESENTATION

APPLICANT:

In Person

COUNSEL FOR THE RESPONDENT:

Mr Cummings SC

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan

Orders

That pursuant to s 78 of the Family Law Act, the husband be declared the sole legal and beneficial owner of the following properties:
1.1the property situated at and known as G Street, Suburb H in the State of New South Wales being the whole of the property comprised in Certificate of Title folio identifier …;
1.2the property situated at and known as I Street, Suburb J in the State of New South Wales being the whole of the property comprised in Certificate of Title folio identifier …; and
1.3the property situated at and known as 1 K Street, Suburb L and the storage room at 2 K Street, Suburb L in the State of New South Wales being the whole of the property comprised in Certificate of Title folio identifier … and folio identifier ....
That pursuant to s 78 of the Family Law Act, the wife be declared the sole legal and beneficial owner of the following properties:
2.1the property situated at and known as M Street, Suburb N in the State of New South Wales being the whole of the property comprised…

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 Goudarzi and Bagheri

Details

AGLC: Goudarzi and Bagheri [2016] FamCA 205
Case: [2016] FamCA 205
Decision Date: 4 April 2016

CaseChat Overview and Summary

In Goudarzi and Bagheri, Cleary J of the Family Court of Australia was required to determine the property interests of the parties in a dispute concerning various real estate holdings and other assets. The proceedings involved the husband and wife, who sought orders regarding the division of their property.

The court was tasked with determining the legal and beneficial ownership of several properties, including the former matrimonial home, and to make orders for the sale of that home. Further issues included the allocation of responsibility for outstanding loans and rates pending the sale, and the ultimate distribution of sale proceeds. The court also needed to address the ownership of various other assets and liabilities held by each party individually.

Cleary J applied section 78 of the Family Law Act 1975 (Cth) to declare the parties as the sole legal and beneficial owners of specific properties. The court ordered the sale of the former matrimonial home by public auction within a specified timeframe, with a set reserve price. Detailed provisions were made for the appointment of a real estate agent and solicitor, and for the conduct of the sale. In the event the auction was unsuccessful, the court outlined a process for sale by private treaty, with further provisions for subsequent relisting by auction if necessary. The orders also stipulated how the proceeds of sale would be disbursed, including the payment of sale costs, outstanding rates, and the discharge of specific loans, with the balance to be divided between the parties in specified proportions. Each party was declared the sole owner of other identified assets, and they were to indemnify each other in respect of liabilities associated with those assets. The court also ordered that each party retain responsibility for their respective loans and debts, and released each other from all other debts.

Orders

Orders of the court

That pursuant to s 78 of the Family Law Act, the husband be declared the sole legal and beneficial owner of the following properties:

1.1 the property situated at and known as G Street, Suburb H in the State of New South Wales being the whole of the property comprised in Certificate of Title folio identifier …;

1.2 the property situated at and known as I Street, Suburb J in the State of New South Wales being the whole of the property comprised in Certificate of Title folio identifier …; and

1.3 the property situated at and known as 1 K Street, Suburb L and the storage room at 2 K Street, Suburb L in the State of New South Wales being the whole of the property comprised in Certificate of Title folio identifier … and folio identifier ....

That pursuant to s 78 of the Family Law Act, the wife be declared the sole legal and beneficial owner of the following properties:

2.1 the property situated at and known as M Street, Suburb N in the State of New South Wales being the whole of the property comprised in Certificate of Title folio identifier …;

2.2 the property situated at and known as O Street, Suburb P in the State of New South Wales being the whole of the property comprised in Certificate of Title folio identifier …; and

2.3 the property situated at and known as 1 Q Street, Suburb R in the State of New South Wales being the whole of the property comprised in Certificate of Title folio identifier ...

That the parties shall forthwith do all acts and things and sign all documents necessary so as to effect a sale of the former matrimonial home [meaning the real property situated at 2 Q Street, Suburb R in the State of New South Wales being the whole of the property comprised in Certificate of Title folio identifier … for the best price reasonably obtainable in the following manner:

3.1 the parties shall appoint an agreed real estate agent to act on the sale and, failing agreement within 14 days of the date of these Orders, the parties shall appoint the agent in the following manner:

3.1.1 the husband shall provide to the wife, in writing, within 21 days of the date of these Orders, the name and contact details of three (3) real estate agents for the wife’s consideration;

3.1.2 the wife shall select one of the real estate agents nominated by the husband and notify the husband, in writing, of her selection within 28 days of the date of these Orders;

3.1.3 in the event the wife does not notify the husband of her selection within 28 days of the date of these Orders, the husband shall select one of the real estate agents nominated by him and inform the wife of his selection within 35 days of the date of these Orders; and

3.1.4 the real estate appointed to act on the sale (“the agent”) shall be the real estate agent selected by the wife pursuant to Order 3.1.2 hereof or the real estate agent selected by the husband pursuant to Order 3.1.3 hereof.

3.2 the parties shall list the former matrimonial home for sale by public auction with a five (5) week marketing campaign, such auction to be held within 12 weeks of the date of these Orders;

3.3 the reserve price for the purposes of the auction shall be $8,480,000;

3.4 the parties shall each cooperate in every way with the agent including (without limiting the generality of the foregoing):

3.4.1 making the key available to the agent;

3.4.2 allowing inspection of the former matrimonial home at all reasonable times requested by the agent;

3.4.3 doing or saying nothing to hinder or prevent a sale being affected;

3.4.4 ensuring the former matrimonial home, including the grounds, are in a neat and clean condition at the time of inspection by the agent and prospective purchasers; and

3.4.5 signing all documents requested by the agent in relation to the listing for sale of the former matrimonial home, except a contract or agreement for sale, which has not been authorised by the solicitor.

3.5 The parties shall, unless otherwise agreed, appoint Mr S of T Legal as the solicitor to act on the sale of the former matrimonial home (“the solicitor”) and the parties shall each execute a contact for sale in the form prepared by the solicitor;

3.6 Neither party may confer on any agent (other than the agent appointed pursuant to Order 3.1 hereof) without the consent of the other party any right to any sole or exclusive agency in respect of the sale of the former matrimonial home or to any commission.

In the event the former matrimonial home is not sold by public auction in accordance with the provisions of Order 3 hereof, then the parties shall do all acts and things and sign all documents necessary so as to forthwith list the former matrimonial home for sale by private treaty on the following terms and conditions:

4.1 the parties shall list the former matrimonial home with the agent appointed pursuant to Order 3.1 hereof and in the event the agent is unable or unwilling to act on the sale of the former matrimonial home, the parties shall appoint another agent following the procedure as set out in Order 3.1 hereof;

4.2 the sale price at which the former matrimonial home shall be listed shall be such price as may be mutually agreed upon by the parties, or in the absence of agreement reached within 14 days of the listing of the former matrimonial home for sale pursuant to Order 4 hereof, shall be the price nominated as the fair market value by the single expert utilised by the parties in these proceedings in respect of the former matrimonial home, the costs of an incidental to obtaining that valuation to be shared equally between the parties; and

4.3 the provisions of Orders 3.4-3.6 hereof shall apply to the sale of the former matrimonial home.

If the former matrimonial home remains unsold on a date four (4) months from its listing pursuant to Order 4 hereof, the parties shall do all acts and things and sign all documents necessary to immediately relist the former matrimonial home for sale by public auction, on a date nominated by the agent with such auction to be held no later than eight (8) weeks of the date the former matrimonial home is listed for public auction, and at such auction there shall be no reserve price unless otherwise agreed by the parties in writing.

That pending settlement of the sale of the former matrimonial home:

6.1 the husband shall be solely responsible for payment of the loan repayments for the St George Bank residential loans, as and when they fall due, and is hereby restrained from further extending the said loans and/or from redrawing funds applicable to the said loans;

6.2 the parties shall be equally responsible for the payment of the strata levy payments to the Owners of Strata Plan No. … relevant to the former matrimonial home as and when they fall due and if any payments are not made by the husband or the wife (“the first party”) and the other party makes such payments for the first party, the total amount of the payments made by the other party shall be deducted from the share of the sale proceeds the first party is to receive and paid to the other party; and

6.3 the wife shall be solely responsible for the payment of the council rates and water rates for the former matrimonial home as and when they fall due and if any payments are not made by the wife and the husband makes such payments for the wife, the total amount of the payments made by the husband shall be deducted from the share of the sale proceeds the wife is to receive and paid to the husband.

That upon completion of the sale of the former matrimonial home, the parties shall do all acts and things and sign all documents necessary to have the proceeds of sale disbursed in the following manner and priority:

7.1 all costs and expenses of sale, including legal costs and disbursements, advertising expenses, agent’s commission;

7.2 the amounts required to pay all council and water rates outstanding with respect to the former matrimonial home; and

7.3 the balance shall be divided as to 35 per cent to the husband and

65 per cent to the wife provided that the amount required to discharge the St George Bank residential loans is provided from the husband’s share of the funds.

That, as between the parties, the wife is hereby declared the sole legal and beneficial owner of all her right, title and interest in and to the following property, and the husband abandons all claim in respect of such property:

8.1 Motor vehicle 1;

8.2 wife’s furniture;

8.3 wife’s bank accounts;

8.4 wife's jewellery;

8.5 wife’s contents of the safety deposit box;

8.6 wife’s shares;

8.7 wife’s superannuation;

8.8 all other property or financial resources of whatsoever nature and kind in the possession or control of the wife;

AND the wife shall indemnify, and keep indemnified, the husband in respect of all liabilities in relation to the abovementioned property whenever and however arising.

That, as between the parties, the husband is hereby declared the sole legal and beneficial owner of all her right, title and interest in and to the following property, and the wife abandons all claim in respect of such property:

9.1 husband’s bank accounts;

9.2 husband’s furniture;

9.3 Motor vehicle 2;

9.4 Motor vehicle 3;

9.5 husband's superannuation;

9.6 all other property or financial resources of whatsoever nature and kind in the possession or control of the husband;

AND the husband shall indemnify, and keep indemnified, the wife in respect of all liabilities in relation to the abovementioned property whenever and however arising.

10.

That, save as otherwise provided for in these Orders, the husband and wife shall each retain responsibility for all loans and debts (including, but not limited to, home loans, personal loans, personal taxation liabilities, hire purchases, lease arrangements and credit card liabilities) standing in their sole names and/or associated with the property they are to retain and/or receive pursuant to these Orders and indemnify, and keep indemnified, the other party in respect of same.

11.

That, except as provided for by these Orders, each of the husband and wife release the other from all debts owing from one to the other.

12.

That all outstanding applications and responses of the parties be dismissed.

13.

That each party shall do all acts and things and sign all documents necessary, including providing all consent, to give effect to these Orders in the time periods prescribed in these Orders.

14.

In the event either party refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these Orders, then the Registrar of the Family Court of Australia shall be appointed pursuant to

s 106A of the Family Law Act to execute such deed, document or instrument in the name of the wife and/or husband and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.

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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