Huda & Huda - [2021] FamCAFC 118

FAMILY COURT OF AUSTRALIA
Huda & Huda [2021] FamCAFC 118

Appeal from: Huda & Huda [2020] FCCA 822

Appeal number:

NOA 48 of 2020

File number:

BRC 1238 of 2015

Judgment of:

KENT J

Date of judgment:

16 July 2021

Catchwords:

FAMILY LAW – APPEAL – PROPERTY – Where the primary judge found that the husband had no credibility as a witness, failed to provide any meaningful disclosure and has assets and financial resources that he has not disclosed – Where the husband does not challenge any of those findings on appeal – Where the primary judge found that the husband was to be solely responsible for repayment of a loan – Whether the primary judge ought to have found that the husband used the funds advanced to purchase property and improve the parties’ financial position – Whether the finding that the husband embarked upon a course of conduct designed to reduce or minimise assets was open to the primary judge – Where the husband was found to lack credibility and failed to disclose what he did with the money – Where the failure to challenge those findings supports the conclusion that the husband ought be solely responsible for the loan.

Legislation:

Family Law Act 1975 (Cth) ss 79, 94AAA(3)

Cases cited:

Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78

Hicks & Trustee of the Bankrupt Estate of Hicks (2021) FLC 94-006; [2021] FamCAFC 19

House v The King (1936) 55 CLR 499; [1936] HCA 40

Huda & Huda and Laham (2018) FLC 93-837; [2018] FamCAFC 58

Lee v Lee (2019) 266 CLR 129; [2019] HCA 28

Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57

Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22

Division:

Appeal Division

Number of paragraphs:

89

Date of hearing:

3 November 2020

Place:

Brisbane

Counsel for the Appellant:

Mr Fisher

Solicitor for the Appellant:

Raniga Lawyers

The Respondent:

In person

ORDERS

NOA 48 of 2020
BRC 1238 of 2015

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:
MR HUDA

Appellant

AND:
MS HUDA

Respondent

ORDER MADE BY:

KENT J

DATE OF ORDER:

16 JULY 2021

THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.There be no order as to costs of the appeal.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Huda & Huda has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
KENT J:

On 2 July 2020 the primary judge in the Federal Circuit Court…

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 Huda & Huda

Details

AGLC: Huda & Huda [2021] FamCAFC 118
Case: [2021] FamCAFC 118
Decision Date: 16 July 2021

CaseChat Overview and Summary

The appeal in Huda & Huda was brought by the husband, who sought to challenge the primary judge's findings in relation to property disputes between him and his wife. The husband contested the primary judge's conclusion that he should bear sole responsibility for a judgment debt obtained by a third party against him. The husband aimed to have the wife bear equal responsibility for the debt. The court was required to consider whether the primary judge's findings were supported by the evidence and whether the husband's failure to challenge certain findings on appeal affected the outcome.

The court examined the husband's credibility and his failure to provide meaningful disclosure about his financial circumstances, which the primary judge had relied on in rejecting the husband's case. The husband did not challenge these findings on appeal, which supported the primary judge's decision. The court also considered whether the primary judge was correct in finding that the husband had used the funds from the loan to purchase property and improve the parties' financial position, as well as whether the husband had embarked on a course of conduct to reduce or minimise assets. Given the husband's lack of credibility and failure to disclose what he did with the money, the court found that the primary judge's conclusions were well supported.

The court dismissed the husband's appeal and upheld the primary judge's orders, which meant that the husband remained solely responsible for the judgment debt. The court also made no order as to the costs of the appeal. This outcome was consistent with the primary judge's findings regarding the husband's credibility and disclosure failures.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. There be no order as to costs of the appeal.

Note: The form of the order is subject to the entry in the Court’s records.

Background

Background to the litigation

The orders made by the primary judge are predicated upon the conclusion by the primary judge that the husband ought bear sole responsibility for a judgment debt obtained by a third party, one Mr Laham, against the husband. The husband seeks to challenge on appeal the primary judge’s findings of fact supporting the conclusion that the husband ought bear sole responsibility for that debt. The husband seeks orders on appeal having the effect that the wife bear equal responsibility for the subject debt. Factual background/findings of the primary judge The husband was born in 1949 and is 72 years old. He was born in Country Q, arrived in Australia in approximately 1969 or 1970 and later became an Australian citizen. He is self-employed in the construction industry but otherwise very little is known of the husband’s financial circumstances as he has failed to provide adequate, or any meaningful, disclosure. The husband’s abject failure to disclose formed part of the primary judge’s reasoning for rejecting the husband’s case in respect of the loan from Mr Laham (discussed below). The wife was born in 1965 and is 55 years old. She was also born in Country Q, arrived in Australia in January 2000 and also later became an Australian citizen. As at trial the wife was a part-time retail assistant at Business A earning approximately $38,000 per annum. The parties commenced cohabitation in September 2002 and were married in 2003. There are two children of the marriage; C born in 2005 (14 years old as at trial) and D born in 2007 (12 years old as at trial). The parties separated on 3 January 2015 when the husband barricaded the former family home (conveniently referred to as “the Suburb G property”) and prevented the wife and children from entering the home. The relationship was therefore about 12.5 years in duration. As at trial there had been some 4.5 years since separation. The reasons for judgment in respect of parenting issues reflect that the wife has borne primary caring responsibility for the children throughout their lives, including in the lengthy post-separation period. The parenting orders made by the primary judge on 2 July 2020 see a continuation of the children living primarily with the wife and spending alternate weekend time with the husband. On 13 February 2015 the husband filed an Initiating Application seeking property and parenting orders. The first trial took place on 17, 18, 19 and 20 May 2016. Final property orders were made on 17 June 2016. The trial judge in that case rejected the case of the husband and of Mr Laham that there existed legitimate loans made by Mr Laham to the husband. The husband and Mr Laham filed separate Notices of Appeal against those orders. On 10 May 2018 the Full Court allowed both appeals,[1] concluding that the primary judge had failed to accord procedural fairness to the husband and Mr Laham. The Full Court remitted the matter for rehearing. [1] Huda & Huda and Laham (2018) FLC 93-837. The rehearing commenced on 29 July 2019. It was originally listed for four days and had been given priority. It eventually concluded after ten days.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Appeal from:	Huda & Huda [2020] FCCA 822
Appeal number:	NOA 48 of 2020
File number:	BRC 1238 of 2015
Judgment of:	KENT J
Date of judgment:	16 July 2021
Catchwords:	FAMILY LAW – APPEAL – PROPERTY – Where the primary judge found that the husband had no credibility as a witness, failed to provide any meaningful disclosure and has assets and financial resources that he has not disclosed – Where the husband does not challenge any of those findings on appeal – Where the primary judge found that the husband was to be solely responsible for repayment of a loan – Whether the primary judge ought to have found that the husband used the funds advanced to purchase property and improve the parties’ financial position – Whether the finding that the husband embarked upon a course of conduct designed to reduce or minimise assets was open to the primary judge – Where the husband was found to lack credibility and failed to disclose what he did with the money – Where the failure to challenge those findings supports the conclusion that the husband ought be solely responsible for the loan.
Legislation:	Family Law Act 1975 (Cth) ss 79, 94AAA(3)
Cases cited:	Devries v Australian National Railways Commission (1993) 177 CLR 472; [1993] HCA 78 Hicks & Trustee of the Bankrupt Estate of Hicks (2021) FLC 94-006; [2021] FamCAFC 19 House v The King (1936) 55 CLR 499; [1936] HCA 40 Huda & Huda and Laham (2018) FLC 93-837; [2018] FamCAFC 58 Lee v Lee (2019) 266 CLR 129; [2019] HCA 28 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57 Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22
Division:	Appeal Division
Number of paragraphs:	89
Date of hearing:	3 November 2020
Place:	Brisbane
Counsel for the Appellant:	Mr Fisher
Solicitor for the Appellant:	Raniga Lawyers
The Respondent:	In person

NOA 48 of 2020 BRC 1238 of 2015
APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:	MR HUDA Appellant
AND:	MS HUDA Respondent

ORDER MADE BY:	KENT J
DATE OF ORDER:	16 JULY 2021