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Jabara & Gaber

Jabara & Gaber

Case [2021] FedCFamC1A 26 5 October 2021

Appeal

Jurisdiction

Spousal Maintenance

Partial Property Settlement

Res Judicata

Issue Estoppel

Family Law

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Jabara & Gaber [2021] FedCFamC1A 26

Appeal from: Gaber & Jabara [2021] FCCA 210

Appeal number(s): EAA 22 of 2021

File number(s): PAC 106 of 2019

Judgment of: AINSLIE-WALLACE J

Date of judgment: 5 October 2021

Catchwords: FAMILY LAW – APPEAL – FINANCIAL – Interim spousal maintenance – Where the primary judge made an order that the wife pay the husband weekly spousal maintenance – Partial property distribution – Where the primary judge made an order that the wife pay the husband a sum by way of partial property settlement – Leave to appeal granted – Appeal allowed in part – The order for a partial property distribution is set aside and remitted for rehearing – No order as to costs.

Legislation: Family Law Act 1975 (Cth) ss 75, 79

Cases cited:
Carlson & Carlson (2019) FLC 93-934; [2019] FamCAFC 245

CDJ v VAJ (1998) 197 CLR 172

Marchant & Marchant (2012) FLC 93-520; [2012] FamCAFC 181

Medlow and Medlow (2016) 306 FLR 183; [2016] FamCAFC 34

Shepherd v The Queen (1990) 170 CLR 573; [1990] HCA 56

Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466 ; [2009] FamCAFC 166

Number of paragraphs: 56

Date of hearing: 20 July 2021

Place: Sydney

Counsel for the Appellant Mr Grew

Solicitor for the Appellant Coleman Greig Lawyers

Counsel for the Respondent Mr Fowler

Solicitor for the Respondent Watts McCray

ORDERS

EAA 22 of 2021
PAC 106 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MS JABARA

Appellant

AND:
MR GABER

Respondent

ORDER MADE BY:

AINSLIE-WALLACE J

DATE OF ORDER:

5 OCTOBER 2021

THE COURT ORDERS THAT:
1.Leave to appeal order 4 made on 9 February 2021 is granted.
2.The appeal against orders made on 9 February 2021 is allowed in part and Order 4 is set aside the appeal is otherwise dismissed.
3.The application for partial property distribution is remitted to the Federal Circuit and Family Court of Australia (Division 2) for rehearing by a judge other than the primary judge.
4.The application to adduce further evidence filed on 19 July 2021 is dismissed.
5.There be no order as to costs.

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.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Jabara & Gaber has been approved pursuant to s 121(9)(g)…

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 Jabara & Gaber

Details

AGLC: Jabara & Gaber [2021] FedCFamC1A 26
Case: [2021] FedCFamC1A 26
Decision Date

CaseChat Overview and Summary

Ms Jabara appeals against an interim spousal maintenance order and an order for partial property distribution made by a judge of the Federal Circuit Court on 9 February 2021. The order requires the wife to pay spousal maintenance of $500 per week to the husband. The wife further seeks leave to appeal an order that she pay the husband $100,000 by way of partial property distribution. This order has been stayed pending the disposition of the appeal. The wife sought leave to appeal and if leave is granted to appeal against these orders. The court found that leave should be granted in respect of the appeal against the partial property order. The wife contended that the husband was able adequately to maintain himself and was not therefore entitled to an order for spousal maintenance. The court concluded that the primary judge’s determination that the husband was not able adequately to support himself was open to her and no error is shown. The husband sought an order in the nature of a partial property settlement so that he could use the money to pay his anticipated legal costs. The court found that the primary judge erred in making the order for partial property distribution and the order is set aside and remitted for rehearing by a judge other than the primary judge. The application to adduce further evidence filed on 19 July 2021 is dismissed. The appeal has succeeded in relation to one order and failed in relation to the order for maintenance. In those circumstances, the court makes no orders as to costs and each party pay his or her own costs of the appeal.

Orders