Jabara & Gaber - [2022] FedCFamC2F 1527

Federal Circuit and Family Court of Australia
(DIVISION 2)
Jabara & Gaber [2022] FedCFamC2F 1527

File number(s): PAC 106 of 2019

Judgment of: JUDGE STREET

Date of judgment: 11 November 2022

Catchwords: FAMILY LAW – Property- resulting trust- presumption of advancement rebutted- declaration of resulting trust

Legislation: Family Law Act 1975 (Cth) s 79

Cases cited:
Napier v Public Trustee (WA) (1980) 32 ALR 133 at 158

Calverley v Green (1984) 155 242 at 266-267

Brown v Brown (1993) 31 NSWLR 582 at 588(c)-589(e)

Division: Division 2 Family Law

Number of paragraphs: 17

Date of hearing: 2 November 2022

Place: Parramatta

Counsel for the Applicant: Mr D Eardley

Solicitor for the Applicant: Moscardo Lawyers & Associates

Counsel for the First Respondent: Mr T Iuliano

Solicitor for the First Respondent: Hills Family Lawyers

Counsel for the Second Respondent: Mr D Eardley

Solicitor for the Second Respondent: Moscardo Lawyers & Associates
ORDERS

PAC 106 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR GABER

Applicant

AND:
MS JABARA

First Respondent

MS CASTELLA

Second Respondent

order made by:

JUDGE STREET

DATE OF ORDER:

2 NOVEMBER 2022

THE COURT DECLARES THAT:
1.Mr Gaber holds the property B Street, Suburb C Folio: … on resulting trust for Ms Castella.

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 a pseudonym Jabara & Gaber has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE STREET:

This matter was fixed for a property hearing on 2 November 2022 having been the subject of the commencement of s 79 of the Family Law Act 1975 (Cth) proceedings on 11 January 2019. The applicant father joined his wife as first respondent and his mother as second respondent. On 9 December 2021, the second respondent filed an application seeking a declaration that the applicant held a property being B Street, Suburb C, New South Wales, in folio …, identifier … (the Property) on trust for the second respondent.
The Court was informed that the parties have otherwise agreed upon orders that would resolve the property dispute between the parties and would facilitate a proposed financial maintenance agreement on each of the proposed orders. The Court has not seen those documents. However, the Court was informed that there was no opposition to determination of the issue of the relevant…

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 [2022] FedCFamC2F 1527
Case: [2022] FedCFamC2F 1527
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of Jabara & Gaber was heard concerning a dispute over the ownership of a property at B Street, Suburb C. The applicant, Mr Gaber, joined his wife, Ms Jabara, as the first respondent and his mother, Ms Castella, as the second respondent. Ms Castella sought a declaration that Mr Gaber held the property on trust for her. The matter was set for a property hearing on 2 November 2022, with the parties having previously agreed on orders to resolve the property dispute and facilitate a proposed financial maintenance agreement. The court treated the affidavits filed as evidence on the limited issue of the resulting trust, with no opposition to the determination of this issue.

The legal issues before the court involved determining whether the presumption of advancement had been rebutted and whether Mr Gaber held the property on trust for Ms Castella. The court considered the principles of resulting trusts and the presumption of advancement, as outlined in cases such as Napier v Public Trustee (WA), Calverley v Green, and Brown v Brown. The court examined the evidence provided by Ms Castella, who stated that she purchased the property with funds inherited from her late parents and placed it in Mr Gaber's name to assist him in gaining Australian citizenship. The court also considered the 2001 will made by Mr Gaber, which left the property to be shared equally among his siblings and his wife, Ms Jabara.

The court found that the presumption of advancement was rebutted by the evidence, as Ms Castella's intention was to place the property in Mr Gaber's name for a limited purpose and not to transfer the full beneficial interest to him. The will made by Mr Gaber did not reflect Ms Castella's actual intention, and the evidence supported the existence of a resulting trust in favour of Ms Castella. The court concluded that Mr Gaber held the property on trust for Ms Castella.

On 2 November 2022, the court declared that Mr Gaber holds the property B Street, Suburb C, on resulting trust for Ms Castella. The form of the order is subject to the entry in the Court’s records, and the court may review the judgment to remedy minor typographical or grammatical errors. 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).

Orders