Jabour & Jabour

Case [2019] FamCAFC 78


FAMILY COURT OF AUSTRALIA

JABOUR & JABOUR [2019] FamCAFC 78

FAMILY LAW – APPEAL – PROPERTY – Contribution-based entitlements – Initial contributions – Where equal contributions made over a long period of time – Where property to be divided was rezoned and increased in value – Approach to the apportionment of the increase in value of the assets initially contributed discussed – Where the initial purchase of the property was a springboard for what occurred subsequently – Where increase in value of property through rezoning did not favour one party over the other – Weight to be attached to initial contribution to be assessed against rubric of all contributions made by the parties – Post-separation contributions – The weight afforded to a number of post-separation contributions – Procedural fairness – Appeal allowed – Orders set aside – Re-exercise – Where the primary judge assessed the husband’s contributions at 66 per cent – On re-exercise husband’s contributions assessed at 53 per cent.

FAMILY LAW – COSTS – Husband to pay wife’s costs.

Family Law Act 1975 (Cth) ss 75(2), 79, 79(4)

Baker v Towle (2008) 39 Fam LR 323; [2008] NSWCA 73
Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148
Bilous v Mudaliar (2006) 65 NSWLR 615; [2006] NSWCA 38
Christmas v Nicol Bros Pty Ltd (1941) 41 SR (NSW) 317
Dickons v Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154
Dublin, Wicklow & Wexford Railway Co v Slattery (1878) 3 App Cas 1155
House v The King (1936) 55 CLR 499; [1936] HCA 40
Hurst & Hurst (2018) FLC 93-851; [2018] FamCAFC 146
Kardos v Sarbutt (2006) 34 Fam LR 550; [2006] NSWCA 11
Kioa v West (1985) 159 CLR 550; [1985] HCA 81
Lee Steere and Lee Steere (1985) FLC 91-626; [1985] FamCA 57
Money and Money (1994) FLC 92-485; [1994] FamCA 54
Pierce v Pierce (1999) FLC 92-844; [1998] FamCA 74
Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110
Singerson & Joans [2014] FamCAFC 238
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
Steinbrenner & Steinbrenner [2008] FamCAFC 193
Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Wallis & Manning (2017) FLC 93-759; [2017] FamCAFC 14
Wells & Wells (1977) FLC 90-285; [1977] FamCA 62
Williams & Williams [2007] FamCA 313
Zappacosta v Zappacosta (1976) FLC 90-089; [1976] FamCA 56
Zyk & Zyk (1995) FLC 92-644; [1995] FamCA 135

APPELLANT: Ms Jabour
RESPONDENT: Mr Jabour
FILE NUMBER: MLC 3535 of 2014
APPEAL NUMBER: SOA 44 of 2018
DATE DELIVERED: 10 May 2019
PLACE DELIVERED: Perth
PLACE HEARD: Melbourne
JUDGMENT OF: Alstergren CJ, Ryan & Aldridge JJ
HEARING DATE: 11 December 2018
LOWER COURT JURISDICTION: Federal Circuit Court of Australia
LOWER COURT JUDGMENT DATE: 25 May 2018
LOWER COURT MNC: [2018] FCCA 928

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms Vohra SC with Mr Matta
SOLICITOR FOR THE APPELLANT: Hargreaves Family Lawyers
COUNSEL FOR THE RESPONDENT: Mr Kirkham QC with Dr Ingleby
SOLICITOR FOR…

Continue reading Jabour & Jabour

Sign in free to access the full text

Details
AGLC
Jabour & Jabour [2019] FamCAFC 78
Case
[2019] FamCAFC 78
Decision Date

CaseChat Overview and Summary

The appeal was brought by the husband, Jabour, against an earlier decision of the Family Court concerning the division of property between the parties. The primary dispute was regarding the apportionment of the increase in value of certain assets, specifically a property that was initially contributed to the relationship by one party and subsequently rezoned, leading to a significant increase in its value. The court was tasked with determining the extent to which the increase in value should be attributed to each party, considering the initial contributions and subsequent developments.

The court was required to address several legal issues, including the assessment of the initial contributions made by each party, the significance of the initial property as a springboard for later events, and the appropriate weight to give to post-separation contributions. The court also had to consider procedural fairness in the way the initial decision was reached. The central question was how to balance the initial contributions against all contributions made by the parties over the course of the relationship.

The court concluded that the primary judge had erred in assessing the husband's contributions at 66 per cent. On re-exercise of the relevant discretions, the court found that the husband's contributions should be assessed at 53 per cent. The court reasoned that while the initial purchase of the property was significant, it could not be considered in isolation. The increase in value through rezoning did not favour one party over the other, and therefore, the initial contribution needed to be assessed within the broader context of all contributions. The court also found that the procedural fairness of the initial decision was compromised, necessitating a re-exercise of the discretions. The appeal was allowed, and the orders were varied accordingly.

The final orders included allowing the appeal, varying the earlier orders to reflect a 53/47 per cent division of non-superannuation assets, setting aside a specific order, and directing the parties to agree on a new order. Additionally, it was ordered that the wife would pay the husband $100,000 from her share, and the husband was directed to pay the wife's costs of the appeal.

Orders

Orders of the court

1.

The appeal is allowed.

2.

Orders 6 and 7 made on 25 May 2018 are varied by replacing “66%” and “34%” with “53 per cent” and “47 per cent” respectively.

3.

Set aside Order 5(c) and direct the parties to forward to the Court within seven (7) days an agreed replacement order giving effect to the 53/47 per cent division of non-superannuation assets.

4.

It is further ordered, by consent, that from the sum to be received by the wife under Order 5(c), as varied, she is to pay to the husband $100,000.

5.

The husband is to pay the wife’s costs of and incidental to the appeal in the amount of $35,536.91.

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

Background

Background to the litigation

Full text does not contain this section.

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.