JALAL & MALKI - [2021] FamCA 637

FAMILY COURT OF AUSTRALIA

JALAL & MALKI

[2021] FamCA 637

PROPERTY SETTLEMENT – Just and equitable

Family Law Act 1975 (Cth) s 79

Bevan & Bevan (2013) FLC 93-545; [2013] FamCAFC 116
Hepworth v Hepworth (1963) 110 CLR 309; [1963] HCA 49
Lovine & Connor and Anor (2012) FLC 93-515; [2012] FamCAFC 168
Mallet v Mallet (1984) 156 CLR 605; [1984] HCA 21
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Steinbrenner & Steinbrenner [2008] FamCAFC 193

APPLICANT:

Ms Malki

RESPONDENT:

Mr Jalal

FILE NUMBER:

BRC

2053

2016

DATE DELIVERED:

27 August 2021

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Hogan J

HEARING DATE:

1 and 2 March 2021 and by way of written submissions filed 9 March 2021 and 15 March 2021

REPRESENTATION

THE APPLICANT:

In person and then by way of written submissions filed 9 March 2021

COUNSEL FOR THE RESPONDENT:

Mr MacDonald and by way of written submissions in reply filed 15 March 2021

SOLICITOR FOR THE RESPONDENT:

Stuart Percy & Associates

Orders

IT IS ORDERED BY WAY OF FINAL ORDER THAT

All previous Orders are discharged.
Within fourteen (14) days of them having been provided to her by the Respondent, the Applicant shall sign such documents as are necessary to cause her to resign from and otherwise cease to have any involvement in the following entities:
(a)the W Trust, being the discretionary trust established by Deed dated 28 November 2008 between Ms X as settlor and W Pty Ltd as trustee; and
(b)the D Investments Trust, being the discretionary trust established by Deed dated 15 July 2004 between Ms X as settlor and D Pty Ltd as trustee; and
(c)the C Family Trust, being the discretionary trust established by Deed dated 6 August 2003 between Mr V as settlor and W Pty Ltd as trustee; and
(d)the E Trust, being the discretionary trust established by Deed dated 3 February 2006 between Ms X as settlor and E Pty Ltd as trustee; and
(e)       F Pty Ltd ACN …; and
(f)        G Pty Ltd ACN …; and
(g)       W Pty Ltd ACN …; and
(h)       H Pty Ltd ACN …; and
(i)        J Pty Ltd ACN …; and
(j)        K Pty Ltd ACN …; and
(k)       L Pty Ltd ACN …; and
(l)        E Pty Ltd ACN …; and
(m)      D Pty Ltd ACN ….
For the purposes of Order (2) herein:
(a)the Applicant shall, within fourteen (14) days of being provided with the same by the Respondent, sign all such documents as may be required to:
(i)transfer or otherwise assign to the Respondent all shareholdings or interest of any nature whatsoever she has in any of the entities listed in Order (2); and
(ii)facilitate the appointment of the Respondent, or a person nominated in writing by him, as a director and/or secretary of any of the entities listed in Order (2) in her place; and
(iii)do all such acts and things and sign all necessary documents to transfer to…

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 JALAL & MALKI

Details

AGLC: JALAL & MALKI [2021] FamCA 637
Case: [2021] FamCA 637
Decision Date

CaseChat Overview and Summary

This matter concerned property settlement proceedings between Ms Malki (the Applicant) and Mr Jalal (the Respondent) in the Family Court of Australia. The parties commenced cohabitation in 1997, married in the same year, and separated in September 2011. They have no children together. The Applicant holds a PhD, while the Respondent is a professional. At the time of the proceedings, the Applicant was receiving financial support from casual work and Centrelink benefits, whereas the Respondent was self-employed.

The primary legal issue before the Court was to determine whether it was just and equitable to make orders altering the property interests of the parties, pursuant to section 79 of the *Family Law Act 1975* (Cth). This determination was necessary given the parties' separation and the cessation of their ability to consensually adjust their legal and equitable interests in property acquired during their relationship.

The Court found that it was just and equitable to make orders altering the parties' property interests. The Court's reasoning, as evidenced by the final orders, involved a comprehensive division of assets and liabilities. This included the Applicant's resignation from and transfer of all interests in various trusts and companies to the Respondent, and the Respondent's release of the Applicant as a guarantor for commercial facilities related to these entities. The proceeds from the sale of a property were to be distributed, with a specified amount to the Respondent and the balance to the Applicant. The parties were to retain specific assets and liabilities, including their respective superannuation entitlements, motor vehicles, and debts, with provisions for indemnification. The Court also appointed a Registrar to execute documents if a party failed to comply with the orders.

Orders