Jaswal & Jaswal (No 2) - [2023] FedCFamC2F 349

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Jaswal & Jaswal (No 2) [2023] FedCFamC2F 349

File number(s): PAC 6301 of 2019

Judgment of: JUDGE MURDOCH

Date of judgment: 31 March 2023

Catchwords: FAMILY LAW – PROPERTY SETTLEMENT – where the parties were married for nine years and have one child – where neither party has complied with their continuing obligation of disclosure -where the wife makes allegations of family violence perpetrated against her – where the wife’s Kennon claim is not substantiated – where the parties made equal contributions throughout the relationship – where both parties have had access to significant monies post-separation – where both parties have diminished the asset pool available for distribution- where the wife has made higher non-financial contributions post-separation and will continue to do so – orders made adjusting the property of the parties 55 percent to the wife and 45 percent to the husband.

Legislation:
Family Law Act 1975 (Cth), 75 (2), 79(4)(d)-(g);

Federal Circuit and Family Court of Australia Act 2021 (Cth) s190;

Federal Circuit and Family Court of Australia Rules (2021) Chapter 6, r 1.04

Cases cited:
Black v Kellner [1992] FamCA 2

Fields & Smith [2015] FamCAFC 57

Hickey v Hickey & Attorney-General of the Commonwealth (Intervener) [2003] FamCA 395 at [39]

Horrigan & Horrigan [2020] FamCAFC 25

Kennon v Kennon [1997] FamCA 27

Norbis v Norbis [1986] HCA 17

Stanford & Stanford [2012] HCA 52

Division: Division 2 Family Law

Number of paragraphs: 143

Date of hearing: 6 March 2023 – 7 March 2023

Place: Parramatta

Counsel for the Applicant Mr Havenstein

Solicitor for the Applicant Sapphire Legal

Counsel for the Respondent Mr Maddox

Solicitor for the Respondent John Spence & Associates
ORDERS

PAC 6301 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS JASWAL

Applicant

AND:
MR JASWAL

Respondent

order made by:

JUDGE MURDOCH

DATE OF ORDER:

31 March 2023

THE COURT ORDERS THAT:
1.That within 42 days of these orders each party do all acts and things and execute all deeds, documents, instruments, and writings necessary to:-
(a)cause the property situated at B Street, Suburb C (“the B Street, Suburb C Property”) being the whole of the land contained in the certificate of title folio identifier … to be transferred to the Wife; and
(b)cause the property situated at D Street, Suburb E (“the D Street, Suburb E Property”) being the whole of the land contained in the certificate of title folio identifier … to be transferred to the Husband.

2.Simultaneously with the transfer of the B Street, Suburb C Property the parties will do all acts and sign all documents necessary to discharge the loan with Westpac Banking Corporation secured by way of mortgage over the B Street, Suburb C Property at the expense of the wife.
3.That simultaneously with the transfer of the D Street, Suburb E Property the parties will do all acts and sign all documents necessary to discharge the loan with Westpac Banking Corporation secured by way…

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 Jaswal & Jaswal (No 2)

Details

AGLC: Jaswal & Jaswal (No 2) [2023] FedCFamC2F 349
Case: [2023] FedCFamC2F 349
Decision Date

CaseChat Overview and Summary

The matter before the Court was a final hearing of outstanding property issues between the parties, MS Jaswal and MR Jaswal, who were married in 2007 and separated in 2016. The Court was required to determine the financial contributions of each party, make findings in relation to family violence, and ultimately make orders pursuant to s 79 of the Family Law Act 1975 (Cth) to adjust the property interests of the parties. The wife sought an order that she pay the husband $100,000. The husband sought an order that he be paid $220,000 by the wife. The wife sought an order that she should be appointed as trustee for sale of the B Street, Suburb C property in the event of her default. The husband sought an order that the parties should be appointed as trustees for sale of the B Street, Suburb C property in the event of his default. The husband also sought an order that in the event of a sale of the B Street, Suburb C property that he should receive 50 percent of any monies received over the sum of $220,000. The Court found that both parties had failed to comply with their continuing obligation to provide full and frank disclosure. The Court found that the parties had made equal financial contributions during the relationship. The Court found that the wife had made greater non-financial contributions post-separation and had had the benefit of a significant sum of money. The Court found that an adjustment of 5 percent in the wife's favour was appropriate. Orders were made pursuant to s 79 of the Act that the wife receive 55 percent of the property pool and the husband 45 percent. In the event of default by either party, the parties were to be appointed as trustees for sale of the relevant property.

Orders