FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Khang & Asmar [2024] FedCFamC2F 1326
File number(s): SYC 8890 of 2022 Judgment of: JUDGE MURDOCH Date of judgment: 25 September 2024 Catchwords: FAMILY LAW – PROPERTY – Adjustment of property interests pursuant to s79 of the Family Law Act 1975 (Cth) – Where there are substantial issues as to the nature and composition of the property with the wife contending the husband has a legal interest in an overseas financial enterprise operating a business – Where the material and case presented by each of the parties was contradictory and confusing and did little to assist in the finding of facts - Where the wife contends that the husband made her contributions more onerous arising from the principles enunciated in Kennon v Kennon (1997) FLC 92-757 – Where the wife’s contention is not established - Where the husband made superior financial contributions - Where the husband’s failure to provide a full and frank disclosure makes it difficult to ascertain his true financial position- Where a ten percent adjustment is made to the contribution findings in the wife’s favour as a result of the husband’s disclosure failures - Where the husband was granted legal representation funded by the Commonwealth Family Violence and Cross-Examination of Parties Scheme despite living overseas and the husband concedes he did not advise of this when making his application – Where a copy of this judgement will be provided to the Legal Aid Commission and liberty granted to make such application as the Commission sees fit. Legislation: Family Law Act 1975 (Cth) ss 75(2) 79, 117, 102NA
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 190
Federal Circuit and Family Court of Australia Rules 2021 (Cth) Chapter 6
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rule 1.04, 6.06
Cases cited: Black v Kellner (1992) FLC 92-287
Boulton & Boulton (No 3) [2024] FedCFamC1F 269
Chorn v Hopkins [2004] FamCA 633
Fields & Smith [2015] FamCAFC 57
Gollings & Scott [2007] FamCA 397
Horrigan & Horrigan [2020] FamCAFC 25
Kennon v Kennon (1997) FLC 92-0757
Kowaliw and Kowaliw [1981] FamCA 70
Oamra & Williams [2021] FamCAFC 117
Omacini & Omacini [2005] FamCA 195
Stanford & Stanford [2012] HCA 52
Trevi & Trevi [2018] FamCAFC 173
Division: Division 2 Family Law Number of paragraphs: 196 Date of last submission/s: 21 August 2024 Date of hearing: 19 – 21 August 2024 Place: Sydney Counsel for the Applicant: Mr Connor Solicitor for the Applicant: Marcus Alyssandra Lawyers Counsel for the Respondent: Mr Jackson Solicitor for the Respondent: Sharah & Associates Solicitors and Conveyancers ORDERS
SYC 8890 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS KHANG
Applicant
AND: MR ASMAR
Respondent
ORDER MADE BY:
JUDGE MURDOCH
DATE OF ORDER:
25 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.Within three months from the date of these orders the wife pay to the husband the sum of…
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CaseChat Overview and Summary
The court faced the challenge of determining the nature and extent of the assets held by Mr Asmar, particularly in light of his failure to provide full disclosure. The contradictory and confusing material presented by both parties made it difficult to ascertain the true financial position of Mr Asmar. Despite the wife’s arguments under the principles of Kennon v Kennon, the court found that Mr Asmar’s contributions were indeed superior, though it noted his failure to fully disclose his financial status. Consequently, a ten percent adjustment was made in favour of Ms Khang due to the husband’s disclosure failures.
In its reasoning, the court emphasised the importance of full disclosure in family law matters and the significant impact of such failures on the outcome of property settlements. The court also addressed the issue of Mr Asmar's legal representation funded by the Commonwealth Family Violence and Cross-Examination of Parties Scheme, despite his residence overseas, noting that he had not disclosed this when applying for the scheme. The court ordered that a copy of its judgement be provided to the Legal Aid Commission of New South Wales, granting them liberty to make an application as they see fit.
The court’s orders included the payment of $190,000 by Ms Khang to Mr Asmar within three months, with reciprocal obligations on Mr Asmar to discharge the mortgage on a property and transfer his interest to Ms Khang. The orders further detailed the transfer of remaining funds and the sale of the property in the event of non-compliance, outlining the priority of payments from the sale proceeds. Additionally, the court issued injunctions to prevent the parties from dealing with certain assets pending compliance with the orders. The court also directed the Registry Manager to forward a copy of its reasons to the Director of the Legal Aid Commission of New South Wales and provided for the possibility of further applications for costs.
Orders
Orders of the court
SYC 8890 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS KHANG
Applicant
AND:
MR ASMAR
Respondent
ORDER MADE BY:
JUDGE MURDOCH
DATE OF ORDER:
25 SEPTEMBER 2024
THE COURT ORDERS THAT:
1. Within three months from the date of these orders the wife pay to the husband the sum of $190,000.
2. Simultaneously upon the wife’s compliance with Order 1 the Husband shall do all such things as are necessary and sign all documents as prepared by the wife at her expense to:-
(a) cause the mortgage secured on the property situate at and known as B Street, Suburb C in the state of New South Wales being the whole of land contained in Certificate of Title folio identifier … (“the Suburb C property”) to be discharged; and
(b) transfer to the wife all of his right, entitlement and interest in the Suburb C property to the wife.
3. Within 30 days the parties shall do all things necessary to:-
(a) transfer to the wife all the remaining monies held in the Westpac Bank Home Loan account #...54;
(b) direct and authorise the payment to the wife of all monies held in Trust for the parties by D Company.
4. In the event the wife fails or neglects to comply with Order 1 above, the parties shall forthwith upon such failure or neglect do all such things and sign all such documents to list for sale the Suburb C property on the following terms:
(a) To list for auction with an agent agreed upon by the parties in writing within fourteen days and failing agreement the agent be appointed by the President of the Real Estate Institute of New South Wales or his or her nominee;
(b) Give such instructions to a solicitor to act on the sale of the property agreed upon in writing within fourteen days, and failing agreement as to the identity of the solicitor, the solicitor be appointed by the President of the Law Society of New South Wales or his or her nominee;
(c) Market the Suburb C property for sale by public auction at a reserve price to be agreed by the parties in writing and in the event of no agreement as determined by the auctioneer;
(d) Attend the auction and in the event that the reserve price set for the auction is not reached negotiate with the highest and second highest bidder and accept any offer to purchase that is the highest made within 5 per cent of the reserve price set for that auction unless the parties otherwise agree in writing;
(e) Execute the contract for sale and in the event that the parties fail to agree on the terms of the contract for sale, the terms recommended by the solicitor acting on the sale shall be adopted.
5. Upon the completion of the sale of the Suburb C property the proceeds shall be applied in the following priority:
(a) In payment of any outstanding land tax, council rates, and water rates;
(b) In payment of fees for the nomination of an agent or solicitor pursuant to these orders, if any;
(c) In payment of the real estate agent’s commission, selling expenses and auction expenses incurred on the sale;
(d) In payment of conveyancing legal costs associated with the sale;
(e) In the amount of 20 per cent of the remaining balance to the husband; and then
(f) In payment of the balance to the wife.
6. Pending the parties’ compliance with Orders 3 above the parties are hereby restrained by injunction from drawing upon or dealing in any way with their interest in the Westpac Bank Home Loan bank account #...54.
7. Pending the parties’ compliance with Orders 1 and 2 above the parties are hereby restrained by injunction from assigning, transferring, further encumbering or dealing in any way with their respective interests in the Suburb C property.
8. Save and except as provided for by these orders each party shall retain to the exclusion of the other all cash at bank, real property, furniture, motor vehicles, personalty, shareholdings, and superannuation entitlements in their respective possession or control as at the date of these orders.
9. In the event that either party fails or neglects to sign any document pursuant to these Orders, a Registrar of the Federal Circuit and Family Court of Australia (Division 2) is hereby appointed to execute such documents in the name of the party in default so as to give validity and operation to these Orders pursuant to s 106A of the Family Law Act 1975 (Cth) upon being satisfied of such failure or neglect by way of affidavit evidence.
10. The Registry Manager is requested to forthwith forward a copy of these reasons to the Director, Legal Aid Commission of New South Wales.
11. In the event the Director, Legal Aid Commission of New South Wales files an Application in a Proceeding within 28 days of the date of these Orders, such Application is to be referred to the Chambers of Judge Murdoch and will be listed on short notice.
12. Except as provided for by these Orders, save as to costs, all extant applications are otherwise dismissed.
13. Should any party wish to make an application for costs of or incidental to these proceedings, they are to file and serve within 28 days of the date of these orders an Application in a Proceeding specifying the orders sought as to costs and any affidavit in support thereof. In the event of such Application being filed, Orders and Directions will issue from Chambers as to the listing of same.
14. In the event no application is made pursuant to Order 13 above, then all outstanding applications for costs are dismissed.
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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