FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Mansour & Kaleel (No 2) [2024] FedCFamC2F 107
File number(s): PAC 5559 of 2022 Judgment of: JUDGE NEWBRUN Date of judgment: 1 February 2024 Catchwords: FAMILY LAW – PROPERTY – Binding financial agreements set aside – Property adjustment Orders made. Legislation: Family Law Act 1975 (Cth) ss 75(2), 79(2), 90B, 90G, 90K, 90KA Cases cited: Hoult & Hoult [2013] FamCAFC 109
Logan & Logan [2013] FamCAFC 151
Lotta & Lotta [2017] FamCA 50
Division: Division 2 Family Law Number of paragraphs: 139 Date of last submissions: 2 November 2023 Date of hearing: 12 and 13 October 2023 Place: Parramatta Counsel for the Applicant: Mr Strik Solicitor for the Applicant: Jack Rigg Solicitors Counsel for the Respondent: Mr Cairns Solicitor for the Respondent: Goldman & Co Lawyers ORDERS
PAC 5559 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR MANSOUR
Applicant
AND: MS KALEEL
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
1 FEBRUARY 2024
ON A FINAL BASIS THE COURT ORDERS THAT:
1.The Financial Agreement signed by the parties in late 2019 be set aside pursuant to section 90K of the Family Law Act 1975 (Cth) (“the Act”).
2.The Financial Agreement signed by the parties in mid-2020 be set aside pursuant to section 90K of the Act.
3.Within 10 weeks of the date of these Orders, the wife shall pay to the husband the sum of $294,620.
4.Simultaneously with the wife paying to the husband the sum of $294,620, the husband shall, at his expense, cause his 1 per cent interest in the property at B Street, Suburb C (“the Suburb C property”) at to be transferred to the wife.
5.Failing compliance with Order 3 above, the parties do all acts and things and sign all documents necessary to cause the Suburb C property at to be listed for sale in accordance with the following:
(a)The parties shall instruct a real estate agent to sell the Suburb C property by agreement or failing agreement, the husband shall nominate three (3) real estate agents and the wife shall select one of the nominated real estate agents within seven (7) days of receipt of the proposed real estate agents to act on behalf of the parties (“real estate agent”).
(b)The parties shall instruct an independent solicitor or conveyancer entitled to control and operate a trust account to act on the sale of the Suburb C property by agreement and failing agreement, the husband shall nominate three (3) solicitors or conveyancers and the wife shall select one to act on the conveyance on behalf of the parties within seven (7) days of receipt.
(c)The reserve and listing price shall be set as agreed between the parties in writing and failing agreement within seven (7) days of receipt of the appointment of the real estate agent, the reserve price shall be as recommended by the real estate agent.
(d)In the event that…
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CaseChat Overview and Summary
The court found that the agreements were binding and valid but were not in the best interests of either party. The court noted that the agreements did not adequately address the wife's needs and contributions to the relationship, particularly regarding the care of their children. The court was also concerned about the disparity in the financial position of the parties and the lack of consideration of the wife's future needs. The court held that setting aside the agreements and making property adjustment orders was necessary to achieve a fair outcome.
The court ordered that the binding financial agreements be set aside and that the wife pay the husband $294,620. The court also ordered that the husband's interest in the Suburb C property be transferred to the wife, and that the property be sold if the payment was not made. The net proceeds of the sale were to be used to pay off debts and expenses, with the remaining balance to be split between the parties. The court further ordered that the husband transfer his interest in the City E property to the wife and that the wife pay a real estate commission from trust funds held by her former solicitors. Each party was to retain their personal property and financial accounts, and the court made orders for the parties to cooperate in the sale of the property and to indemnify each other against any liabilities on the property.
The court made detailed orders regarding the sale of the Suburb C property and the distribution of its proceeds, as well as the transfer of the City E property and the payment of the real estate commission. The court also declared the wife the sole legal and beneficial owner of trust funds held by her former solicitors and ordered her to pay the outstanding commission. The court emphasised that each party was responsible for their own debts and liabilities, and that the parties were to indemnify each other against any liabilities on the property. The court appointed the Registrar to execute any necessary documents if either party failed to comply with the orders.
Orders
Orders of the court
PAC 5559 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR MANSOUR
Applicant
AND:
MS KALEEL
Respondent
ORDER MADE BY:
JUDGE NEWBRUN
DATE OF ORDER:
1 FEBRUARY 2024
ON A FINAL BASIS THE COURT ORDERS THAT:
1. The Financial Agreement signed by the parties in late 2019 be set aside pursuant to section 90K of the Family Law Act 1975 (Cth) (“the Act”).
2. The Financial Agreement signed by the parties in mid-2020 be set aside pursuant to section 90K of the Act.
3. Within 10 weeks of the date of these Orders, the wife shall pay to the husband the sum of $294,620.
4. Simultaneously with the wife paying to the husband the sum of $294,620, the husband shall, at his expense, cause his 1 per cent interest in the property at B Street, Suburb C (“the Suburb C property”) at to be transferred to the wife.
5. Failing compliance with Order 3 above, the parties do all acts and things and sign all documents necessary to cause the Suburb C property at to be listed for sale in accordance with the following:
(a) The parties shall instruct a real estate agent to sell the Suburb C property by agreement or failing agreement, the husband shall nominate three (3) real estate agents and the wife shall select one of the nominated real estate agents within seven (7) days of receipt of the proposed real estate agents to act on behalf of the parties (“real estate agent”).
(b) The parties shall instruct an independent solicitor or conveyancer entitled to control and operate a trust account to act on the sale of the Suburb C property by agreement and failing agreement, the husband shall nominate three (3) solicitors or conveyancers and the wife shall select one to act on the conveyance on behalf of the parties within seven (7) days of receipt.
(c) The reserve and listing price shall be set as agreed between the parties in writing and failing agreement within seven (7) days of receipt of the appointment of the real estate agent, the reserve price shall be as recommended by the real estate agent.
(d) In the event that the reserve or listing price is not reached, the sale of the Suburb C property shall be such amount as is agreed between the parties and failing agreement, an offer received to buy the Suburb C property at a price that is not less than 95 per cent of the reserve or listing price shall be accepted by the parties.
(e) The parties shall cooperate in every way with the real estate agent of the Suburb C property including making the key available and allowing inspection at times as required by the real estate agent.
(f) That upon agreement being reached for the sale of the Suburb C property the parties shall execute all documents necessary to complete the sale of the Suburb C property including all transfer documentation forthwith upon its submissions to them by the real estate agent or their solicitor within no less than seven (7) days of being requested to do so.
6. That following the sale of the Suburb C property, the net proceeds of sale be distributed in the following manner:
(a) In payment of all real estate agent's commissions, legal conveyancing fees and other sale expenses;
(b) Discharge of the mortgage outstanding;
(c) Payment of any outstanding council rates;
(d) Payment of any taxes in relation to the sale;
(e) The sum of $294,620 be paid to the husband;
(f) The balance to the wife.
7. The husband shall forthwith take all necessary steps, at his expense, to cause his equitable interest in the property known as D Street, City E, NSW (“the City E property”) to be transferred to the wife.
8. The wife is hereby declared the sole legal and beneficial owner of trust funds, $16,000, together with any interest accrued thereon, held by her former solicitors F Law Firm, and being part of the proceeds of sale of the parties’ former property at G Street, Suburb H.
9. The wife, on receipt of the above trust funds, shall forthwith pay outstanding real estate agent’s commission in the sum of $12,000, owed to the real estate agency which acted on the sale of the parties’ former property at Suburb H.
10. That as between the husband and the wife, and subject to the above Orders, the husband and the wife shall each respectively retain all interest in and entitlement to:
(a) All personal property now held in his/her respective possession or control.
(b) All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his/her sole name respectively.
(c) All interests in life insurance policies and superannuation funds standing in his/her sole name respectively.
11. That except as otherwise provided by these Orders, each party remains solely responsible for all debts, including credit card debts, in the parties’ respective names.
12. That each party is solely liable for and indemnifies the other against any liability encumbering any item of property to which that party is entitled pursuant to these Orders.
13. That the parties shall do all acts and things necessary and give all consents and execute all documents and writings to give effect to these Orders in the time periods prescribed.
14. That in the event either party fails to execute any deed, document or instrument necessary to give effect to all or any of these orders, then the Registrar of the Court shall be appointed pursuant to section 106A of the Act to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of refusal or failure by way of affidavit at the cost of the non‑compliant party.
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.
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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