MASOUM & CHETCUTI - [2019] FamCA 51

FAMILY COURT OF AUSTRALIA

MASOUM & CHETCUTI

[2019] FamCA 51

FAMILY LAW – PROPERTY ADJUSTMENT – Where 15 year marriage with children – Where both parties seek disparate orders as to adjustment – Where wife lived in the matrimonial home with the children after separation – Where wife has ongoing care of the children – Where consideration of contributions – Where consideration of applicable principles – Where orders for property adjustment made.

Family Law Act 1975 (Cth) ss 75, 79

Bevan & Bevan [2014] FamCAFC 19
Chancellor & McCoy [2016] FamCAFC 256
Chapman & Chapman [2014] FamCAFC 91
Dickons & Dickons [2012] FamCAFC 154
Pandelis & Pandelis [2018] FamCAFC 66
Russell & Russell (1999) FLC 92-877
Scott & Danton [2014] FamCAFC 203
Stanford v Stanford [2012] HCA 52
Teal & Teal [2010] FamCAFC 120

APPLICANT:

Mr Masoum

RESPONDENT:

Ms Chetcuti

FILE NUMBER:

PAC

5982

2016

DATE DELIVERED:

8 February 2019

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

24 to 26 September 2018 and by way of written submissions last received on 9 November 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr Batey
SOLICITOR FOR THE APPLICANT:	Armstrong Legal

COUNSEL FOR THE RESPONDENT:

Mr Hodgson

SOLICITOR FOR THE RESPONDENT:

O'Sullivan Legal

Orders

That the husband and wife do all acts and things necessary and sign all necessary documents to forthwith sell the property at B Street, Suburb C being the land contained in Lots … Section … of Deposited Plan … for the best price reasonably obtainable by public auction with the reserve price at auction to be agreed between the parties in writing or in default of agreement to be fixed by the selling agent, or such other method of sale to which they agree, and that upon settlement of the sale the proceeds of sale be paid as follows:
(a)in discharge of Westpac Banking Corporation loans being BSB … Account number #89 and BSB … Account number #97;
(b)in payment of agents commission and auction expenses;
(c)in payment of legal costs of and incidental to the sale;
(d)in payment of any contract adjustments as to local council water rates and other levies;
(e)in payment of the balance then remaining as to 57.5 per cent to the wife less payment to the husband of one half of single expert Real Estate Valuation fees and Chapter 15 Single Expert Family Report fees paid by him with the husband to provide a copy of receipts for payments made by him to the wife not less than seven days prior to settlement of the sale of the said property;
(f)in payment of the balance remaining to the husband.
That the husband and wife do all necessary things and sign all necessary documents to forthwith sell the property at D Street, Suburb E being the land comprised in Folio identifier … for the best price reasonably obtainable by public auction with the reserve price at auction to be agreed between the parties and in default of agreement to be…

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 MASOUM & CHETCUTI

Details

AGLC: MASOUM & CHETCUTI [2019] FamCA 51
Case: [2019] FamCA 51
Decision Date: 8 February 2019

CaseChat Overview and Summary

This matter concerned orders made by Foster J in relation to the division of property between a husband and wife. The dispute involved the sale of two properties, the distribution of proceeds from joint accounts and shares, and the division of superannuation interests. The court was required to make orders concerning the immediate sale of the parties' properties, the allocation of sale proceeds, and the management of ongoing property outgoings and mortgage payments pending sale.

The legal issues before the court included determining the method of sale for the two properties, specifying the order of priority for the distribution of sale proceeds, and allocating responsibility for property outgoings and mortgage payments during the period of occupation or pending sale. Furthermore, the court was required to address the closure of joint accounts and the sale of jointly held shares, as well as the division of a superannuation fund interest in accordance with the *Family Law Act 1975* (Cth).

Foster J ordered the immediate sale of the properties by public auction, with the reserve price to be agreed or fixed by the selling agent. The proceeds of sale were to be applied first to discharge specific loans and expenses, with the balance of the first property's proceeds to be divided with 57.5 per cent to the wife, less half of certain expert fees paid by the husband. The remaining balance of both properties' proceeds was to be paid to the husband. The wife was granted sole use and occupation of one property pending sale, with responsibility for outgoings and mortgage payments, subject to adjustment from her share of proceeds. Provisions were made for the husband to occupy the property if the wife vacated, or for equal payment of outgoings if neither occupied it. Joint accounts and shares were to be closed and sold, with proceeds paid to the wife. A base amount of $78,117.00 was allocated to the wife from the husband's superannuation interest, with consequential orders for the trustee to calculate and pay the wife's entitlement and for the wife's member entitlements to be rolled over to a complying fund nominated by her. Upon the rollover, the wife was to transfer her interests in certain companies to the husband, who would then indemnify her from any liability.

Orders

Orders of the court

That the husband and wife do all acts and things necessary and sign all necessary documents to forthwith sell the property at B Street, Suburb C being the land contained in Lots … Section … of Deposited Plan … for the best price reasonably obtainable by public auction with the reserve price at auction to be agreed between the parties in writing or in default of agreement to be fixed by the selling agent, or such other method of sale to which they agree, and that upon settlement of the sale the proceeds of sale be paid as follows:

(a) in discharge of Westpac Banking Corporation loans being BSB … Account number #89 and BSB … Account number #97;

(b) in payment of agents commission and auction expenses;

(d) in payment of any contract adjustments as to local council water rates and other levies;

(e) in payment of the balance then remaining as to 57.5 per cent to the wife less payment to the husband of one half of single expert Real Estate Valuation fees and Chapter 15 Single Expert Family Report fees paid by him with the husband to provide a copy of receipts for payments made by him to the wife not less than seven days prior to settlement of the sale of the said property;

(f) in payment of the balance remaining to the husband.

That the husband and wife do all necessary things and sign all necessary documents to forthwith sell the property at D Street, Suburb E being the land comprised in Folio identifier … for the best price reasonably obtainable by public auction with the reserve price at auction to be agreed between the parties and in default of agreement to be fixed by the selling agent, or such other method of sale to which they agree, and that upon settlement of the sale the proceeds of sale be paid as follows:

(a) in payment of agents commission and auction expenses;

(b) in payment of legal costs of and incidental to the sale;

(d) in payment of the balance then remaining as to 57.5 per cent to the wife;

(e) in payment of the balance remaining to the husband.

Liberty to apply as to implementation or enforcement in respect to the orders for sale made above.

That the wife shall be entitled to sole use and occupation of the Suburb E property pending sale and shall pay as they fall due and payable outgoings in respect of the said property and mortgage payments during any period of her occupation with any arrears of such payments as at the date of settlement of the sale to be adjusted from her proportion of the proceeds of sale.

That should the wife elect to vacate the Suburb E property pending sale she shall give to the husband not less than 14 days’ notice of her intention to vacate and that thereafter and upon the wife vacating the property the husband shall have sole use and occupation of the said property pending sale and in the event that he elects to occupy the property he shall pay as they fall due and payable outgoings in respect of the said property and mortgage payments during any period of his occupation provided always that in the event that the husband elects not to occupy the property pending sale the husband and wife shall pay equally pending sale outgoings in respect of the said property and mortgage payments as they fall due and payable with any arrears arising from the parties’ obligations under this order to be adjusted between them from their respective proportion of the proceeds of sale.

That within 14 days from the date of these orders the husband and wife do all things necessary and sign all necessary documents to sell and close the joint Westpac Offset Account BSB … account number #67, the joint Westpac accounts held by the parties in trust for the children and the K Ltd shares held by the parties on behalf of the child X with the proceeds of such accounts and shares sale to be paid to the wife or as she may otherwise direct in writing.

That a base amount of $78,117.00 is allocated to the Wife out of the Husband’s interest in the Masoum Superannuation Fund (“the fund”):

(a) That in accordance with section 90MT(1)(a) of the Family Law Act 1975:

(i) The Wife is entitled to be paid the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using the base amount referred to in order 7 above; and

(ii) The Husband’s entitlement (and the entitlement of such other person to whom splittable payments may be made) to payments out of the Husband’s interest in the Fund is correspondingly reduced.

(b) That the husband and wife cause the trustee of the fund Masoum Investments Pty Ltd (the trustee) to do all acts and things and sign all such documents as may be necessary to:

(i) Calculate in accordance with the requirements of the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2001 the entitlement of the Wife created by these orders; and

(ii) Pay the entitlement whenever the trustee makes a splittable payment out of the Husband’s interest in the Fund.

That Order 7 have effect from the operative time and the operative time is four business days from the date of these orders.

That within 28 days from the date of these orders the husband and wife do all things necessary and sign all necessary documents to authorise and direct the trustee to cause the wife’s member entitlements in the fund to be rolled over to a complying superannuation fund nominated by the wife.

10.

That within seven days from the date that the wife’s member entitlement in the fund is rolled over as provided, the wife shall do all things necessary and sign all necessary documents to transfer to the husband all her right title and interest and resign from all offices held by her in Masoum Investments Pty Ltd and Masoum Nominees Pty Ltd and that thereafter the husband shall indemnify the wife from all or any liability arising from such companies.

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

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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