Massi & Kerbouche - [2023] FedCFamC2F 190

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Massi & Kerbouche [2023] FedCFamC2F 190

File number(s): PAC 3687 of 2021

Judgment of: JUDGE MURDOCH

Date of judgment: 24 February 2023

Catchwords: FAMILY LAW – PROPERTY SETTLEMENT – where the husband and wife agree on the overall division of the asset pool – where the main issue for determination is the nature and value of the asset pool - where there is significant dispute as to the validity of a loan agreement between the first respondent and the second respondent – where the wife challenges several other oral and written loan agreements - where the wife seeks that monies paid to the second respondent be notionally added back to the property pool- where the challenges to the written loan agreements are unsuccessful – where challenges to monies disbursed to strangers to the proceedings successful and notionally added back to the pool - orders made adjusting the property of the husband and wife.

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

Cases cited:
NHC & RCH [2004] FamCA 633

Edgehill & Edgehill [2007] FamCA 1102

Gollings & Scott [2007] FamCA 397

Harris v Caladine (1991) 172 CLR 84.

In the Marriage of PJ and RM Farnell (1996) 20 Fam LR 513

Kowaliw and Kowaliw [1981] FamCA70.

AJO & GRO [2005] FamCA 195

Stanford & Stanford [2012] HCA 52

Division: Division 2 Family Law

Number of paragraphs: 118

Date of hearing: 29 November 2022 – 1 December 2022, 13 December 2022

Place: Parramatta

Solicitor for the Applicant Mr Lee of Counsel

Solicitor for the First Respondent Mr Fantin of Counsel

Solicitor for the Second Respondent Mr Havenstein of Counsel
ORDERS

PAC 3687 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS MASSI

Applicant

AND:
MR KERBOUCHE

First Respondent

MR B KERBOUCHE

Second Respondent

order made by:

JUDGE MURDOCH

DATE OF ORDER:

24 February 2023

THE COURT ORDERS THAT:
1.Within 42 days of the date of these Orders the husband pay to the wife the sum of $15,858.
2.Pursuant to Section 90XT(l)(a) of the Family Law Act 1975 (Cth), whenever a splittable payment becomes payable in respect of First Respondent Husband Mr Kerbouche’s interest in the fund Super Fund 1 (Member Number …83) ('Super Fund 1'), the trustee of the Super Fund 1 Trust ('the trustee') shall pay to the Applicant Wife Ms Massi with the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 (Cth), using a base about of $53,520 of the Husband's entitlement as a member of the Super Fund 1 Superannuation Trust and there should be a corresponding reduction in the entitlement of the person to whom a splittable payment would have made but for these orders.
3.The Trustee of the Super Fund 1 Superannuation Trust do all such acts and things and sign all such documents as may be necessary to calculate, in accordance with the requirements of the Act and the Regulations, the entitlement awarded…

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 Massi & Kerbouche

Details

AGLC: Massi & Kerbouche [2023] FedCFamC2F 190
Case: [2023] FedCFamC2F 190
Decision Date

CaseChat Overview and Summary

This case concerns the property settlement between Ms Massi and Mr Kerbouche, who were married in 2015 and separated in 2021. The main issue before the Court was to determine the nature and value of the property available for adjustment. The wife sought that monies paid to the second respondent, Mr B Kerbouche, be notionally added back to the property pool. The Court found that the wife's challenges to certain written loan agreements between the husband and the second respondent were unsuccessful. However, the Court found that the wife's challenges to other monies disbursed to strangers to the proceedings were successful and notionally added back to the pool. The Court ordered that the husband pay the wife $15,858 within 42 days. The Court also made orders adjusting the property of the husband and wife, including a superannuation splitting order in favour of the wife. The Court held that it was just and equitable to make orders pursuant to s 79 of the Family Law Act 1975 (Cth), adjusting the financial interest of the parties in accordance with their agreement.

Orders