Mosef and Mosef - [2017] FamCA 499

FAMILY COURT OF AUSTRALIA

MOSEF & MOSEF

[2017] FamCA 499

FAMILY LAW – PROPERTY ADJUSTMENT – Where parties agree that it would be unjust and inequitable not to alter parties’ property rights – Where consideration of parties’ contributions – Where consideration of relevant s 75(2) factors – Where mother out of work force for whole of cohabitation by reason of family or cultural expectations – Where father in gainful employment – Where mother who has little English has limited prospects of meaningful employment – Where appropriate that pool be divided in favour of mother.

Family Law Act 1975 (Cth) ss 75(2), 79, 79(1), 79(2), 79(4)

B & B (No 2) [2000] FamCAFC 734
Bevan & Bevan [2014] FamCAFC 19
Chapman & Chapman [2014] FamCAFC 91
Dickons & Dickons [2012] FamCAFC 154
Harris & Harris (1991) 15 Fam LR 26
Lovine and Connor and Anor [2012] FamCAFC 168
Petruski and Balena [2013] FamCAFC 15
Russell & Russell (1999) FLC 92-877
Scott & Danton [2014] FamCAFC 203
Stanford v Stanford (2012) 247 CLR 108

Teal & Teal [2010] FamCAFC 120

APPLICANT:

Ms Mosef

RESPONDENT:

Mr Mosef

INDEPENDENT CHILDREN’S LAWYER:

Ms Dodson

FILE NUMBER:

PAC

4109

2014

DATE DELIVERED:

17 July 2017

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

18, 19 and 22 May 2017

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Browns The Family Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Moutasallem

SOLICITOR FOR THE RESPONDENT:

Hajjar Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Sperling

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Campbelltown Family Law

Orders

That, upon noting the terms of orders made 18 May 2017, within seven days from this date the father and mother do all things necessary to authorise and direct that the balance of funds after the payment provided for in such orders then held in a controlled money account in trust for them by R Solicitors be paid to the mother or as she may otherwise direct in writing.
That within two months from this date the father pay to the mother or as she may otherwise direct in writing the sum of $263,438.00 and in consideration of such payment the mother do all things necessary to transfer to the father her interest in the property at P Street, Suburb O NSW.
Liberty to apply as to implementation or enforcement of these orders.

It Is Otherwise Ordered By Consent

That within 90 days from this date the father and mother pay to Legal Aid NSW by way of contribution to the Independent Children’s Lawyer’s costs the following sums:
(a) The mother $5,657.40 plus GST;
(b) The father $4,007.50 plus GST.

Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Mosef & Mosef has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s…

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 Mosef and Mosef

Details

AGLC: Mosef and Mosef [2017] FamCA 499
Case: [2017] FamCA 499
Decision Date: 17 July 2017

CaseChat Overview and Summary

In the matter of *Mosef and Mosef*, Foster J of the Federal Circuit Court of Australia made orders concerning the financial and property interests of the parties. The dispute involved the division of assets and the payment of costs, particularly in relation to an Independent Children’s Lawyer.

The court was required to determine the distribution of funds held in a controlled money account, the transfer of property interests in consideration of a lump sum payment, and the contribution of each party towards the costs of the Independent Children’s Lawyer.

Foster J ordered that the remaining funds in the controlled money account held by R Solicitors be paid to the mother within seven days. Furthermore, the father was ordered to pay the mother $263,438.00 within two months, in exchange for which the mother was to transfer her interest in the property at P Street, Suburb O NSW to the father. The parties were also ordered to contribute to Legal Aid NSW for the Independent Children’s Lawyer’s costs, with the mother to pay $5,657.40 plus GST and the father to pay $4,007.50 plus GST within 90 days. Liberty to apply was granted for the implementation or enforcement of these orders.

Orders

Orders of the court

That, upon noting the terms of orders made 18 May 2017, within seven days from this date the father and mother do all things necessary to authorise and direct that the balance of funds after the payment provided for in such orders then held in a controlled money account in trust for them by R Solicitors be paid to the mother or as she may otherwise direct in writing.

That within two months from this date the father pay to the mother or as she may otherwise direct in writing the sum of $263,438.00 and in consideration of such payment the mother do all things necessary to transfer to the father her interest in the property at P Street, Suburb O NSW.

Liberty to apply as to implementation or enforcement of these orders.

It Is Otherwise Ordered By Consent

That within 90 days from this date the father and mother pay to Legal Aid NSW by way of contribution to the Independent Children’s Lawyer’s costs the following sums:

(a) The mother $5,657.40 plus GST;

(b) The father $4,007.50 plus GST.

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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