Najeeb & Najeeb - [2023] FedCFamC2F 189

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Najeeb & Najeeb [2023] FedCFamC2F 189

File number(s): PAC 4592 of 2019

Judgment of: JUDGE NEWBRUN

Date of judgment: 23 February 2023

Catchwords: FAMILY LAW – PROPERTY – Just and equitable property orders made.

Legislation: Family Law Act 1975 (Cth) ss 75(2), 79(2)

Cases cited: Lotta & Lotta [2017] FamCA 50

Division: Division 2 Family Law

Number of paragraphs: 89

Date of hearing: 30–31 January 2023

Place: Parramatta

Counsel for the Applicant: The Applicant appeared in person

Counsel for the Respondent: Mr Maddox

Solicitor for the Respondent: Safi Legal
ORDERS

PAC 4592 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS NAJEEB

Applicant

AND:
MR NAJEEB

Respondent

order made by:

JUDGE NEWBRUN

DATE OF ORDER:

23 FEBRUARY 2023

THE COURT ORDERS THAT:
1.Within 7 days the parties shall cause the husband’s solicitors to pay to the wife from trust monies held by those solicitors the sum of $361,628.
2.The wife, should she wish to retain the property situate at and known as B Street, Suburb C (“the property”), shall within 8 weeks from the date of these Orders provide to the husband’s solicitors evidence of a bank mortgage loan approval enabling the wife to re-finance the existing mortgage loan debt relating to the property and obtain a new mortgage loan for the property in her own name.
3.Within 7 days of Order 2 being complied with by the wife:
(a)The parties shall do all acts and things and sign all necessary documents to discharge the mortgage in favour of ANZ Banking Group Limited secured over the property (“the mortgage”) and thereafter the wife shall indemnify and keep indemnified the husband from any liability thereon;
(b)The husband shall transfer to the wife his interest in the property;
(c)The husband and wife shall request the husband’s solicitors to distribute the balance of trust fund monies of $332,965 to the husband.

4.Should the wife fail to comply with Order 2 above, then the husband, should he wish to retain the property, shall within 8 weeks thereafter, provide to the wife evidence of a bank mortgage loan approval enabling the husband to re-finance the existing mortgage loan debt relating to the property and obtain a new mortgage loan for the property in his own name.
5.Within 7 days of Order 4 being complied with by the husband:
(a)The parties do all acts and things and sign all necessary documents to discharge the mortgage and thereafter the husband shall indemnify and keep indemnified the wife from any liability thereon;
(b)The husband and wife shall request the husband’s solicitors to distribute the balance of trust fund monies of $332,965 to the wife;
(c)The husband shall pay to the wife the sum of $21,503; and then,
(d)The wife transfer to the husband her interest in the property.

6.Pending the transfers in Orders 3 or 5, each party is restrained from further encumbering the mortgage.
7.Should the husband fail to comply…

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 Najeeb & Najeeb

Details

AGLC: Najeeb & Najeeb [2023] FedCFamC2F 189
Case: [2023] FedCFamC2F 189
Decision Date

CaseChat Overview and Summary

The case of Najeeb & Najeeb involved property proceedings before the Federal Circuit and Family Court of Australia (Division 2) where the husband appeared and the wife appeared in person. The legal issues before the court involved determining the just and equitable division of property in light of the breakdown of the parties' relationship. The court had to consider the contributions made by each party to the relationship, the assets and liabilities of each party, and the needs of each party, including the needs of the children. The court also had to consider the principles of justice and equity in making its orders.

The court found that the wife had made a significant contribution to the relationship by being the primary carer of the parties' three children, and that the husband's earning capacity was greater than that of the wife. The court also found that the parties' contributions to non-superannuation assets and superannuation were about equal. Based on these findings, the court made orders that the wife would receive 60% of the net assets including superannuation, and the husband would receive 40%. The court also made orders that the wife would retain the jointly owned property at B Street, Suburb C, subject to the mortgage debt in the sum of $575,532, and that the husband would transfer to the wife his interest in the property. The court made further orders relating to the division of other assets and liabilities, and the payment of debts and legal costs.

The court's reasoning and outcome in this case demonstrate the importance of considering the contributions of each party to the relationship, as well as the needs of each party and the children, in making just and equitable property settlement orders. The court also considered the principles of justice and equity in making its orders, and took into account the fact that the wife was the primary carer of the children and needed to house both herself and the children. The outcome in this case reflects the court's assessment of the parties' contributions and needs, and its determination of what would be a just and equitable property settlement between the parties.

Orders