FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Taheri & Kamran [2024] FedCFamC2F 797
File number: SYC 3377 of 2023 Judgment of: JUDGE KEARNEY Date of judgment: 27 June 2024 Catchwords: FAMILY LAW – Review of interlocutory property orders - 4 subject children – complex medical, behavioural and learning needs for both 17-year-old and 12-year-old subject children - Where the parties seek to vary interlocutory orders to sell the family home – Wife brings evidence to support the maintenance of the family home - Whether there has been a change of circumstances and/or the existence of a new fact that warrants the setting aside of the interlocutory orders – Whether the interlocutory orders should be enforced with a variation - Interlocutory orders set aside and fresh orders made. Legislation: Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021
Cases cited: Abraham & Abraham [2012] NSWSC 254
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170
Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44
Hedley & Hedley [2019] FamCA 946
I Limited & Chester and Ors [2010] FamCAFC 251; (2010) FLC ¶93-456; (2010) 44 FamLR 585
Jakubik & Jakubic [2023] FedCFamC1F 415
Kerr & Kerr [1983] FamCA 3; (1983) FLC ¶91-329; (1983) 8 FamLR 1023
Malloy & Stopford Malloy [2020] FamCA 506; (2020) 61 FamLR 449
Stanford & Stanford [2012] HCA 52; (2012) 247 CLR 108; (2012) 87 ALJR 74; (2012) 293 ALR 70; (2012) FLC ¶93–518; (2012) 47 FamLR 481
Strahan & Strahan (Interim Property Orders) [2009] FamCAFC 166; (2011) FLC ¶93-466; (2009) 42 FamLR 203
Suris & Suris (No 2) [2023] FedCFamC1F 89
Weir & Weir [1992] FamCA 69; (1993) FLC ¶92-338; (1992) 110 FLR 403; (1992) 16 FamLR 154
Wilkshire and Coffey v Commonwealth of Australia (1976) 9 ALR 325
Division: Division 2 Family Law Number of paragraphs: 100 Date of last submission/s: 21 June 2024 Date of hearing: 13 May 2024 Place: Newcastle Counsel for the Applicant: Ms Rusiti Solicitor for the Applicant: Yazbeck Law Counsel for the Respondent: Ms Hamilton Solicitor for the Respondent: Guardian Family Law ORDERS
SYC 3377 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR TAHERI
Applicant
AND: MS KAMRAN
Respondent
ORDER MADE BY:
JUDGE KEARNEY
DATE OF ORDER:
27 JUNE 2024
THE COURT ORDERS PENDING FURTHER ORDER THAT:
1.The Orders made 22 August 2023 are set aside.
2.Orders 1 to 5 made on 5 April 2024 are discharged.
Maintenance of the mortgage
3.The applicant, MR TAHERI (‘the husband’) and the respondent, MS KAMRAN (‘the wife’) are each permitted to electronically provide a copy of these Orders to O Law Firm via that firm’s last known email address as soon as practicable and by no later than 9.00am Friday 28 June 2024.
4.By 4.00pm Tuesday 2 July 2024, the respondent; MS KAMRAN (‘the…
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CaseChat Overview and Summary
The court found that a change in circumstances had occurred since the last order, primarily due to the wife’s provision of new evidence supporting the maintenance of the family home. This evidence included considerations for the children's welfare, particularly in relation to their medical and educational needs. The court held that the wife's evidence presented a compelling reason to set aside the existing interlocutory orders. Consequently, the court set aside the previous orders and made fresh orders. These fresh orders included maintaining the mortgage on the family home, the deposit of specific trust funds into a trust account, and subsequent payment of monthly mortgage repayments. In the event of non-compliance by the wife, the court appointed the husband as the sole trustee for the sale of the family home, with detailed instructions for listing, marketing, and settlement of the property.
The final orders mandated specific actions by both parties to ensure compliance, including the deposit of funds, notification of transactions, and the sale process if certain conditions were not met. The court also noted the importance of considering alternative dispute resolution methods and reducing future court events due to the high conflict nature of the case. The substantive proceedings were scheduled for further mention to review compliance with the new orders.
Orders
Orders of the court
SYC 3377 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR TAHERI
Applicant
AND:
MS KAMRAN
Respondent
ORDER MADE BY:
JUDGE KEARNEY
DATE OF ORDER:
27 JUNE 2024
THE COURT ORDERS PENDING FURTHER ORDER THAT:
1. The Orders made 22 August 2023 are set aside.
2. Orders 1 to 5 made on 5 April 2024 are discharged.
Maintenance of the mortgage
3. The applicant, MR TAHERI (‘the husband’) and the respondent, MS KAMRAN (‘the wife’) are each permitted to electronically provide a copy of these Orders to O Law Firm via that firm’s last known email address as soon as practicable and by no later than 9.00am Friday 28 June 2024.
4. By 4.00pm Tuesday 2 July 2024, the respondent; MS KAMRAN (‘the wife’) is to cause $86,000 (‘the trust funds’) to be deposited into a trust account held for the benefit of the husband, and controlled by Yazbeck Law and contemporaneous with that deposit, the wife will notify the husband by email of the transaction.
5. Within 48 hours of the trust funds being cleared for withdrawal, the husband will authorise their current lawyers (from time to time) to:
(a) cause all the trust funds to be deposited into the loan account attached to the mortgage secured over the real property located at B Street, Suburb C, folio identifier … (‘the family home’);
(b) electronically notify details of the deposit to the wife and to O Law Firm via their respective email addresses.
6. Commencing 18 July 2024 and by the 18th day of each following month, the wife shall cause the current amount (from time to time) of the mortgage repayment calculated for the above specified mortgage (‘the monthly mortgage repayment’) to be deposited into a financial account nominated in writing by the husband and contemporaneous with that deposit, the wife will notify the husband by email of the transaction.
7. Within 48 hours of the monthly mortgage repayment being cleared for withdrawal, the husband shall cause the monthly mortgage repayment to be deposited into the loan account attached to the mortgage secured over the family home.
8. To facilitate the above Orders, the husband will do all acts and things to facilitate their lawyers (as applicable) to carry out the transactions and otherwise provide any necessary information as required including details about the financial accounts into which payments are to be made by the wife and what the sum of the monthly mortgage payment may be from time to time.
Interim property distribution to the husband
9. By 4.00pm 9 July 2024, the wife shall cause $20,000 to be paid to the husband via a financial account as nominated in writing by the husband.
Sale of the family home
10. PROVIDED the husband complies with their obligations above, IF the wife fails to make any payment on time as prescribed in Orders 4, 6 and 9 above, THEN Orders 11 to 14 shall come into immediate effect.
11. The husband shall be appointed sole trustee for the sale of the family home.
12. In exercising their role as sole trustee, the husband is to do all acts and things necessary for:
(a) The family home to be listed for sale by auction within 14 days of Order 10 coming into effect; with an auction date for (4) weeks after the property is listed or on a date advised by the selling agent at a reserve price advised by the selling agent but not less than $1,300,000;
(b) The family home to be listed for sale by private treaty for a period of 12 weeks (if the family home does not sell at auction); AND the husband may accept any offer within 10% of the reserve price;
(c) The family home to be re-listed for public auction at a reserve price of 10% less than the initial reserve price (if the property remains unsold after being listed for private treaty as above).
13. Yazbeck Law is to conduct the conveyance on behalf of the vendor. The following conditions shall apply:
(a) Settlement is to be no more than a 42-day period;
(b) The husband and the wife are to do and sign all things necessary to allow for the marketing, sale and settlement of the family home, including withdrawing any caveats; and
(c) Conveyancing fees will not exceed the amount of $2,700 and the parties are to bear the costs equally. Each party is to transfer their share of the conveyancing fees to the trust account of Yazbeck Law no less than 7 days prior to the settlement date of the family home.
14. Upon settlement of any sale of the family home, the proceeds will be applied in the following priority:
(a) Agent’s fees and commission;
(b) Rates, taxes and any other adjustable outgoings payable on settlement;
(c) Discharge of Mortgages and other encumbrances;
(d) An interim property adjustment distribution to the wife of $50,000; and
(e) The balance to be held for the benefit of both parties in a trust account controlled by Yazbeck Law until further order of the Court or written agreement between the parties.
15. In the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court be appointed pursuant to section 106A of the Family Law Act 1975 (Cth) 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 such refusal or failure by way of Affidavit.
IT IS FURTHER ORDERED THAT:
16. All outstanding interlocutory applications are dismissed including the Application for Review filed by the wife on 18 April 2024.
17. Should an application for costs be filed, the filing party is permitted to notify Judge Kearney of that circumstance by email to […]@[…].gov.au provided that a circular copy of that notification is also sent to the other party.
THE COURT NOTES THAT:
A. Cognisant of the obligations imposed by ss 95 and 96 of the Family Law Act 1975 (Cth), the future case management of this proceeding should consider the promotion of alternate dispute resolution and reduction in future court events, given the high conflict and limited property available for distribution.
B. Any costs application related to the review hearing is to be listed for hearing before Judge Kearney on a date to be fixed.
C. The substantive proceedings are listed for mention before a Judicial Registrar at 2:30pm on 23 July 2024. At that time, the parties should be prepared to address the Court on their compliance with the above Orders (as may be applicable).
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).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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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