WADE & ALAWI - [2020] FCCA 832

FEDERAL CIRCUIT COURT OF AUSTRALIA

WADE & ALAWI

[2020] FCCA 832

Catchwords:
FAMILY LAW – Property – whether leave pursuant to section 44(6) of the Family Law Act 1975 (Cth) required – declaration under section 90RD of the Family Law Act 1975 (Cth) – adjustment of property interests under section 90SM of the Family Law Act 1975 (Cth) – consideration of section 90SF(3) of the Family Law Act 1975 (Cth).

Legislation:

Family Law Act 1975 (Cth), ss.4, 4AA, 39B, 44(5), 44(6), 79, 90RD, 90SF, 90SM
Evidence Act 1995 (Cth), s.140(1)

Cases cited:

Ricci v Jones [2011] FamCAFC 222
S v B (No.2) (2004) 32 Fam LR 429
Sha & Cham [2017] FamCAFC 161
In the Marriage of Lee Steere (1985) FLC 91-626
In the Marriage of Ferraro (1993) FLC 92-335
Clauson & Clauson (1995) 18 Fam LR 693
Russell v Russell (1999) FLC 92-877
Watson & Ling [2013] FamCA 57
Stanford v Stanford [2012] HCA 52
Best and Best [1993] FamCA 107
Kowaliw (1981) FLC 91-092
Browne & Green [1999] FamCA 1483
Townsend [1994] FamCA 144

Scofield & Shaw [2012] FamCAFC 193

Applicant:

MS WADE

Respondent:

MR ALAWI

File Number:

BRC 1772 of 2019

Judgment of:

Judge Tonkin

Hearing date:

28 January 2020

Date of Last Submission:

28 January 2020

Delivered at:

Brisbane

Delivered on:

15 April 2020

REPRESENTATION

Counsel for the Applicant:

Mr Baston

Solicitors for the Applicant:

Lyn & Rowland Lawyers

The Respondent appearing in person.

IT IS DECLARED

Pursuant to section 90RD of the Family Law Act 1975 (Cth) (“the Act”) it is DECLARED that a de facto relationship existed between MS WADE and MR ALAWI for the period commencing 2010 until December 2012 and from early 2014 until July 2017.

ORDERS

By way of adjustment of property interests pursuant to section 90SM of the Act, within sixty (60) days of the date of these Orders the husband shall pay to the wife the sum of $40,000.
Upon compliance by the husband with Order (2) hereof, the husband is declared the sole and beneficial owner of the property situated at B Street, Suburb C in the State of Queensland being the whole of the land more particularly described as Lot ... SP ... Local Government Region D Title Reference ... (“the B Street, Suburb C property”) to the exclusion of the wife.
Simultaneously with Order (2) hereof, the husband shall indemnify the wife and keep her indemnified with respect to any mortgages secured against the B Street, Suburb C property.
In default of Order (2) hereof the following shall apply:
(a)The husband shall do all things and sign all documents necessary to list the B Street, Suburb C property for sale on the following terms and conditions:
(i)The property be listed for sale by private treaty with such agent as agreed in writing by the parties or failing agreement the wife shall nominate three real estate agents and the husband shall appoint an agent (“the selling agent”) from the nominated list;
(ii)The property shall be listed at…

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 WADE & ALAWI

Details

AGLC: WADE & ALAWI [2020] FCCA 832
Case: [2020] FCCA 832
Decision Date: 15 April 2020

CaseChat Overview and Summary

This matter concerned an application by the wife for property adjustment orders under section 90SM of the *Family Law Act 1975* (Cth), following a declaration of entitlement under section 90RD of the Act. The court was required to determine the appropriate division of the parties' property interests, including real estate, motor vehicles, and superannuation.

The primary legal issues before the court were the extent to which property interests should be adjusted under section 90SM, the specific orders to be made regarding the division of assets and liabilities, and the method by which a superannuation interest should be split. The court also considered the implications of section 90SF(3) in the context of the property adjustment.

The court ordered that the husband pay the wife $40,000 within 60 days, and upon compliance, he would be declared the sole beneficial owner of the B Street, Suburb C property, with an indemnity against existing mortgages. In the event of default, the property was to be listed for sale, with proceeds distributed first to discharge mortgages, then selling costs, then the $40,000 to the wife, and the balance to the husband. If the property did not sell by private treaty by 1 August 2020, it was to be listed for auction. The husband was to retain his interests in two motor vehicles and be solely liable for associated debts, indemnifying the wife. The wife was to retain her interest in a third motor vehicle and indemnify the husband for any associated debt. Each party was to retain their own chattels and be solely liable for debts in their sole name. The wife was also entitled to $20,000 from the husband's interest in the Alawi Superannuation Fund, to be paid as a splittable payment. The Registrar was appointed to execute any necessary documents in the event of a party's default.

Orders

Orders of the court

By way of adjustment of property interests pursuant to section 90SM of the Act, within sixty (60) days of the date of these Orders the husband shall pay to the wife the sum of $40,000.

Upon compliance by the husband with Order (2) hereof, the husband is declared the sole and beneficial owner of the property situated at B Street, Suburb C in the State of Queensland being the whole of the land more particularly described as Lot ... SP ... Local Government Region D Title Reference ... (“the B Street, Suburb C property”) to the exclusion of the wife.

Simultaneously with Order (2) hereof, the husband shall indemnify the wife and keep her indemnified with respect to any mortgages secured against the B Street, Suburb C property.

In default of Order (2) hereof the following shall apply:

(a) The husband shall do all things and sign all documents necessary to list the B Street, Suburb C property for sale on the following terms and conditions:

(i) The property be listed for sale by private treaty with such agent as agreed in writing by the parties or failing agreement the wife shall nominate three real estate agents and the husband shall appoint an agent (“the selling agent”) from the nominated list;

(ii) The property shall be listed at a price agreed to in writing by the parties or failing agreement as recommended by the selling agent;

(iii) The husband shall co-operate in every way with the selling agent in relation to the sale of the property including maintaining the property in good condition and making the property available for inspection upon reasonable notice by the selling agent; and

(iv) The parties shall accept an offer to purchase the property being an offer that is at least 90% of the listed price or as recommended by the selling agent or as otherwise agreed in writing between the parties.

(b) The proceeds of sale of the B Street, Suburb C property shall be distributed as follows:

(i) In discharge of the mortgages secured against the property;

(ii) In payment of the selling agents costs and costs of conveyance;

(iii) In payment of $40,000 to the wife; and

(iv) The balance to the husband.

In the event that the B Street, Suburb C property fails to sell by private treaty by 1 August 2020 the parties shall do all things necessary to list the property for sale by auction and the proceeds of sale following auction shall be distributed in accordance with Order 5 (b) above.

The husband shall retain to the exclusion of the wife his interest in:

(a) The Motor Vehicle 1; and

(b) The Motor Vehicle 2.

The husband shall solely be liable for all debts attaching to the Motor Vehicle 1 (currently $55,000) and any debt attaching to the Motor Vehicle 2 and he shall indemnify the wife and keep her indemnified with respect to those liabilities.

The wife shall retain to the exclusion of the husband her interest in the Motor Vehicle 3 motor vehicle and indemnify the husband with respect to any debt attached thereto.

10.

Each party shall retain to the exclusion of the other all chattels in his or her possession or control as at the date of these orders.

11.

Each party shall be solely be liable for the following:

(a) Any credit card debt in that parties sole name; and

(b) All other debts in that party’s sole name.

12.

Pursuant to section 90XT(1) (a) of the Family Law Act 1975 (“the Act”) whenever a splittable payment becomes payable with respect to the husband’s interest in the Alawi Superannuation Fund (“the Fund”) the wife shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using a base amount of twenty thousand dollars ($20,000) and there shall be a corresponding reduction in the entitlement of the husband in that Fund.

13.

Pursuant to Items 1 and 2 of Schedule 1 of the Alawi Self Managed Superannuation Fund the Trustee of the Fund (being Alawi Superannuation Fund Pty Ltd ACN ...), shall do all acts and sign all necessary documents to effect the splittable payment required to be made to the wife in accordance with Order (12) hereof to a superannuation fund as directed by the wife or her solicitor.

14.

The operative time for Order 12 is seven (7) business days after service of a certified copy of this order upon the Alawi Superannuation Fund.

15.

That in the event that either party fails to execute any deed or instrument necessary to give effect to these Orders within time frame specified, the Registrar or Deputy Registrar of the Brisbane Registry of the Family Court or the Federal Circuit Court of Australia is hereby appointed pursuant to the provisions of Section 106A of the Family Law Act 1975 to execute the Deed or instrument in the name of the defaulting party and do all acts and things necessary to give validity and operation to these orders.

16.

The parties have liberty to apply with respect to the implementation of these orders.

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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