Yusuf & Yusuf - [2021] FamCA 116

FAMILY COURT OF AUSTRALIA
Yusuf & Yusuf [2021] FamCA 116

File number(s): PAC 3522 of 2017

Judgment of: FOSTER J

Date of judgment: 12 March 2021

Catchwords: FAMILY LAW – PROPERTY – property adjustment – where discussion of applicable principles – where evidence of husband and second respondent as to asserted loan arrangement not accepted – where such arrangement held to be a sham – where claim as to asserted loan dismissed – where consideration of parties’ contributions and relevant s 75(2) factors – where orders made for sale of matrimonial home.

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

Cases cited:
Bevan & Bevan [2014] FamCAFC 19

Chapman & Chapman [2014] FamCAFC 91

Russell & Russell (1999) FLC 92-877

Scott & Danton [2014] FamCAFC 203

Stanford & Stanford [2012] HCA 52

Teal & Teal [2010] FamCAFC 120

Number of paragraphs: 91

Date of hearing: 3 and 4 September 2020 and 14 and 15 December 2020

Place: Parramatta

Counsel for the Applicant: Ms Dart

Solicitor for the Applicant: Sanford Legal

Solicitor for the First Respondent: Malouf Solicitors

Counsel for the Second Respondent: Mr Cummings SC with him Mr Moutasallem

Solicitor for the Second Respondent: Platinum Lawyers Pty Ltd
ORDERS

PAC 3522 of 2017

BETWEEN:
MS YUSUF
Applicant

AND:
MR YUSUF
First Respondent

MS NOOR
Second Respondent

ORDER MADE BY:

FOSTER J

DATE OF ORDER:

12 MARCH 2021

THE COURT ORDERS THAT:
1.The husband and wife do all things necessary and sign all necessary documents to forthwith sell the real estate property situate at 1 & 2 B Street, Suburb C being the whole of the land comprised in folio identifier … by public auction within three months from this date at a reserve price of $1.3 million and that upon sale after payment of agents commission on sale, advertising expenses and legal expenses on sale the net proceeds of sale be paid in the following manner and priority:
(a)as to 40 per cent thereof to the wife;
(b)in payment of any arrears of council and water rates;
(c)in payment of the balance then remaining to the husband.

2.Liberty to apply as to implementation or enforcement of the previous order.
3.The second respondent’s Response in these proceedings be dismissed.
4.The second respondent do all necessary things and sign all necessary documents so as to cause to be delivered to the applicant’s solicitors the certificate of title in relation to the property situate at 1 & 2 B Street, Suburb C being the whole of the land comprised in folio identifier … within seven days from the date of these Orders.
5.The matter be removed from the active pending cases list.
6.All subpoenaed documents produced and all exhibits tendered in these proceedings, be returned at the expiration of one calendar month unless an appeal is lodged.

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…

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 Yusuf & Yusuf

Details

AGLC: Yusuf & Yusuf [2021] FamCA 116
Case: [2021] FamCA 116
Decision Date: 12 March 2021

CaseChat Overview and Summary

In the matter of *Yusuf & Yusuf*, Foster J of the Family Court of Australia considered a property adjustment dispute between the wife (applicant) and the husband (first respondent), with a second respondent also involved. The core of the dispute revolved around the division of assets, particularly the matrimonial home, and the validity of an asserted loan arrangement between the husband and the second respondent, which the wife contended was a sham.

The legal issues before the Court included determining the true nature of the financial arrangement between the husband and the second respondent, specifically whether an asserted loan was a genuine transaction or a sham designed to defeat the wife's property claims. The Court was also required to consider the parties' respective contributions to the marriage and the relevant factors under section 75(2) of the *Family Law Act 1975* (Cth) in making orders for property adjustment.

Foster J found that the evidence presented by the husband and the second respondent regarding the asserted loan arrangement was not credible and concluded that the arrangement was a sham. The Court noted the husband's lack of candour and truthfulness in his evidence, highlighting his failure to provide objective corroboration for his financial assertions and his admission of never filing a tax return in Australia, despite significant financial activity. The wife's evidence was preferred where it conflicted with the husband's.

Consequently, the Court dismissed the claim relating to the asserted loan and ordered the sale of the matrimonial home located at 1 & 2 B Street, Suburb C. The net proceeds of the sale were to be distributed with 40 per cent to the wife, followed by payment of council and water rates, with the balance to the husband. The second respondent was ordered to deliver the certificate of title for the property to the applicant's solicitors.

Orders

Orders of the court

PAC 3522 of 2017

BETWEEN:

MS YUSUF

Applicant

AND:

MR YUSUF

First Respondent

MS NOOR

Second Respondent

ORDER MADE BY:

FOSTER J

DATE OF ORDER:

12 MARCH 2021

THE COURT ORDERS THAT:

1. The husband and wife do all things necessary and sign all necessary documents to forthwith sell the real estate property situate at 1 & 2 B Street, Suburb C being the whole of the land comprised in folio identifier … by public auction within three months from this date at a reserve price of $1.3 million and that upon sale after payment of agents commission on sale, advertising expenses and legal expenses on sale the net proceeds of sale be paid in the following manner and priority:

(a) as to 40 per cent thereof to the wife;

(b) in payment of any arrears of council and water rates;

2. Liberty to apply as to implementation or enforcement of the previous order.

3. The second respondent’s Response in these proceedings be dismissed.

4. The second respondent do all necessary things and sign all necessary documents so as to cause to be delivered to the applicant’s solicitors the certificate of title in relation to the property situate at 1 & 2 B Street, Suburb C being the whole of the land comprised in folio identifier … within seven days from the date of these Orders.

5. The matter be removed from the active pending cases list.

6. All subpoenaed documents produced and all exhibits tendered in these proceedings, be returned at the expiration of one calendar month unless an appeal is lodged.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

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Evidence

Evidence Before The Court

The wife exhibits to her affidavit AUSTRAC records over the period from March 2005 to July 2012 that evidences significant funds being remitted to Country G or, otherwise, are being remitted from Country G to Australia. The husband was interviewed by Centrelink in 2013 and questioned as to various deposits to bank accounts including about $32,000 during the 2006 year. He informed Centrelink that they were monies remitted from his family overseas. Notwithstanding deposits to bank accounts from the second respondent’s business “Dot Design”, the husband asserted that he told Centrelink that he had never worked for that entity.A word about the evidence The wife asserts that she was not privy to the financial machinations during the parties’ cohabitation. The husband acknowledges that she was not consulted and that she had little knowledge of what his financial dealings were. The husband concedes in oral evidence that he had never filed a tax return in Australia. This notwithstanding at times significant funds at bank, significant funds moving in and out of Australia and the purchase and sale of an investment property at K Street referred to below. He asserts some $250,000 to $270,000 was received from the realisation of his interest in family land in Country G commencing 2001 until 2004 with payments into his National Bank account that is not in evidence. His evidence, if accepted, would indicate that this family may have received significant government benefits to which it was not entitled. The husband was afforded the benefit of a Section 128 Certificate under the Evidence Act 1995 (Cth) in circumstances where his evidence, otherwise, may have rendered him liable to prosecution for taxation offences. As such, the Court was alerted to the propensity of the husband to be dishonest and not truthful or fulsome in his evidence before the Court. Having had the opportunity to consider the husband giving oral evidence for some period of time, it was readily apparent that he was less than frank in his evidence, he sought to be vague and uncertain where such might assist him. The absence of objective evidence adduced by the husband to assist in the proof of his assertions as to financial dealing and transactions solely within his knowledge and control was alarming particularly where it was readily apparent that such records could well be available on subpoena. His evidence was confused and in conflict with documentary evidence put to him. Overall, the husband is not to be regarded as a witness of truth. Where possible his evidence, if to be accepted, would need to be objectively corroborated. The wife’s evidence where there is a conflict with that of the husband is to be preferred. Otherwise, the wife asserts that the marriage was “filled with verbal, emotional and financial abuse”. The husband, until 2003, required the wife to account to him for her Centrelink benefits that were paid into a joint passbook account. She was not allowed to access the account and he would then provide money to her as he saw fit to meet expenses. Subsequent to 2003 the husband permitted the wife to maintain her own bank account but she was expected to use her Centrelink pension benefits for the benefit of the children in the household. She was rarely provided additional funds by the husband and it was necessary for her to borrow funds from her mother. The husband, she said in oral evidence, made all the financial decisions for the family and she just followed.The Suburb C properties

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number(s):	PAC 3522 of 2017
Judgment of:	FOSTER J
Date of judgment:	12 March 2021
Catchwords:	FAMILY LAW – PROPERTY – property adjustment – where discussion of applicable principles – where evidence of husband and second respondent as to asserted loan arrangement not accepted – where such arrangement held to be a sham – where claim as to asserted loan dismissed – where consideration of parties’ contributions and relevant s 75(2) factors – where orders made for sale of matrimonial home.
Legislation:	Family Law Act 1975 (Cth) ss 75(2), 79, 79(1), 79(2), 79(4)
Cases cited:	Bevan & Bevan [2014] FamCAFC 19 Chapman & Chapman [2014] FamCAFC 91 Russell & Russell (1999) FLC 92-877 Scott & Danton [2014] FamCAFC 203 Stanford & Stanford [2012] HCA 52 Teal & Teal [2010] FamCAFC 120
Number of paragraphs:	91
Date of hearing:	3 and 4 September 2020 and 14 and 15 December 2020
Place:	Parramatta
Counsel for the Applicant:	Ms Dart
Solicitor for the Applicant:	Sanford Legal
Solicitor for the First Respondent:	Malouf Solicitors
Counsel for the Second Respondent:	Mr Cummings SC with him Mr Moutasallem
Solicitor for the Second Respondent:	Platinum Lawyers Pty Ltd

ORDER MADE BY:	FOSTER J
DATE OF ORDER:	12 MARCH 2021