FAMILY COURT OF AUSTRALIA
| ZAGARI & HABIB | [2010] FamCAFC 159 |
| FAMILY LAW - APPEAL – PROPERTY SETTLEMENT – whether the Federal Magistrate erred in failing to adopt an asset by asset approach – whether the Federal Magistrate erred in including a debt owed by the husband to his de facto partner as a liability of the parties – whether the Federal Magistrate failed to attach sufficient weight to the fact the debt was unlikely to be enforced – whether the Federal Magistrate erred in her assessment of the parties’ contributions – where the Federal Magistrate incorrectly recorded the value of the wife’s superannuation entitlements due to incorrect figures provided by the wife – whether this error warrants appellate intervention – appeal allowed in part on the limited issue of the inclusion of the debt as a liability of the parties – appeal otherwise dismissed. FAMILY LAW - APPEAL – RE-DETERMINATION – amount of the debt deleted from the asset pool – order of the Federal Magistrate varied. |
| Family Law Act 1975 (Cth) s75(2) & s 79 |
| AF Petersens and AF Petersens (1981) FLC 91-095 Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621 Biltoft and Biltoft (1995) FLC 92-614 Browne and Green (1999) FLC 92-873 Gronow v Gronow (1979) 144 CLR 513 House v The King (1936) 55 CLR 499 In the marriage of McMahon (1995) FLC 92-606 Kowaliw and Kowaliw (1981) FLC 91-092 Mallet v Mallet (1984) 156 CLR 605 M & M [1998] FamCA 42 Mims & Green and Green (2008) FLC 93-359 Norbis v Norbis (1986) 161 CLR 513 Reynolds and Reynolds (1985) FLC 91-632 Zdravkovic and Zdravkovic (1982) FLC 91-220 |
| APPELLANT: | Ms Zagari |
| RESPONDENT: | Mr Habib |
| FILE NUMBER: | ADC | 5300 | of | 2007 |
| APPEAL NUMBER: | SA | 84 | of | 2009 |
| DATE DELIVERED: | 25 August 2010 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 25 March 2010 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 28 August 2009 |
| LOWER COURT MNC: | [2009] FMCAfam 913 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr McQuade |
| SOLICITOR FOR THE APPELLANT: | Ann Josephson Lawyers |
| SOLICITOR FOR THE RESPONDENT: | In person |
Orders
The Application in an Appeal seeking to adduce further evidence filed by the husband on 14 January 2010 be dismissed.
The appeal be allowed in part.
Order 1 of the orders made by Kelly FM on 28 August 2009 be varied by deleting the sum of SEVENTY-SIX THOUSAND NINE HUNDRED AND THIRTY DOLLARS [$76,930.00] and substituting the sum of FORTY-NINE THOUSAND DOLLARS [$49,000.00].
The appeal otherwise be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Zagari & Habib is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE |
Appeal Number: SA 84 of 2009
File Number: ADC 5300 of 2007
| Ms Zagari |
Appellant
And
| Mr Habib |
Respondent
REASONS FOR JUDGMENT
Introduction
By Notice of Appeal filed on 25 September 2009 Ms Zagari (“the wife”) appeals…
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- AGLC
- Zagari & Habib [2010] FamCAFC 159
- Case
- [2010] FamCAFC 159
- Decision Date
CaseChat Overview and Summary
The key issues before the Court were whether the Federal Magistrate erred in not taking an asset-by-asset approach to the division of property, whether the Magistrate erred in treating a debt owed by the husband to the wife as a liability of the parties, and whether the Magistrate had correctly assessed the contributions of each party. The Court also considered whether an error in recording the value of the wife’s superannuation due to incorrect figures provided by her warranted appellate intervention. The husband argued that the Magistrate had failed to attach sufficient weight to the likelihood of the debt being enforced and that the value attributed to the wife's superannuation was incorrect. The wife, on the other hand, maintained that the Magistrate's approach was appropriate and that her contributions had been undervalued.
The Court found that the Federal Magistrate had erred in treating the husband's debt to the wife as a liability of the parties, as there was little likelihood of enforcement. However, the Court held that the Magistrate had not erred in her overall approach to the property settlement or in her assessment of the parties' contributions. The Court also found that the error in recording the value of the wife's superannuation did not warrant appellate intervention. Consequently, the Court allowed the appeal in part concerning the inclusion of the debt as a liability, but dismissed the appeal in all other respects.
The Court ordered that the husband's application to adduce further evidence be dismissed, and that the appeal be allowed in part. Specifically, the Court varied the Federal Magistrate's order to reflect the correct amount of the debt and adjusted the asset pool accordingly. The Court also dismissed the wife's cross-appeal, affirming the Federal Magistrate's assessment of the parties' contributions. This resulted in the deletion of the sum of $76,930 from the asset pool and its substitution with $49,000. The appeal was otherwise dismissed, and the original orders were varied as specified.
Orders
Orders of the court
1.
The Application in an Appeal seeking to adduce further evidence filed by the husband on 14 January 2010 be dismissed.
2.
The appeal be allowed in part.
3.
Order 1 of the orders made by Kelly FM on 28 August 2009 be varied by deleting the sum of SEVENTY-SIX THOUSAND NINE HUNDRED AND THIRTY DOLLARS [$76,930.00] and substituting the sum of FORTY-NINE THOUSAND DOLLARS [$49,000.00].
4.
The appeal otherwise be dismissed.
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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