Zagari & Habib

Case [2010] FamCAFC 159


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

  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.

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

  1. 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

In the Federal Circuit Court of Australia, the case of Zagari & Habib involved an appeal by the husband against a property settlement order made by the Federal Magistrate. The husband challenged various aspects of the settlement, including the approach taken by the Magistrate in valuing and dividing the parties' assets, the inclusion of a debt as a liability, and the assessment of the parties' contributions. The wife cross-appealed, arguing that the Magistrate had undervalued her contributions. The Court of Appeal was tasked with determining whether the Federal Magistrate had erred in her assessment and, if so, whether this warranted a variation of the orders.

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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