Massi & Kerbouche [2023] FedCFamC2F 190

Massi & Kerbouche [2023] FedCFamC2F 190

Relationship Details

• Type: Marriage
• Duration: Married in 2015, separated on 27 January 2021; approximately 6 years.
• Ages at Judgment: Husband 39 years, Wife 25 years

Children

• Children from Relationship: One child, X, currently aged 3 years and 11 months.
• Special Needs/Circumstances: Not specified.

Initial Financial Positions

• Wife:

  • No explicit detailed financial positions at commencement.

• Husband:

  • Moved to Australia in 2007. His brother (the second respondent, joined to the case) had moved to Australia in 2002.
  • The husband said he had borrowed money from his brother, another brother and friends to buy property.

Contributions During the Relationship

• Financial Contributions:

  • The court found that the second respondent had lent the husband $100,000 in total, on the terms of a 2017 written loan agreement, and required it to be repaid.
  • Purchase of properties in the husband's name: a vacant block of land in May 2018 for $195,000 and another property in November 2019 for $395,000, funded with borrowed money and mortgages.

• Non-financial Contributions:

  • Both parties initially lived separated due to geographic constraints, with the wife in Country E.
  • The wife came to Australia in 2017. Their child was born in 2019. Because the parties agreed the 55/45 division, contributions were not examined at trial.

Post-Separation Contributions and Actions

• Financial Contributions:

  • The husband sold both properties in 2021 (for $290,000 and $491,000) and received net proceeds of $293,940, which he paid out mostly to people he said had lent him money.

• Non-financial Contributions:

  • No specified significant non-financial contributions post-separation.

• Dissipation of Assets:

  • The wife asked for all the sale proceeds to be added back. The court rejected her challenge to the $119,350 paid to the second respondent and the $46,000 paid to another brother, finding those loans were real.
  • The court added back $35,000 and $60,000 paid to two other men, finding the claimed loans not proven and the payments premature distributions. It also added back $4,500 from the sale of the husband's car and $26,900 he paid in legal fees.
  • Sale proceeds of $171,500 from a property owned by the second respondent and his wife were held in trust under an injunction. The court refused to make the second respondent pay the wife and discharged the injunction.

Current Financial Position & Property Pool

• Current Income & Assets:

  • Specific current income details not provided.
  • Little property remained: bank accounts and household contents worth $1,659.
  • Recorded superannuation of the husband: $52,357.
  • Liabilities of the husband: $54,274 (a loan, income tax and capital gains tax). The court refused to list a further $14,850 claimed as still owing to the second respondent.

• Property Pool:

  • Significant real estate transactions occurred post-separation.
  • Net property pool for division: $126,142, including the add-backs and superannuation.

Assessment of Contributions and Future Needs

• Contributions:

  • Agreed property division by parties: 55% to the wife, 45% to the husband.

• Future Needs Adjustments:

  • Division mutually agreed upon by parties without further contested adjustments regarding ongoing financial needs.

• Final Division:

  • The wife's 55% share was $69,378. She kept $1,163 of assets, received all the husband's superannuation ($52,357) by a splitting order, and the husband was ordered to pay her $15,858 within 42 days.

Unique Aspects

• Loans and Financial Arrangements:

  • Dispute centred around the reality and execution of familial loan agreements.
  • Most of the dispute concerned how the husband spent the sale proceeds after separation.

• Court Considerations:

  • Emphasis on scrutinising informal financial transactions which significantly affected asset pool and subsequent settlements.
  • A loan between relatives can be accepted as real even if first made orally and only later written down, but a claimed loan with sparse evidence may be treated as a premature distribution and added back.

Conclusion

• The court accepted the parties' agreed 55/45 division and decided the dispute about the pool, accepting some of the claimed family loans and adding back other payments. The husband was left to recover money from those he had paid if he chose to.

The law since this decision

This case was decided before 10 June 2025. From that date the Family Law Act 1975 (Cth) sets out the steps for a property settlement in s 79(3) to (5), and the court must consider the effect of family violence on each party's contributions (s 79(4)(ca)) and on their current and future circumstances (s 79(5)(a)), and any material wastage of property (s 79(5)(d)). In Western Australia, a property case between married couples is decided under that Act in the Family Court of Western Australia. A case between de facto partners in Western Australia is decided under the Family Court Act 1997 (WA), which has not adopted those 2025 changes.