Najeeb & Najeeb [2023] FedCFamC2F 189

Najeeb & Najeeb [2023] FedCFamC2F 189

Background Details

• Type: Marriage
• Duration: Married in 2006 in Country M, cohabitation in Australia commenced in 2007, separated under the one roof on about 23 March 2019
• Ages: Husband 67 years, Wife 50 years

Children

• Children from Relationship: Three children born in 2008, 2009 and 2011 (aged almost 15, 13 and 11 at the hearing)
• Special Needs: The eldest child has Type 1 diabetes, so any work the wife finds must be near the children's school

Initial Financial Positions

• Wife: No significant property at the start of the marriage
• Husband:
  • Superannuation approximately $20,000
  • Cash savings of about $70,000

Contributions During the Relationship

• Financial Contributions:

  • Husband contributed about $50,000 toward the purchase of the D Street property in 2009
  • Husband worked full-time as a transport worker, paying the mortgages, renovations and family living expenses

• Non-financial Contributions:

  • Wife was the primary carer of the children and performed the majority of household tasks, including annual house painting
  • The husband contributed to caring for the children, albeit to a modest extent due to work commitments

Post-Separation Contributions and Actions

• Financial Contributions:

  • Wife continued to pay the mortgage for the B Street property post-separation
  • The family moved to the B Street property in late 2018. The husband left it in about mid-September 2019 and returned to the D Street property, whose mortgage he then paid

• Non-financial Contributions:

  • Wife continued as the primary caregiver for the children

Current Financial Position & Property Pool

• Wife:

  • Assets: House (B Street) valued at $930,000, Household contents $5,000, Car $4,000, Jewellery $6,000, Cash $17
  • Liabilities: B Street mortgage $575,532, Centrelink debt $16,229, City Council debt $3,979
  • Net assets: $349,277

• Husband:

  • Assets: ANZ cash $5,458, Household contents $5,000, Motor Vehicle $21,500, Superannuation $95,336
  • Net sale proceeds of the D Street property, $694,593, held in his solicitors' trust account (to be divided between the parties)
  • Liabilities: ATO debt $8,121
  • Net assets: $119,173

• Property Pool: Total net assets including superannuation $1,184,843

Assessment of Contributions and Future Needs

• Contributions:

  • Contributions to non-superannuation assets and the superannuation asset assessed as roughly equal
  • Future Needs Adjustments: 10% adjustment in favour of the wife due to primary care of children and lesser earning capacity

• Final Division:

  • Wife receives 60% ($710,905) of the total net assets
  • Husband receives 40% ($473,937) of the total net assets

Unique Aspects

• Significant language and comprehension issues due to the wife’s limited English proficiency requiring an interpreter
• Disputes largely centred on the wife's claims for add-backs, including $258,000 of what she said were unexplained withdrawals. The court accepted the husband's evidence that $250,000 borrowed against the D Street property in 2018 went towards buying the B Street property. The wife also disputed parts of her own affidavit
• The wife's claim of substantial personal sacrifice and hardship to maintain property and care for the children while being the primary caregiver

Summary Takeaways

The judgment awarded a greater share of the net assets to the wife, acknowledging her primary caregiving role and lesser earning capacity compared to the husband. The wife was to receive $361,628 from the trust money and could keep the B Street home if she refinanced the mortgage within 8 weeks; failing that the husband could do so, and failing both the home was to be sold.

Later decision

In Najeeb & Najeeb (No 2) [2024] FedCFamC2F 1188 (30 August 2024) the same judge dealt with enforcing these orders. The wife had not been able to refinance the home. The husband's application to have her interest transferred to him was dismissed, and the home was ordered to be listed for sale under the 2023 orders.

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.