ASGHAR and HARAMIJA - [2022] FCWA 72

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: ASGHAR and HARAMIJA [2022] FCWA 72
CORAM: O'BRIEN J
HEARD: 4 MARCH 2022
FINAL SUBMISSION RECEIVED 10 MARCH 2022
DELIVERED : 8 APRIL 2022
FILE NO/S: [REDACTED]
BETWEEN: MR ASGHAR
Applicant
AND
MS HARAMIJA
Respondent

Catchwords:

PARENTING – Interim orders – Where the parties agree that it is in the best interests of the children to move to an equal shared care arrangement but disagree as to timing – Where the parties differ on arrangements to be made during school holidays – Where the husband seeks various injunctions restricting the children's contact with members of the wife's family – Where the husband seeks further injunctions described in submissions for the wife as “oppressive and controlling” – Where the husband proposes interim orders for a change of school for one child where previous application in similar terms has been heard and determined – Turns on its own facts.

SPOUSAL MAINTENANCE – Where the wife seeks interim orders – Where the husband does not concede the threshold issue of the wife's capacity to self-support asserting that she is unemployed by choice – Where that submission is made one month after the wife suffered a [significant medical episode] from which she is expected to make a full recovery – Where notwithstanding the husband's high income that income is exceeded by his expenses – Turns on its own facts.

ENFORCEMENT – Where the wife seeks enforcement of an urgent maintenance order made to cover a short period before an interim hearing - Where the interim hearing was vacated because of the default of both parties in complying with relevant orders – Exercise of discretion not to enforce – Turns on its own facts.

LITIGATION FUNDING – Where the wife seeks a lump sum payment but no source of funds is identified – Where the husband's legal fees significantly exceed those charged to the wife and are being paid – Where a "dollar for dollar" order is justified.

Legislation:

Family Court Rules 2021 (WA)
Family Law Act 1975 (Cth)
Restraining Orders Act 1997 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr Kavanagh
Respondent	:	Ms Kerr
Independent Children's Lawyer	:	Mr Chibwe

Solicitors:

Applicant	:	Kavanagh Lawyers WA Pty Ltd
Respondent	:	Kerr Fels
Independent Children's Lawyer	:	Efficient Law Group (Perth)

Case(s) referred to in decision(s):

Atkins & Hunt and Ors (2018) 57 Fam LR 128
Banks & Banks (2015) FLC 93-637
Bilz & Breugelman [2013] FamCA 578
Brown & Brown (2007) FLC 93-316
Chester & Chester (1995) FLC 92-612
Eaby & Speelman (2015) FLC 93-654
Eden & Eden-Proust [2011] FamCAFC 138
Gyopar & Gyopar (1986) FLC 91-769
Hall v Hall (2016) 257 CLR 490
JJT & Ors; ex parte Victoria Legal Aid (1998) 195 CLR 184
Minister for Immigration and Citizenship v SZGUR (2011) 241 CLR 594
Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578
Ramsay & Ramsay (1983) FLC 91-301
Re G Children’s Schooling…

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 ASGHAR and HARAMIJA

Details

AGLC: ASGHAR and HARAMIJA [2022] FCWA 72
Case: [2022] FCWA 72
Decision Date

CaseChat Overview and Summary

In the Family Court of Western Australia, the matter of Asghar and Haramija was heard by O'Brien J. The case involved interim disputes between the parties regarding the arrangements for their children and financial matters. The court had to determine whether the children should move to an equal shared care arrangement and, if so, when. The court also had to consider various injunctions proposed by the husband, as well as the wife's applications for interim spousal maintenance and litigation funding. The court concluded that an equal shared care arrangement was in the best interests of the children and should commence immediately. The court also made orders regarding the children's holiday arrangements, testing for alcohol use, and injunctions relating to the wife's sister and handover. The court dismissed the wife's application for interim spousal maintenance, finding that she had not established her inability to support herself adequately. The court, however, made a "dollar for dollar" order to provide a level playing field between the parties. The court further discharged an existing urgent maintenance order and declined to enforce it. The court also dismissed the wife's application for litigation funding. The court proposed specific orders for the parties to follow, including those relating to the children's care arrangements, injunctions, and financial matters. The proceedings were included in the defended list, with an estimated hearing time of 4 to 5 days.

Orders