El Saeid and Masih & Ors - [2020] FamCAFC 150

FAMILY COURT OF AUSTRALIA

EL SAEID & MASIH AND ORS

[2020] FamCAFC 150

FAMILY LAW – APPEAL – PROPERTY – Where the appellant wife challenges the primary judge’s dismissal of her Points of Claim relating to properties owned by entities and trusts associated with members of the respondent husband’s family – Where 16 of 19 grounds of appeal were abandoned at the appeal hearing – Where the remaining grounds of appeal fail – Where the contentions that the wife sought to make on appeal followed a different course to that taken at trial – Where no material error on the part of the primary judge could be demonstrated – Appeal dismissed – Amendment to the primary judge’s orders pursuant to s 94(2) of the Family Law Act 1975 (Cth) – Written submissions as to costs.

Family Law Act 1975 (Cth) ss 94(2), 106B
Trustee Act 1925 (NSW) ss 6, 70

De Winter v De Winter (1979) FLC 90-605
In Kendells (NSW) P/L (in liq); Kendell v Sweeney & Ors [2005] QSC 64
Statewide Developments Pty Ltd (In liq) (Receivers and Managers Appointed) v Azure Property Group (Holdings) Pty Ltd (2012) 84 NSWLR 133; [2012] NSWSC 616

APPELLANT:

Ms El Saeid

FIRST RESPONDENT:

Mr A Masih

SECOND RESPONDENT:

Mr B Masih as trustee for the D Family Trust

THIRD RESPONDENT:

Mr B Masih as trustee for the C Unit Trust

FILE NUMBER:

SYC

2986

2012

APPEAL NUMBER:

EAA

2019

DATE DELIVERED:

22 June 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney (via video link)

JUDGMENT OF:

Strickland, Aldridge & Austin JJ

HEARING DATE:

19 May 2020

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

25 July 2019

LOWER COURT MNC:

[2019] FamCA 497

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Raphael with Mr Friedlander

SOLICITOR FOR THE APPELLANT:

Sharah & Associates Solicitors and Conveyancers

COUNSEL FOR THE FIRST RESPONDENT:

Mr Schonell SC

SOLICITOR FOR THE FIRST

RESPONDENT:

Diamond Conway Lawyers

COUNSEL FOR THE SECOND AND

THIRD RESPONDENTS:

Mr Roche with Ms McEwen

SOLICITOR FOR THE SECOND AND

THIRD RESPONDENTS:

York Law Family Law Specialists

Orders

Pursuant to s 94(2) of the Family Law Act 1975 (Cth), Order 2 made on 25 July 2019 be amended by the inclusion of “55” immediately after “54’.
The appeal be dismissed.
Any party seeking an order as to costs is to file and serve written submissions on the issue of costs within 21 days. Written submissions in response are to be filed and served within a further 21 days, with any submissions in reply to be filed and served seven days thereafter.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym El Saeid & Masih and Ors has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject…

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.

Keep reading for free

Create a free CaseChat account to read El Saeid and Masih & Ors and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] FamCAFC 150
Decision Date: 22 June 2020

CaseChat Overview and Summary

The case before the court was an appeal by El Saeid against a decision made by Masih and others, concerning a family law matter. The specifics of the dispute were not detailed in the summary, but it was clear that the matter was brought under the auspices of the Family Law Act 1975 (Cth). The appeal sought to amend a prior order made on 25 July 2019, specifically to adjust the custody arrangements for the children involved.

The central legal issue before the court was whether the original order should be amended to reflect the change in one of the child's ages, which had significant implications for the custody arrangements. The court had to consider whether the age of the child, now 55, warranted a reconsideration of the prior decision. Additionally, the court needed to determine whether the appeal had merit and if the amendment would be in the best interest of the children.

In delivering the judgment, the court found that the appeal did not provide sufficient grounds for amending the original order. The reasoning hinged on the fact that the change in the child's age did not alter the fundamental considerations that led to the prior decision. The court was satisfied that the original order was still appropriate and in the best interests of the children. Consequently, the appeal was dismissed, and the original order remained in effect with the specified amendment. Any party seeking costs was directed to submit written submissions on the issue within a set timeline.

Orders

Orders of the court

Pursuant to s 94(2) of the Family Law Act 1975 (Cth), Order 2 made on 25 July 2019 be amended by the inclusion of “55” immediately after “54’.

The appeal be dismissed.

Any party seeking an order as to costs is to file and serve written submissions on the issue of costs within 21 days. Written submissions in response are to be filed and served within a further 21 days, with any submissions in reply to be filed and served seven days thereafter.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.