Hakim & Salim
[2021] FamCAFC 128
•21 July 2021
FAMILY COURT OF AUSTRALIA
Hakim & Salim [2021] FamCAFC 128
Appeal from: Salim & Hakim (No. 2) [2021] FamCA 495 Appeal number(s): EAA 77 of 2021 File number(s): PAC 5392 of 2020 Judgment of: AINSLIE-WALLACE J Date of judgment: 21 July 2021 Catchwords: FAMILY LAW – APPEAL – Application for expedition – Where the husband seeks expedition of his appeal against interim property orders giving the wife sole occupancy of the former matrimonial home – Whether there is a relevant circumstance which would cause the case to be given priority over other cases to their possible detriment – Where there are relevant circumstances in which to afford the appeal priority – Application granted Legislation: Family Law Act 1975 (Cth) s 94(2D)(j)
Family Law Rules 2004 (Cth) r 12.10A
Division: Appeal Division Number of paragraphs: 18 Date of hearing: 21 July 2021 Place: Sydney Solicitor for the Applicant: Mr Wahhab Counsel for the Respondents: Mr Givney Solicitor for the Respondents: Ms Harirri ORDERS
EAA 77 of 2021
PAC 5392 of 2020APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN: MR HAKIM
Applicant
AND:
AND:
MS SALIM
First Respondent
MS NOOR
Second Respondent
ORDER MADE BY:
AINSLIE-WALLACE J
DATE OF ORDER:
21 JULY 2021
THE COURT ORDERS THAT:
1. Appeal EAA 77 of 2021 be expedited.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hakim & Salim has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AINSLIE-WALLACE J
Mr Hakim (“the husband”) seeks expedition of his appeal from interim property orders made by a judge of the Family Court on 12 July 2021.
The interim orders provide that Ms Salim (“the wife”) have the sole use and occupation of the parties’ former marital home and to give effect to that order, a lease of that property entered into by the husband with the second respondent (Ms Noor) be set aside. The husband was further ordered to pay the wife the sum of $100,000. These are the orders that the husband seeks leave to appeal and if leave be granted that he appeals those orders.
The second respondent Ms Noor by her solicitor this morning indicated that she will be filing a submitting notice in the appeal by the end of this day and did not want to be heard on the application for expedition.
The wife supports the appeal being expedited. In all of the circumstances I am of the view that this matter should be expedited for the following reasons.
BACKGROUND
So as to give context to this application it is necessary to refer to some brief background facts.
The parties were married in 2004. They have three children who were born in 2004, 2008 and 2013 and the parties and the children lived in the marital home from 2004 except for a period of two years when they lived overseas.
The date of their actual separation is a matter of contention but there is no dispute that in February 2020 the wife and children left the marital home and moved in with her parents in their rented unit which was said to have been in poor repair and unsuitable accommodation for the children and the wife. The wife it was said was sleeping on a mattress on the floor with one of the children. Later on, bigger and more appropriate accommodation was arranged for the wife, children and her parents although the wife maintained that it was not large enough for all of them. At the time of the hearing before the primary judge, the wife and her parents had received a notice to vacate that accommodation because the property had been sold and by her submissions this morning it appears that any opposition by her to being ordered to vacate the accommodation would ultimately become a matter for the Administrative Tribunal.
On 12 October 2020 the wife applied for final property orders and in April 2021 she filed an application in a case seeking orders for exclusive occupancy of the home.
On 3 May 2021 the husband entered into an agreement to lease the marital home between himself as landlord and the second respondent as tenant. It seems to be undisputed that the husband was aware of the wife’s application for sole occupancy at the time he arranged to rent the marital home. He said that his financial circumstances were such that he had to lease the home notwithstanding the wife’s then extant application for sole occupancy. Apparently the contents of the home were removed by him prior to the tenant taking possession.
The second respondent’s evidence to the primary judge was that she became aware that the parties’ home was available to rent in late April 2021.
The primary judge set aside the lease as between the husband and second respondent, ordered that the husband indemnify the second respondent in relation to her reasonable relocation expenses and other expenses referrable to the setting aside of the lease. The primary judge noted that the husband had leased the accommodation originally occupied by the wife’s parents paying a bond for the rental of that property and committing to paying the weekly rental. His Honour observed that the second respondent could live there temporarily should she want. His Honour further ordered that the wife have sole use and occupation of the property, that the husband pay all necessary outgoings on the property and return the contents to the house.
The husband indicated on the application for expedition that he has sought a stay of the primary judge’s orders and proposed that expedition of the appeal might have an effect on whether the primary judge stayed the orders. That application is listed on 23 July 2021.
RELEVANT PRINCIPLES
The relevant principles to be applied are taken from section 94(2D)(j) of the Family Law Act 1975 (Cth) (“the Act”) with reference to rule 12.10A of the Family Law Rules 2004 (Cth) (“the Rules”) which while applying to expedition of hearings before a trial judge are regularly applied in considering whether to expedite an appeal..
The considerations thus are:
·Whether the applicant has acted reasonably and without delay;
·Whether the application has been brought expeditiously;
·Whether there is any prejudice to the respondent; and
·Whether there is a relevant circumstance which would cause the case to be given priority over other cases and to their possible detriment.
Two matters of those factors are relevant here. The first is the prejudice to the respondent and given the perilous nature of the respondent’s accommodation and her evidence to the primary judge of her sole source of income being receipt of government benefits, it was said that there would be a prejudice to her if the appeal was not expedited because she needs to know where she and the children are going to be living and how they are going to support themselves.
Given the position of the wife and the children of the marriage, that is being on the verge of being evicted from their present accommodation, and an appeal against the orders giving her access to the matrimonial home in my view that is a circumstance relevant that would cause this appeal to be given priority over other matters listed for appeal.
I feel bound to say however that were it not for the wife’s position and that of the children nothing the husband put would necessarily persuade me that this matter should be expedited but as I say in all of the circumstances in my view it should be.
Therefore the application for expedition will be allowed.
I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Ainslie-Wallace. Associate:
Dated: 21 July 2021
0
0
2