Hakim & Salim - [2022] FedCFamC1A 21

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Hakim & Salim [2022] FedCFamC1A 21

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: ALDRIDGE, HOGAN & HANNAM JJ

Date of judgment: 28 February 2022

Catchwords: FAMILY LAW – APPEAL – PROPERTY – Appeal from interim property orders – Whether the primary judge failed to identify the source of power relied upon in making an order for partial property settlement – Reasons to be considered in the context of the hearing – No error established – Where the characterisation of the partial property order was left to the agreement of the parties or at the final hearing – Denial of procedural fairness – Leave to appeal granted – Appeal allowed in part – Interim property order as to the characterisation of the partial property settlement set aside – Order affected by denial of procedural fairness set aside – Written submission as to costs to be provided.

Legislation: Family Law Act 1975 (Cth) ss 79, 80

Cases cited:
Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148

Kioa v West (1985) 159 CLR 550; [1985] HCA 81

Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34

Strahan & Strahan (Interim Property Orders) (2011)
FLC 93-466; [2009] FamCAFC 166

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

Sun Alliance Insurance Ltd v Massoud [1989] VR 8

Number of paragraphs: 25

Date of hearing: 28 September 2021

Place: Sydney (by video link)

Counsel for the Appellant: Mr Batey with Ms Carter

Solicitor for the Appellant: York Family Law Specialists

Counsel for the First Respondent: Mr Givney

Solicitor for the First Respondent: Maclarens

The Second Respondent: No appearance
ORDERS

EAA 77 of 2021
PAC 5392 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR HAKIM

Appellant

AND:
MS SALIM

First Respondent

MS NOOR

Second Respondent

ORDER MADE BY:

ALDRIDGE, HOGAN & HANNAM JJ

DATE OF ORDER:

28 FEBRUARY 2022

THE COURT ORDERS THAT:
1.The appellant has leave to appeal Orders 2 and 8 of the interim order made by the primary judge on 9 July 2021.
2.The application for leave to appeal the interim order made on 9 July 2021 is otherwise dismissed.
3.The appeal against Orders 2 and 8 of the interim order made by the primary judge on 9 July 2021 is allowed as follows:
(a)Order 2 is amended by striking out the words “with the categorisation of such sum reserved to agreement between the parties or final hearing”; and
(b)Order 8 is set aside.

4.Within fourteen (14) days of the date of this order, the appellant file and serve written submissions in relation to the issue of costs.
5.Within fourteen (14) days of receipt of the appellant’s written submissions, the first respondent file and serve written submissions in response.
6.Within seven (7) days of…

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 Hakim & Salim

Details

AGLC: Hakim & Salim [2022] FedCFamC1A 21
Case: [2022] FedCFamC1A 21
Decision Date: 28 February 2022

CaseChat Overview and Summary

The case of Hakim & Salim involved an appeal against interim property orders made by the primary judge. The appellant, Mr Hakim, sought leave to appeal certain orders and challenged their validity on several grounds, including whether the primary judge erred in failing to identify the source of power relied upon in making an order for partial property settlement. The first respondent, Ms Salim, and the second respondent, Ms Noor, were also parties to the proceedings. The Federal Circuit and Family Court of Australia, in its appellate jurisdiction, heard the appeal.

The legal issues before the court were whether the primary judge erred in making the orders, whether the characterisation of the partial property order should have been left to the agreement of the parties or the final hearing, and if there was a denial of procedural fairness. The court considered the arguments presented by both parties and examined the reasons provided by the primary judge. The court found that the appellant had not established an error in the primary judge's exercise of discretion, but did find that there was a denial of procedural fairness.

The court allowed the appeal in part, setting aside certain orders and amending others. The court found that the primary judge's failure to identify the source of power relied upon in making the orders did not constitute an error, but did find that the primary judge's decision to leave the characterisation of the partial property order to the agreement of the parties or the final hearing was an error. The court also found that the primary judge's failure to give the appellant an opportunity to respond to certain evidence presented by the respondents constituted a denial of procedural fairness. The court set aside the affected orders and granted the appellant leave to appeal.

The court ordered that the appellant file and serve written submissions in relation to the issue of costs within fourteen days of the date of the order. The first respondent was ordered to file and serve written submissions in response within fourteen days of receipt of the appellant's submissions. The appellant could then file and serve written submissions strictly in reply within seven days of receipt of the first respondent's submissions. The form of the order was subject to the entry in the Court's records and could be subject to review or variation in accordance with the relevant rules.

Orders

Orders of the court

EAA 77 of 2021

PAC 5392 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR HAKIM

Appellant

AND:

MS SALIM

First Respondent

MS NOOR

Second Respondent

ORDER MADE BY:

ALDRIDGE, HOGAN & HANNAM JJ

DATE OF ORDER:

28 FEBRUARY 2022

THE COURT ORDERS THAT:

1. The appellant has leave to appeal Orders 2 and 8 of the interim order made by the primary judge on 9 July 2021.

2. The application for leave to appeal the interim order made on 9 July 2021 is otherwise dismissed.

3. The appeal against Orders 2 and 8 of the interim order made by the primary judge on 9 July 2021 is allowed as follows:

(a) Order 2 is amended by striking out the words “with the categorisation of such sum reserved to agreement between the parties or final hearing”; and

(b) Order 8 is set aside.

4. Within fourteen (14) days of the date of this order, the appellant file and serve written submissions in relation to the issue of costs.

5. Within fourteen (14) days of receipt of the appellant’s written submissions, the first respondent file and serve written submissions in response.

6. Within seven (7) days of receipt of the first respondent’s written submissions, the appellant may file and serve written submissions strictly in reply.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

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

Whilst the second respondent did not seek to be heard on the appeal, we are not persuaded, in the circumstances of the appellant’s actions in leasing the Suburb D property to the second respondent in the manner outlined by the primary judge in his reasons, that the appellant has established that the primary judge erred in the exercise of his discretion in making an order in the terms of Order 6 of the July 2021 order.CONCLUSION For the reasons expressed above, the orders in relation to the application for leave and the appeal itself will be as set out at the commencement of these reasons.COSTS At the hearing before us, counsel for each party who appeared joined in seeking the opportunity to provide written submissions once the outcome of the appeal was known. The orders made will enable this process and, once the written submissions are received, the issue of costs will be considered in chambers.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

EAA 77 of 2021 PAC 5392 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA DIVISION 1 APPELLATE JURISDICTION
BETWEEN:	MR HAKIM Appellant
AND:	MS SALIM First Respondent MS NOOR Second Respondent

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:	ALDRIDGE, HOGAN & HANNAM JJ
Date of judgment:	28 February 2022
Catchwords:	FAMILY LAW – APPEAL – PROPERTY – Appeal from interim property orders – Whether the primary judge failed to identify the source of power relied upon in making an order for partial property settlement – Reasons to be considered in the context of the hearing – No error established – Where the characterisation of the partial property order was left to the agreement of the parties or at the final hearing – Denial of procedural fairness – Leave to appeal granted – Appeal allowed in part – Interim property order as to the characterisation of the partial property settlement set aside – Order affected by denial of procedural fairness set aside – Written submission as to costs to be provided.
Legislation:	Family Law Act 1975 (Cth) ss 79, 80
Cases cited:	Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40 Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148 Kioa v West (1985) 159 CLR 550; [1985] HCA 81 Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34 Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466; [2009] FamCAFC 166 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Number of paragraphs:	25
Date of hearing:	28 September 2021
Place:	Sydney (by video link)
Counsel for the Appellant:	Mr Batey with Ms Carter
Solicitor for the Appellant:	York Family Law Specialists
Counsel for the First Respondent:	Mr Givney
Solicitor for the First Respondent:	Maclarens
The Second Respondent:	No appearance

ORDER MADE BY:	ALDRIDGE, HOGAN & HANNAM JJ
DATE OF ORDER:	28 FEBRUARY 2022