Hakim & Salim
[2022] FedCFamC1A 21
•28 February 2022
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 166Soulemezis 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 2020FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: 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).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hakim & Salim has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALDRIDGE J:
I have read the reasons of Hogan J and Hannam J and generally agree with them and with the orders proposed.
HOGAN & HANNAM JJ:
By Amended Notice of Appeal filed on 19 July 2021 (“the Amended Notice of Appeal”), the appellant sought leave to appeal and, if leave is granted, to appeal an interim order made by the primary judge on 9 July 2021 (“the July 2021 order”). The application for leave to appeal and appeal are opposed by the first respondent.
The second respondent filed a Submitting Notice on 22 July 2021 and did not appear at the hearing of the appeal.
The July 2021 order provides that:
1. The wife’s application for periodic spouse maintenance be dismissed.
2. The husband pay to the wife within 21 days from this date the sum of $100,000 with the categorisation of such sum reserved to agreement between the parties or final hearing.
3. Pursuant to s 106B of the Family Law Act 1975 (Cth) the Memorandum of Lease dated 3 May 2021 between the husband as landlord and the second respondent as tenant in relation to the property at C Street, Suburb D be set aside.
4. The second respondent vacate the property at C Street, Suburb D by no later than 21 days from this date.
5. Liberty to the wife to apply for a Writ of Possession on short notice.
6. The husband indemnify the second respondent in respect to her reasonably incurred relocation and removal expenses within seven days of receiving evidence of payment of such expenses by the second respondent.
7. Pending further order the wife shall have sole use and occupation of the former matrimonial home at C Street, Suburb D as and from 21 days from this date and that thereafter the husband be restrained from doing any act or action that may interfere with the wife’s peaceful use and enjoyment of the said property.
8. The husband shall, pending further order, cause the payment of property outgoings as they fall due and payable, being levied council and water rates and insurances and mortgage payments.
9. The husband shall, concurrently with the wife taking up occupation of the C Street property, cause to be returned to the property by arrangement with the wife through her solicitors all items of personalty, furnishings, furniture, white goods and clothing and personal effects of the wife and children removed by him from the C Street home.
Whilst the Amended Notice of Appeal specifically states that Orders 1 to 9 of the July 2021 order are the subject of appeal, this was clearly not the case insofar as Order 1 – the order by which his Honour dismissed the first respondent’s application for periodic spousal maintenance – is concerned.
It is appropriate to record that the appellant also originally sought leave to appeal his Honour’s subsequent refusal, on 29 July 2021, of an application to stay the operation of the July 2021 order pending the determination of this appeal. However, at the hearing of the appeal, counsel for the appellant confirmed that, as the first respondent had already moved into the Suburb D property, this appeal was abandoned; orders dismissing the same were then made.
Given the fact of the first respondent’s occupation of the Suburb D property, it appears to us that the appeal against Orders 3, 4 and 5 of the July 2021 order is otiose, as is the appellant’s contention that the primary judge failed to provide reasons about how the interests of the second respondent were to be protected by the terms of the July 2021 order.
LEAVE TO APPEAL
The appellant requires leave to appeal from the July 2021 order made by the primary judge. To be granted such leave, the decision of the primary judge must be attended by sufficient doubt to warrant it being reconsidered on appeal and substantial injustice must occur if leave was refused.[1]
[1] Medlow & Medlow (2016) FLC 93-692.
We will return to the question of leave during the consideration of the substantive grounds of appeal.
GROUNDS OF APPEAL
The grounds of appeal advanced on behalf of the appellant in the Amended Notice of Appeal are as follows:
1. That His Honour erred in making Order 2 in failing to identify the head of power and in leaving that determination to the parties by agreement or the final hearing.
2. That His Honour erred in making an order that the Appellant pay the Respondent $100,000 within 21 days there being no evidence that such amount was available within such time frame and further or in the alternative His Honour failed to give reasons for his finding that it was proper as determined at #97 that it be paid within a month.
3. That His Honour failed to give reasons or adequate reasons as to why the Appellants proposal identified at #67 did not meet all of the Respondent’s asserted claims in circumstances where the Respondents brothers owed the moneys.
4. That His Honour having found at #81 that the Court could not be satisfied that the Respondent could not support herself adequately erred in then making Order 8 (a maintenance order) and in consequence Orders 3 to 7 and 9.
5. That His Honour erred in taking into account as an irrelevant consideration at #102 that the Appellant made no comment as to the circumstances of the Respondent’s parents.
6. That His Honour erred in failing to give reasons or adequate reasons for his finding at #70 that the Respondents decision to not seek further advances from her friend did not impact on the interim issues.
7. That His Honour failed to give reasons or adequate reasons as to how the interests of the Second Respondent were protected by the Orders made.
8. That His Honour failed to give reasons or adequate reasons, including by way of identifying the head of power, for the making of Order 8.
9. That His Honour failed to give reasons or adequate reasons, including by way of identifying the head of power, for the making of Order 9.
10. That His Honours discretion in the making of each of the Orders miscarried in circumstances where His Honours determinations were based on inferences rather than findings supported by reasons.
(As per the original)
Whilst these grounds of appeal were not abandoned, the appeal really proceeded on the basis that there were really two main issues for this Court – namely, his Honour’s asserted failure to identify the head of power he relied on in making the July 2021 order in the terms that he did and, insofar as Order 8 of the same is concerned, the asserted failure to accord procedural fairness to the appellant – and that the balance of the appeal would really fall away once the assertion of the absence of procedural fairness was determined.
The appeal in respect of Order 8 of the July 2021 order
Counsel for the first respondent appropriately conceded that, at the hearing before the primary judge, no order in the terms of Order 8 was sought by the first respondent, whether via the contents of the Second Amended Initiating Application filed on 15 June 2021 or by oral submissions. It is also clear that the primary judge did not provide either party with the opportunity to be heard in relation to an order in the terms of Order 8 before making the same.
Given the above, we accept that the appellant was denied procedural fairness in relation to Order 8 of the July 2021 order and that, in proceeding as he did, the primary judge erred. [2] Such conclusions persuade of the necessary prerequisites for leave and, consequently, the appellant will be granted leave to appeal in respect of Order 8 of the July 2021 order and the same will be set aside.
[2]See, for example, Allesch v Maunz (2000) 203 CLR 172 at [35] per Kirby J; Kioa v West (1985) 159 CLR 550 at 582.
Whilst remitter was originally sought, the absence of any application seeking the relief provided by Order 8 means that there is no basis for the same.
The asserted failure to identify the power relied upon in making the July 2021 order
Whilst focused specifically on the terms of Order 2 of the July 2021 order, we understood the overarching submission by the appellant to include that the primary judge erred by failing to identify the source of power he relied on to make the July 2021 order.
We do not accept this contention. Whilst the primary judge did not expressly refer to s 79 and s 80 of the Family Law Act 1975 (Cth) (“the Act”) in making the July 2021 order, the following is clearly established:
(a)
his reasons for making Order 2 appear under the heading “[i]nterim property” and include a recitation of the principles for making an interim property order, including a reference to Strahan & Strahan(Interim Property Orders) (2011) FLC 93-466
(at [84]–[98]); and
(b)he had earlier concluded that “as there is no evidence from the wife as to her income the Court cannot be satisfied that she cannot support herself adequately” and dismissed her application for spousal maintenance (at [75]–[83]); and
(c)the Case Outline relied on by the appellant before the primary judge included the assertion, in relation to the payment of the $100,000 sought by the first respondent, that “[t]he [o]rder sought by the wife must be an [o]rder for partial property settlement”;[3] and
(d)during submissions before the primary judge in relation to the payment of the $100,000 sought by the first respondent, senior counsel who then appeared for the appellant said, amongst other things, that “[i]n relation to the payment of $100,000 I am proceeding upon the assumption that that is an interim property order to be made under section 80 unless I hear to the contrary”;[4] and
(e)the handwritten document described as being “the husband’s open offer in relation to the wife’s applications”,[5] (and which became Exhibit L at the hearing before the primary judge) outlined that the offer by the appellant was to “assign the debt owing to him by the wife’s brothers…in the sum of $162,159…with such assignment to be by way of partial property settlement”.[6]
[3] Appellant’s Case Outline filed on 17 June 2021, paragraph 7.
[4] Transcript 18 June 2021, p.43 lines 34–36.
[5] Transcript 18 June 2021, p.20 line 7.
[6] Exhibit L.
Given the above, we consider it easily established that all who appeared at the hearing before the primary judge fully appreciated the source of the power relied on by the first respondent in seeking the orders she sought; the reasons provided by the primary judge need to be considered in this context and his failure to assert specifically the legislative source of the power in such circumstances was not, we consider, an error.
In addition, given the offer by the appellant at the hearing before the primary judge to cause the assignment to the first respondent of a debt owed to him in the amount of $162,159 in satisfaction of the various interim applications then before his Honour, we are satisfied that the reasons the primary judge subsequently provided for the orders he made adequately explained the process of reasoning he undertook,[7] particularly given that he was not obliged to refer to every aspect of the evidence before him.[8]
[7]See, for example, Bennett and Bennett (1991) FLC 92-191 at 78,266, citing Sun Alliance Insurance Ltd v Massoud [1989] VR 8.
[8] See, for example, Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 269–270.
However, we accept that, having exercised the power to make an interim property order by way of partial property settlement, the primary judge erred by expressing Order 2 of the July 2021 order in terms which reserved the characterisation of the $100,000 he ordered be paid to the first respondent to agreement between the parties or final hearing. We are also satisfied, insofar as this aspect of the application for leave to appeal and the appeal is concerned that the prerequisites outlined in Medlow & Medlow (2016) FLC 93-692 are met and that, consequently, the appellant should be granted leave to appeal Order 2 of the July 2021 order, insofar as the same reserves the characterisation of the payment to the future, and that this aspect of the same should be set aside.
The balance of the appeal
As outlined above, the grounds of appeal also take issue with the primary judge’s determination to order the payment of the $100,000 within 21 days; his asserted failure to provide reasons for finding that it was proper that the sum ordered be paid within a month; him failing to give reasons or adequate reasons for failing to adopt the appellant’s proposal before him to assign the debt owed by the first respondent’s brothers; requiring the appellant to meet the costs associated with the first respondent’s occupation of the property despite having found, effectively, that she had failed to demonstrate a financial need that could not be met from her own financial resources; erroneously making a finding about the circumstances of the first respondent’s parents; asserted impermissible failure to consider the first respondent’s capacity to borrow funds from friends rather than seek them from the appellant and general error in the exercise of discretion because it was submitted that his Honour’s determinations were based on inferences, rather than findings supported by evidence or reasons.
As noted earlier, it is clear that a primary judge’s reasons need to be assessed in the context of the hearing before that judge. In the present case, the appellant’s decision to proffer an immediate assignment to the first respondent of the $162,159 debt owing to him can only have loomed large in the determination of the time within which the appellant was to be ordered to pay the funds to the first respondent – especially given that such assignment was proffered to quell all of the interim relief sought by the first respondent from the primary judge at that time.
Having regard to the appellant’s actions in proffering the assignment of the debt as a means by which the interim relief sought by the first respondent could be met, the reasons delivered by the primary judge and the submissions made on behalf of each of the parties (both orally and in writing), we are not persuaded that the appellant has established that the primary judge erred in the exercise of the broad discretion conferred on judges at first instance in the determination of applications for interim relief.
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.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Aldridge, Hogan & Hannam. Associate:
Dated: 28 February 2022
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