Masih & El Saeid

[2021] FamCA 60

FAMILY COURT OF AUSTRALIA

Masih & El Saeid [2021] FamCA 60

File number(s):	SYC 2986 of 2012
Judgment of:	HARPER J
Date of judgment:	15 February 2021
Catchwords:	FAMILY LAW – PARENTING – Where the father sought to abandon his parenting application after prolonged proceedings – Where those prolonged proceedings include final hearing and a successful appeal – Where the present interim orders are from 2012 – Where all parties agreed that the father was not spending time with the children as outlined in the interim orders – Where all parties nonetheless consented to the interim orders being made final – Orders made.
Legislation:	Family Law Act 1975 (Cth) s 60CC
Number of paragraphs:	8
Date of hearing:	15 February 2021
Place:	Sydney
Solicitor for the Applicant:	Mr Cameron
Solicitor for the Independent Children's Lawyer:	Mr Wilkins

ORDERS

SYC 2986 of 2012

BETWEEN:

MR A MASIH

Applicant

AND:

MS EL SAEID

Respondent

PHILLIP A WILKINS & ASSOCIATES

Independent Children’s Lawyer

ORDER MADE BY:	HARPER J
DATE OF ORDER:	15 FEBRUARY 2021

IT IS ORDERED THAT:

1. Orders 1, 2 & 3 of the interim orders made on 17 September 2012 be made on a final basis.
2. By consent, the Application – Contravention filed by the Applicant Husband on 17 September 2020 be dismissed.
3. The Independent Children’s Lawyer be discharged from the proceedings.
4. The parties be referred for a Conciliation Conference on 24 March 2021 at 10.00 am with a Registrar.
5. Each party exchange all reasonable requests for disclosure (“the requests”) to the other by no later than 22 February 2021.
6. On or before 4:00pm on 1 March 2021 each party:

(a)Comply with their obligations under Chapter 13 of the Family Law Rules 2004 (Cth) (“the Rules”) for full and frank disclosure; and

(b)Provide any further documentation required under Part 24 of the Rules and as sought in the requests.

7. The parties collaboratively prepare a joint balance sheet (“the Balance Sheet”):

(c)setting out all assets, liabilities and financial resources which the parties assert are relevant to the determination of this matter;

(d)the balance sheet is:

i.to be divided into clearly identified sections, specifying Assets, Liabilities, Superannuation and Add-backs (if claimed);

ii.give totals for each category, and subtotals in each category for each party;

iii.in the event, there is dispute about totals and subtotals, each party is to include the total or subtotal for which they contend

iv.is to have footnotes which explain the differences between the parties in relation to any disputed items;

(e)if a party contends any item should be included as an “add-back”, the footnotes to the balance sheet must contain a brief description of the basis for the claimed add-back.

8. For the purposes of preparing the Balance Sheet and unless otherwise agreed, no later than 3 March 2021, the Applicant Husband provide to the Respondent Wife a draft Joint Balance Sheet, using the form available on the Family Court of Australia website, setting out the asset pool contended for by the applicant and by no later than 17 March 2021 the Respondent Wife return the Joint Balance Sheet to the Applicant Husband having inserted the Respondent Wife’s contentions as to the asset pool, the Respondent Wife’s asserted values and footnotes to explain any disputed items.
9. Not less than 10 March 2021 the legal representatives for each party must give to their client a written notice setting out:

(f)The actual costs and disbursements incurred by the party up to and including the Conciliation Conference; and

(g)An estimate of future costs and disbursements of the party in the event the matter does not settle at the Conciliation Conference and should it proceed to final hearing.

10. The parties attend a Conciliation Conference with a Registrar at the Sydney Registry on as referred to above AND

(h)In the event of any applicable fee not having been reduced on the basis of financial hardship, the Applicant and Respondent pay any such fee equally at least 14 days prior to the Conciliation Conference;

(i)The solicitors for each party send to the Registrar at … (and to each other with the exception of sub-paragraph (b)(v) herein) by not later than 4:00pm on 17 March 2021 copies of:

i.The Balance Sheet;

ii.A document to be headed “Conciliation Conference Document” setting out:

1.The party’s contention as to contribution based entitlements in terms of s.79(4) or s.90SM(4) and the significant factors relied on (including the percentage adjustment sought);

2.The party’s contention as to any s.75(2) or s.90SF(3) adjustment sought and the factors in s.75(2) or s.90SF(3) relied on (including the percentage adjustment sought); and

3.A draft of the order sought to give effect to the entitlement asserted.

iii.Evidence that the Trustee of any relevant superannuation fund(s) intended to be the subject of a proposed superannuation splitting order has been accorded procedural fairness and any response received from the Trustee; and

iv.If applicable, a copy of any apprehended violence order or restraining order that is currently in force; and

v.Copies of the cost notices referred to in order 9 herein.

11. In the event that there has been non-compliance with these orders, the Registrar may determine that the Conciliation Conference is not to proceed and the Court may consider submissions with respect to costs at the next Court date.
12. I DIRECT THAT the parties attend Court together with their legal representatives one hour prior to the Conciliation Conference in order to have negotiations.

IT IS NOTED THAT:

A.The Applicant Husband has paid for outstanding valuations of the properties of the parties, and those should be available well prior to the Conciliation Conference.

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 Masih & El Saeid has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

HARPER J:

1. These are parenting and property proceedings which have been in the Court for many years.  The children subject to the parenting aspect of the proceedings, are R, born in 2006 and Q born in 2009.  On the 17 September 2012, Rees J made interim parenting orders by consent as follows:

   1.That the children live with the father from 10.00 am Sunday to 8.00 pm Wednesday each week commencing on Sunday, 23 September 2012.

   2.That the children live with the mother from 8:00 pm Wednesday to 10.00 am Sunday in each week.

   3.That the parents have equal shared parental responsibility.

2. It is common ground that the children have not spent any time with the father for a considerable period.

3. On 16 April 2019, Loughnan J made final parenting orders.  Those orders were appealed by the father, and a Full Court delivered reasons for judgment and orders on 25 June 2020 which set aside the final orders made by Loughnan J.  Accordingly, at present, the orders in force are those made by Rees J on 17 September 2012. 

4. When the matter was called for a case management hearing on 15 February 2021, the father was represented by counsel, the mother with leave of the Court was represented by her partner, Mr P, and the independent children’s lawyer appeared.  The father through his counsel indicated to the Court that, having reflected on the parenting aspect of the proceedings, he had reached the view that he did not wish to take any further step in relation to them. 

5. What he sought was for the orders made on an interim basis by Rees J in September 2012 to be made final orders.  Upon enquiry from the Court, the mother indicated that she agreed with those orders being final.  The position of the independent children’s lawyer was that the orders should be made final so that the children subject to the proceedings could be released from the burden of litigation. 

6. The Court is faced with the situation that although interim orders were made nearly nine years ago for time to be spent with the children and their father, for some considerable time that has not happened.

7. However, it is now the common position of the parties and the independent children’s lawyer that the parenting proceedings should be finalised on the basis of the orders made Rees J.  In circumstances where the Court is presently not in the possession of any evidence of either an expert nature or from the parties about the current situation of the children, the difficulty is of course, that the children are now some 14 and 11 years old, respectively, and they appear to have made their views about spending time with their father clear from the fact that they have not spent any time with him for a considerable period.

8. The independent children’s lawyer is of the view that it is in the best interests of the children that the litigation regarding them should be brought to a close today upon the basis proposed. Having considered the statutory pathway and the considerations set out in section 60CC(2) and (3) of the Family Law Act 1975 (Cth) to the extent possible, on balance I am satisfied that, in the circumstances of this case it will be it will be appropriate to finalise the parenting proceedings in the manner proposed so that the children can after many years be finally satisfied that they are not the subject of ongoing litigation between their parents.

I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Harper j.

Associate:

Dated:       15 February 2021