Masih & El Saeid

Case [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.

  1. 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.

  1. 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…

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AGLC
Masih & El Saeid [2021] FamCA 60
Case
[2021] FamCA 60
Decision Date

CaseChat Overview and Summary

In the matter of *Masih & El Saeid*, heard by Harper J, the applicant father sought to abandon his parenting application after prolonged proceedings. These proceedings had included a final hearing and a successful appeal, with interim orders in place since 2012. While all parties acknowledged that the father was not spending time with the children as stipulated in the interim orders, they nonetheless consented to these orders being made final.

The court was required to determine whether to make the existing interim parenting orders final, despite the father's application to abandon his parenting case and the acknowledged non-compliance with the terms of those interim orders. The court also considered the dismissal of a contravention application filed by the father and the discharge of the Independent Children’s Lawyer.

Harper J made orders by consent. The interim orders from 17 September 2012 were made final. The father's application to contravene the orders was dismissed, and the Independent Children’s Lawyer was discharged. The parties were referred for a conciliation conference, with detailed directions given regarding disclosure, the preparation of a joint balance sheet, and the exchange of financial information and contentions concerning property division and spousal maintenance adjustments. The court also directed the parties and their legal representatives to attend court one hour prior to the conciliation conference for negotiations.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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