Masoud and Masoud (No. 2) - [2012] FamCA 946

FAMILY COURT OF AUSTRALIA

MASOUD & MASOUD (NO. 2)

[2012] FamCA 946

FAMILY LAW – PROPERTY – Interim distribution – whether appropriate and in the interests of justice to make an interim property order
FAMILY LAW – PROPERTY – Spousal maintenance – interim
FAMILY LAW – PROPERTY – Child support – interim

Family Law Act 1975 (Cth)

Gabel & Yardley (2008) FLC ¶93-386
Strahan & Strahan [2001] FamCAFC 166
Harris & Harris (1993) FLC ¶92-378
Zschokke & Zschokke (1996) FLC ¶92-693
Osferatu [2012] FamCA 408

APPLICANT:

Ms Masouda

RESPONDENT:

Mr Masouda

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

2198

2012

DATE DELIVERED:

16 November 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Justice Fowler

HEARING DATE:

19 and 24 October 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Kirk SC

SOLICITOR FOR THE APPLICANT:

Watts McCray

COUNSEL FOR THE RESPONDENT:

Mr North SC

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan Kelly

INDEPENDENT CHILDREN’S LAWYER:

Excused from attendance

Orders

It is ordered pending further order that:

The wife be entitled by way of partial property settlement to draw down from the parties’ jointly held Commonwealth Bank of Australia (CBA) account the following amounts:
(a)$350,000 to be paid to the wife’s solicitors to enable the legal costs of and incidental to these proceedings to be paid. It is noted that such payment is to be made by way of partial property settlement and any sum not so utilised will be repayable to the wife
(b) $200,000 to be paid to the wife and
(c)as to the payment under (b) above, the final characterisation of such payment whether as maintenance or otherwise is to be determined by the trial judge.
The husband be entitled by way of partial property settlement to draw down from the parties’ jointly held CBA account the following amount:
(a)$350,000 to be paid to the husband’s solicitors to enable the legal costs of and incidental to these proceedings to be paid. It is noted that such payment is to be made by way of partial property settlement and any sum not so utilised will be repayable to the husband.
The parties are in addition to allow for the release of sufficient funds from the parties’ jointly held CBA account to enable the wife to purchase a motor vehicle of her choosing of a cost not in excess of $82,000, subject to the parties’ existing Volkswagen motor vehicle being traded in or, if a trade in is not accepted, sold upon the wife’s purchase of a motor vehicle, and in that event the proceeds of sale of the Volkswagen motor vehicle are to be paid into the parties’ jointly held CBA account from which the purchase funds have been drawn.
The husband is to pay the ongoing expenses associated with the wife’s new motor vehicle including costs for registration, insurance and repair and maintenance work but excluding costs for petrol and any expenses arising from the wife’s negligence.
The husband is to pay to the wife or…

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 Masoud and Masoud (No. 2)

Details

AGLC: Masoud and Masoud (No. 2) [2012] FamCA 946
Case: [2012] FamCA 946
Decision Date

CaseChat Overview and Summary

The Family Court of Australia considered applications for interim property settlement and parenting orders between the husband and wife. The parties, married for approximately 16 years, had separated for a second and final time in April 2012, with three children of the relationship. The wife sought significant interim property settlement funds, spousal maintenance, and child support, while the husband sought a more limited interim property distribution, restraining orders against the wife concerning certain properties, and specific arrangements for child-related expenses and vehicle acquisition.

The court was required to determine the appropriate interim property distribution, including the release of funds for legal costs and general expenses, and to address the wife's claim for repayment of a debt to her father. It also needed to consider the wife's application for interim spousal maintenance and the husband's application for restraining orders over specific properties. Furthermore, the court had to determine the quantum of interim child support and other expenses to be paid by the husband for the three children, and the wife's application for exclusive use of a motor vehicle.

Justice Fowler made several interim orders, including allowing the wife to draw $350,000 for legal costs and $200,000 for other expenses from a joint Commonwealth Bank account, with the characterisation of the latter sum to be determined at trial. The husband was also permitted to draw $350,000 for his legal costs from the same account. The court ordered the release of funds for the wife to purchase a motor vehicle up to $82,000, with the husband to cover ongoing expenses excluding petrol and costs arising from the wife's negligence. The husband was ordered to pay child support of $600 per week per child, in addition to school fees, private health insurance, agreed medical expenses, and agreed extra-curricular activities, with these payments to be credited against any administrative assessment. The wife's application for periodic spousal maintenance was dismissed. The wife was restrained from dealing with her interest in five specified properties unless she provided 28 days' written notice or obtained the husband's consent, and she was to consent to the husband lodging caveats over these properties. Finally, the husband was ordered to return the wife's jewellery in his possession within 30 days.

Orders