MASOUD & MASOUD

Case [2015] FamCA 903

FAMILY COURT OF AUSTRALIA

MASOUD & MASOUD [2015] FamCA 903

FAMILY LAW – PRACTICE AND PROCEDURE – Application for discharge of a conditional stay order that was made pending determination of the appeal – Where the appeal was heard by the Full Court on an expedited basis and judgment is reserved – Where the husband is in alleged breach of that conditional stay order – Where the wife does not particularise the basis upon which she asserts the stayed order is revived – Where the husband has not had adequate notice of that aspect of the wife’s application – Where the Court finds that it  is inappropriate to disturb the previous award of spousal maintenance - Application dismissed.

FAMILY LAW – PROPERTY – Where the wife seeks that the husband be compelled to remove caveats lodged against nine properties of the wife – Where the husband seeks that the wife be compelled to agree to those caveats remaining, pending determination of the appeal and any possible re-hearing – Where the wife needs to raise funds to pay for the children’s private school fees – Orders made facilitating the removal of a caveat against a  nominated property for the  purpose of the wife raising funds for the children’s school fees.

FAMILY LAW – CHILD SUPPORT – Arrears – Where the wife seeks to recover the husband’s child support debt – Where the wife has not complied with the procedure set out in s 113A of the Child Support (Registration and Collection) Act 1988 (Cth) – Application dismissed.

Child Support (Registration and Collection) Act 1988 (Cth) s 113A
Family Law Act 1975 (Cth) s 114(3)

Family Law Rules 2004 (Cth)

Bass & Bass and Ors [2015] FamCA 186
Cowling & Cowling (1998) FLC 92-801
Masoud & Masoud [2013] FamCA 763
Masoud & Masoud (Stay application) [2014] FamCA 918
Menotti & Lamb [2014] FamCA 518
Mullen and De Bry (2006) FLC 93-293
Sampson & Hartnett [2007] FamCA 732
Sieling and Sieling (1979) FLC 90-627

APPLICANT: Ms Masoud
RESPONDENT: Mr Masoud
FILE NUMBER: SYC 2198 of 2012
DATE DELIVERED: 26 October 2015
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: McClelland J
HEARING DATE: 16 September 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Gould
SOLICITOR FOR THE APPLICANT: Watts McCray Lawyers
COUNSEL FOR THE RESPONDENT: Mr Kearney SC
SOLICITOR FOR THE RESPONDENT: Barkus Doolan

Orders

  1. The husband shall, within seven (7) days of the date of these orders, do all such acts and sign all such documents as are necessary for the wife to borrow the sum of $27 000 including, if necessary, withdrawing any caveat lodged against a property, as nominated by the wife (“the nominated property”), to enable that property, to be offered as security for the sum of $27 000.

  2. Within twenty-eight (28) days of any caveat being withdrawn, pursuant to Order (1) above, or such other time as may be agreed between the parties, the wife is to do all acts and things and sign all documents as are necessary…

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AGLC
MASOUD & MASOUD [2015] FamCA 903
Case
[2015] FamCA 903
Decision Date

CaseChat Overview and Summary

In the matter of *Masoud & Masoud*, McClelland J of the Family Court of Australia considered an application by the wife to discharge a conditional stay order, which had been made pending the determination of an appeal. The wife also sought orders compelling the husband to remove caveats lodged against nine of her properties, while the husband sought to maintain those caveats pending the appeal and potential re-hearing. The wife required funds to pay for her children's private school fees.

The court was required to determine whether to discharge the conditional stay order, given the husband's alleged breach and the pending appeal. Additionally, the court had to consider the wife's application for the removal of caveats to facilitate her raising funds for school fees, and the husband's opposing application to maintain them. The court also had to assess the risk of dissipation of marital assets by the wife.

McClelland J found that it was inappropriate to disturb the previous award of spousal maintenance and dismissed the wife's application to discharge the stay order, noting that the husband had not had adequate notice of the basis upon which the wife asserted the stayed order was revived. Regarding the property caveats, the court acknowledged the wife's need to raise funds for school fees and the husband's concern about asset dissipation. Applying principles of equity and the discretionary nature of injunctive relief, the court balanced the parties' interests. The court found that while there was a real risk of dissipation of assets by the wife, the evidence did not establish, on the balance of probabilities, that she was deliberately acting to deplete the marital property to defeat a possible court order.

Consequently, the court made orders facilitating the wife's ability to borrow $27,000 by allowing her to nominate a property for security, which might involve withdrawing a caveat. The husband was permitted to re-lodge a caveat on that nominated property after the loan was secured. The wife was restrained from dealing with seven other specified properties unless she provided the husband with at least 28 days' written notice or obtained his written consent, with the husband being obliged not to unreasonably withhold consent and to initiate court proceedings within 14 days if he wished to challenge any proposed dealing. The parties were also ordered to provide updated financial disclosure. The balance of the wife's and husband's applications were dismissed.

Orders

Orders of the court

1.

The husband shall, within seven (7) days of the date of these orders, do all such acts and sign all such documents as are necessary for the wife to borrow the sum of $27 000 including, if necessary, withdrawing any caveat lodged against a property, as nominated by the wife (“the nominated property”), to enable that property, to be offered as security for the sum of $27 000.

2.

Within twenty-eight (28) days of any caveat being withdrawn, pursuant to Order (1) above, or such other time as may be agreed between the parties, the wife is to do all acts and things and sign all documents as are necessary to provide her consent to the husband re-lodging a caveat against the nominated property.

3.

The wife, unless otherwise agreed between the husband and the wife, is restrained (unless she has beforehand given to the husband at least twenty-eight (28) days’ written notice of her intention to do so, or otherwise procured his consent in writing to such dealing) from transferring, assigning, granting any charge or mortgage over, further encumbering or otherwise dealing with all of her right, title and interest in the following properties:

(a) Property W, Queensland, Title Reference…;

(b) Property W 1, Queensland, Title Reference…;

(c) Property W 2, Queensland, Title Reference…;

(d) Property W 3, Queensland, Title Reference…;

(e) Property W 4, Queensland, Title Reference..;

(f) Property W 5, Queensland, Title Reference…;

(g) Property H, Queensland, Title Reference….

4.

The wife is to do all acts and things and sign all documents as are necessary to provide her consent to the husband lodging caveats over the properties listed in Orders 3(a) to (g) above to protect his right to notice pursuant to that Order.

5.

The husband shall not unreasonably withhold his consent to a request made by the wife to deal with a property or properties, pursuant to Order (3) above.

6.

For the purpose of Order (3) above, it shall be unreasonable for the husband to withhold his consent without, within 14 days of receiving a request by the wife to deal with a property or properties, initiating proceedings in a court of competent jurisdiction with a view to establishing his legal or equitable interest in the property or properties.

7.

Within twenty-eight (28) days of the date of these Orders, the parties are to provide each other with updated financial disclosure pursuant to Chapter 13 of the Family Law Rules 2004 (Cth), including financial disclosure in respect to the financial year ending 30 June 2015.

8.

The balance of the wife’s Application in a Case filed 8 December 2014 and the balance of the husband’s Application in a Cased filed 9 December 2014 be dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

That is not to say, however, that it is necessary for the husband to establish, as a matter of probability, an intention exists on the part of the wife to so deplete the marital property in order to defeat a possible order of the Court. In Mullen and De Bry (2006) FLC 93-293,[22] the Full Court explained the point of distinction as follows:We perceive that a real, though perhaps subtle, difference exists between, on the one hand, establishing on the balance of probabilities a risk or danger of a disposal of property intended to defeat an order and, on the other hand, proving to the civil standard and as an independent issue that a scheme to defeat an order exists. In some cases, the possibility (based on some evidence) of an intention or scheme may, with other factors, be sufficient to establish the probability of an objective risk of disposal with intent to defeat an order. It follows that we do not say that, in addressing the question of whether there is a risk of disposal of assets to defeat an order, it is unnecessary to enquire whether there is any evidence of an intention, plan or scheme to dispose of assets. But in an enquiry into the risk of disposal, the question of intention or scheme is but one of a number of factors relevant to the objective risk of disposition to defeat an order. (Emphasis added)[22] at 80,99. In these interim proceedings, the evidence is not such that the Court can find, on the balance of probabilities, that the wife is deliberately acting to dissipate the property of the marriage. Nevertheless, the husband has established that there is a real risk that the wife is engaging in conduct which is having that effect. The Court notes, in that respect, the wife’s conduct in repaying the sum of $700 000 and the sum of $45 000 to her father, and the allegation that she is paying artificially inflated rent to her father. The Court therefore finds that there is a real risk of dissipation of assets by the wife such that it may impact upon the property available for distribution should property orders be made by the Court, in the event that the appeal is successful and the matter is remitted for re-hearing. In considering the nature of the injunctive relief, it is important to be aware of the general principle that “equity intervenes to the minimum extent necessary to do justice”.[23] [23] See Giumelli v Giumelli (1999) 196 CLR 101 at [10] referred to in Norton & Locke (2013) 284 FLR 51 at [72]. In that respect, in Sieling and Sieling (1979) FLC 90-627 at 78 265, the Full Court said: The power to grant injunctions is, of course, a discretionary power, not to be exercised lightly. The Court must balance the hardship to each party of granting or refusing an order and frame its order in such a way to impose no further restriction than is necessary to achieve the protection of the applicant’s interest.[24] [24] See also Menotti & Lamb [2014] FamCA 518 at [41] and Auricchio & Auricchio and Ors [2014] FamCA 185 It is clear that Fowler J applied these principles in the interim orders he made on 16 November 2012.[25] Those orders were appropriate and are substantially replicated in this matter. As previously noted, the Court will not make orders in respect to the properties owned jointly by the wife and her sister, but the caveats already in place as a result of the orders of Fowler J will not be disturbed. It is noted that those jointly owned properties where caveats remain are: a)Property D 2;b)Property D 3; andc)Property O.[25] Masoud & Masoud (No. 2) [2012] FamCA 946 at [90] – [94].

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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