FAMILY COURT OF AUSTRALIA
| MASOUD & MASOUD | [2013] FamCA 763 |
| FAMILY LAW – CHILDREN – PARENTAL RESPONSIBILITY – Where the parties have three children – Where the Court considered the presumption of equal shared parental responsibility – Where there were allegations of family violence but the presumption was found not to be rebutted – Where the Court determined that it was in the best interests of the children for the parties to have equal shared parental responsibility. FAMILY LAW – CHILDREN – WITH WHOM CHILDREN LIVE – Where the parties agreed that the two younger children should live with the wife and the oldest child should live with the husband – Where the Court considered whether an equal time arrangement would be in the children’s best interests – Where the Court ordered that the two younger children should spend substantial and significant time with the husband but not equal time with him – Where the Court ordered that the oldest child should spend time with the wife as agreed between the child and the wife. FAMILY LAW – PROPERTY – SETTLEMENT IN RELATION TO MARRIAGE – Where the parties were married for 16 years and seek an alteration of their property interests under section 79 of the Family Law Act 1975 (Cth) (“the Act”) – Where the Court considered whether notional property should be “added back” into the parties’ asset pool or considered elsewhere – Consideration of the Full Court decision in Bevan & Bevan [2013] FamCAFC 116 – Where overall the wife was found to have made greater section 79(4) contributions than the husband – Where the husband has a considerably higher earning capacity than the wife – Where the wife contributed to the development of the husband’s earning capacity – Where the Court found that it was appropriate to make an adjustment in favour of the wife under section 75(2). FAMILY LAW – SPOUSE MAINTENANCE – Where the wife sought an order for spouse maintenance – Where the threshold findings under section 72 of the Act were satisfied – Where the Court considered what order would be “proper” – Where it was determined that an order for the husband to pay maintenance to the wife for two years would be proper. FAMILY LAW – CHILD SUPPORT DEPARTURE – Application for departure from an existing child support departure order – Where both parties sought an order for child support departure –Where the difference in quantum in the parties’ proposed orders varied substantially – Where the Court undertook the three-step process of analysis – Consideration of whether there was a ground for departure under section 117(2) of the Child Support Assessment Act 1989 (Cth) – Consideration of whether it would be “just and equitable” to make an order – Consideration of whether it would be “otherwise proper” to make an order – Where the Court made an order for departure. |
| Child Support (Assessment) Act 1989 (Cth) Family Law Act 1975 (Cth) Limitation Act 1969 (NSW) |
| Bevan & Bevan [2013] FamCAFC… |
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- AGLC
- MASOUD & MASOUD [2013] FamCA 763
- Case
- [2013] FamCA 763
- Decision Date
CaseChat Overview and Summary
The court was required to determine the specific parenting orders concerning the children's living arrangements, time spent with each parent, and decision-making responsibilities. Additionally, the court needed to make orders regarding the division of the parties' various assets, including bank accounts, a line of credit, real estate, company interests, trusts, a motor vehicle, and superannuation funds. The court also addressed issues of spouse maintenance and child support.
In relation to parenting, the court ordered equal shared parental responsibility, with J to live with the husband and D and G to live with the wife. Specific time arrangements were detailed for the children to spend with the non-resident parent, including during school terms and holidays, with provisions for Father's Day and Mother's Day. The court also made orders concerning notification of illness, communication, the prohibition of denigration, and the promotion of the relationship with the other parent. Further orders addressed physical discipline, international travel, passports, and ongoing therapeutic counselling for the children.
The property division involved the distribution of various assets and liabilities. The wife was declared the legal and beneficial owner of several properties, interests in a partnership, and shares in XX Pty Limited. The husband was ordered to assign his interests in certain trusts and a motor vehicle to the wife. The parties were to divide funds in a joint bank account and discharge a joint line of credit in specified proportions. The wife was to assign her interest in a Sydney property to the husband, and following this, the husband was to pay a significant sum to the wife in instalments. The parties were declared entitled to their respective superannuation interests. A property in Sydney CBD was to be sold with proceeds distributed in a specific order of priority, with the balance allocated between the L Superannuation Fund and the EJ Settlement Trust. The court also made orders regarding spouse maintenance, with the husband to pay a monthly sum to the wife for 24 months, and child support, with the husband to pay a weekly sum for D and G, subject to indexation and crediting against any administrative assessment. The husband also undertook to pay specific expenses for all three children, including school tuition, private health insurance, medical costs, and extra-curricular activities.
Orders
Orders of the court
Parenting
1.
The parties Ms Masoud (“the wife”) and Mr Masoud
(“the husband”) shall have equal shared parental responsibility for making decisions about the long-term care, welfare and development of the children J Masoud born … 1997 (“J”); D Masoud born … 2000 (“D”); and G Masoud born on … 2002 (“G”) (together, “the children”).
2.
J shall live with the husband.
3.
D and G shall live with the wife.
4.
J shall spend time with the wife as agreed between J and the wife, noting that both parties agree that it is in J’s best interests to spend time with the wife.
5.
D and G shall spend time with the father as follows:
(a) from the date of these Orders for a period of six weeks:
(i) in each alternate week during school term – from the conclusion of school on Friday (or from 3.30 pm on a non-school day) until Saturday at 8.30 pm and
(ii) in each other week – from the conclusion of school on Thursday (or from 3.30 pm on a non-school day) to 7.00 pm
(b) following the expiration of the period of six weeks referred to in Order 5(a) above, for a further period of six weeks:
(i) in each alternate week during school term – from the conclusion of school on Friday (or from 3.30 pm on a non-school day) until the commencement of school on the following Monday (or until 8.00 am on a non-school day)
(c) following the expiration of the period of six weeks referred to in Order 5(b) above:
(i) in each alternate week during school term – from the conclusion of school on Thursday (or from 3.30 pm on a non-school day) to the commencement of school on the following Monday (or until 8.00 am on a non-school day)
(d) during the Christmas school holidays commencing in 2013:
(i) for two periods each of seven days as agreed between the parties or
(ii) in the absence of agreement by the parties, during the second and fourth week of the Christmas school holidays commencing on Sunday at 9.00 am
(e) during school holidays commencing in 2014:
(i) for one half of each school holiday period as agreed between the parties not less than six weeks prior to the commencement of the holiday period or
(ii) in the absence of agreement by the parties, for the second half of each school holiday period commencing in 2014 and each alternate year thereafter, and for the first half of each school holiday period commencing in 2015 and each alternate year thereafter
(f)
from Christmas Eve at 6.00 pm to Boxing Day at 6.00 pm in
odd-numbered years (noting that the husband’s time with the children will be suspended from Christmas Eve at 6.00 pm until Boxing Day at 6.00 pm and in even-numbered years)
(g) at other times as agreed between the parties in writing which includes agreement by email.
6.
Notwithstanding anything otherwise contained in these Orders, the children shall spend time with the husband from the conclusion of school (or from
3.30 pm on non-school days) on the Friday before Father’s Day until the commencement of school on the following Monday (or 8.00 am on a
non-school day).
7.
Notwithstanding anything otherwise contained in these Orders, the children shall spend time with the wife from the conclusion of school (or from 3.30 pm on non-school days) on the Friday before Mother’s Day until the commencement of school on the following Monday (or 8.00 am on a
non-school day).
8.
Unless otherwise stated in these Orders or by agreement made between the husband and wife in writing, if changeover of the children does not occur at school, the husband or his nominee shall collect the children from the wife’s home at the commencement of his time with the children and the wife or her nominee shall collect the children from the husband’s home at the conclusion of his time with the children.
9.
If either the husband’s or the wife’s time with the children commences or concludes at school, they or their nominee shall deliver the children to or pick up the children from the school.
10.
Unless otherwise agreed between the husband and wife, the parent who is not scheduled to collect D or G from school pursuant to these Orders on any given day shall be restrained from attending the school that D and G attend one hour prior to and one hour following the conclusion of school.
11.
The operation of Order 10 shall be suspended in the event of a parent-teacher interview event, an emergency or any school functions which the parents are invited to attend.
12.
For the purpose of calculating any school holiday period, school holidays shall be deemed to commence from the conclusion of school on the last day of school term for the school D and G attend; this shall be known as the “first day”. The school holiday periods shall conclude at 3.00 pm on the day prior to the first school day that D and G attend school in each new school term; this shall be titled the “last day”.
13.
Unless otherwise agreed between the husband and the wife, changeovers which occur half way through the school holiday periods shall occur at 2.00 pm on the day in the middle of the first day and the last day and if there be two such days then at 12 noon on the first of such days.
14.
The wife and the husband shall immediately notify the other of any illness, medical emergency, serious medical problem, hospitalisation or accident in relation to the children or any of them when the child or any of them are in their care. Together with any such notice the parent is to provide the name of the hospital, the treating medical practitioner and/or medical facility that provided medical treatment.
15.
Each parent shall keep the other advised at all times of their residential address, landline telephone number, mobile telephone number suitable for accepting SMS, and an emergency contact number and provide the other party with any new information within 24 hours of any change to residential address, landline telephone number and emergency contact number.
16.
Neither parent shall denigrate or permit any other person to denigrate the other parent or any member of the other parent’s household in the presence or hearing of the children or any of them.
17.
Each of the parents will do all things within their power to actively promote and encourage the relationship between the children and the other parent and members of the other parent’s family.
18.
Each parent is restrained from physically disciplining the children and shall not permit any third party to do so.
19.
The children’s names shall be immediately removed from any Airport Watch List and/or PACE Alert system in Australia and the parties are ordered to do all such acts and things as may be required to give effect to this Order
AND THE COURT REQUESTS that the Australian Federal Police remove the names of the children J Masoud born … 1997 (male); D Masoud born … 2000 (female) and G Masoud born … 2002 (female) from the Airport Watch List at all points of international arrivals and departures in Australia.
20.
Except for the Christmas school holidays commencing in 2013, each party shall be at liberty to take the children overseas for up to two consecutive weeks during their part of the school holidays on the following terms:
(a) the parent proposing the overseas trip gives the other parent at least six weeks’ prior written notice of the intended overseas travel and, not less than 21 days prior to the departure, a detailed itinerary and contact details for the children during the trip and
(b) on any such trip, the travelling parent will arrange for the children to telephone the other parent once each fourth day.
21.
The husband and wife shall do all such acts and things as may be necessary to ensure that the children each have current passports (with not less than six months’ currency) including but not limited to signing applications for renewal, and each parent shall pay one half of the costs associated with such renewals.
22.
The husband and wife shall do all such acts and things to ensure that:
(a) D and G continue to attend therapeutic counselling with psychologist Ms B unless they otherwise agree, or until Ms B determines that it is no longer necessary and
(b) J attends upon psychologist Mr N for the purpose of counselling until the parties agree, or until Mr N determines that it is no longer necessary.
23.
The husband shall make contact with Mr N within seven days of these Orders and cause J to attend on Mr N at the earliest opportunity to do so.
24.
The parties shall do all acts and things to comply with any reasonable request of the psychologists consulted by any of the children.
25.
The parties are at liberty to attend upon the psychologists consulted by any of the children if requested to do so by the psychologists.
26.
The parties are granted leave to provide to the psychologists consulted by any of the children a copy of these Orders, together with a copy of the Family Report prepared by Dr T in these proceedings.
27.
The parties are to procure the children’s attendance at any appointment with the psychologists consulted by any of the children in accordance with any reasonable request of the psychologists.
28.
The parties are to cooperate and comply with any reasonable request of the psychologists consulted by any of the children, including any request for the parties to attend upon the psychologists with or without the children.
29.
The parties are to share equally the costs of the children attending upon the psychologists consulted by them pursuant to these Orders but they are to solely bear the costs of any individual session they might have with the psychologists.
30.
In the event that the parties are unable to agree on a matter with respect to the care, welfare or development of the children, the parties are to participate in a mediation of the disagreement with Ms J with a view to resolving the disagreement. If for any reason Ms J is unavailable or unwilling to engage in that mediation, the parties are to participate in a mediation of the disagreement with such mediator as is recommended by the Director of Child Dispute Services at the Family Court of Australia, Sydney.
31.
Pursuant to section 65DA(2) and section 62B of the Family Law Act 1975 (Cth), the particulars of the obligations that these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist the parties to adjust to and comply with an Order are set out in the Fact Sheet attached to the sealed Orders and those particulars are included in these Orders.
Property
32.
The parties shall within 14 days of the date of these Orders do all acts and things as may be necessary to pay the funds in the Commonwealth Bank of Australia (“CBA”) private bank account presently held in their joint names in the ratio of 68 per cent to the wife and 32 per cent to the husband. Thereafter the parties are to do all acts and things as may be necessary to close that bank account.
33.
The parties shall within 28 days of the date of these Orders do all acts and things as may be necessary to discharge the line of credit liability with the CBA currently held in their joint names. At the time that the liability is discharged, the wife is to pay 68 per cent of the total amount outstanding and the husband is to pay 32 per cent of the total amount outstanding.
34.
The wife is declared as against the husband the legal and beneficial owner of all of her right, title and interest in and to the partnership with her sister,
Mrs Z (“the Partnership”). In particular and without limiting the generality of the forgoing, this Order applies to the wife’s right, title and interest in and to the following real estate held by the Partnership:
(a) Property O, Queensland
(b) Property D, Queensland (Lot 67)
(c) Property D, Queensland (Lot 68)
(d) Property D, Queensland (Lot 69).
35.
The wife is declared as against the husband the legal and beneficial owner of all of her right, title and interest in and to the properties situate at and known as:
(a) Property W, Queensland
(b) Property H, Queensland
(c) Property C, Queensland (Lot 2)
(d) Property C, Queensland (Lot 4)
(e) Property C, Queensland (Lot 6)
(f) Property C, Queensland (Lot 8)
(g) Property C, Queensland (Lot 10).
36.
The wife is declared as against the husband the legal and beneficial owner of all of her interest in XX Pty Limited.
37.
The husband shall within 28 days of the date of these Orders do all acts and things as may be necessary to assign to the wife, at the expense of the wife, all of his right, title and interest in and to the following trusts:
(a) Ms Masoud Trust (Bare Trust)
(b) KK Trust.
38.
The husband shall within 28 days of the date of these Orders do all acts and things as may be necessary to assign to the wife, at the expense of the wife, all of his right, title and interest in and to the Volkswagen … motor vehicle.
39.
The husband shall within 28 days of the date of these Orders do all acts and things as may be necessary to assign to the wife, at the expense of the wife, all of his right, title and interest in and to the parties’ jointly held shares in the following companies:
(a) Echo Entertainment Group Limited
(b) Tabcorp Holdings Limited.
40.
The husband shall do all acts and things as may be necessary to digitally copy all digital photographs and videos in his possession or control at his cost and provide such copies to the wife within 28 days from the date of these Orders.
41.
The wife shall within 28 days of the date of these Orders do all acts and things as may be necessary to assign to the husband, at the expense of the husband, all of her right, title and interest in and to the property situate at and known as Sydney Suburb 1.
42.
The wife shall within 28 days of the date of these Orders do all acts and things as may be necessary to assign to the husband, at the expense of the husband, all of her right, title and interest in and to the following entities:
(a) EJ Settlement Trust
(b) Masoud Pty Limited
(c) M Holdings Pty Limited.
43.
For the purpose of giving effect to Order 42(a) above, the wife shall do all acts and things as may be necessary to resign from her position as Trustee and Appointer of the EJ Settlement Trust and, simultaneously, the wife shall appoint the husband as Trustee and Appointer of the EJ Settlement Trust.
44.
Following appointment of the husband as Trustee and Appointer of the EJ Settlement Trust, the wife shall be restrained by injunction from exercising her power of appointment to remove the husband as Appointer and Trustee of the Trust.
45.
Following compliance by the wife with Orders 42 and 43 above, the husband shall pay to the wife the sum of $798,370, with such sum to be paid in instalments and pursuant to the following timeframe:
(a) $266,124 is to be paid exactly 12 months from the date of the later of the two transfers referred to in Orders 42 and 43 above
(b) $266,123 is to be paid exactly 12 months from the date of the payment made pursuant to Order 45(a) above and
(c) $266,123 is to be paid exactly 12 months from the date of the payment made pursuant to Order 45(b) above.
46.
The wife and the husband are declared as against each other legally and beneficially entitled to all their interests and entitlements in the
L Superannuation Fund presently held in their respective sole names.
47.
The parties shall within 14 days
of the date of these Orders do all acts and things as may be necessary to sell the property at Sydney CBD1
(“the first CBD property”) for the best price reasonably obtainable and they shall effect such sale in the following manner:
(a) the parties shall forthwith list the first CBD property for sale by public auction with such agent as the parties agree to appoint and, absent agreement, with such agent as the President of the Real Estate Institute of New South Wales shall appoint (“the selling agent”)
(b) the reserve price shall be such price as may be mutually agreed by the parties or, in the absence of agreement within 14 days prior to the date of the auction, at such reserve price as is nominated by a valuer appointed by the President of the New South Wales Division of the Australian Property Institute (“the valuer”)
(c) the parties shall each cooperate in every way with the selling agent including by doing the following:
(i) making all keys (and other devices required to access the property available to the selling agent
(ii) allowing inspection of property at all reasonable times requested by the selling agent
(iii) doing or saying nothing to hinder or prevent a sale being effected
(iv) ensuring the property is in a neat and clean condition at the time of inspections by the selling agent and prospective purchasers and
(v) signing all documents requested by the selling agent in relation to the listing for sale the property, except a contract or agreement for sale which has not been authorised by the parties' solicitors
(d) in the event that bidding at the auction does not reach the reserve price, the parties may negotiate with the highest bidders or any other interested person and effect a sale of the property at a price which is not more than 5 per cent below the reserve price, or at such other price as the parties agree upon in writing
(e) if the property remains unsold for a period of 14 days after the first auction, the parties shall do all acts and things and sign all documents necessary to continue to relist the property for sale by public auction again at three-monthly intervals and Order 47(a)-(d) above shall apply successively until the property has been sold, save that at each successive auction the reserve price shall be 5 per cent less than the reserve price at the preceding auction, unless otherwise agreed by the parties in writing
(f) the parties shall instruct such solicitor as they agree upon to have conduct of the sale of the property on behalf of both parties or, in the absence of agreement within seven days of the date of these Orders, shall instruct such solicitor as may be appointed by the President of the Law Society of New South Wales (“the solicitor”)
(g) the parties shall each execute a contract for sale in the form prepared by the solicitor having the conduct of the sale of the property at the sale price
(h) the costs of and incidental to all matters relating to the sale of the property are to be borne equally by the parties as and when same fall due
(i) upon settlement of the sale of the property, the proceeds of sale shall be paid in the following manner and priority:
(i) all costs and expenses of the sale including legal costs and disbursements, agents’ commissions, advertising expenses, valuers’ fees and auction expenses (including repayment of any such expenses that have been paid by either or both of the parties) for the purpose of preparing the property for sale
(ii) in payment of all rates and levies outstanding with respect to the property
(iii) the usual conveyancing adjustments and
(iv) the balance remaining shall then be paid in the proportion of 61.8 per cent to the L Superannuation Fund and 38.2 per cent to the EJ Settlement Trust.
48.
Following distribution of the sale proceeds of the first CBD property in the manner specified in Order 47 above, the husband and the wife shall do all acts and things as may be necessary to enable the wife to roll out her interest and entitlement in the L Superannuation Fund to a superannuation fund of her choosing.
49.
Should the parties have a liability to BL property agents in respect of the sale the former matrimonial home (as the wife asserts), the liability shall be borne by the husband and the wife in equal shares.
50.
Otherwise than as provided for in these Orders, the wife and the husband shall each retain all of their respective right, title and interest in and to the following:
(a) personal property in their respective possession or control
(b) shares, debentures, units in unit trusts, and funds in bank or credit union accounts in their respective sole names and
(c) interests in life insurance policies and superannuation funds standing in their respective sole names.
51.
Otherwise than as provided for in these Orders, the husband shall indemnify and keep indemnified the wife against all liabilities or claims arising in respect of any item of property that he is to receive or any debt or loan standing in his name as a result of the operation of these Orders, except to the extent that any liability or claim arises from an act or omission by the wife in breach of her obligations under these Orders.
52.
Otherwise than as provided for in these Orders, the wife shall indemnify and keep indemnified the husband against all liabilities or claims arising in respect of any item of property that she is to receive or any debt or loan standing in her name as a result of the operation of these Orders, except to the extent that any liability or claim arises from an act or omission by the husband in breach of his obligations under these Orders.
Spouse maintenance
53.
The husband shall pay to the wife by way of spouse maintenance the sum of $4,333 per month paid monthly in advance, with the first payment to be made within seven days from the date of these Orders. Each payment thereafter is to be made on the same calendar day in each month for a period of 24 months following the first payment.
Child support
54.
By way of child support departure and pursuant to section 117 of the
Child Support (Assessment) Act 1989
(Cth) (“the Assessment Act”), the husband shall pay to the wife periodic child support for the children D and G in the sum of $1,300 per week in total until the happening of a terminating event in accordance with section 12 of the Assessment Act or until further order of the Court.
55.
The periodic child support payable by the husband to the wife in accordance with Order 54 above is to be paid monthly in advance (the monthly sum being $5,633), with the first monthly payment to be made within seven days of the date of these Orders and each monthly payment thereafter to be made on the same calendar day in each month.
56.
Commencing on 1 July 2014, the periodic child support payable by the husband to the wife is to be varied on and from 1 July in each year in accordance with the variation in the Consumer Price Index for Sydney as it stands on the day immediately preceding the date of variation (being 30 June in any year), as compared with the same index at the same date twelve months earlier.
57.
The periodic child support payable by the husband to the wife pursuant to these Orders is to be credited against the husband’s liability under any administrative assessment for child support payable to the wife and is to count for 100 per cent of the annual rate of child support payable by the husband to the wife under any such assessment until the happening of a terminating event.
58.
The Court notes the undertaking of the husband to pay to the wife, in addition to periodic child support with respect to D and G, the following expenses with respect to D, G and J:
(a) as and when they fall due, the tuition fees associated with the children’s schooling (with respect to D and G, such schooling is presently at School A and with respect to J, such schooling is at School Y), including all school fees and associated costs (excluding any optional excursion overseas or costing more than $100, unless agreed by the husband in writing)
(b) all instalments necessary to maintain private health insurance for the children at the current level of cover
(c) the costs of all agreed orthodontic treatment, agreed hospital, agreed optical, agreed physiotherapy, agreed podiatry or agreed other medical specialist fees or expenses in respect of the children not able to be recovered from private health insurance and
(d) the costs of the children's extra-curricular activities where the children's participation is agreed by the husband in writing prior to the children commencing the activity.
General
59.
Each party shall do all things necessary including providing all consents to give effect to these Orders in the time periods prescribed in these Orders.
60.
In the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to all or any of these Orders then the Registrar of the Court shall be appointed pursuant to section 106A of the Family Law Act 1975 (Cth) to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of affidavit.
61.
All exhibits may be returned upon the usual undertakings.
62.
All material produced in response to subpoenas is to be returned to the party who produced it.
63.
The matter is removed for the list of Active Pending Cases.
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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