MASOUD & MASOUD
[2015] FamCAFC 19
•19 February 2015
FAMILY COURT OF AUSTRALIA
| MASOUD & MASOUD | [2015] FamCAFC 19 |
| FAMILY LAW – APPEAL – Application for expedition of appeal – Where the husband is significantly in arrears in relation to spousal and child maintenance orders – Where an application for the issue of an enforcement warrant seeking seizure and sale of property was refused – Where in contravention of the orders of the trial judge the husband is not paying the children’s school fees – Where the wife alleges she cannot afford to pay the school fees – Where the children may be removed from the school if fees are not paid while the parties are waiting for a final determination of proceedings – Expedition ordered. FAMILY LAW – APPLICATION IN AN APPEAL – Oral application for leave to amend grounds of appeal – Leave granted. |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Ms Masoud |
| RESPONDENT: | Mr Masoud |
| FILE NUMBER: | SYC | 2198 | of | 2012 |
| APPEAL NUMBER: | EA | 157 | of | 2013 |
| DATE DELIVERED: | 19 February 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 10 February 2015 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 4 October 2013 |
| LOWER COURT MNC: | [2013] FamCA 763 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Kirk QC |
| SOLICITOR FOR THE APPLICANT: | Mr Rogers of Barkus Doolan |
| SOLICITOR FOR THE RESPONDENT: | Watts McCray Lawyers |
Orders
The hearing of appeal No EA 157 of 2013 filed by the appellant on
1 November 2013 be expedited and listed for hearing before the Full Court on a date and time to be confirmed by the Appeal Registrar.
Grant leave for the appellant/husband to file an application in an appeal seeking leave to file a further amended notice of appeal to amend the grounds of the amended notice of appeal filed on 23 May 2014 by adding the following ground:
“That his Honour erred in noting an undertaking of the husband in paragraph 58 of the Orders in circumstances where no undertaking was proffered by or on behalf of the appellant.”
and the appellant/husband is to file and serve the application in an appeal seeking that leave by 4 pm on 10 February 2015.
Grant leave to amend the notice of appeal in terms sought by the appellant.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Masoud & Masoud has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 157 of 2013
File Number: SYC 2198 of 2012
| Ms Masoud |
Appellant
And
| Mr Masoud |
Respondent
REASONS FOR JUDGMENT
On 4 October 2013 Fowler J made property settlement orders, parenting orders, orders in relation to spousal maintenance and orders for child support in proceedings between Ms Masoud (“the wife”) and Mr Masoud (“the husband”). On 31 October 2013 the husband filed a notice of appeal against his Honour’s property, spousal maintenance and child support orders.
The parties have three children, each of whom is under 18.
It is the wife who brings the application for expedition of the appeal. The husband supports the application.
It is to be observed that the appeal books, summaries of argument and lists of authorities in relation to the appeal have been filed. Thus the appeal is ready to be heard.
At the commencement of the hearing of the application for expedition, the solicitor for the husband sought leave to amend the grounds of appeal by the addition of a further ground. Senior Counsel for the wife did not object to that course and orders were made to effect the amendment.
Application
In her affidavit the wife asserts that the husband is significantly in arrears in relation to Order 58 made by his Honour in respect of payment of the children’s school fees and expenses, extra-curricular expenses, private health insurance, dental and other health related expenses.
The wife deposes that on 4 July 2014 she filed an enforcement warrant based on the asserted arrears seeking seizure and sale of property. That application was refused by a Registrar of the court. She sought a review of that decision. In response, the husband sought a stay of orders 45, 53 and 54 made by
his Honour.
Order 45 states:
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:
… …
The order continues and provides for three payments of $266,124 to be made to the wife at twelve monthly intervals.
Order 53 states:
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.
Order 54 states:
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.
The stay application was heard and determined on 28 October 2014 by Benjamin J who stayed the operation of order 45 and granted a conditional stay of order 53 in which he ordered the husband to pay, in lieu of the ordered amount, an amount of $440 per month. His Honour declined to stay order 54.
Order 58, the order relating to the payment by the husband of the children’s school and other expenses, was not the subject of the appeal or of the stay application.
In her affidavit in support of the application for expedition, the wife contends that the husband was in arrears in relation to the spousal maintenance order prior to the granting of the stay and that he is in arrears in relation to the reduced amount of spousal maintenance ordered to be paid as part of the conditions of the stay of the spousal maintenance order. She further contends that the husband is not meeting his obligations pursuant to order 58 relating to the children’s school and other expenses with the consequence that while she is presently making those payments herself, she does not believe that she can continue to do so. The wife deposes that she fears that the children’s school may not be inclined to continue their enrolment in the face of the present arrears of school fees.
Letters attached to the wife’s affidavit indicate that the husband asserts that he does not have the financial capacity to make the ordered payments.
Given the apparently uncontentious position that, for whatever reason, the order in relation to the children’s school expenses is not being complied with, with the possible result that the children may be removed from school while the parties are waiting for a determination of the issues and the other issues to which the wife deposed, in this case, I am satisfied that this is an appropriate matter for expedition.
I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on
19 February 2015.
Associate:
Date: 19 February 2015
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