MASOUD & MASOUD - [2015] FamCAFC 19

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

2012

APPEAL NUMBER:

157

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…

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 & MASOUD

Details

AGLC: MASOUD & MASOUD [2015] FamCAFC 19
Case: [2015] FamCAFC 19
Decision Date: 19 February 2015

CaseChat Overview and Summary

The appeal before the court concerned a dispute between the husband and wife regarding spousal and child maintenance orders. The wife sought an expedition of the appeal, citing the husband's failure to comply with maintenance orders, including his refusal to pay the children's school fees despite an undertaking to do so. The wife argued that non-payment could result in the children being removed from school while the appeal awaited a final determination. The husband had previously been denied an enforcement warrant to seize and sell his property to meet these obligations.

The court had to decide whether to expedite the hearing of the appeal given the urgency of the wife's claims, and whether to allow the husband to amend the grounds of his appeal to include a new error regarding an alleged undertaking. The court considered the urgency of the situation, including the potential immediate harm to the children, and the procedural fairness in allowing the amendment to the grounds of appeal.

The court ordered the appeal to be expedited, recognising the urgency of the wife's claims and the potential harm to the children if the matter was not dealt with promptly. The court also granted leave for the husband to amend the grounds of his appeal to include a new error concerning an alleged undertaking. This decision allowed for a more comprehensive review of the issues in the appeal and ensured that all relevant grounds could be properly addressed. The final orders required the appeal to be listed for an expedited hearing, permitted the husband to file an application seeking leave to amend the grounds of appeal, and granted leave for the amendment to proceed.

Orders

Orders of the court

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.

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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