MASOUD & MASOUD (STAY APPLICATION) - [2014] FamCA 918

FAMILY COURT OF AUSTRALIA

MASOUD & MASOUD (STAY APPLICATION)

[2014] FamCA 918

FAMILY LAW – ORDERS – ENFORCEMENT OF ORDERS – Warrant for seizure and sale of property – Application by wife for enforcement of orders where husband has failed to comply with final orders

FAMILY LAW – PRACTICE AND PROCEDURE – STAY APPLICATION – Application by husband for a stay of orders pending appeal against substantive orders – Stay granted in part

Family Law Act 1975 (Cth) s 112AA

Jackson & Balen [2009] FamCAFC131

APPLICANT:

Ms Masoud

RESPONDENT:

Mr Masoud

FILE NUMBER:

SYC

2198

2012

DATE DELIVERED:

28 October 2014

PLACE DELIVERED:

Hobart

PLACE HEARD:

Sydney

JUDGMENT OF:

Benjamin J

HEARING DATE:

4 September 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Gould

SOLICITOR FOR THE APPLICANT:

Michael Todd of Watts McCray Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Lloyd SC

SOLICITOR FOR THE RESPONDENT:

Paul Doolan and Shannon Rogers of Barkus Doolan

Orders

The enforcement warrant sought by the wife (as amended in the form of orders tendered by the wife on 4 September 2014 ‘Exhibit W3’) and the review in respect of the determination made by Registrar Cameron on 10 July 2014 be stood over for directions hearing on Monday 13 July 2015 at 11.30am before a registrar of the Family Court, Sydney or for such longer or shorter period as is determined by a judge exercising jurisdiction under the Family Law Act 1975 (Cth) before July 2015.
The parties be given liberty to apply to Benjamin J or if he is not reasonably available another judge of the Court on the giving of seven (7) days notice to the other party and to the Court in relation to the enforcement warrant, such leave to apply until 31 July 2015.
The operation of order 45 made by the Honourable Justice Fowler on 4 October 2013 be stayed pending the determination of the appeal commenced by the husband in November 2013.
Conditional upon:-
a)the husband paying to the wife the sum of $2,666 per month by way of partial compliance with the Spousal Maintenance Order (order 53); and
b)such partial payment to operate in respect of the husband’s spousal maintenance liability pursuant to that Order for the payments due on and after 4 August 2014, until the appeal has been determined; and
c)the partial payments due on 4 August 2014 and 4 September 2014 are to be paid to the wife on or before 4 October 2014; and
d)the partial payments due on the 4^th of each month thereafter are to be paid to the wife on that day, including the October 2015 partial payment due on 4 October 2014, and
the remainder of the operation of order 53 (as has not already been wholly or partially complied with) made by the Honourable Justice Fowler on 4 October 2013 be stayed pending the determination of the husband’s appeal.
The application of the husband to stay order 54 (Child Support) of the orders made by the Honourable Justice…

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 (STAY APPLICATION)

Details

AGLC: MASOUD & MASOUD (STAY APPLICATION) [2014] FamCA 918
Case: [2014] FamCA 918
Decision Date: 28 October 2014

CaseChat Overview and Summary

This matter concerned an application by the wife for the enforcement of final orders, specifically a warrant for the seizure and sale of property, and a review of a determination made by a Registrar. Concurrently, the husband sought a stay of certain substantive orders pending his appeal against them. The proceedings were heard by Benjamin J in the Family Court of Australia.

The primary legal issues before the Court were whether to grant the wife's application for enforcement of orders, and whether to grant the husband's application for a stay of specific orders made on 4 October 2013, pending the determination of his appeal. The Court was required to consider the balance of convenience and the merits of the appeal in determining the stay applications.

Benjamin J granted the stay application in part. The operation of order 45, made by Justice Fowler on 4 October 2013, was stayed pending the determination of the husband's appeal. Furthermore, the remainder of order 53 (Spousal Maintenance) was stayed, conditional upon the husband making partial monthly payments of $2,666 to the wife, commencing from 4 August 2014, and paying outstanding arrears by 4 October 2014. The husband's application to stay order 54 (Child Support) was dismissed. The stay orders were further conditional upon the husband paying $10,000 to School A within fourteen days. The enforcement warrant sought by the wife and the review of the Registrar's determination were stood over for a directions hearing. Costs were reserved, with liberty to apply.

Orders

Orders of the court

The enforcement warrant sought by the wife (as amended in the form of orders tendered by the wife on 4 September 2014 ‘Exhibit W3’) and the review in respect of the determination made by Registrar Cameron on 10 July 2014 be stood over for directions hearing on Monday 13 July 2015 at 11.30am before a registrar of the Family Court, Sydney or for such longer or shorter period as is determined by a judge exercising jurisdiction under the Family Law Act 1975 (Cth) before July 2015.

The parties be given liberty to apply to Benjamin J or if he is not reasonably available another judge of the Court on the giving of seven (7) days notice to the other party and to the Court in relation to the enforcement warrant, such leave to apply until 31 July 2015.

The operation of order 45 made by the Honourable Justice Fowler on 4 October 2013 be stayed pending the determination of the appeal commenced by the husband in November 2013.

Conditional upon:-

a) the husband paying to the wife the sum of $2,666 per month by way of partial compliance with the Spousal Maintenance Order (order 53); and

b) such partial payment to operate in respect of the husband’s spousal maintenance liability pursuant to that Order for the payments due on and after 4 August 2014, until the appeal has been determined; and

c) the partial payments due on 4 August 2014 and 4 September 2014 are to be paid to the wife on or before 4 October 2014; and

d) the partial payments due on the 4th of each month thereafter are to be paid to the wife on that day, including the October 2015 partial payment due on 4 October 2014, and

the remainder of the operation of order 53 (as has not already been wholly or partially complied with) made by the Honourable Justice Fowler on 4 October 2013 be stayed pending the determination of the husband’s appeal.

The application of the husband to stay order 54 (Child Support) of the orders made by the Honourable Justice Fowler on 4 October 2013 is dismissed.

The stay orders are further conditional upon the husband paying the sum of $10,000 to School A within fourteen (14) days from the date of this order.

The costs of both parties are reserved and leave is given to either party to apply on seven (7) days notice to the other party and to the Court for the listing of the costs applications; such leave to operate until twenty eight (28) days after the determination of the appeal in respect of the substantive Orders made 4 October 2013.

IT IS DIRECTED that if the husband continues to assert that this Court at first instance has jurisdiction and power to make Orders restraining the wife by injunction from denigrating the husband or his healthcare practice, “E Practice”, to any professional or doctor that is currently or has in the past been a referrer to the husband or his healthcare practice “E Practice” and seeks to pursue that application then he file and serve any such initiating application within fourteen (14) days from the date of this order.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage senior counsel and counsel to attend.

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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