Salim and Hakim (No. 2)

Case [2021] FamCA 495

FAMILY COURT OF AUSTRALIA

Salim & Hakim (No. 2) [2021] FamCA 495  

File number(s): PAC 5392 of 2020
Judgment of: FOSTER J
Date of judgment: 12 July 2021
Catchwords: FAMILY LAW – INTERIM SPOUSAL MAINTENANCE – INTERIM PROPERTY/COSTS – sole use and occupation of the home – application for appointment of receiver to trust and company – application to set aside lease transaction under s 106B – where application for spouse maintenance dismissed – where husband with knowledge of wife’s application for sole use and occupation of the home leases the premises before interim hearing – where tenant joined as second respondent – where wife seeks to set aside the lease under s106B of the Act – where application for interim property order by wife – where consideration of applicable principle – where order made that husband pay the wife $100,000 to be categorised at final hearing – where order made setting aside lease to second respondent – where second respondent ordered to vacate – where liberty to apply for Writ of Possession – where order made that husband indemnify second respondent as to relocation and removal expenses – where application for appointment of Receiver stood over with liberty to relist.
Legislation:

Family Law Act 1975 (Cth) ss 4(1)(e), 72, 74, 106B, 114

NSW Residential Tenancies Act 2010 s 119

Cases cited:

Salim & Hakim [2021] FamCA 245
Bevan & Bevan (1995) FLC 92-600
D Pty Ltd and Ors & Sadler and Ors [2016] FamCAFC 187
Davis & Davis (1976) FLC 90-062
Fewster & Drake [2016] FamCAFC 214
Hall v Hall [2016] HCA 23
Harris & Harris (1993) FLC 92-378
Haseloff & Korman and Ors [2013] FamCA 1019
R v Dovey: Ex Parte Ross (1979) 5 Fam LR 1
Redman and Redman [1987] FamCA 2; (1987) FLC 91-805
Riemann & Riemann and Ors (No. 3) [2017] FamCA 911
Sieling v Sieling (1979) FLC 90-627

Strahan & Strahan [2009] FamCAFC 166; (2011) FLC 93-466

Number of paragraphs: 140
Date of hearing: 18 June 2021
Place: Parramatta
Counsel for the Applicant: Mr Givney
Solicitor for the Applicant: Maclarens Lawyers
Solicitor for the First Respondent: Mr Wahhab of York Law Family Law Specialists
Counsel for the Second Respondent: Mr Havenstein
Solicitor for the Second Respondent: Zahr Partners

ORDERS

PAC 5392 of 2020
BETWEEN:

MS SALIM

Applicant
AND:

MR HAKIM

First Respondent

MS NOOR

Second Respondent

ORDER MADE BY:

FOSTER J

DATE OF ORDER:

9 JULY 2021

THE COURT ORDERS THAT:

1.The wife’s application for periodic spouse maintenance be dismissed.

2.The husband pay to the wife within 21 days from this date the sum of $100,000 with the categorisation of such sum reserved to agreement between the parties or final hearing.

3.Pursuant to s 106B of the Family Law Act 1975 (Cth) the Memorandum of Lease dated 3 May 2021 between the husband as landlord and the second respondent as tenant in relation to the property at C Street, Suburb D be set aside.

4.The second respondent vacate the property at C…

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AGLC
Salim and Hakim (No. 2) [2021] FamCA 495
Case
[2021] FamCA 495
Decision Date

CaseChat Overview and Summary

In *Salim and Hakim (No. 2)*, Foster J of the Federal Circuit and Family Court of Australia considered applications by the wife (Ms Salim) against the husband (Mr Hakim) and a tenant (Ms Noor). The wife sought interim spousal maintenance, interim property orders, and the setting aside of a lease transaction concerning the former matrimonial home. The husband had leased the matrimonial home to the second respondent, Ms Noor, despite being aware of the wife's application for sole use and occupation of the property.

The court was required to determine several legal issues. These included whether the wife was entitled to interim spousal maintenance, the appropriate interim property orders to be made, and whether the lease transaction entered into by the husband with the second respondent should be set aside pursuant to section 106B of the *Family Law Act 1975* (Cth). The court also considered the wife's application for sole use and occupation of the former matrimonial home and the husband's obligations regarding property outgoings and the return of personal effects.

Foster J dismissed the wife's application for periodic spousal maintenance. However, the court ordered the husband to pay the wife $100,000, with the categorisation of this sum to be determined at the final hearing. Crucially, the court set aside the lease of the matrimonial home to the second respondent under section 106B of the Act, ordering Ms Noor to vacate the premises within 21 days. The court granted liberty to apply for a Writ of Possession. The husband was ordered to indemnify the second respondent for her relocation and removal expenses. The wife was granted sole use and occupation of the former matrimonial home from 21 days from the date of the order, with the husband restrained from interfering with her peaceful enjoyment of the property. The husband was also ordered to pay property outgoings and ensure the return of the wife's and children's personal effects to the home. An application for the appointment of a receiver was stood over with liberty to relist.

Orders

Orders of the court

PAC 5392 of 2020

BETWEEN:

MS SALIM

Applicant

AND:

MR HAKIM

First Respondent

MS NOOR

Second Respondent

ORDER MADE BY:

FOSTER J

DATE OF ORDER:

9 JULY 2021

THE COURT ORDERS THAT:

1. The wife’s application for periodic spouse maintenance be dismissed.

2. The husband pay to the wife within 21 days from this date the sum of $100,000 with the categorisation of such sum reserved to agreement between the parties or final hearing.

3. Pursuant to s 106B of the Family Law Act 1975 (Cth) the Memorandum of Lease dated 3 May 2021 between the husband as landlord and the second respondent as tenant in relation to the property at C Street, Suburb D be set aside.

4. The second respondent vacate the property at C Street, Suburb D by no later than 21 days from this date.

5. Liberty to the applicant wife to apply for a Writ of Possession on short notice.

6. The husband indemnify the second respondent in respect to her reasonably incurred relocation and removal expenses within seven days of receiving evidence of payment of such expenses by the second respondent.

7. Pending further order the wife shall have sole use and occupation of the former matrimonial home at C Street, Suburb D as and from 21 days from this date and that thereafter the husband be restrained from doing any act or action that may interfere with the wife’s peaceful use and enjoyment of the said property.

8. The husband shall, pending further order, cause the payment of property outgoings as they fall due and payable, being levied council and water rates and insurances and mortgage payments.

9. The husband shall, concurrently with the wife taking up occupation of the C Street property, cause to be returned to the property by arrangement with the wife through her solicitors all items of personalty, furnishings, furniture, white goods and clothing and personal effects of the wife and children removed by him from the C Street home.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

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Evidence

Evidence Before The Court

The children at present have no relationship with the father. The wife asserts that the husband has provided little financial assistance to her and the children.The wife’s evidence The wife asserts that separation occurred in February 2020 when there was an incident involving family violence perpetrated upon her by the husband in the presence of the children. Subsequent to the incident, the wife and children moved out of the home and commenced to occupy residential premises with her parents. Presently the wife, children and her parents occupy a four bedroom townhouse that she asserts is not big enough for the six of them. The property is being rented for $1,520 per week to which the wife contributes $260 per week from her present Centrelink jobseeker benefits that are in the sum of $900 per week. The wife has some uncertainty as to future entitlement to Centrelink benefits. The wife further asserts that she has little prospect of being able to obtain rental premises as she is on Centrelink benefits and an appropriate property for her and the children would cost between $950 and $1,000 per week. The wife and her parents have now received a Notice to Terminate the tenancy dated 17 May 2021 as a consequence of the property being sold. Under the notice they are required to vacate the property within 30 days. The wife asserts that she has sought employment utilising the service of an employment agency and submitting various job applications in the areas in which she has some experience, being in customer service or as a receptionist. To date she has been unsuccessful in obtaining employment Otherwise, the wife asserts that since February 2020 the husband has failed to make arrangements for payment of the children’s school fees, necessitating the withdrawal of the eldest child from school and her enrolment in a public high school. The wife asserts there is some risk in relation to the continuing attendance of the younger two children at the school they attended throughout cohabitation. Subsequent to separation, the husband remained in occupation of the matrimonial home at C Street, Suburb D. Notwithstanding the husband being on notice that the wife seeks an order for sole use and occupation of their former home, the husband in his affidavit sworn 5 May 2020 asserts that his financial circumstances necessitated him renting out the matrimonial home which he did as and from 3 May 2021 for a period of 18 months through a real estate agent. The property has been rented to the second respondent who the wife asserts is otherwise known to the husband. The wife asserts that at the commencement of the relationship the husband owned the property at C Street, Suburb D, a motor vehicle and some items of personalty and a business trading as J Pty Ltd that engages in supply and installation. The wife says that she had some jewellery and had a motor vehicle at the commencement of the relationship. The wife asserts that the company owned commercial real estate at H Street, Suburb D and subsequently acquired the adjoining property at H Street, Suburb D.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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