Sayid and Alam - [2018] FamCA 570

FAMILY COURT OF AUSTRALIA

SAYID & ALAM

[2018] FamCA 570

FAMILY LAW – ORDERS – Application for Stay of an order made in enforcement proceedings – Application dismissed

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Aldridge & Keaton [2009] FamCAFC106
Jackson & Balen [2009] FamCAFC 131

APPLICANT:

Mr Sayid

RESPONDENT:

Ms Alam

FILE NUMBER:

SYC

3215

2015

DATE DELIVERED:

12 July 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

12 July 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Eardley

SOLICITOR FOR THE APPLICANT:

Mercantile Legal Services

COUNSEL FOR THE RESPONDENT:

Mr Givney

SOLICITOR FOR THE RESPONDENT:

Hills Legal Group

Orders

Pursuant to rule 17.02A(b) Family Law Rules, paragraph [36] of the Reasons of 28 June 2018 is amended to correct the typographical error in that paragraph by replacing “s 106B” with “s 106A” in the two places in which it occurs.
The husband’s application for a stay filed 6 July 2018 be dismissed.
Pursuant to rule 20.54(2) Family Law Rules, a warrant for possession be issued in the following terms:
The Marshall, any delegate of the Marshal and all officers of the Australian Federal Police and of the Police Force of New South Wales for the purpose of giving effect to the order of this Court made on 28 June 2018 requiring MR SAYID to vacate the property situate at and known as G Street, Suburb H in the State of New South Wales (“the property”) are directed with such assistance as they may require and if necessary by force to enter upon the property being the land in Certificate of Title Folio Identifier … and cause MR SAYID to vacate the property and vacant possession of the property to be given to MS ALAM. This order remains in force until 12 December 2018.
I note that I am told that there currently is in existence an order of the Federal Court (the order) which has been registered against the title of the Suburb H property (the property) aimed at securing the interests of the Australian Taxation Office who is the 2^nd respondent in these proceedings. The 2^nd respondent has indicated today that they wish to approach the Federal Court and seek orders by consent to remove the order from the title of the property to enable the settlement of the sale of the property to be completed.
As soon as is practicable, the husband, wife and the Australian Taxation Office do all things and sign all necessary documents to present to the Federal Court a consent order for the consideration of the Federal Court that would have the effect of removing the order from the title of the Suburb H property.
The balance net proceeds from the settlement of the sale of the property are to be placed into a controlled monies account in the names of the solicitors for the husband, the solicitors for the wife and the solicitors for the Australian Taxation Office.
The husband pay…

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 Sayid and Alam

Details

AGLC: Sayid and Alam [2018] FamCA 570
Case: [2018] FamCA 570
Decision Date: 12 July 2018

CaseChat Overview and Summary

In the matter of *Sayid and Alam*, Watts J of the Family Court of Australia considered applications relating to property settlement and enforcement of orders. The dispute involved the husband, Mr Sayid, and the wife, Ms Alam, concerning a property and associated financial matters, with the Australian Taxation Office also involved as a second respondent due to an existing registered order against the property's title.

The court was required to determine several issues, including the correction of a typographical error in previous reasons, the dismissal of the husband's application for a stay, and the issuance of a warrant for possession to enforce an order for the husband to vacate the property. Further, the court needed to address the process for removing an order registered by the Australian Taxation Office from the property's title to facilitate its sale, and the disposition of the net proceeds from that sale.

Watts J ordered the amendment of previous reasons to correct a reference from "s 106B" to "s 106A" of the relevant legislation. The husband's application for a stay was dismissed. A warrant for possession was issued, authorising the Marshal and other officers to use necessary force to ensure the husband vacated the property by 12 December 2018, granting vacant possession to the wife. The court also directed the husband, wife, and the Australian Taxation Office to cooperate in seeking a consent order from the Federal Court to remove the ATO's registered order from the property title, thereby enabling settlement of the sale. The net proceeds from the sale were to be held in a controlled monies account managed by the solicitors for all parties. Finally, the husband was ordered to pay the wife's costs of his application for a stay.

Orders

Orders of the court

Pursuant to rule 17.02A(b) Family Law Rules, paragraph [36] of the Reasons of 28 June 2018 is amended to correct the typographical error in that paragraph by replacing “s 106B” with “s 106A” in the two places in which it occurs.

The husband’s application for a stay filed 6 July 2018 be dismissed.

Pursuant to rule 20.54(2) Family Law Rules, a warrant for possession be issued in the following terms:

The Marshall, any delegate of the Marshal and all officers of the Australian Federal Police and of the Police Force of New South Wales for the purpose of giving effect to the order of this Court made on 28 June 2018 requiring MR SAYID to vacate the property situate at and known as G Street, Suburb H in the State of New South Wales (“the property”) are directed with such assistance as they may require and if necessary by force to enter upon the property being the land in Certificate of Title Folio Identifier … and cause MR SAYID to vacate the property and vacant possession of the property to be given to MS ALAM. This order remains in force until 12 December 2018.

I note that I am told that there currently is in existence an order of the Federal Court (the order) which has been registered against the title of the Suburb H property (the property) aimed at securing the interests of the Australian Taxation Office who is the 2nd respondent in these proceedings. The 2nd respondent has indicated today that they wish to approach the Federal Court and seek orders by consent to remove the order from the title of the property to enable the settlement of the sale of the property to be completed.

As soon as is practicable, the husband, wife and the Australian Taxation Office do all things and sign all necessary documents to present to the Federal Court a consent order for the consideration of the Federal Court that would have the effect of removing the order from the title of the Suburb H property.

The balance net proceeds from the settlement of the sale of the property are to be placed into a controlled monies account in the names of the solicitors for the husband, the solicitors for the wife and the solicitors for the Australian Taxation Office.

The husband pay the wife’s costs of the husband’s Application in a Case filed 6 July 2018 on a party/party basis to be agreed or assessed.

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

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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