SHAKIR & SHAKIR - [2013] FamCA 562

FAMILY COURT OF AUSTRALIA

SHAKIR & SHAKIR

[2013] FamCA 562

FAMILY LAW – CHILDREN – interim – whether there had been a change in circumstances since Rees J made parenting orders – application dismissed.

FAMILY LAW – PROPERTY – interim – whether it was appropriate and in the interests of justice to make an interim property order – whether the orders sought were conservatively within the range of outcomes the husband might receive.

FAMILY LAW – SPOUSAL MAINTENANCE – interim – where the wife controls the majority of the parties’ assets – where the husband established a need for periodic spousal maintenance – where the wife has the capacity to pay.

Family Law Act 1975 (Cth)

Bevan & Bevan (1995) FLC 92-600
Oates & Crest (2008) FLC 93-365; 216 FLR 469

Harris & Harris (1993) FLC 92-378

Redman & Redman (1987) FLC 91-805

Strahan & Strahan(Interim property orders) (2011) FLC 93-466
Sullivan & Tyler (No. 2) [2013] FamCA 271

Williamson & Williamson (1978) FLC 90-505

APPLICANT:

Mr Shakir

RESPONDENT:

Ms Shakir

FILE NUMBER:

SYC

4296

2012

DATE DELIVERED:

30 July 2013

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

9 May 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Johnston

SOLICITOR FOR THE APPLICANT:

Tiyce & Partners

COUNSEL FOR THE RESPONDENT:

Mr Levy

SOLICITOR FOR THE RESPONDENT:

Hamish Cumming Family Lawyers

Orders

The interim parenting orders sought by the husband in his Amended Application in a Case filed 23 April 2013 be dismissed.
On my own motion, this matter be expedited.
By way of interim property settlement, within 28 days the wife pay the husband the sum of $86,099.
Pending further order, the wife pay to the husband the sum of $197 per week by way of periodic spousal maintenance.
Within 28 days, the wife pay the husband $40,000 for the purpose of him being able to acquire a motor vehicle. If the husband acquires a motor vehicle for less than $40,000, then the husband is to refund the difference to the wife.
The parties are to forthwith do all things and sign all necessary documents to sell the Harley Davidson motor cycle and the proceeds of that sale be paid to the wife but order 5 is not dependent upon the implementation of this order.
The wife continue to pay regular amounts in relation to registration and insurance on the husband’s motor vehicle and private health insurance for the husband.
The non-periodic child support order sought by the husband in his Amended Application in a Case filed 23 April 2013 be stood over generally save for Order 9.
In the event the wife ceases to pay:
9.1.The child M’s school fees; or
9.2.The child R’s day care fees; or
9.3.private health insurance for both children
the husband has liberty on 7 days notice to relist the matter for consideration of any application by him for an order that she do so.

IT IS NOTED that publication of this judgment by this Court under…

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 SHAKIR & SHAKIR

Details

AGLC: SHAKIR & SHAKIR [2013] FamCA 562
Case: [2013] FamCA 562
Decision Date: 30 July 2013

CaseChat Overview and Summary

In the matter of SHAKIR & SHAKIR, heard by Watts J, the husband sought interim orders concerning parenting, property settlement, and spousal maintenance. The wife sought the dismissal of the husband's interim parenting orders.

The court was required to determine whether there had been a change in circumstances justifying the variation of existing parenting orders, whether it was appropriate to make interim property orders, and whether the husband had established a need for and the wife had the capacity to pay periodic spousal maintenance.

Regarding parenting, the court found no change in circumstances since the previous orders were made and therefore dismissed the husband's application. In relation to property, the court considered whether the orders sought were conservatively within the range of potential outcomes. The court found that the wife controlled the majority of the parties' assets and that the husband had demonstrated a need for spousal maintenance, with the wife having the capacity to pay.

Consequently, the court dismissed the husband's interim parenting orders. It ordered the wife to pay the husband $86,099 within 28 days by way of interim property settlement, and $40,000 within 28 days for the acquisition of a motor vehicle, with any difference to be refunded. The wife was also ordered to pay the husband $197 per week in periodic spousal maintenance, pending further order. The parties were directed to sell a Harley Davidson motorcycle, with the proceeds to be paid to the wife. The wife was to continue paying for the husband's motor vehicle registration, insurance, and private health insurance. The non-periodic child support order was stood over, with liberty for the husband to relist the matter if the wife ceased paying school fees, day care fees, or private health insurance for the children. The matter was expedited on the court's own motion.

Orders

Orders of the court

The interim parenting orders sought by the husband in his Amended Application in a Case filed 23 April 2013 be dismissed.

On my own motion, this matter be expedited.

By way of interim property settlement, within 28 days the wife pay the husband the sum of $86,099.

Pending further order, the wife pay to the husband the sum of $197 per week by way of periodic spousal maintenance.

Within 28 days, the wife pay the husband $40,000 for the purpose of him being able to acquire a motor vehicle. If the husband acquires a motor vehicle for less than $40,000, then the husband is to refund the difference to the wife.

The parties are to forthwith do all things and sign all necessary documents to sell the Harley Davidson motor cycle and the proceeds of that sale be paid to the wife but order 5 is not dependent upon the implementation of this order.

The wife continue to pay regular amounts in relation to registration and insurance on the husband’s motor vehicle and private health insurance for the husband.

The non-periodic child support order sought by the husband in his Amended Application in a Case filed 23 April 2013 be stood over generally save for Order 9.

In the event the wife ceases to pay:

9.1. The child M’s school fees; or

9.2. The child R’s day care fees; or

9.3. private health insurance for both children

the husband has liberty on 7 days notice to relist the matter for consideration of any application by him for an order that she do so.

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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