SHAKIR & SHAKIR - [2013] FamCAFC 188

FAMILY COURT OF AUSTRALIA

SHAKIR & SHAKIR

[2013] FamCAFC 188

FAMILY LAW – APPEAL – Application for expedition – spousal maintenance.

FAMILY LAW – COSTS – Where affidavit filed by one party was largely irrelevant – where costs order not to include the preparation of irrelevant affidavit.

Family Law Act 1975 (Cth)

APPELLANT:

Mr Shakir

RESPONDENT:

Ms Shakir

FILE NUMBER:

SYC

4296

2012

APPEAL NUMBER:

125

2013

DATE DELIVERED::

27 November 2013

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Sydney

JUDGMENT OF:

Ainslie-Wallace J

HEARING DATE:

24 September 2013

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

30 July 2013

LOWER COURT MNC:

[2013] FamCA 562

REPRESENTATION

SOLICITOR FOR THE APPELLANT:

Mr Apelbaum of Tiyce & Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Serisier

SOLICITOR FOR THE RESPONDENT:

Annamaria Marano of McBride Harle & Martin

Orders

Application in an appeal seeking expedition filed 4 September 2013 be dismissed.
Husband pay the wife’s costs of the application as agreed or assessed.
Note: The order for costs to not include any costs and disbursements associated with the preparation and filing of the wife’s affidavit of 26 September 2013.
Payment of the ordered costs to be deferred until the completion of the property proceedings between the parties.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Shakir & Shakir has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE APPELLANT JURISTICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 125 of 2012
File Number: SYC 4296 of 2012

Mr Shakir

Appellant

and

Ms Shakir

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

Mr Shakir appeals against an order made by Watts J on 30 July 2013 in which his Honour ordered the wife to pay $197 per week to the husband by way of interim spouse maintenance. The appeal against this order was filed on

27 August 2013. The trial judge’s orders provided that the substantive proceedings between the husband and the wife be expedited.
By application in an appeal filed on 4 September 2013, the husband seeks that his appeal against the orders of the trial judge be expedited.
At the time of the hearing of the matter by the trial judge, the two young children of the parties were living principally with the husband at premises owned by his family business and by members of his family.
Seminal to the husband’s application for expedition is his contention that his family business is in liquidation and, as a result the property in which he and the children live will be sold. It was said that contracts for sale of the property had been exchanged. The husband contended that the trial judge took into account as a matter relevant to his financial needs when assessing his claim for spousal maintenance that he would have the benefit of this accommodation.
Although the husband expected to receive some funds from the liquidation of the family company, any funds…

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] FamCAFC 188
Case: [2013] FamCAFC 188
Decision Date: 27 November 2013

CaseChat Overview and Summary

The case involves an appeal concerning spousal maintenance between the parties, Shakir and Shakir. The matter was heard and determined by a court in Australia. The wife had applied for an expedition of her application for spousal maintenance, which was subsequently dismissed. The husband was ordered to pay the wife’s costs, either as agreed or assessed, but the order excluded any costs related to the preparation and filing of an affidavit submitted by the wife on 26 September 2013, as it was largely irrelevant to the proceedings.

The legal issues before the court included whether the application for expedition should be granted and whether the husband should be ordered to pay the wife’s costs, excluding those associated with the irrelevant affidavit. The court was required to assess the relevance of the affidavit and determine the appropriate costs to be awarded, considering the circumstances of the case.

The court dismissed the application for expedition, noting that it was not satisfied that the circumstances warranted such a step. Regarding the costs, the court found the wife's affidavit largely irrelevant and decided that the husband should not be liable for the costs associated with its preparation and filing. The court ordered the husband to pay the wife’s costs of the application but excluded any costs related to the irrelevant affidavit. Additionally, payment of these costs was to be deferred until the completion of the property proceedings between the parties.

In summary, the court dismissed the application for expedition and ordered the husband to pay the wife’s costs of the application, excluding those related to the irrelevant affidavit. The payment of these costs was deferred until the conclusion of the property proceedings.

Orders

Orders of the court

Application in an appeal seeking expedition filed 4 September 2013 be dismissed.

Husband pay the wife’s costs of the application as agreed or assessed.

Note: The order for costs to not include any costs and disbursements associated with the preparation and filing of the wife’s affidavit of 26 September 2013.

Payment of the ordered costs to be deferred until the completion of the property proceedings between the parties.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.