SHAKIR & SHAKIR
[2013] FamCAFC 188
•27 November 2013
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 | of | 2012 |
| APPEAL NUMBER: | EA | 125 | of | 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 would not be received by him in the short term.
The husband further asserted that because of his need to care for the children, he is not in a position to earn money with which to provide for new accommodation for him and the children.
The wife appeared with counsel to oppose the husband’s application for expedition. She did not file any affidavit in response to the affidavit of the husband. When it became apparent that the wife’s opposition to the husband’s application rested not on an argument of principle but that she wished to adduce evidence, directions were made for the filing of an affidavit in response to the husband’s. Quite why this had not been done before the hearing was not explained.
Nonetheless, the opportunity having been granted, the wife filed a large affidavit together with many annexures. But for two matters to which I will shortly refer, almost the entire affidavit is unrelated to the instant application.
It seems that the wife contends that in June 2012 the husband received funds from his family company and she was unaware of this payment. She further asserts that in a financial statement filed in July 2012, the husband made no mention of the funds. The basis for her claim that the husband received these funds stems from a report from the liquidator of the husband’s family company (and I note that only part of the document is annexed to the wife’s affidavit) and in which the liquidator refers to two payments which might “potentially” be regarded as preferential. One of those payments refers to a cheque written to the husband.
She asserts:
He has these funds. He has no need for spousal maintenance …
The wife offers no support for these contentions.
Secondly, the wife further contends that the husband has in fact moved with the children to another property.
The husband responded to the wife’s affidavit. As to the funds to which the wife refers, the husband says he has not received those funds and annexed to his affidavit are documents which the husband says support his assertion. Further, the husband asserts based on information from a relative that the cheque was paid to the wife at her request.
Clearly this controversy cannot be resolved in the context of this hearing.
As to his present accommodation, the husband said that since the hearing of the application for expedition, he had secured accommodation with his sister and her partner in a house large enough to suit him and the children. He is not presently paying rent.
The husband’s circumstances, although apparently far from ideal are not, in my view sufficient to warrant the exercise of discretion necessary to an order for expedition.
In coming to this view I have taken into account that the substantive property application and other proceedings between the parties are to be before the trial judge and his Honour can be asked to consider an expeditious hearing or another application the husband might be advised to bring.
The application being unsuccessful, the husband should pay the wife’s costs of the application. However, any order for costs will be expressed to exclude the preparation and associated costs relating to the wife’s affidavit filed in this matter. As I have indicated it was almost entirely irrelevant to the issues raised by the husband on his application, was argumentative and it is not appropriate that the husband should bear any costs relative to its preparation.
The payment of the costs of this application will abide the conclusion of the property proceedings between the parties.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on
27 November 2013.
Associate:
Date: 27 November 2013.
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