Shareef & Shareef

[2021] FamCA 219

FAMILY COURT OF AUSTRALIA

Shareef & Shareef [2021] FamCA 219

File number(s):	PAC 4574 of 2020
Judgment of:	FOSTER J
Date of judgment:	12 April 2021
Catchwords:	FAMILY LAW – PROPERTY – where application made by the second respondent, who is the first respondent husband’s father, to enforce his registered mortgage security, which is secured over the former matrimonial home at B Street, Suburb C – where it is conceded that this should be determined at final trial when there is an ability to have documents produced in evidence and to hear and determine the evidence of the parties as to the issue – where the property affords adequate security in the interim – where order made that the Application in a Case filed by the second respondent on 4 February 2021 be consolidated in the substantive proceedings.
Legislation:	Family Law Act 1975 (Cth)
Number of paragraphs:	10
Date of hearing:	12 April 2021
Place:	Parramatta
Counsel for the Applicant:	Mr Givney
Solicitor for the Applicant:	RMJ Lawyers
Solicitor for the First Respondent:	Fay Rose Legal
Counsel for the Second Respondent:	Mr Todd
Solicitor for the Second Respondent:	Khalil Family Lawyers Pty Ltd

ORDERS

PAC 4574 of 2020

BETWEEN:

MS SHAREEF

Applicant

AND:

MR SHAREEF

First Respondent

MS B SHAREEF

Second Respondent

ORDER MADE BY:	FOSTER J
DATE OF ORDER:	12 APRIL 2021

THE COURT ORDERS THAT:

1.The Application in a Case filed by the Second Respondent on 4 February 2021 be consolidated in the substantive proceedings.

2.Noting that the First Respondent father has filed an Amended Response seeking parenting orders, the Applicant mother file and serve an Amended Application setting out with particularity parenting orders sought by her on a final and, if appropriate, interim basis with such amended application to be filed and served by no later than Friday, 30 April 2021.

3.The Applicant mother attend for the purposes of child and parents intake assessment interviews at 9.00 am on Monday, 24 May 2021 and obey all reasonable directions from the consultant as to such other people who may be relevant for the purposes of the interviews.

4.The Respondent father attend for the purposes of child and parents intake assessment interviews at 9.45 am on Monday, 24 May 2021 and obey all reasonable directions from the consultant as to such other people who may be relevant for the purposes of the interviews.

5.The children are to attend with the parent/carer and made available to Child Dispute Services at 9.00 am on Monday, 24 May 2021 for the purposes of a Child and Parents Issues Assessment.

Notation

6.If either party has concerns for their safety at Court in relation to the Child and Parents Intake Assessment event they can contact CDS at Parramatta via ...

7.The application for interim relief sought by the wife in her Initiating Application filed 3 September 2020 be adjourned generally with liberty to restore on 7 days’ notice to the husband and to the Court.

8.The parties are granted leave to issue such subpoena as they consider relevant to the issues before the Court with such subpoena to be returnable by no later than Monday, 7 June 2021.

9.The costs of all parties are reserved

THE COURT NOTES THAT:

10.The proceedings are listed before a Registrar on 7 June 2021.

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).

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

EX TEMPORE REASONS FOR JUDGMENT

FOSTER J:

1. The application before the Court today, or one of the applications before the Court today, is an Application in a Case filed by the second respondent, who is the first respondent husband’s father. He seeks in that Application in a Case to enforce his registered mortgage security, which is secured over the former matrimonial home at B Street, Suburb C.  The second respondent asserts that he advanced monies pursuant to the first registered mortgage to the husband in or about 2008 to facilitate the purchase by the husband of, what is now, the present matrimonial home, occupied by the wife and the two children of the marriage.

2. The question for ultimate determination, being an interfamily arrangement is whether, indeed, the Court in all of the circumstances that may be disclosed at final hearing, enforces the terms of the mortgage or make some other alternate or other order in relation to the alleged debt, including non-enforcement of the debt, depending on the indications in the evidence.

3. It is conceded by the solicitor for the respondent husband and asserted by Mr Givney of counsel for the applicant wife, that those issues should be determined at final trial, when there is an ability to have documents produced in evidence and to hear and determine the evidence of the parties as to credit and, otherwise, as to the issue.

4. In all of the circumstances the court is satisfied that it is appropriate that the application by the second respondent be a matter determined at final hearing, but in saying that it is noted that the second respondent commenced proceedings in relation to his secured debt, or his alleged secured debt, in the Supreme Court of New South Wales, more particularly, by way of an Amended Statement of Claim filed on 6 August 2020.  As at that date, the accumulated debt asserted by the second respondent, including the capital sum of $350,000 advance was in the sum of $436,701 plus costs on the claim. 

5. The amount of interest under the mortgage is primarily assessed at nine per cent. It is certainly a circumstance that if another year’s interest accumulates on the debt, the debt will be something in the order of around about $470,000 about 12 months from now.

6. It is represented in the proceedings by the husband in his financial statement that the subject property, being the security property, on his best estimate has a value of about $650,000.

7. Accordingly, there is sufficient security to protect the second respondent, pending determination of his entitlement to relief at final hearing.

8. In all of the circumstances, it is ordered that the Application in a Case filed by the second respondent on 4 February 2021 be consolidated in the substantive proceedings.

9. Otherwise, noting that, the first respondent father has an Amended Response seeking parenting orders, it is ordered that the applicant mother file and serve an Amended Application setting out, with particularity, parenting orders sought by her on a final and, if appropriate, interim basis, with such Amended Application to be filed and served by no later than 30 April 2021.

10. I will make the usual order to facilitate the parties’ attending for the purposes of a child and parenting intake assessment interviews. 

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Foster.

Associate:       

Dated:       12 April 2021