Agassi and Ayari (No 3)

[2020] FamCA 970

FAMILY COURT OF AUSTRALIA

AGASSI & AYARI (NO. 3) [2020] FamCA 970

FAMILY LAW – PRACTICE AND PROCEDURE – Access to court file – Whether a witness who was owed money by the spouse of one of the parties involved in these Family Court proceedings should be permitted to have access to the un-anonymised Reasons – Rule 24.13 – Where an order was made enabling access to the Reasons, but providing information and warning to the witness of their obligations under s 121 of the Family Law Act 1975 (Cth).

Family Law Act 1975 (Cth) s 121

Family Law Rules 2004 (Cth) r 24.13

APPLICANT: Ms Agassi

RESPONDENT: Mr Ayari

FILE NUMBER: SYC 5697 of 2016

DATE DELIVERED: 29 October 2020

PLACE DELIVERED: Hobart

PLACE HEARD: Hobart

JUDGMENT OF: Benjamin J

HEARING DATE: 1 October 2020 in Chambers

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Craddock Murray Neumann

SOLICITOR FOR THE RESPONDENT: In person

Orders

1. Leave be given for the Reasons for Judgment in this matter delivered by His Honour Justice Benjamin on 31 July 2020 to be released to Mr U on 13 October 2020.

2. Leave is granted to provide such Reasons for Judgment on 13 October 2020 on the condition that Mr U is bound by the provisions of s 121 of the Family Law Act 1975 (Cth).

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

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

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: SYC 5697 of 2016

Ms Agassi

Applicant

And

Mr Ayari

Respondent

REASONS FOR JUDGMENT

1. Ms Agassi (‘the wife’) and Mr Ayari (‘the husband’) have been engaged in property proceedings in the Family Court at Sydney for many years.

2. Those proceedings were heard by me in March, May, June and July 2020 (‘the substantive proceedings’) and Reasons for Judgment were published on 31 July 2020 (‘the Reasons’) and property orders were made at the same time.

3. One of the significant issues of fact in the proceedings was the nature of a loan alleged to have existed between Ms B (‘the husband’s present wife’) and Mr U of about $535,000.

4. The husband’s present wife and Mr U[1] gave evidence in the substantive proceedings.  In its determination of the substantive proceedings this Court accepted the veracity of the evidence of Mr U and the husband’s present wife.  This determination was that such a loan was made pursuant to a loan agreement between the husband’s present wife and Mr U and that such loan was an existing liability of the husband’s present wife.

   [1] Mr U was a friend of the husband’s present wife.

5. Subsequent to the hearing Mr U, on 3August 2020,[2] sought access to the Reasons in the following terms:-

   [2] Exhibit E1.

   Dear Sydney Family Court Registry Staff,

   Re: Seeking a copy of the Judgment Decision in the case of Agassi & Ayari SYC5697/16

   I was a witness in the above case on Friday 8 May 2020 before Honourable Justice Benjamin. 

   My testimony was concerning a substantial amount of money that I had lent to the second respondent in this case (the husband’s present wife).

   I would like to access a copy of the Judgment Decision for this case.

   I have attached 3 documents to this email: i. An application form signed by myself in this regard; ii. A copy of some email exchanges I have had with Judgments Publication staff of the Family Court; and iii. My affidavit filed with the Family Court (Sydney) in 2018.

   Thank you in advance for your assistance.

   I look forward to hearing from you.

   Regards,

   Mr U

6. Given that the appeal period had not passed and it was open for the parties to make costs application up until late August 2020, the substance of that August 2020 email was not made known to me until September 2020.

7. On 24 September 2020 this Court caused an email[3] to be forwarded to the legal representatives of the husband and the wife in the following form:-

   [3] Exhibit E2.

   Good Morning

   Attached is a copy of an email from Mr U dated 3 August 2020 together with a request to inspect file number SYC5697/16.

   Would you please let me know by 4.00pm on Thursday 3 October 2020 whether you object to a copy of the Reasons for Judgment dated 31 July 2020 being released to him.  His Honour would not otherwise see a valid reason to allow Mr U general access to the Court file.  

   If you or your client objects to the release of the Reasons for Judgment please let his Honour know the basis of such objection.

   If the Reasons for Judgment are released it will be next week and Mr U will be reminded of his obligations pursuant to sec 121 of the Family Law Act .

   Would you please acknowledge receipt of this email by return.

   [name omitted]

   Legal Associate to the Honourable Justice Benjamin AM

   Family Court of Australia

   (original emphasis)

8. Each of the husband and wife replied in the following way:-

   The solicitors for the wife:-[4]

   [4] Exhibit E3.

   Dear Associate

   We are instructed by Ms Agassi at this time, to reply to the Court’s email as below.

   Ms Agassi has no objection to Mr U being provided with a copy of the Judgment. She notes that Mr U will be informed of the requirements pursuant to s121.

   Notwithstanding Mr U will be so advised, Ms Agassi would like to know the reasons why Mr U requires a copy of the Judgment and to what use it is to be applied by him. 

   In this regard we note that the Court required the parties to give reasons to the Court if they objected to this gentleman being provided with the Judgment, therefore she would appreciate being advised of Mr U’s reasons for requiring it.

   Thanking you in anticipation.

   [the wife’s solicitors]

   The husband:-[5]

   Dear Associate,

   I appreciate his honours position in not releasing the court files to the 3rd parties.

   Also, I understand Mr. U has been in touch with [the husband’s present wife] after this inspection request dated 03/08/2020, and now he is aware of the court outcome.
   Applicant's false claims on Mr. U's money caused so much anxiety and stress for [the husband’s present wife]. Now Mr U is asking for compensation.

   I would suggest Mr. U only have access to the first 2 pages of final order rather than the whole file nor reason fr (sic) judgement with all narratives.

   I do appreciate your kind assistance for years.

   [the husband]

   (original emphasis)

   [5] Exhibit E4.

9. It was clear from those letters that there was no significant or meaningful objections to Mr U having access to the Reasons provided he was informed as to the provisions of s 121 of the Family Law Act 1975 (Cth) (‘the Act’).

10. On 1 October 2020 orders were made in the form set out at the commencement of these Reasons. On the same day an email was sent to the parties in the following form:-[6]

    Good afternoon

    His Honour Justice Benjamin has considered the submissions and will be releasing the Reasons for Judgment (delivered 31 July 2020) on the 13 October 2020. Mr U will be provided with a copy of section 121 of the Family Law Act 1975 (Cth) which sets out the restrictions on Publication of Court Proceedings and the penalties which follow in the event of any breach.

    Reasons for Judgment will follow. 

    Would you please acknowledge receipt of this email by return.

    [name omitted]

    Legal Associate to the Honourable Justice Benjamin AM

    Family Court of Australia

    [6] Exhibit E5.

11. Further time was given to the parties so that if one or other of them objected to the orders made by the Court there would be time to apply to the Appeal Division of the Court for a stay order preventing the provision of the Reasons pending any appeal.

12. No application was made and the un-anonymised version of the Reasons were forwarded to Mr U on 15 October 2020.

13. In giving leave for Mr U to have access to the Reasons I considered Rule 24.13 of the Family Law Rules 2004 (Cth) (‘the Rules’). These Rules relevantly provide:-

    (1)The following persons may search the court record relating to a case, and inspect and copy a document forming part of the court record:

    …

    (c)  with the permission of the court, a person with a proper   interest:

    (i)  in the case; or

(ii)  in information obtainable from the court record in the

case;

…

(3)In considering whether to give permission under this rule, the court must consider the following matters:

(a)      the purpose for which access is sought;

(b)      whether the access sought is reasonable for that purpose;

(c)      the need for security of court personnel, parties, children and      witnesses;

(d)      any limits or conditions that should be imposed on access to,      or use of, the court record.

1. I had treated the request by Mr U as a request pursuant to this Rule.

2. In the substantive proceedings I was satisfied that Mr U was owed a considerable amount of money and as a consequence I accept that he has a proper interest in the determination of this Court in respect of such loan.

3. During the course of giving evidence Mr U made it clear that the relationship between himself and the husband’s present wife had soured.  He also said that he would be contemplating some form of action in relation to the recovery of those monies.

4. Accordingly, and having regard to the rules I am satisfied that:-

   (a)the purpose for which the Reasons are sought are legitimate and appropriate in the circumstances;

   (b)the limited access sought by Mr U is reasonable for that purpose; and

   (c)there was a need for security. In that respect, given the provisions of s 121 of the Act, steps were taken to inform and/or remind Mr U of his obligations in that respect.

5. As such orders were made as set out earlier.

6. On 15 October 2020 the Court received an email[7] from Mr U in the following terms:-

   Dear [legal associate],

   Thank you for your email below.

   I confirm that I have read and understood Section 121 of the Family Act 1975 (Cth) [copy attached to this email], and have noted His Honour’s Order of 1 October 2020 [copy also attached to this email].

   Could you please advise how I may obtain a copy of the Reasons for Judgment in this case (SYC 5697/2016)?

   Kind regards,

   Mr U

   [7] Exhibit E6.

7. This Court has made a determination in relation to a loan between the husband’s present wife and Mr U and there should be no reason why Mr U ought not to understand the reasoning behind that determination and the finding that the husband’s present wife owes a significant amount of money to him.

8. Accordingly, I have released a copy of the un-anonymised Reasons to him.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 29 October 2020.

Associate: 

Date:  29 October 2020