Agassi and Ayari (No 4) - [2020] FamCA 1138

FAMILY COURT OF AUSTRALIA

AGASSI & AYARI (NO. 4)

[2020] FamCA 1138

FAMILY LAW – PRACTICE AND PROCEDURE – Stay of Orders – Where wife seeks stay of costs orders pending the outcome of an Appeal filed by the wife – Application opposed by the husband- Application granted

FAMILY LAW – PRACTICE AND PROCEDURE – Application in a Case filed by the husband seeking orders that the wife be referred to the Director of Public Prosecutions in relation to material in the Substantive Proceedings – Application dismissed

Family Law Act 1975 (Cth)

Jackson & Balen [2009] FamCAFC 131

APPLICANT:

Ms Agassi

RESPONDENT:

Mr Ayari

SECOND RESPONDENT:

Ms Behzadi

FILE NUMBER:

SYC

5697

2016

DATE DELIVERED:

23 December 2020

PLACE DELIVERED:

Hobart

PLACE HEARD:

Hobart

JUDGMENT OF:

Benjamin J

HEARING DATE:

23 December 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

SOLICITOR FOR THE APPLICANT:

In person

COUNSEL FOR THE 1^ST RESPONDENT:

Mr Cairns

SOLICITOR FOR THE 1^ST RESPONDENT:	In person
COUNSEL FOR THE 2^ND RESPONDENT:	Mr Cairns
SOLICITOR FOR THE RESPONDENT:	In person

Orders

Orders 1, 2 and 3 made 24 November 2020 requiring Ms Agassi (‘the wife’) to pay the costs of the first respondent Mr Ayari (‘the husband’) and orders 1 and 2 made 24 November 2020 requiring the wife to pay the costs of Ms Behzadi (‘the second respondent’) be stayed until the wife’s Appeal against the order is determined, provided the wife at all times prosecutes her appeal with the Full Court expeditiously.
In the event the wife does not fulfil the conditions of this stay, the husband and/or the second respondent have liberty, on the giving of fourteen (14) day’s notice, to relist this matter before me if I am reasonably available or any other Judge of the Family Court for consideration as to whether the stay order shall continue to remain in place.
The Application in a Case filed 22 December 2020 by the husband is dismissed.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

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 and Behzadi 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

And

MS BEHZADI

EX TEMPORE REASONS FOR JUDGMENT

There is an application before me for a stay in relation to costs orders I made following a hearing in these proceedings. The costs…

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 Agassi and Ayari (No 4)

Details

AGLC: Agassi and Ayari (No 4) [2020] FamCA 1138
Case: [2020] FamCA 1138
Decision Date

CaseChat Overview and Summary

In *Agassi & Ayari (No. 4)* [2020] FamCA 1138, the Family Court of Australia considered an application by the wife, Ms Agassi, for a stay of costs orders made against her, pending the determination of her appeal against those orders. The husband, Mr Ayari, and the second respondent, Ms Behzadi, opposed this application. The court also considered an application by the husband seeking orders to refer the wife to the Director of Public Prosecutions and to restrain her from dealing with the proceeds of a business sale.

The primary legal issues before the court were whether to grant a stay of the costs orders made on 24 November 2020, and whether to grant the husband's applications concerning the Director of Public Prosecutions and the restraint of asset disposal. In determining the stay application, the court was required to apply the principles established in cases such as *Jackson & Balen* [2009] FamCAFC 131, which outline the discretionary nature of stay applications, the onus on the applicant, the entitlement of a judgment creditor to the benefit of a judgment, the insufficiency of a mere appeal filing, the need for the application to be bona fide, and the importance of weighing the balance of convenience and the risk of the appeal being rendered nugatory.

Justice Benjamin granted the wife's application for a stay of the costs orders, provided she prosecuted her appeal expeditiously. The court found that while the wife bore the onus and the husband was entitled to the benefit of the orders, the wife's application was bona fide. The court noted that the cost of having costs assessed could be rendered nugatory if the appeal were successful. However, the court dismissed the husband's application to refer the wife to the Director of Public Prosecutions, deeming it inappropriate in the current proceedings. The court also declined to grant the husband's application for an order restraining the wife from dealing with the proceeds of her business sale, finding it inappropriate to exercise such discretion in the absence of substantive proceedings and given the timing of the application.

Orders