Agassi and Ayari (No 4)

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.