AGASSI & AYARI

[2019] FamCA 1041

FAMILY COURT OF AUSTRALIA

AGASSI & AYARI [2019] FamCA 1041

FAMILY LAW – PRACTICE AND PROCEDURE – ADJOURNMENT – Where the wife sought an adjournment of the hearing – Where the adjournment was opposed – Where the reason given for the adjournment was that the wife was unwell – Where oral medical evidence was adduced in support of the wife’s application – Adjournment granted - Orders made setting matter down for hearing on a fixed date.

FAMILY LAW – PRACTICE AND PROCEDURE – Orders and directions made re filing of trial documentation.

FAMILY LAW – PROPERTY – ORDERS BY CONSENT – Second Respondent removed as a party to the proceedings.

Family Law Act 1975 (Cth)

APPLICANT: Ms Agassi

RESPONDENT: Mr Ayari

FILE NUMBER: SYC 5697 of 2016

DATE DELIVERED: 11 November 2019

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Benjamin J

HEARING DATE: 11 November 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Wright

SOLICITOR FOR THE APPLICANT: Craddock Murray Neumann

COUNSEL FOR THE RESPONDENT: Mr Cairns

SOLICITOR FOR THE RESPONDENT: Concordia Legal

Orders

1. BY CONSENT the second respondent, Ms B, be removed as a party to these proceedings.

IT IS FURTHER ORDERED

1. These hearing dates of 12, 13 and 14 November 2019 be vacated.

2. These proceedings be listed for final hearing before Justice Benjamin at Sydney at 10.00am on Monday 16 March, Tuesday 17 March, Wednesday 18 March and Thursday 19 March 2020.

3. The Court reserves the costs of all parties in respect of the former second respondent’s application and all interlocutory applications filed by the former second respondent are dismissed except for any costs applications.

4. The former second respondent withdraws her application and consequently she is removed as a party AND THE COURT NOTES the question of the liability asserted by the former second respondent remains in issue and will be determined at the final hearing, including the evidence by the former second respondent and others.

IT IS DIRECTED

1. The wife file all of her financial material, her affidavits and that of her sister, on or before Tuesday 15 January 2020, NOTING that the affidavit or evidence of the value of the alleged City C home unit properties are to be filed and served no later than 13 February 2020.

2. The husband file and serve his responding material on or before 13 February 2020.

3. Costs of all parties be reserved.

4. A copy of the transcript of evidence provided today by Associate Professor D be taken out and placed on the Court file.

5. A copy of these reasons be taken out and placed on the Court file.

IT IS FURTHER NOTED

1. The wife has raised issues as to stress and if those issues arise in relation to s 75(2) factors or in relation to any further adjournment application, the court would anticipate and expect evidence of treatment by the wife to be provided by treating psychologist or psychiatrist reports filed on or before 15 January 2020.

2. The husband sought disclosure from the wife pursuant to a letter of 23 January 2019 and reasonably anticipates a satisfactory response to that letter by 15 January 2020.

IT IS CERTIFIED

1. 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 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 SYDNEY

FILE NUMBER: SYC 5697 of 2016

MS AGASSI

Applicant

And

MR AYARI

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. The matter of Agassi and Ayari came before me in March of this year after being commenced in September 2016, so it has just celebrated its third birthday in this Court.  The parties, to their credit, adopted a course to try and find a determination other than a judge determination and were unsuccessful in doing so.  It came back to me and I directed the matter proceed to trial this week as I had a gap in my calendar.  It was of very short notice and it may well have been that the proceedings would have needed another day sometime early next year given the issues in relation to the value and the reality, or otherwise, of properties in City C. 

2. At the beginning of last Wednesday I was provided with some evidence that Ms Agassi (‘the wife’) was suffering health problems and an application for an adjournment was made.  I was reluctant to grant that application because this matter needed to be heard and the longer it goes on the greater stress it puts on all parties both emotionally, psychologically and financially and I acknowledge that.  I also acknowledge that Mr Ayari (‘the husband’) and his current wife have instructed barristers, or a barrister, for today.

3. Evidence was provided by way of a report from Dr D dated 6 November 2019 (‘the report’) and I will treat that as an Exhibit[1] for the purpose of these proceedings.  Dr D is a specialist heart and vascular surgeon and says that, in essence, he has been provided information from the wife which are symptomatic of heart disease.  He undertook some preliminary examinations and found no sign of heart disease, but was concerned about that matter because of the strong family history of cardiac disease and the unusual nature of that.  The implication, of course, is that she has some underlying heart disease.  The position of the husband is that I should treat the evidence of the wife with some caution given what he says were earlier issues.  I make no findings as to credit of the wife; that would be improper for me to do so.  It may have if I went down that course no matter what I found, have the capacity to impeach the final hearing process and I will not do that. 

   [1] Exhibit 3.

4. I am going to grant an adjournment and list the matter for four days commencing 16 March 2020 at Sydney.  But, I also intend to do a number of other things to ensure that this matter is ready, first of all I have exhibited the report.[2]  The second is that I intend to direct that a transcript of the evidence of Dr D be taken out and placed on the Court file so that people do not have to rely on their memories as to what the doctor said.  The third is that I am going to direct that the wife file and serve all of her affidavit material by the 20 December this year.  I will exclude City C, but I will direct the filing of any evidence as to value and ownership of the City C apartments by both parties, if they wish to, by Friday 13 February 2020. 

   [2] Exhibit E3.

5. I will also give leave for the husband and his witnesses to file any material in reply on or before the same date.  That way there is a fairness in the process and that may cut down on the time that are involved. 

6. I will be extraordinarily unhappy if the wife comes along on the next occasion and complains about the other matters and if Ms Wright tells me that the wife has not seen a psychologist or a psychiatrist.  It is clear to me on the evidence before me so far that some of this may relate to stress, including the submissions that the wife’s lawyer carefully and thoughtfully made.  It would be, perhaps, unhelpful if when the matter comes back, if, I am told that the wife is suffering from the same issues having regard to stress and that she has not taken steps to have that addressed in the meantime.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin delivered on 11 November 2019.

Associate: 

Date:  19 December 2019