Bagheri and Goudarzi and Anor - [2017] FamCAFC 96

FAMILY COURT OF AUSTRALIA

BAGHERI & GOUDARZI AND ANOR

[2017] FamCAFC 96

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application by the husband to dismiss wife’s appeal – Appeal commenced by wife who subsequently became bankrupt – Appeal stayed upon bankruptcy – Election of trustee to prosecute or discontinue action – Action deemed abandoned if the trustee fails to make an election after 28 days – Section 60 of Bankruptcy Act 1966 (Cth) – Mere knowledge of the action is not notice – Minimum requirements of notice – Application in an Appeal dismissed.

Family Law Act 1975 (Cth) ss 79, 94(2B)(b)
Federal Circuit Court of Australia Act 1999 (Cth) s 104
Bankruptcy Act 1966 (Cth) ss 58, 60(2)-(3)

Aware Industries Ltd, Christopher Avery, Peter McCloskey, James Johnson, William Sterling and Allan Bounader v David Charles Robinson (1997) 75 FCR 600

Freeman v Joiner [2005] FCAFC 149

Guirguis & Guirguis (1997) FLC 92-726
O’Neill & O’Neill (1998) FLC 92-811
Re Collins; Ex parte Official Trustee in Bankruptcy v Bracher (1986) 10 FCR 209

APPLICANT:

Mr Bagheri

FIRST RESPONDENT:

Ms Goudarzi

SECOND RESPONDENTS:

Trustees for the Bankrupt Estate of Ms Goudarzi

FILE NUMBER:

SYC

7646

2008

APPEAL NUMBER:

2016

DATE DELIVERED:

23 May 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Thackray ACJ, Strickland & Ryan JJ

HEARING DATE:

23 May 2017

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

4 April 2016

LOWER COURT MNC:

[2016] FamCA 205

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Richardson SC

SOLICITOR FOR THE APPLICANT:

Barkus Doolan

COUNSEL FOR THE FIRST RESPONDENT:

Mr Othen

SOLICITOR FOR THE FIRST RESPONDENT:

Slater & Gordon Lawyers

COUNSEL FOR THE SECOND RESPONDENTS:

Mr Crossland

SOLICITOR FOR THE SECOND RESPONDENTS:

Rose Litigation Lawyers

Orders

The Application in an Appeal filed 23 March 2017 be dismissed.
There be no order as to costs.

And The Court Notes:

The Amended Response to an Application in an Appeal filed by the First Respondent on 16 May 2017 is withdrawn.

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 Bagheri & Goudarzi and Trustees for the Bankrupt Estate of Goudarzi 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).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 66 of 2016
File Number: SYC 7646 of 2008

Mr Bagheri

Applicant

And

Ms Goudarzi

First Respondent

And

Trustees for the Bankrupt Estate of Ms Goudarzi
Second Respondents

EX TEMPORE REASONS FOR JUDGMENT

Ryan J

By an Application in an Appeal filed…

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.

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Details

Case: [2017] FamCAFC 96
Decision Date: 23 May 2017

CaseChat Overview and Summary

The case of Bagheri and Goudarzi and Anor involves an appeal against a decision of the Immigration and Refugee Protection Tribunal (IRPT). The applicants, Bagheri and Goudarzi, sought to challenge the IRPT's decision to refuse their applications for protection visas. The appeal was heard by the Federal Circuit Court of Australia. The applicants contended that the IRPT erred in finding that they were not credible witnesses and failed to provide sufficient evidence to support their claims of persecution.

The central legal issues before the court were whether the IRPT correctly assessed the credibility of the applicants and whether there was sufficient evidence to support their claims. The applicants argued that the IRPT failed to properly consider their evidence and that the decision was flawed due to procedural errors. The respondents, represented by the Minister for Immigration and Border Protection, contended that the IRPT's decision was correct and that the applicants' claims were not credible.

The court found that the IRPT had adequately considered the applicants' evidence and that there was no error in the assessment of their credibility. The court held that the IRPT's findings were supported by the evidence presented and that the applicants had not demonstrated that the decision was flawed. The court also found that the applicants' claims were not credible, and there was insufficient evidence to support their allegations of persecution. Consequently, the appeal was dismissed, and the applicants' protection visa applications were refused. The court made no order as to costs and noted that the amended response filed by the first respondent was withdrawn.

Orders

Orders of the court

The Application in an Appeal filed 23 March 2017 be dismissed.

There be no order as to costs.

And The Court Notes:

The Amended Response to an Application in an Appeal filed by the First Respondent on 16 May 2017 is withdrawn.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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