Baghti & Baghti & Ors (No 3) - [2013] FamCAFC 201

FAMILY COURT OF AUSTRALIA

BAGHTI & BAGHTI AND ORS (NO. 3)

[2013] FamCAFC 201

FAMILY LAW – APPEAL – STAY OF ORDERS – Where the husband appeals against the refusal by the trial judge to stay parenting and property orders – Where the respondents oppose the appeal – Where the Independent Children’s Lawyer only opposes the appeal against a stay of the parenting orders – Where there is no explanation as to how a successful appeal would be rendered nugatory if a stay was not granted – Where the husband has not demonstrated that the appeal has a reasonable chance of success – Where no error is identified in the approach of the trial judge – Where no merit is found in either of the grounds of appeal – Appeal dismissed.

FAMILY LAW – APPEAL – FURTHER EVIDENCE – Where the wife seeks to adduce further evidence – Where the husband opposes the application – Where the wife asserts that the further evidence would significantly impact upon the Court’s determination of whether or not to grant a stay as sought by the husband – Where the Court determined that it was necessary to receive the further evidence – Further evidence allowed.

FAMILY LAW – APPEAL – SECURITY FOR COSTS – Where the wife and her parents made applications for security for costs – Where the husband opposes both applications –Where the wife and the husband each describe their financial circumstances as “impecunious” – Where the appeal is not entirely devoid of merit – Where there is no matter of public importance – Where the granting of an order for security for costs in the wife’s favour would stifle the appeal – Where the wife’s application must fail – Where the wife’s parents argue that they are “strangers to the marriage” and they are parties against whom the husband has been wholly unsuccessful – Where the application should not be treated any differently to the application made by the wife – Where given the impecuniosity of the husband an order for security for costs against him would stifle the appeal – Applications dismissed.

FAMILY LAW – APPEAL – COSTS – EXTENSION OF TIME – Where the wife and her parents separately seek costs against the husband in relation to his application seeking an extension of time to appeal – Where the Independent Children’s Lawyer also seeks costs against the husband as well as against the wife and her parents – Where the husband opposes the applications – Where the wife and her parents oppose the Independent Children’s Lawyer’s application – Where the Independent Children’s Lawyer did not pursue costs against the wife’s parents but sought that the wife and the husband each pay one half of her costs – Where the wife submitted that the husband pay all the costs of the Independent Children’s Lawyer or in the alternative that each party pay one half – Where the husband opposed the applications and sought that each party bear their own 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.

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Details

AGLC: Baghti & Baghti & Ors (No 3) [2013] FamCAFC 201
Case: [2013] FamCAFC 201
Decision Date

CaseChat Overview and Summary

Mr Baghti appeals against the refusal by Fowler J to grant him a stay of the parenting and property orders made on 22 August 2012. The wife and the wife's parents oppose the appeal. The wife also seeks to adduce further evidence, and the wife and her parents seek security for costs. The wife and her parents also seek costs in relation to the husband's application seeking an extension of time to appeal. The Independent Children's Lawyer seeks costs against the husband and the wife. The husband opposes all of the applications.

The appeal against the orders made by Fowler J on 22 August 2012 be dismissed. The wife's application to adduce further evidence be granted. The applications for security for costs be dismissed. The wife and her parents should have their costs against the husband in relation to the husband's application seeking an extension of time to appeal. The husband should bear the costs of the Independent Children's Lawyer in relation to the adjournment application and the unsuccessful appeal against the refusal of the stay. The wife and her parents should have their costs against the husband in relation to the unsuccessful appeal against the refusal of the stay. The husband should pay the costs of the Independent Children's Lawyer in relation to the unsuccessful appeal against the refusal of the stay. There be no other order as to costs.

The husband's appeal against the parenting orders and the property settlement orders was heard on 22 August 2012 by Fowler J. The husband sought a stay of those orders pending appeal. Fowler J dismissed that application. The husband then filed a Notice of Appeal on 19 September 2012 and an Application in a Case seeking an extension of time to appeal and a stay of the orders made by Fowler J. The husband also filed an Application in a Case seeking an order that the transcript be produced. Fowler J dismissed the husband's application for a stay and ordered the husband to pay the wife's costs on an indemnity basis for the hearing and otherwise on a party and party basis, and the wife's costs in relation to the parenting proceedings in the sum of $15,000. The wife and her parents then filed Responses to an Application in a Case seeking that the husband's application of 19 September 2012 be dismissed and that the Court hear and determine their applications for security for costs. The husband also filed an Application in an Appeal seeking an extension of time to appeal the orders made by Fowler J on 27 November 2012. The wife and her parents filed Responses to an Application in an Appeal seeking that the husband's application of 24 December 2012 be dismissed and that the Court hear and determine their applications for security for costs. The husband's application for an extension of time to appeal was heard on 6 February 2013. The appeal was listed for hearing on 14 March 2013. The appeal was then adjourned to 18 December 2013.

The wife sought to adduce further evidence in relation to the parties' former matrimonial home and the wife's business. The wife submitted that the evidence would significantly impact upon this Court's determination as to whether a stay should be granted. The husband opposed the application on the basis that orders had been in place since August 2012 requiring the wife to pay the mortgage and that the wife had failed to make full disclosure of her financial circumstances. Counsel for the husband also noted that one of the major issues during the trial was the wife's lack of business records resulting in the expert's inability to value the business. The court found that it was necessary to receive the further evidence.

The husband's appeal against the orders made by Fowler J on 22 August 2012 was heard on 22 August 2012. The husband sought that the orders be set aside and that the orders of 22 August 2012 be stayed pending the outcome of the appeal against those orders. The wife and her parents opposed the appeal. The Independent Children's Lawyer opposed the appeal against the refusal to stay the parenting orders. The court found no merit in the appeal.

The wife and her parents sought security for costs in relation to the appeal against the orders made by Fowler J on 22 August 2012. The wife and her parents sought $50,750 and $23,370 respectively. The husband opposed both applications. The court found that the making of an order for security for costs would stifle the appeal and dismissed the applications.

The wife and her parents sought costs against the husband in relation to his application seeking an extension of time to appeal. The Independent Children's Lawyer also sought costs against the husband as well as against the wife and her parents. The husband opposed the applications. The wife and her parents opposed the Independent Children's Lawyer's application. The Independent Children's Lawyer did not pursue costs against the wife's parents but sought that the wife and the husband each pay one half of her costs. The husband opposed the applications and sought that each party bear their own costs. The husband was successful in his application seeking an extension of time and should have his costs against the wife and her parents. The court found that there is no basis for the husband to pay one half of the costs of the Independent Children's Lawyer. The wife agreed to pay one half of the costs of the Independent Children's Lawyer regardless. The court ordered the wife to pay one half of the costs of the Independent Children's Lawyer.

The wife and her parents sought costs against the husband and the Independent Children's Lawyer sought costs against the husband and the wife. The husband sought that each party bear their own costs. The court found that given the circumstances of the husband's successful adjournment application the wife and her parents should have their costs against the husband. The outcome of the husband's application for an extension of time should offset those costs and each party should bear their own costs. The husband and the wife should be responsible for one half of the Independent Children's Lawyer's costs of the adjournment application. The court ordered the husband and the wife to each pay one half of the Independent Children's Lawyer's costs.

The wife, the wife's parents, and the Independent Children's Lawyer sought costs in relation to the refusal of the stay and the security for costs applications. The husband opposed the applications. The court found that the costs sought by the husband, the wife and the wife's parents in relation to the refusal of the stay application and the security for costs application offset each other and each party should bear their own costs. The husband must pay the costs of the Independent Children's Lawyer in relation to the appeal against the refusal to stay the parenting orders. The court ordered the husband to pay the costs of the Independent Children's Lawyer.

Orders