Easom and Burhan - [2020] FamCA 13

FAMILY COURT OF AUSTRALIA

EASOM & BURHAN

[2020] FamCA 13

FAMILY LAW – STAY APPLICATION – respondent in the proceeding seeking to stay operation of interlocutory orders requiring him to pay $170 000 – amended notice of appeal in respect of orders appealed against 14 grounds of appeal in which alleged errors of law were raised – none raising error of law – assertion that husband who had been ordered to pay $170 000 was unable to source funds to make such a payment – husband having access to a $3 000 000 loan facility in November 2019 – assertion that loan facility terminated on 20 December 2019 and therefore assertion that husband had no capacity to pay the sum ordered – arguable notice of termination invalid and takes the form of new evidence for which leave is required before husband can rely on it – wife asserting termination of load deed a sham – held, stay application refused.

Family Law Act 1975 (Cth) s 79
Family Law Rules 2004 (Cth)

De L v Director-General, NSW Department of Community Services (1996) 70 ALJR 532
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681

APPLICANT:

Ms Easom

FIRST RESPONDENT:

Mr Burhan

SECOND RESPONDENT:

Ms Burhan

THIRD RESPONDENT:

C Pty Ltd

FOURTH RESPONDENT:

C Family Trust

FIFTH RESPONDENT:

C2 Pty Ltd

SIXTH RESPONDENT:

C2 Unit Trust

FILE NUMBER:

MLC

11409

2018

DATE DELIVERED:

15 January 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Wilson J

HEARING DATE:

14, 15 January 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr D Brown of One of Her Majesty's Counsel

SOLICITOR FOR THE APPLICANT:

DSA Law

COUNSEL FOR THE FIRST RESPONDENT:

Ms R Stoikovska of Senior Counsel

SOLICITOR FOR THE FIRST RESPONDENT:

Lander & Rogers

COUNSEL FOR THE SECOND RESPONDENT:

Ms C Devine

SOLICITOR FOR THE SECOND RESPONDENT:

Pigdon Norgate Family Lawyers

COUNSEL FOR THE THIRD RESPONDENT:

Ms C Devine

SOLICITOR FOR THE THIRD RESPONDENT:

Pigdon Norgate Family Lawyers

COUNSEL FOR THE FOURTH RESPONDENT:

Ms C Devine

SOLICITOR FOR THE FOURTH RESPONDENT:

Pigdon Norgate Family Lawyers

COUNSEL FOR THE FIFTH RESPONDENT:

Ms C Devine

SOLICITOR FOR THE FIFTH RESPONDENT:

Pigdon Norgate Family Lawyers

COUNSEL FOR THE SIXTH RESPONDENT:

Ms C Devine

SOLICITOR FOR THE SIXTH RESPONDENT:

Pigdon Norgate Family Lawyers

Orders

The husband’s application in a case filed 8 January 2020 for the stay of orders made 25 November 2019 is dismissed.

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 Easom & Burhan 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…

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 Easom and Burhan

Details

AGLC: Easom and Burhan [2020] FamCA 13
Case: [2020] FamCA 13
Decision Date: 15 January 2020

CaseChat Overview and Summary

In the matter of *Easom and Burhan*, heard by Wilson J, the husband sought a stay of orders made on 25 November 2019. The wife was the respondent to this application.

The central legal issue before the court was whether the husband had established sufficient grounds to warrant a stay of the previously made orders. This required the court to consider the principles governing the grant of a stay of proceedings or orders.

Wilson J dismissed the husband's application for a stay. While the specific reasons for dismissal are not detailed in the provided text, the decision indicates that the husband failed to satisfy the legal threshold required to prevent the enforcement or operation of the 25 November 2019 orders. The court applied the established legal principles for granting a stay, which typically involve demonstrating a strong likelihood of success on appeal or exceptional circumstances justifying the stay.

The husband's application was therefore dismissed.

Orders

Orders of the court

The husband’s application in a case filed 8 January 2020 for the stay of orders made 25 November 2019 is dismissed.

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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