Fazil & Fazil (No 2) - [2023] FedCFamC1F 1139

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Fazil & Fazil (No 2) [2023] FedCFamC1F 1139

File number: PAC 917 of 2019

Judgment of: STRUM J

Date of judgment: 20 December 2023

Catchwords: FAMILY LAW – STAY – Where the husband has filed a Notice of Appeal in relation to final property orders and seeks a stay of those orders pending the hearing of the appeal – Where the wife has filed an Application in a Proceeding for the final orders to be varied pursuant to r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where the wife does not oppose the stay of all but one of the orders – Consideration and application of relevant principles – Orders stayed.

Legislation: Federal Circuit and Family Court of Australia (Family Law Rules) 2021 (Cth) r 10.13

Cases cited:
Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106

McLaughlin & McLaughlin (No 2) (2023) FedCFamC1F 516

Division: Division 1 First Instance

Number of paragraphs: 24

Date of hearing: 20 December 2023

Place: Melbourne

Counsel for the Applicant: Ms Ingenito

Solicitor for the Applicant: James & Jaramillo Legal Pty Ltd

Counsel for the Respondent: Mr Haddad

Solicitor for the Respondent: Hammond Nguyen Turnbull
ORDERS

PAC 917 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS FAZIL

Applicant

AND:
MR FAZIL

Respondent

ORDER MADE BY:

STRUM J

DATE OF ORDER:

20 JANUARY 2023

THE COURT ORDERS THAT:
1.Paragraphs 1 – 21 of Orders made by the Honourable Justice Wilson on 29 November 2023 be stayed pending the hearing of the husband’s appeal, number NAA343/2023 filed on 4 December 2023.
2.The Application in a Proceeding filed by the husband on 19 December 2023 be adjourned to 2 February 2024 at 2.15pm before the Honourable Justice Wilson for an Interim Defended Hearing.

AND THE COURT NOTES THAT:
A.The lawyers for the parties have advised that the appeal has been listed for hearing in early March 2024.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
DELIVERED EX TEMPORE
STRUM J:

The trial of this matter proceeded before Wilson J in the Major Complex Financial Proceedings List over three days in April 2023, and his Honour…

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 Fazil & Fazil (No 2)

Details

AGLC: Fazil & Fazil (No 2) [2023] FedCFamC1F 1139
Case: [2023] FedCFamC1F 1139
Decision Date: 20 December 2023

CaseChat Overview and Summary

In the matter of Fazil & Fazil (No 2), the Federal Circuit and Family Court of Australia was presented with a case involving final property orders made between Ms Fazil and Mr Fazil. The husband had filed a Notice of Appeal in relation to the final property orders and sought a stay of those orders pending the hearing of the appeal. Concurrently, the wife filed an Application in a Proceeding seeking variation of the final orders according to rule 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. The wife did not oppose the stay of all but one of the orders. The central legal issue before the court was whether the final property orders should be stayed pending the appeal and, if so, which orders should remain in effect during the appeal process.

The court considered the principles governing stays in family law proceedings, focusing on the balance between the interests of the parties and the principle of finality in family law matters. The court examined the specific provisions of rule 10.13 and the overarching objectives of the Family Law Act 1975, which aim to provide certainty and finality in family law disputes. The court determined that the husband's appeal presented substantial questions of law and policy that warranted a stay of most of the final property orders to preserve the status quo pending the appeal's outcome. However, the court found that one specific order should not be stayed to protect the wife's rights and interests in the interim period. Therefore, the court ordered that most of the final property orders be stayed pending the appeal, while one order was left in place to ensure the wife's interim rights were protected.

The court's reasoning was grounded in the need to balance the interests of both parties and to ensure that the finality of family law proceedings is respected. By staying most of the final property orders, the court aimed to maintain the status quo and prevent any unnecessary hardship to either party during the appeal process. The court's decision to leave one order in effect was based on the principle of protecting the wife's rights and interests in the interim period, ensuring that she was not unduly disadvantaged while the appeal was being heard. The court's orders reflect a careful consideration of the relevant legal principles and the specific circumstances of the case, aiming to achieve a just and equitable outcome for both parties.

Orders

Orders of the court

PAC 917 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS FAZIL

Applicant

AND:

MR FAZIL

Respondent

ORDER MADE BY:

STRUM J

DATE OF ORDER:

20 JANUARY 2023

THE COURT ORDERS THAT:

1. Paragraphs 1 – 21 of Orders made by the Honourable Justice Wilson on 29 November 2023 be stayed pending the hearing of the husband’s appeal, number NAA343/2023 filed on 4 December 2023.

2. The Application in a Proceeding filed by the husband on 19 December 2023 be adjourned to 2 February 2024 at 2.15pm before the Honourable Justice Wilson for an Interim Defended Hearing.

AND THE COURT NOTES THAT:

A. The lawyers for the parties have advised that the appeal has been listed for hearing in early March 2024.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number:	PAC 917 of 2019
Judgment of:	STRUM J
Date of judgment:	20 December 2023
Catchwords:	FAMILY LAW – STAY – Where the husband has filed a Notice of Appeal in relation to final property orders and seeks a stay of those orders pending the hearing of the appeal – Where the wife has filed an Application in a Proceeding for the final orders to be varied pursuant to r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where the wife does not oppose the stay of all but one of the orders – Consideration and application of relevant principles – Orders stayed.
Legislation:	Federal Circuit and Family Court of Australia (Family Law Rules) 2021 (Cth) r 10.13
Cases cited:	Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106 McLaughlin & McLaughlin (No 2) (2023) FedCFamC1F 516
Division:	Division 1 First Instance
Number of paragraphs:	24
Date of hearing:	20 December 2023
Place:	Melbourne
Counsel for the Applicant:	Ms Ingenito
Solicitor for the Applicant:	James & Jaramillo Legal Pty Ltd
Counsel for the Respondent:	Mr Haddad
Solicitor for the Respondent:	Hammond Nguyen Turnbull

PAC 917 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS FAZIL Applicant
AND:	MR FAZIL Respondent

ORDER MADE BY:	STRUM J
DATE OF ORDER:	20 JANUARY 2023