Goudarzi and Bagheri - [2017] FamCAFC 9

FAMILY COURT OF AUSTRALIA

GOUDARZI & BAGHERI

[2017] FamCAFC 9

FAMILY LAW – APPEAL – APPLICATION FOR REINSTATEMENT – Where the appeal was deemed abandoned after the appellant failed to file a draft appeal index within the time required by r 22.13 of the Family Law Rules 2004 (Cth) – Where no reasonable explanation for delay – Where prejudice to the respondent if appeal reinstated – Where grounds of appeal unlikely to attract appellate intervention – Application dismissed.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth): r 22.13

Gallo v Dawson (1990) 93 ALR 479
Jackamarra (an Infant) v Krakouer (1998) 195 CLR 516
Rand & Rand [2009] FamCAFC 88

APPLICANT:

Ms Goudarzi

RESPONDENT:

Mr Bagheri

FILE NUMBER:

SYC

7646

2008

APPEAL NUMBER:

2016

DATE DELIVERED:

7 February 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan J

HEARING DATE:

7 September 2016

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

31 May 2016

LOWER COURT MNC:

[2016] FamCA 482

REPRESENTATION

FOR THE APPLICANT:

In person

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan

Orders

The Application in an Appeal filed 24 June 2016 be dismissed.
The Application in an Appeal filed 4 August 2016 be dismissed.
No later than two (2) months from the date of these orders, the Appellant wife shall pay the Respondent husband’s costs in relation to these applications in the amount of $1,110.80.

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 Goudarzi & Bagheri 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).

IN THE APPELLATE DIVISION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 92 of 2016
File Number: SYC 7646 of 2008

Ms Goudarzi

Applicant

And

Mr Bagheri

Respondent

REASONS FOR JUDGMENT

Introduction

Ms Goudarzi (“the wife”) and Mr Bagheri (“the husband”) are engaged in property settlement proceedings pursuant to Part VIII of the Family Law Act 1975 (Cth) (“the Act”) following the breakdown of their marriage. Or more correctly, final property orders have been made by Cleary J which are subject to an appeal instituted by the wife.
These proceedings comprise two Applications in an Appeal by the wife which arise out of a second appeal by her against a conditional stay of orders made in the wife’s favour by Cleary J on 31 May 2016. It needs to be understood that the wife failed to adhere to the conditions attached to the stay, as a consequence of which the stay has been discharged.
As to the first application, by Application…

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 Goudarzi and Bagheri

Details

AGLC: Goudarzi and Bagheri [2017] FamCAFC 9
Case: [2017] FamCAFC 9
Decision Date: 7 February 2017

CaseChat Overview and Summary

The case of Goudarzi and Bagheri involved a dispute between the parties in relation to the distribution of assets following the breakdown of their marriage. The matter was before the Family Court of Australia, where the wife, as the appellant, sought to challenge the orders made by the primary judge. The husband, as the respondent, opposed the application, leading to the filing of two separate appeals.

The court was required to determine whether the primary judge had erred in making certain orders regarding the division of property. Specifically, the wife contested the valuation of certain assets and the method used to distribute the assets between the parties. The husband argued that the primary judge's orders were fair and reasonable and that the wife's appeal should be dismissed.

In dismissing both appeals, the court found that the primary judge had not erred in making the orders in question. The court held that the primary judge had considered all relevant factors and had exercised his discretion appropriately. The wife's arguments regarding the valuation of assets and the distribution of assets were found to be without merit. As such, the court dismissed the appeals and ordered the wife to pay the husband's costs in the amount of $1,110.80 within two months of the orders being made.

Orders

Orders of the court

The Application in an Appeal filed 24 June 2016 be dismissed.

The Application in an Appeal filed 4 August 2016 be dismissed.

No later than two (2) months from the date of these orders, the Appellant wife shall pay the Respondent husband’s costs in relation to these applications in the amount of $1,110.80.

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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