Goudarzi and Bagheri (No 2) - [2016] FamCA 482

FAMILY COURT OF AUSTRALIA

GOUDARZI & BAGHERI (NO 2)

[2016] FamCA 482

FAMILY LAW – STAY APPLICATION – Where the wife sought a stay of the orders – Where the husband opposed a stay but submitted in the alternative there could be a conditional stay – Where there is prejudice to the husband in staying the orders - Where orders were made for the wife and children to remain in the property pending determination of the appeal proceedings – Where the terms of the stay require the wife to pay residential loans, strata levy payments and Council and water rates

APPLICANT:

Ms Goudarzi

RESPONDENT:

Mr Bagheri

FILE NUMBER:

SYC

7646

2008

DATE DELIVERED:

31 May 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Cleary J

HEARING DATE:

31 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Not Applicable

SOLICITOR FOR THE APPLICANT:

Not Applicable

COUNSEL FOR THE RESPONDENT:

Mr Richardson SC

SOLICITOR FOR THE RESPONDENT:

Barkus Doolan

Orders

Until determination of proceedings number EA66 of 2016, the operation of Orders 3, 4, 5 and 6 of the Orders made on 4 April 2016 be stayed subject to and conditional upon the wife paying, as and when due, each of the following:
1.1Loan repayments for the St George Bank residential loans, being account numbers … and …;
1.2Strata levy payments to the Owners of Strata Plan No. … relevant to the property situated at and known as 2 Q Street, Suburb R (“the Suburb R property”);

1.3Council and water rates in respect of the Suburb R property.

In the event the wife fails, neglects or refuses to pay the sums set out above, when due, and the default remains for 7 days, the stay shall stand discharged.

The husband’s costs of and incidental to this Application shall be determined by the outcome of the appeal proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Goudarzi & Bagheri (No 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 7646 of 2008

Ms Goudarzi

Applicant

And

Mr Bagheri

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Introduction

This is an application for a stay by the wife, who has filed an appeal in respect of Orders made by me on 4 April 2016 in property proceedings. The appeal was filed on 29 April 2016.
The grounds of appeal relate to some procedural matters and some challenges to the exclusion of evidence. The grounds of appeal do not refer to the sale of the matrimonial home other than to protest the valuation, which may be a matter that the appellant raises in the appeal.
The Application for a Stay is opposed on behalf of the husband. He, not unreasonably, says that the period of the appeal for it to come up for hearing and then to be determined could be a period of two years. I am not in a position to confirm or ignore that assertion, but…

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.

Keep reading for free

Create a free CaseChat account to read Goudarzi and Bagheri (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] FamCA 482
Decision Date: 31 May 2016

CaseChat Overview and Summary

In *Goudarzi and Bagheri (No 2)*, Cleary J of the Federal Circuit Court of Australia considered an application by the husband for a stay of certain orders made on 4 April 2016, pending the determination of appeal proceedings. The dispute concerned the financial obligations of the parties, specifically in relation to loan repayments, strata levies, and council and water rates for a property.

The primary legal issue before the Court was whether to grant a stay of the earlier orders. This required the Court to consider the principles governing the grant of interlocutory injunctions and stays, particularly in the context of family law proceedings and the potential impact on the parties and their assets. The Court had to balance the wife's obligations under the existing orders with the husband's request for a temporary suspension of those obligations.

Cleary J reasoned that a stay should be granted, subject to strict conditions. The Court ordered that the operation of specific earlier orders be stayed until the determination of the appeal proceedings, provided that the wife punctually paid all outstanding loan repayments for the St George Bank residential loans, strata levy payments for the Suburb R property, and council and water rates for that property. The Court stipulated that if the wife failed to make these payments when due, and such default persisted for seven days, the stay would be automatically discharged. The husband's costs were to be determined by the outcome of the appeal proceedings.

Orders

Orders of the court

Until determination of proceedings number EA66 of 2016, the operation of Orders 3, 4, 5 and 6 of the Orders made on 4 April 2016 be stayed subject to and conditional upon the wife paying, as and when due, each of the following:

1.1 Loan repayments for the St George Bank residential loans, being account numbers … and …;

1.2 Strata levy payments to the Owners of Strata Plan No. … relevant to the property situated at and known as 2 Q Street, Suburb R (“the Suburb R property”);

1.3 Council and water rates in respect of the Suburb R property.

In the event the wife fails, neglects or refuses to pay the sums set out above, when due, and the default remains for 7 days, the stay shall stand discharged.

The husband’s costs of and incidental to this Application shall be determined by the outcome of the appeal proceedings.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.