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 of 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

1. 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.

1. 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.

1. 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

1. 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.

2. 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.

3. 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 it will take some time.

4. In the event that the Orders are stayed, the consequence without more would simply be that the wife and children continue to live in the property and pay the levies, since there was no provision otherwise in the final orders.

Impact on the parties in implementing Orders

1. The Application for the Stay largely denies or ignores the prejudice to the husband of the Orders not being implemented.  Nevertheless, there is some substance in what the applicant says about the impact on her and particularly her children, the parties’ older son being well advanced in senior high school.

Conditional stay of orders

1. Accordingly, although I think that there is little merit in the appeal itself, at least at this stage, although that may change if there is an amended appeal, and that there is prejudice to the husband in staying the orders, I am, in view of the evidence of the current financial position of the wife, prepared to grant a stay in the terms sought in the alternative by the husband, being the whole of the terms.

2. Those terms will require the wife to meet the loan repayments on St George Bank, the strata levy payments and council and water rates.

Conclusion

1. The wife says that is an unjust imposition on her, because she will have to draw on the loan facility, but she then has the advantage she seeks, which is of remaining in the property, which can be readily solved by sale pursuant to the Orders, the course which she is attempting to avoid.

2. So I will grant the stay on the conditions sought by the husband, but I want it to be clear to the wife that it is, as set out in the response of the husband and in the event that the wife fails, neglects or refuses to pay the sums set out when due, and the default remains for seven days, then the stay shall stand discharged.

3. I understand that, by making those Orders, the applicant will be likely compelled to continue to draw on the loan facility.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 31 May 2016.

Associate:     

Date:              9 June 2016