Goudarzi & Bagheri (No 2)

Case [2017] FamCAFC 190

FAMILY COURT OF AUSTRALIA

GOUDARZI & BAGHERI (NO. 2) [2017] FamCAFC 190

FAMILY LAW – APPEAL – PROPERTY SETTLEMENT – Contested evidence about the value of real property – Whether the wife was denied procedural fairness and should have been granted an adjournment due to late filing of evidence by the husband – Whether the primary judge’s discretion erred in assessing the contributions of the parties – Treatment of paid legal fees – Husband’s retirement pension excluded from the property pool – Approach to pension in payment phase discussed – Proper form of orders where property is to be sold – Where orders did not give effect to intention of the primary judge as to appropriate outcome – Whether errors vitiate the judgment  – Appeal allowed in part – Whether proceedings should be remitted – Where no application to adduce further evidence is before the court – Where the wife had ample notice that the husband sought that the Full Court re-exercise on the basis of findings by primary judge – Re-exercise of discretion – Error as to treatment of paid legal expenses rectified – Orders for sale of property varied to reflect percentage distribution of the parties’ property.

FAMILY LAW – APPEAL – COSTS – Where the appeal has been successful in part – Orders made to allow the parties to make submissions on costs.

Family Law Act 1975 (Cth) ss 75(2), 94(2)
Family Law Rules r 17.02
Agius & Agius (2010) FLC 93-442
Allesch v Maunz (2000) 203 CLR 172
Calder & Calder (2016) FLC 93-691
Docters Van Leeuwen and Docters Van Leeuwen (1990) FLC 92-148
Gaspaldi & Gaspaldi [2008] FamCAFC 134
Gilles & Irby (2016) FLC 93-687
Gronow v Gronow (1979) 144 CLR 513
Hayton v Bendle (2010) 43 Fam LR 602
Hickey and Hickey and Attorney-General for the Commonwealth of Australia (2003) FLC 93‑143
House v The King (1936) 55 CLR 499
Jarrott & Jarrott [2012] FamCAFC 29
Norbis v Norbis (1986) 161 CLR 513
Pierce v Pierce (1999) FLC 92-844
Semperton v Semperton (2012) 47 Fam LR 626
Smith and Smith (1991) FLC 92-261
Trask & Westlake (2015) FLC 93-662
T v T (Pension Splitting) (2006) 35 Fam LR 181
Waters and Waters (1981) FLC 91-019
APPELLANT: Ms Goudarzi
RESPONDENT: Mr Bagheri
FILE NUMBER: SYC 7646 of 2008
APPEAL NUMBER: EA 66 of 2016
DATE DELIVERED: 15 September 2017
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Thackray, Ryan and Forrest JJ
HEARING DATE: 8 August 2017
LOWER COURT JURISDICTION: Family Court of Australia
LOWER COURT JUDGMENT DATE: 4 April 2016
LOWER COURT MNC: [2016] FamCA 205

REPRESENTATION

COUNSEL FOR THE APPELLANT: Ms Christie
SOLICITOR FOR THE APPELLANT: Slater & Gordon Lawyers
COUNSEL FOR THE RESPONDENT: Mr Schonell SC
SOLICITOR FOR THE RESPONDENT: Barkus Doolan

Orders

  1. The appeal be allowed in part.

  2. That Order 7.3 made on 4 April 2016 by Cleary J be varied by:

    (a)       Discharging Order 7.3; and

    (b)       Ordering in lieu as follows:

    7.3  In payment of 55 per cent of…

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Details
AGLC
Goudarzi & Bagheri (No 2) [2017] FamCAFC 190
Case
[2017] FamCAFC 190
Decision Date

CaseChat Overview and Summary

The appeal, Goudarzi & Bagheri (No 2), involved a dispute over the division of property following the dissolution of a marriage between the parties. The wife appealed the primary judge’s assessment of the parties’ contributions and the resulting distribution of property. The Court of Appeal was tasked with determining whether the wife had been denied procedural fairness, whether the primary judge’s discretion in assessing the contributions was erroneous, and if the form of the orders made by the primary judge was appropriate.

The legal issues before the Court of Appeal included whether the wife was denied procedural fairness due to the late filing of evidence by the husband, and if so, whether an adjournment should have been granted. Additionally, the Court needed to assess whether the primary judge had erred in exercising his discretion regarding the contributions of the parties, the treatment of paid legal fees, and the inclusion of the husband's retirement pension in the property pool. The Court also had to consider the proper form of orders when the property is to be sold and whether any errors made by the primary judge vitiated the judgment.

The Court of Appeal found that the wife had not been denied procedural fairness due to the late filing of evidence, as she had ample opportunity to respond to it. However, the Court identified errors in the primary judge's exercise of discretion regarding the contributions of the parties and the treatment of paid legal fees. The Court allowed the appeal in part, varying the orders to rectify these errors. Specifically, the Court varied the orders to reflect a 55% distribution to the wife and adjusted the payment structure accordingly. The Court also allowed the parties to make submissions on costs incurred during the appeal.

The Court did not remit the proceedings for re-exercise of the primary judge’s discretion, as the wife had been aware that the husband sought such a re-exercise. Instead, the Court exercised its own discretion, correcting the errors identified in the primary judge’s assessment. The form of the orders was also varied to ensure they accurately reflected the Court’s intention regarding the distribution of property.

Orders

Orders of the court

1.

The appeal be allowed in part.

2.

That Order 7.3 made on 4 April 2016 by Cleary J be varied by:

(a) Discharging Order 7.3; and

(b) Ordering in lieu as follows:

7.3 In payment of 55 per cent of the balance then remaining to the wife;

7.4 In payment of a further sum of $964,471.60 to the wife;

7.5 In payment of such sums as are necessary to discharge St George

residential loan #100 and residential loan #700; and

7.6 In payment of the balance then remaining to the husband.

3.

Each party be at liberty to make an application by way of written submissions in respect of costs incurred by him or her in relation to the appeal or in respect to costs certificates under the Federal Proceedings (Costs) Act 1981 (Cth) by filing such submissions and serving them on the other party within 14 days of the date of these orders.

4.

The other party have a further 14 days in which to file and serve written submissions in answer thereto.

5.

Either party be at liberty to reply to an answer by filing such reply and serving it on the other party within a further 7 days.

6.

Each party endorse on the cover sheet the date on which a copy of any submission filed pursuant to these orders was served on the other party.

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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