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) |
| 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
The appeal be allowed in part.
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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- AGLC
- Goudarzi & Bagheri (No 2) [2017] FamCAFC 190
- Case
- [2017] FamCAFC 190
- Decision Date
CaseChat Overview and Summary
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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