FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Piroozi & Piroozi (No 2) [2023] FedCFamC1F 554
File number: SYC 4175 of 2019 Judgment of: BRASCH J Date of judgment: 3 July 2023 Catchwords: FAMILY LAW – STAY APPLICATION – Where the husband filed a Notice of Appeal against final property orders made – Where the husband seeks a stay of orders in relation to the sale of property and spousal maintenance subject to appeal – Where the wife opposes the stay application – Where the husband has not established on balance that he can keep the home – Where the husband puts on no evidence when the appeal might be heard –Where a partial stay of the final orders is granted on conditions Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) s 79
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 13.12
Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
B & the Estate of Coburn and Ors [2020] FamCA 548
Commissioner of Taxation v Myer Emporium Ltd (1986) 160 CLR 220; [1986] HCA 13
Friscioni & Friscioni [2009] FamCAFC 43
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378
Kellner & Kellner [2019] FamCA 139
State Central Authority & Ustinov (No.2) [2008] FamCA 368
Division: Division 1 First Instance Number of paragraphs: 73 Date of hearing: 3 July 2023 Place: Sydney Counsel for the Applicant: Mr Gardiner Solicitor for the Applicant: Godden Lawyers Counsel for the Respondent: Mr Harper Solicitor for the Respondent: Mills Oakley Lawyers ORDERS
SYC 4175 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR PIROOZI
Applicant
AND: MS PIROOZI
Respondent
order made by:
BRASCH J
DATE OF ORDER:
3 JULY 2023
THE COURT ORDERS THAT:
1.The following orders will be stayed pending completion of the husband’s Appeal being NAA 154/2023 filed 6 June 2023: Order 5(d) and (e) of the order of 11 May 2023.
2.The proceeds of sale of the Suburb T property after the payments required by Orders 5(a), (b) and (c) of the 11 May 2023 order, are to be retained on trust for the parties:
(a)In the Controlled Monies Account of the wife’s solicitor; and
(b)Both the husband and wife are restrained from directing the wife’s solicitors from distributing any of the controlled funds other than as required by orders of the Court or written agreement.
THE COURT FURTHER ORDERS BY CONSENT THAT:
3.The parties’ costs of the husband’s Application in a Proceeding sealed 20 June 2023 is reserved to the primary judge, to be joined with the wife’s costs application which is presently stayed pending the husband’s appeal.
THE COURT NOTES THAT:
A.The effect of this Order is that the sale of the Suburb T property may proceed on the terms provided by the 11 May…
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- AGLC
- Piroozi & Piroozi (No 2) [2023] FedCFamC1F 554
- Case
- [2023] FedCFamC1F 554
- Decision Date
CaseChat Overview and Summary
Piroozi & Piroozi (No 2) involved a dispute between the husband and wife regarding a stay of the trial judge's orders pending the determination of an appeal. The parties had a long-term relationship, which ended in divorce in 2020, and they have three children. The wife filed proceedings in the Family Court, and after a four-day trial, the judge reserved and subsequently handed down judgment on 11 May 2023. The husband sought a stay of the orders pending his appeal, which the wife opposed. Both parties filed the necessary cost notices and affidavits in support of their respective positions. The court had to determine whether to grant the husband's application for a stay of the orders pending the appeal.
The court was required to decide whether there were grounds to grant a stay of the orders pending the determination of the appeal. The primary considerations were whether the wife was entitled to the benefit of the judgment and the presumption that the judgment was correct, and whether the mere filing of an appeal was sufficient to grant a stay. The court also had to weigh the risk that the appeal may be rendered nugatory if a stay was not granted. Additionally, the court had to assess the husband's bona fides in filing the application for a stay.
The court found that the wife was entitled to the benefit of the judgment and the presumption that the judgment was correct. The filing of an appeal alone was insufficient to grant a stay. The court accepted that the husband's application was bona fide, as he genuinely wanted to challenge the orders. However, the court also noted that if the stay was not granted, the wife would be deprived of the final fruits of the litigation, including spousal maintenance. The court found that there was a real risk that a successful appeal may be rendered nugatory if a stay was not granted, as the wife would not receive spousal maintenance during the period of the appeal. Consequently, the court decided to grant the husband's application for a stay of the orders pending the determination of the appeal.
The court ordered that the orders made by the trial judge be stayed pending the determination of the appeal. The husband was required to provide security for the wife's costs of the appeal, and the wife was required to pay the husband's costs of the stay application.
The court was required to decide whether there were grounds to grant a stay of the orders pending the determination of the appeal. The primary considerations were whether the wife was entitled to the benefit of the judgment and the presumption that the judgment was correct, and whether the mere filing of an appeal was sufficient to grant a stay. The court also had to weigh the risk that the appeal may be rendered nugatory if a stay was not granted. Additionally, the court had to assess the husband's bona fides in filing the application for a stay.
The court found that the wife was entitled to the benefit of the judgment and the presumption that the judgment was correct. The filing of an appeal alone was insufficient to grant a stay. The court accepted that the husband's application was bona fide, as he genuinely wanted to challenge the orders. However, the court also noted that if the stay was not granted, the wife would be deprived of the final fruits of the litigation, including spousal maintenance. The court found that there was a real risk that a successful appeal may be rendered nugatory if a stay was not granted, as the wife would not receive spousal maintenance during the period of the appeal. Consequently, the court decided to grant the husband's application for a stay of the orders pending the determination of the appeal.
The court ordered that the orders made by the trial judge be stayed pending the determination of the appeal. The husband was required to provide security for the wife's costs of the appeal, and the wife was required to pay the husband's costs of the stay application.
Orders
Orders of the court
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Background
Background to the litigation
In her Response, the wife says the stay application ought be dismissed with costs.BACKGROUND Both parties were born in 1968. The parties had different dates for cohabitation, but it seemed nothing turned on that. On either case, it was a long relationship of some 20 to 21 years duration. The parties separated on a final basis on 9 March 2019 and were divorced in 2020. There are three children of the marriage, namely, Mr E born 2001, and X and Y born 2004. It is not necessary in this stay application to detail the difficulties faced by various children, suffice to say I have read the primary Reasons. On 28 June 2019, the wife commenced proceedings in the Family Court of Australia (as it then was). On 17 February 2023, the matter was set down for trial for four days. The trial commenced on 17 April 2023 and finished on 19 April 2023. Judgment was reserved and subsequently handed down on 11 May 2023. The wife says in her outline that she anticipates it will take three to six months for the appeal to be listed. The husband put on no evidence in that regard. MATERIAL Both parties filed the required Cost Notices. The husband relied upon the following material for the stay application: ·Application in a Proceeding filed 19 June 2023; and·Affidavit of Mr Piroozi (the husband) filed 19 June 2023. The wife relied upon: ·Response to Application in a Proceeding filed 29 June 2023; and·Affidavit of Ms Piroozi (the wife) filed 29 June 2023. The wife also filed an Outline of Case Document. Two exhibits came into evidence before me. The standard of proof in most matters in this Court is the balance of probabilities. Section 140 of the Evidence Act 1995 (Cth) provides:(1)In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.(2)Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:(a) the nature of the cause of action or defence; and(b) the nature of the subject-matter of the proceeding; and(c) the gravity of the matters alleged. It is well settled that it is not necessary for a trial judge to refer to every piece of evidence or argument presented during the trial in reaching a decision. In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said this:…A judge's reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge's failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party's case. In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385–386, Mahoney JA said this:It is not the duty of the judge to decide every matter which is raised in argument.…Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…LEGAL PRINCIPLES - STAYS PENDING APPEALS
Evidence
Evidence Before The Court
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Decision
Reasons for decision
Whilst the onus to establish the basis for the stay is on the applicant for the stay, it is not necessary that the husband (as is the case here) demonstrate any “special” or “exceptional” circumstances. A person who has obtained a judgment is entitled to the benefit of that judgment; and a person who has obtained a judgment is entitled to presume the judgment is correct I will consider these two matters together. It has long been a settled principle of the law that a litigant is entitled to the “fruits of his litigation pending the determination of any appeal”(Commissioner of Taxation v Myer Emporium Ltd (1986) 160 CLR 220 at 222 citing The Annot Lyle (1886) 11 PD 114 at 116). The wife is entitled to the benefit of the judgment, and entitled to presume the judgment and orders made are correct. There is nothing controversial in those principles. Appropriately, Counsel for the husband accepted this to be so. Conversely, if I stay the orders as sought by the husband, then the wife is left with a further period of time where the final fruits of the litigation will be placed beyond her grasp and she will not receive spousal maintenance. I say final fruits, as I am alert to the wife receiving the controlled monies by a consent order of April 2023. She has also received superannuation that has been rolled out. Both of these factors - the benefit of the judgment and presumption it is correct - favour the wife’s position. The mere filing of an appeal is insufficient to grant a stay Nothing turns on this. The bona fides of the application I accept that the husband’s application is bona fide. The wife submitted that the husband was not quite bona fide in that he did not seek to retain the Suburb T property in the orders listed in his appeal. Whilst his Notice of Appeal is lacking in that regard, it is clear to me husband wants the property. I do not accept the wife’s submissions on his bona fides or lack thereof. I accept the converse - the husband is genuine in the application he brings.A weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant a stay This is a ground that attracts significant weight when considering whether there is a real risk that if the stay is refused, it would render a successful appeal nugatory, or would make it impossible or impractical to restore the situation presently existing (B & the Estate of Coburn and Ors [2020] FamCA 548 at [35]). In the s 79 Reasons, his Honour determined the Balance Sheet as follows:·Assets of $1,651,512 including the unencumbered Suburb T property at an agreed value of $1,150,000. The balance of assets comprised motor vehicles, various loans owed to the parties, shares, bank accounts, household contents and musical instruments;·The only liability was $40,000 owing to AB Finance; ·Superannuation of $332,025, with just over $182,000 attributable to the husband; and·Nett Total Assets (including Superannuation) $2,628,739.
Ratio Decidendi
Legal Principle Established
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