Darvish & Karo (No 5)

[2024] FedCFamC2F 1264

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Darvish & Karo (No 5) [2024] FedCFamC2F 1264  

File number(s):	SYC 9035 of 2023
Judgment of:	JUDGE STREET
Date of judgment:	10 September 2024
Catchwords:	FAMILY LAW –PROCEDURE - Stay application refused – further opportunity to reagitate – Appellate Court more appropriate forum
Cases cited:	Aldridge v Keaton (2009) FamCAFC 106
Division:	Division 2 Family Law
Number of paragraphs:	12
Date of hearing:	10 September 2024
Place:	Sydney
Counsel for the Applicant:	Ms S Mahony
Solicitor for the Applicant:	I & J Law
Solicitor for the Respondent:	The Respondent appeared via audio-link

ORDERS

SYC 9035 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS DARVISH

Applicant

AND:

MR KARO

Respondent

ORDER MADE BY:	JUDGE STREET
DATE OF ORDER:	10 SEPTEMBER 2024

THE COURT ORDERS THAT:

Injunction

1.Pursuant to section 114 of the Family Law Act 1975 (Cth), both parties are restrained from selling, disposing or encumbering any real property held in Australia or overseas without further order of this Court.

2.Pursuant to section 114 of the Family Law Act 1975 (Cth), either party may lodge a caveat on any real property owned by the other party in Australia and there is to be no step taken to remove the caveat by the other party without further order of this Court.

Final Parenting and Property Procedural orders

3.The matter is fixed for a final parenting and property hearing commencing at 10:00am on 16 June 2025, and continuing on 17 June 2025 and 18 June 2025, via video and/or audio-link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).

4.In relation the determination of costs which are the subject of orders made on 26 July 2024, the Court orders that those costs will be determined at the final parenting and property hearing on 16 June 2025.

5.The respondent is directed to file and serve a response on or before 27 September 2024.

6.The parties are directed to file and serve their financial statements on or before 17 October 2024 and make full disclosures in accordance with the Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules 2021 (Cth).

7.The applicant is directed to file and serve a consolidated trial affidavit or any other affidavit or expert evidence on or before 11 April 2025.

8.The respondent is directed to file and serve a consolidated trial affidavit or any other affidavit or expert evidence on 16 May 2025.

9.The parties are directed to file and serve an agreed balance sheet on or before 21 May 2025.

10.The parties are directed to file and serve a case outline including a chronology and a list of objections on or before 27 May 2025.

11.The ICL is directed to file and serve a case outline including a chronology and a list of objections on or before 6 June 2025.

12.Leave is granted to the parties, including the ICL, to issue more than five (5) subpoenas.

13.Leave is granted to the parties, including the ICL, to have photocopying access to the material produced under subpoena, subject to any proper notice of objection.

14.Liberty is granted to the parties, including the ICL, to apply on three (3) days notice.

15.Leave is granted to the parties, including the ICL, to provide consent orders to be made in chambers, if appropriate.

Section 102NA

16.Pursuant to section 102NA of the Family Law Act 1975 (Cth), neither party is to be permitted to cross examine the other.

Appointment of an Independent Children’s Lawyer

17.Pursuant to section 68L of the Family Law Act 1975 (Cth), an Independent Children’s Lawyer be appointed for the child X, born in 2016.

Family Report Writer

18.Pursuant to section 62G of the Family Law Act 1975 (Cth), a Family Report be prepared in relation to the child X, born in 2016.

Application for Stay

19.Declines to grant a stay of the orders made 26 July 2024.

20.Leave is granted to respondent, if he wishes to do so, to file and serve an Application in a Proceeding, together with any affidavit evidence, seeking a stay on or before 2 October 2024.

21.If any such application is filed seeking a stay, the matter will be listed for an interlocutory hearing commencing at 9:30am on 8 October 2024 via video and/or audio‑link pursuant to Part 6 Division 6 of the Federal Circuit and Family Court of Australia Act 2021 (Cth).

THE COURT NOTES THAT:

A.By reason of the order made under section 102NA of the Family Law Act 1975 (Cth), each party is entitled to Legal Aid through Commonwealth funding for the purpose of cross-examination at the final hearing on 16 June 2025.

B.The respondent raised the possibility of seeking a recusal. The Court informed the respondent he may make any application he wishes by filing and serving an Application in a Proceeding and supporting affidavit, and if it is appropriate, it will be listed for an interim hearing, however, if the Application in a Proceeding is not appropriate for interim hearing, the Application in a Proceeding will be listed at the final hearing date on 16 June 2025.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE REASONS FOR JUDGMENT

JUDGE STREET

1. These proceedings came before the Court on 26 July 2024, and the Court made both final orders and interlocutory orders.  In those interlocutory orders, the Court had anticipated determining any cost issue in respect of the earlier hearing this morning.  The parties provided communication suggesting that the matter should be adjourned because of an appeal that has been lodged by the respondent. In those circumstances, the Court decided that the issue of costs should be left to be determined at the same time as the final parenting and property proceedings.  Given the nature of the proceedings, the Court has proceeded to fix the matter for a final hearing in June 2025 and has made orders for the appointment of an Independent Children's Lawyer, for the preparation of a family report and procedural orders to permit the determination of the property and parenting matter.

2. The respondent indicated that he wished to put on evidence concerning his contentions as to the law of Country B.  The Court conveyed that evidence before this Court in relation to the law of Country B is something that is unlikely to be relevant as the parenting and property proceedings will be determined in accordance with Australian law.  The Court indicated that if the respondent did file an Application in a Proceeding to adduce such evidence, the relevance in that regard would be determined at the final hearing and the application referable to adducing evidence at the final hearing would be stood over to that date. That is the ordinary process to be followed in respect of material to be determined and admitted at a final hearing.

3. The Court tried to convey to the respondent that the law relating to Country B in respect of property and parenting matters is not an issue that is before this Court in its final hearing as this Court will apply Australian law.  There are areas in which the Court might receive some relevant foreign law evidence including the ownership of property in a foreign country, procedures for sale and valuation. However, it is unlikely that any relevant foreign law evidence would travel beyond those subject matters.  The Court has not determined whether or not any such expert evidence will be admitted.  It has simply tried to assist by informing the respondent of the fact that it may be that the admissibility of any foreign law expert evidence will not be determined by this Court until the final hearing date.

4. The respondent indicated that in the circumstances, he was considering whether or not he wished to make a recusal application.  The Court informed the respondent that he is free to make whatever applications he wishes to, and the Court will, if appropriate, determine them at an appropriate time. The respondent indicated that he wanted to pursue a stay application, and the Court asked him the grounds on which he was seeking to agitate it. The respondent contended that he had not tried to delay or protract these proceedings, and in response to questions raised as to whether he had disclosed that he was pursing custody orders at the time he was trying to delay these proceedings, the respondent referred to the other party being aware of the nature of the proceedings.

5. Under rule 13.12(1) the filing of a notice of appeal does not operate as a stay and not stay application has been filed under Rule 13.12(3). The ordinary rule is identified in Aldridge v Keaton (2009) FamCAFC 106 at [18]. The Court is not satisfied that there is any proper basis on the material that was before it on the last occasion or as at today to warrant the granting of a stay in respect of the final orders that were made on 26 July 2024. The Court is not, at this stage, persuaded that there is any proper basis for it to grant a stay in respect of those final orders. The appropriate forum for the respondent to agitate such an issue, if he seeks to do so, is the Appellate Court, having failed to persuade this Court to do so.

6. The Court did identify that its concern on the last occasion was the endeavour made on a number of occasions through a number of different means by the respondent to protract and delay these proceedings while not disclosing the fact that he was seeking to progress and try and obtain, and may have obtained, forensic advantage and a custody order in relation to the child. Notwithstanding the filing of a notice of appeal the bona fides of the respondent is clearly in issue. The respondent has not said anything that provides a proper basis for a stay of the final orders. This Court is not satisfied that there is any proper basis upon which its orders could be said to be the subject of error. The Court is of the view that the stay application seeking to re‑agitate the issues on the last occasion does not provide a proper basis to grant a stay in the interest of the administration of justice. 

7. The ordinary rule should be applied that the applicant is entitled to the benefit of the final orders. A stay is not warranted in the interests of the administration of justice and further granting a stay does not appear to be in the child’s best interests and is contrary to the overarching purpose in s95.

8. The respondent’s conduct will in due course have to be characterised by the Court, but it is conduct the Court has taken into account in determining whether it is appropriate to make a s 102NA order for the purpose of the final property and parenting hearing.

9. The Court has now made procedural orders and raised the issue of whether or not injunctive orders should be made to preserve the property of the parties. The respondent indicated that the applicant had property as well and suggested that any such interim orders should be mutual orders.  The Court accordingly made mutual orders, including an order facilitating the placing of a caveat on any property in Australia. 

10. This Court is firmly of the view that without such an order, the tragedy that occurred in proceedings heard by this Court earlier this year can occur, where despite injunctive orders, property can be sold or encumbered, and the property pool depleted or exhausted because of the want of a caveat. It is a gross injustice if any such conduct occurs. It is the duty of this Court to prevent such a gross injustice unnecessarily occurring.  That is not to suggest that the parties before the Court have identified any intention to depart from orders made by the Court.  It is simply to give effect to the regime that facilitates notice to third parties through the lodging of caveats which more effectively ensures the prevention of dealings with real property than the simple making of injunctions, notwithstanding the consequences that can flow from a breach of the same. 

11. The Court did indicate to the respondent that if he wished to, he could put on his expert evidence in relation to the law of Country B. The Court also indicated to the respondent that if he wishes to, he can try and re-agitate the refusal of this Court to grant a stay again in this Court if he wishes to do so. This would require demonstration of changed circumstances. Accordingly, this Court has made an order today and given the respondent a further opportunity to reagitate the refusal of a stay before this Court if he wishes to do so.  However, having refused a stay today, the more appropriate forum for the respondent to now agitate the matter is before the appellate Court.

12. It is for these reasons the Court makes the above orders.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street.

Associate:

Dated: 23 September 2024