Fazil & Fazil (No 2)
[2023] FedCFamC1F 1139
•20 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Fazil & Fazil (No 2) [2023] FedCFamC1F 1139
File number: PAC 917 of 2019 Judgment of: STRUM J Date of judgment: 20 December 2023 Catchwords: FAMILY LAW – STAY – Where the husband has filed a Notice of Appeal in relation to final property orders and seeks a stay of those orders pending the hearing of the appeal – Where the wife has filed an Application in a Proceeding for the final orders to be varied pursuant to r 10.13 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – Where the wife does not oppose the stay of all but one of the orders – Consideration and application of relevant principles – Orders stayed. Legislation: Federal Circuit and Family Court of Australia (Family Law Rules) 2021 (Cth) r 10.13 Cases cited: Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106
McLaughlin & McLaughlin (No 2) (2023) FedCFamC1F 516
Division: Division 1 First Instance Number of paragraphs: 24 Date of hearing: 20 December 2023 Place: Melbourne Counsel for the Applicant: Ms Ingenito Solicitor for the Applicant: James & Jaramillo Legal Pty Ltd Counsel for the Respondent: Mr Haddad Solicitor for the Respondent: Hammond Nguyen Turnbull ORDERS
PAC 917 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS FAZIL
Applicant
AND: MR FAZIL
Respondent
ORDER MADE BY:
STRUM J
DATE OF ORDER:
20 JANUARY 2023
THE COURT ORDERS THAT:
1.Paragraphs 1 – 21 of Orders made by the Honourable Justice Wilson on 29 November 2023 be stayed pending the hearing of the husband’s appeal, number NAA343/2023 filed on 4 December 2023.
2.The Application in a Proceeding filed by the husband on 19 December 2023 be adjourned to 2 February 2024 at 2.15pm before the Honourable Justice Wilson for an Interim Defended Hearing.
AND THE COURT NOTES THAT:
A.The lawyers for the parties have advised that the appeal has been listed for hearing in early March 2024.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 the pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
DELIVERED EX TEMPORESTRUM J:
The trial of this matter proceeded before Wilson J in the Major Complex Financial Proceedings List over three days in April 2023, and his Honour made Orders and delivered reasons for judgment on 29 November 2023.
On 14 December 2023, the husband filed a Notice of Appeal. The Notice of Appeal is poorly drawn, but that does not mean the appeal is without merit. The Notice of Appeal contends a number of errors made by his Honour, some of a mathematical nature. Other errors are contended to include an order, made without notice, for the sale of the former matrimonial home, when it was agreed between the husband and the wife that it would be transferred to the husband.
Another error contended by the husband is that the wife was ordered to receive virtually the entirety of his assets in Australia, namely his bank accounts, his share of the proceeds of the former matrimonial home, and all of his superannuation interests. The husband was ordered to receive his entitlements to the assets in the pool, as found by his Honour, out of the proceeds of sale of real estate in Country B, including real estate in the name of, and to be sold by, the wife, over which he has, and was given, no control by his Honour.
On 15 December 2023 the husband filed an Application in a Proceeding seeking a stay of Orders 1 – 21 of his Honour’s orders (“stay application”), which comprise the entirety of the orders made by his Honour. The husband contemporaneously filed a supporting affidavit by his solicitor which tells me very little, and does not address the matters relevant to a consideration and determination of his stay application.
On 18 December 2023, due to the unavailability of Wilson J, I ordered that:
1.The applicant husband’s Application in a Proceeding filed 15 December 2023 be listed for Interim Defended Hearing before the Honourable Justice Strum at 9.30 am on 20 December 2023.
2.The respondent wife file and serve any Response to the husband’s Application in a Proceeding and supporting affidavit/s by 12 noon on 19 December 2023.
3.Each party file and serve an Outline of Case by 4.30 pm on 19 December 2023.
Neither party, nor their lawyers, saw fit to comply with my Order for a Case Outline. The applicant husband’s counsel filed a document styled a “Case Outline” at 9.29 am today, when the matter was listed at 9.30 am. Not only is that not in compliance with the orders I made on 18 December 2023, but it is of little, if any, assistance. The respondent wife’s solicitor, who appears today, did not even do that. He told the Court that he did not want to put his client to the expense of so doing. I take a dim view of the conduct of the parties and their lawyers. Compliance with orders of the Court is not optional; it is not for the parties, or their lawyers, to decide whether or not to comply with them.
The wife filed a Response to the Application in a Proceeding and an affidavit. Whilst paragraph 1 of the orders sought in her Response seeks a dismissal simpliciter of the husband’s stay application, paragraph 2 thereof, as well paragraph 20 of her affidavit, make it clear that she only opposes, in effect, a stay of paragraph 17 of his Honour’s orders. Otherwise, her affidavit, like that of the husband, tells me very little.
Order 17 of the Orders made by Wilson J requires the husband to transfer to the wife specific amounts from six bank accounts in his name by 4.00 pm on 7 February 2024, before the appeal is listed for hearing in early March, I am told. One account which was referred to by his Honour, but not required to be transferred to the wife, had about $11,000 in it at the time of trial. I am told that no interlocutory injunction was ever made restraining the husband from dealing with bank accounts, including at the conclusion of the trial and pending judgment, and that they have, to some extent, been depleted and that, other than the balance presently remaining in those accounts (which is less than at trial), he has no other liquid funds available to him.
The principles to be applied in determining an application for a stay of orders pending an appeal are well settled. Counsel for the husband referred me to Aldridge & Keaton (Stay Appeal) [2009] FamCAFC 106. I also refer to the recent judgment of Campton J in McLaughlin & McLaughlin (No 2) [2023] FedCFamC1F 516.
In Aldridge & Keaton, at [18], the Full Court said that the relevant principles include the following:
…
•the onus to establish a proper basis for the stay is on the applicant for the stay. However it is not necessary for the applicant to demonstrate any “special” or “exceptional” circumstances;
•a person who has obtained a judgment is entitled to the benefit of that judgment;
•a person who has obtained a judgment is entitled to presume the judgment is correct;
•the mere filing of an appeal is insufficient to grant a stay;
•the bona fides of the applicant;
•a stay may be granted on terms that are fair to all parties - this may involve a court weighing the balance of convenience and the competing rights of the parties;
•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;
•some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;
…
Other matters are also set out in of the decision of the Full Court at [18]; however, they are not presently germane. Whilst ordinarily the wife would be entitled to the benefit of the judgment and to the presumption that it is correct, in this case, she too concedes that it contains a number of errors. She filed an Application in a Proceeding on 19 December 2023 seeking a “variation” (sic) of certain of the Orders pursuant to r 10.13 of the Federal Circuit and Family Court of Australia (Family Law Rules) 2021 (Cth) (“Rules”). The term “variation” is that used by her lawyers in Part C of her Application, although it appears that her complaint is, in fact, more in the nature of an appellable error than a slip.
For example, with respect to Order 12, the wife seeks to vary the percentages from 60/40 per cent to her and the husband respectively, to 71.6/28.4 per cent. Similarly, with respect to Order 13, she seeks to alter the percentages from 60/40 per cent to 57.1/42.9 per cent.
The wife disputes the bona fides of the husband, not as to the appeal, but as to his conduct prior to trial and the delivery of judgment. She made no submissions of any utility as to the lack of bona fides of the husband’s appeal itself. It is unlikely she could properly do so in any event, given her own Application in relation to what she says are errors in his Honour’s orders, but which she contends can be corrected by r 10.13 of the Rules, rather than on appeal.
In respect of that Application, I do not consider it proper or, indeed, that I have power to rectify, pursuant to r 10.13, the orders of another judge of this Court, and certainly not when that judge can deal with that Application hereafter.
The husband did not submit that his appeal would be rendered nugatory if the stay is not granted. In Aldridge & Keaton, this was said by the Full Court to be a substantial factor in determining whether it will be appropriate to grant a stay. However, in this case, as I have observed above, the wife does not oppose a stay of Orders 1 – 16 and 18 – 21, but only of Order 17, and I consider that concession to be relevant, notwithstanding that I am not persuaded the husband’s appeal would necessarily be rendered nugatory if a stay were not granted.
Another consideration is a preliminary assessment of the strength of the proposed appeal. Again, I place considerable weight upon the fact that the wife does not oppose a stay of the Order, save in respect of Order 17, and that she concedes, or herself contends, errors in the judgment, albeit that she contends they can be rectified under r 10.13 of the Rules, rather than on appeal.
Turning to Order 17, it requires that:
On or before 4pm Wednesday 7 February 2024 the husband shall do all acts and things to execute the transfer of the following sums to the wife into the wife’s solicitor’s trust account as nominated in paragraph 11(d) –
(a) $657 from the husband’s ANZ account ending …86;
(b) $33,356 from the husband’s ANZ account ending …37;
(c) $91,278 from the husband’s ANZ account ending …86;
(d)$86,461 from the husband’s Commonwealth Bank account ending …90;
(e)$76,000 from the husband’s Commonwealth bank account ending …11; and
(f) $500 from the husband’s ANZ account ending …03.
These amounts total approximately $288,000. That will leave the husband with his interest in the former matrimonial home, which the parties had agreed was to be retained by him, but which was nevertheless ordered by Wilson J (without notice) to be sold, as well as his one quarter interest in real estate in Country B, which his Honour found to be valued at $2.4 million.
All of the husband’s superannuation is also to be paid to the wife. Otherwise, his entitlement in the pool is to be met out of the sale of real estate in Country B in the second half of 2024. In my view, for the reasons above, the balance of convenience favours the husband.
However, a stay may be granted on terms. The trial proceeded in April 2023 and judgment was delivered in November 2023, on evidence that was current at trial, including bank balances. Thus, the amounts required to be paid by the husband to the wife pursuant to Order 17 were based on the bank balances some seven months earlier.
As I have noted above, no order was sought by the wife restraining the husband from dealing with those accounts because it was common ground between them that they would each retain their own bank accounts. I am told by counsel for the husband that he has dealt with those accounts, as he was entitled to do, and that they now contain substantially less than the total of approximately $288,000 standing to his credit at trial and which were unexpectedly ordered to be paid to the wife. Of those accounts, two are mortgage offset accounts in relation to the former matrimonial home, and total approximately $162,000.
Had the wife sought an injunction in relation to those accounts, I may well have so ordered as a term of the grant of the stay. However, the pool as found by the primary judge was in the order of $12 million and includes real estate in Australia valued at $1.3 million and in Country B valued at about $10.25 million, albeit before modest liabilities in the order of $150,000 - $155,000 .
In circumstances where an injunction was not sought and substantial property and minimal debts remain, I will not make it a term of the stay that at least the offset accounts be injuncted.
In the circumstances, I propose to grant the husband’s Application in a Proceeding and to stay all of the Orders made by Wilson J on 29 November 2023, pending the hearing of his Notice of Appeal filed on 14 December 2023.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Strum. Associate:
Dated: 1 March 2024
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