Galip & Galip (No 3)

Case [2023] FedCFamC1F 1062

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Galip & Galip (No 3) [2023] FedCFamC1F 1062  

File number: SYC 1278 of 2023
Judgment of: CAMPTON J
Date of judgment: 12 December 2023
Catchwords:  FAMILY LAW – STAY APPLICATION – Application to stay of interim orders for the sale of a real property, the distribution of the proceeds of the sale and to pay further monies to the wife pending the determination of the husband’s appeal – Where husband says he was denied procedural fairness – Where the balance of convenience favours refusal to the grant of a stay – Where the wife is entitled to the fruits of the judgment – Where wife would suffer prejudice if stay granted – Where the husband fails to promote any legitimate contention of appealable error -Application to stay dismissed.  
Legislation:

Family Law Act 1975 (Cth) s 79

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 28

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.13
Cases cited:

Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54

Federal Commissioner of Taxation v Myer Emporium Ltd (No 1) (1986) 160 CLR 220; [1986] HCA 13

House v The King (1936) 55 CLR 499; [1936] HCA 40

Jennings Construction Limited v Burgundy Royale Investments Pty Limited (1986) 161 CLR 681; [1986] HCA 86

Katsilis v Broken Hill Pty Ltd (1977) 18 ALR 181

Kioa v West (1985) 159 CLR 550; [1985] HCA 81

Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34

Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22

Weissensteiner v R (1993) 178 CLR 217; [1993] HCA 65
Division: Division 1 First Instance
Number of paragraphs: 28
Date of hearing: 11 December 2023
Place: Sydney
Counsel for the Applicant: Mr Cairns
Solicitor for the Applicant: Prolegal Pty Ltd
Counsel for the Respondent: Mr Young
Solicitor for the Respondent: Abbas Jacobs Lawyers

ORDERS

SYC 1278 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR GALIP

Applicant
AND:

MS GALIP

Respondent

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

12 DECEMBER 2023

THE COURT ORDERS THAT:

1.The Application in a Proceeding of the Husband filed 7 December 2023 is dismissed.

2.On or before 15 January 2024 the wife file and serve any affidavit and written submissions of no greater than there pages as to her claim for costs of or incidental to the Application in a Proceeding of the Husband filed 7 December 2023.

3.On or before 29 January 2024 the husband file and serve any affidavit and written submissions of no greater than three pages responding to the wife’s claim for costs

4.The proceeding remains listed for case management on 6 February 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…

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AGLC
Galip & Galip (No 3) [2023] FedCFamC1F 1062
Case
[2023] FedCFamC1F 1062
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia (Division 1), the husband, Mr Galip, filed an Application for a stay of the interim orders for the sale of a jointly held real property, the distribution of the proceeds of the sale, and to pay further monies to the wife, Ms Galip. The wife opposed the stay application and sought costs. The primary judge had earlier made an order for the sale of the jointly held property, an interim property settlement, and an order for the husband to pay the wife $800,000. The husband filed an appeal against these orders on 7 December 2023. The legal issues the court had to decide were whether to grant a stay of the primary orders and, if so, on what terms. The court considered the husband's grounds for appeal, the balance of convenience, and the wife's right to enjoy the fruits of the judgment. The court found that the appeal lacked legitimate contention of appealable error and that the balance of convenience favoured the wife. The court also noted that the husband failed to provide any proposal to provide the wife with any of the property of the parties as a condition of a stay. The court dismissed the husband's stay application and ordered him to file and serve any affidavit and written submissions of no greater than three pages responding to the wife’s claim for costs by 29 January 2024. The proceeding remains listed for case management on 6 February 2024.

Orders

Orders of the court

SYC 1278 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR GALIP

Applicant

AND:

MS GALIP

Respondent

ORDER MADE BY:

CAMPTON J

DATE OF ORDER:

12 DECEMBER 2023

THE COURT ORDERS THAT:

1. The Application in a Proceeding of the Husband filed 7 December 2023 is dismissed.

2. On or before 15 January 2024 the wife file and serve any affidavit and written submissions of no greater than there pages as to her claim for costs of or incidental to the Application in a Proceeding of the Husband filed 7 December 2023.

3. On or before 29 January 2024 the husband file and serve any affidavit and written submissions of no greater than three pages responding to the wife’s claim for costs

4. The proceeding remains listed for case management on 6 February 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.

Background

Background to the litigation

The wife opposes the stay application and seeks costs. BACKGROUND The primary reasons record:1.By way of an Application for Final Orders filed on 28 February 2023 in the Federal Circuit and Family Court of Australia (Division 2) [Ms Galip] (“the wife”) sought orders as to the adjustment of property pursuant to s 79 of the Family Law Act 1975 (Cth) (“the Act”) subsequent to the breakdown of her marriage with [Mr Galip] (“the husband”). The relief as sought by the wife is that the property of she and the husband be divided equally. The husband filed a Response to an Application for Final Orders on 22 May 2023 seeking that “the property pool” be divided 70 per cent to him and 30 per cent to the wife.2.The wife also sought in her Application for Final Orders filed 28 February 2023 interim orders as to disclosure, for the sale of real property, interim property settlement and injunctions for the preservation of property. The husband in a Response to an Application in Proceeding filed 22 May 2023 sought that he receives 70 per cent and the wife 30 per cent of the “net asset pool”. He otherwise opposed the interim relief of the wife.3.An interim hearing as to the contested interlocutory relief was conducted by a Senior Judicial Registrar of Division 2 on 23 May 2023. Judgment was reserved. 4. On 25 September 2023 the matter was transferred to Division 1 and was placed on the Major Complex Financial Proceedings List prior to the reserved Division 2 judgment being delivered. Upon transfer, the Division 2 Court was no longer seized with the proceeding such that orders could not be made on the disputed interim subject matters. If made, such orders would be in excess of the Division 2 Court jurisdiction (see Joseph & Joseph [2015] FamCAFC 168; (2015) FLC 93-665). In the circumstances it was necessary for this court to rehear the competing interlocutory relief as sought. These reasons determine that interlocutory relief.…9. The husband solicitors, or counsel appearing on behalf of the husband, briefed by his solicitors, appeared at the interim hearing before a Senior Judicial Registrar on 23 May 2023 and at listings before a Judicial Registrar on 1 August 2023 and 19 September 2023. The Orders record the husband attending with his solicitor on the listing on 19 September 2023. The Orders made on that day include notations as follows:C.The Respondent Husband has not complied with orders 1, 2, 4 and 5 made 1 August 2023 in relation to, among other things, the filing of a complete Financial Statement and an Undertaking as to Disclosure.D.The Respondent Husband has not complied with order 3 made 23 May 2023 in relation to the filing of an Undertaking as to Disclosure. …F.The Court is informed that the valuation of the parties’ assets has been completed. G.The Court is informed that [N Accountants] has been appointed as Single Expert to complete the valuation of the husband’s business interests and [R Accountants] has been appointed to complete the valuation of the wife’s business interests. …I.The Applicant’s interim application filed 28 February 2023 was originally listed for interim hearing before [a] Senior Judicial Registrar […] on 23 May 2023 on which occasion judgement was reserved. By way of correspondence received from the Applicant by the Court on 7 July 2023 and a balance sheet filed on the same date, the Applicant sought to be further heard on the interim issues due to what they alleged to be substantial change in circumstances following the receipt of various valuations. In the circumstances, the matter was listed for further hearing before [the] Senior Judicial Registrar […] on 16 August 2023. Due to non-compliance with the filing directions for interim hearing, orders were made on 15 August 2023 vacating the interim hearing.10. Subsequent to the transfer to Division 1, Orders were made on 26 September 2023, including:1.The Application in a Proceeding of the wife seeking orders as to disclosure, the sale of real property, interim property settlement and spouse maintenance filed 28 February 2023 and the husband’s Response to an Application in a Proceeding seeking that the net asset pool be divided “70% to the husband and 30% to wife” filed 25 May 2023 be listed for hearing in person at 10am on 23 October 2023.2.That each party file and serve an updated financial statement by 6 October 2023.3.For the purpose of the interlocutory hearing on 23 October 2023, neither party shall file any further affidavit evidence, save and accept as provided for by these orders or with leave of the Court.4.The wife shall serve upon the husband by 12 October 2023 a joint draft balance sheet to include all assets, liabilities, superannuation interest and financial resources suggested to be relevant and to include values as she understands are alleged by each party.5.The husband shall by 17 October 2023 make any additions to the balance sheet as required to reflect his contra allegations and any values that are agreed (if applicable).6.Wheresoever controversy exists as to the inclusion of an item or the value of an item a footnote shall be appended to explain the controversy.7.A final, settled version of the draft joint balance sheet shall be filed and served by the wife by no later than 19 October 2023.8.On or before 19 October 2023, each party is to file and serve a Case Outline document in the approved form in respect of financial issues and shall include:(a) a list of the material relied upon;(b) a brief chronology listing significant events that are relevant to the issues to be determined by the Court;(c) short submissions in support of the relief sought.9.The Court puts the husband on notice as to the obligations as to disclosure as codified by Chapter 6 of the rules and to his failure to file pursuant to Order 3 made 23 May 2023 and as further ordered on 1 August 2023 an undertaking as to disclosure such that in the event his undertaking as to disclosure is not filed and served on or before 19 October 2023, consideration will be given to striking out his Response to Initiating Application filed 22 May 2023 and for the wife to proceed as against the husband on an undefended basis.Orders were made on 19 October 2023 vacating the listing for hearing of the interlocutory dispute from 23 October 2023 and listing it for hearing at 2.15pm on 24 October 2023.11. The wife’s solicitor’s affidavit records, and I accept and find for the purposes of this determination, that:(a) The husband failed to comply with orders made by a Judicial Registrar on 4 April 2023 as to filing his response to an Application in Proceeding and specific orders for disclosure; and(b) The husband’s disclosure from mid-2022 until the commencement of proceedings of both documents and information was haphazard, piecemeal, and tardy. The wife recorded these contentions seeking specified documents a letter from her solicitor dated 8 December 2022, to which the husband’s solicitors replied to the effect that the requested disclosure would be provided during early January 2023. It was not. (c) Orders were made on 4 April 2023, 23 May 2023, and 1 August 2023 for the husband to file an undertaking as to disclosure pursuant to r 6.02 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”). He has not filed any such undertaking. (d) The husband, post separation and during the proceedings, has caused corporations of which he is the sole shareholder and director to dispose of real properties. He has not disclosed documents as to those disposals or as to the use or application of the sale funds. These properties include: (i) [E Street, Suburb H] sold [in mid] 2023 for [over $3,000,000];(ii) [2 D Street, Suburb G] sold [in late] 2023 for [over $2,000,000]; and(iii) [F Street, Suburb H in late] 2023 for [over $3,000,000]. (e) An unorthodox transaction was entered into between the husband and his current solicitor in this proceeding. In late 2022, while acting for the husband in this property dispute, the solicitor transferred his interest in [K Street, Suburb L] to [J Pty Ltd] (an entity of which the husband is the sole shareholder and director) for a consideration of either $1,960,000 or $1,800,000. The husband has not disclosed if any funds were paid to his solicitor, and if so, the source of those funds. The wife has a reasonable suspicion as to the financial relationship between the husband and his solicitor being of greater compass than one for the arm’s length provision of legal services alone.14. I find that the husband has failed to comply with his positive obligation to disclose material facts, information, and documents to provide a comprehensive understanding of his relevant financial conduct. I need not be unduly cautious in making findings on topics related to those disclosure failures in favour of the wife. 15. I find that the husband failed or neglect to comply with the orders made on 26 September 2023 as to filing and serve an updated financial statement and a case outline document. Implicitly, he elected to ignore the notice contained in those orders as to his obligations as to disclosure and as to the possibility of the striking out his Response to an Initiating Application filed 22 May 2023 and for the wife to proceed on an undefended basis. The husband additionally failed to engage with the wife as ordered in the preparation of a joint balance sheet. That document prepared by the wife alone, noted as to the source of the value of each item, was filed on 20 October 2023 (Exhibit 3).16. Cast against the husband’s failure to comply with his obligations as codified in ch 6 of the Rules and his failure to comply with orders of the Court, there was no appearance by or on his behalf when the matter was called three times outside the courtroom at 2.15pm on 24 October 2023. Two minutes prior to the hearing commencing, at 2.13pm, an email was received from the husband’s solicitor to chambers (Exhibit 1) recording: Afternoon Associate, I am deeply sorry about such a late email noting the proceedings being listed at 2:15pm. My wife and I had a rough night as it seems we have contracted a virus to which I have only been able to get up and write this quick email after making sure my client would be in attendance. I advised him of my illness early in the morning and that he would be there to advise the court. In my call to my client, he advised me via phone that he had a medical emergency at his worksite with an employee taken by ambulance earlier and he is at the hospital. This is in addition to our Counsel being unavailable due to the change in date and this has left us in a very bad position. I am very sorry about the current circumstances and I will provide to the Court an Affidavit confirming my illness once I am able to get to a doctor tonight. I understand my client will also provide evidence about the accident onsite. I note this is very late and the best I can do is seek a short adjournment via email of a few days so that we can deal with this.Kind regards,Steve Kassem(Emphasis added)17. The solicitor for the wife who was present at court advised through counsel, and I accept, that there has been no contact between his firm and the husband’s solicitors since an email on 25 September 2023. 18. There is no explanation as to the husband’s failure to afford any courtesy to the wife, to her legal representatives, or to the Court. It is inappropriate to contact chambers unilaterally. Applications are not made by email.19. The husband had an opportunity to instruct an agent or to have his solicitor brief alternate counsel to appear on 24 October 2023 to make an application for an adjournment or engage in the interim hearing. He had the opportunity to apply to appear electronically at the hearing as listed. This is not a case where the husband has not had the adequate opportunity to be heard and present his case (see Kioa v West (1985) 159 CLR at 582).…23. The gravamen of her relief for orders as to the [Suburb C] property (currently vacant save for a granny flat which is tenanted) jointly held by the parties was for she to be able to affect a sale of the property absent interference or hinderance by the husband and for her to receive the proceeds of sale. This relief, at least as to the fact of the sale of the property, was, on the wife’s case:(a) Not opposed by the husband as at 16 December 2022 when an email was sent from his solicitors to the wife’s solicitors, stating: “We do not have final instructions, we do not see any issue with the sale of the [B Street] property early next year”; and (b) Canvassed during the course of the hearing before the Senior Judicial Registrar on 23 May 2023.…40. Notwithstanding the husband’s disclosure failures and failures to comply with orders, the wife caused a balance sheet (Exhibit 3) to be constructed sourced from single expert valuations of real property, the husband’s financial statement and affidavit, and some limited documents disclosed by the husband. Broadly, the evidence promotes a finding as to the property of the parties from that document to be:(a) The jointly held [Suburb C] property valued at $3,000,000 less the mortgage of $831,149 totalling $2,168,851 net; (b) The husband’s property portfolio by way of one real property in his own name and 18 by way of corporations valued at $38,630,000, less the mortgages secured against those properties totalling $28,254,851, equating to a net $10,375,149;(c) The husband’s liabilities consisting of six unsecured loans totalling $3,706,721; (d) The husband’s other assets including a motor vehicle, [P Pty Ltd], [Q Pty Ltd], assets in [Country S], household contents, parcels of land in Perth and superannuation, equating to $3,160,935; and (e) Wife’s other assets made up of property in [Country S], a 50 per cent share in [DD Pty Ltd], liquid funds and superannuation, equating to $411,194 41. The wife conservatively contended that the net value of the property of the parties available for adjustment is $12,409,407. That value is not dissimilar to what the husband says is the value of the property of the parties without taking into account “his personal liabilities”. The husband’s financial statement indicated that it would attach a document specifying or particularising those liabilities. No such attachments formed part of the document. The wife contends that many of the contented personal loan liabilities of the husband are shams.…46. The wife concedes in her outline of case filed 17 May 2023 that an interim property settlement is not immediately necessary to enable her to continue the litigation, but that a likelihood exists that she will be unable to fund the litigation in the future, especially if the husband’s disclosure failures continue. Implicitly, she has been required to expend more of her resources than ought to be necessary to ascertain the husband’s financial circumstances where he has the province of relevant documents and information on that subject matter. In the wife’s outline of case filed 17 May 2023, she submits that her available cash funds since separation have been reduced to approximately $50,000 from $250,000 being available before the commencement of these proceedings. 47. She additionally illustrated the current financial imbalance between the parties. The husband is in control of the lion’s share of the property of the parties. The wife submits that the husband is responsible for at least 10 real property development projects, with gross assets of some $35 million, according to his own estimate. As of 30 June 2021, his taxable income was $135,057, and the total amount available for appropriation from [P Pty Ltd], of which he is the sole shareholder, was $2,246,270. She states that he also enjoys the use of a vehicle which valued at $100,000. By comparison, as of 30 June 2021, her taxable income was $78,635 and her business enterprise made a loss. 48. The wife is currently residing in rental accommodation which she describes as having “limited space”, whilst the husband resides in the former matrimonial home. On inquiry by way of oral submissions as to why a $4,000,000 lump sum payment was sought by the wife, her counsel submitted that the matrimonial home in which the husband resides is valued in the range of $2,650,000 by the single expert, and that she should be able to purchase a real property of a similar value to provide accommodation for their children so as to achieve some notion of a “level playing field” by way of residential accommodation to that as enjoyed by the husband. 49. I accept the wife’s evidence that she will utilise any funds she receives by way of interim property adjustment to purchase a real property and so find. …52. An order will be made appointing the wife as the husband’s trustee for sale of the [Suburb C] property. Any taxation impost incurred that will crystalize on the disposal will be a liability of the parties. The evidence as to the husband disclosure failures and failures to comply with orders much like they are suggestions only require other ancillary orders to be made to facilitate that sale process absent possible interference of the husband. If the property is sold for the value opined by the single expert at $2,650,000 (value less mortgage), after payment of the mortgage of $831,149, the wife will achieve in the range of $1,818,851.…55. The making of the order in these terms, in the context and circumstances of this case, cannot be said to be incapable of being reversed or adjusted if it is subsequently considered necessary to do so. The interim payment will be capable of being recovered from a sale of the wife’s home when acquired if considered necessary at some point in the future.56. Having regard to the husband’s disclosure failures, I find that it is not necessary for the wife to identify with precision how the husband is to fund the additional payment to her of $800,000. In all the circumstances, it is a matter for the husband as to how that funding is to be arranged. If he fails to comply with such order, the wife has a range of enforcement process available to her by way of the rules and other Commonwealth legislation.THE STAY APPLICATIONThe relevant law

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The appeal in its current form lacks legitimate contention of appealable error. It presents as being unlikely to achieve either threshold as identified in Medlow to gain leave to appeal. This is a powerful factor weighing against the granting of a stay. This in turn at least diminishes, if not extinguishes, the weight to be attached to the husband’s submission that a failure to grant a stay of the primary orders under challenge will render the appeal nugatory.CONCLUSION Balancing these factors, I am not persuaded to grant the husband’s stay application. The absence of apparent merit to the husband’s application for leave to appeal as currently prosecuted coupled with the balance of convenience favouring the wife weighs in favour of the wife not being deprived of the fruits of the judgment under challenge. The Application in a Proceeding of the husband filed 7 December 2023 will be dismissed. Orders will be made as to the filing of material relating to costs.

Ratio Decidendi

Legal Principle Established

She says she will also suffer financial losses if the auction, which has been set for late 2023, is postponed. The husband says he will pay any costs thrown away on the abortion of the auction as a condition of the stay, provided they are “reasonable and verified”.Consideration No probative submission was made by the husband directed to the rights of the wife to enjoy the fruits of the judgment. Further, no proposal was proffered to provide the wife with, as a condition of a stay, with any of the property of the parties. There is no evidence from the husband as to the rationalisation of his contended liquidity problems or as to any process of disposing of property with the consent of the wife to provide her with some of the properties of the party’s pending a final trial. Implicitly, it is his case that he alone will steward the patrimony to the exclusion of the wife pending a final trial event. The husband submitted that the delay in the stay of the judgment is not for a significant period, being only until the appeal is determined, but provided no evidence of when the appeal will likely be heard. Currently no orders have been made providing a date to settle the appeal index. As to the husband’s delay in seeking the stay of orders until the shadow of the auction had been cast, he submitted that this was due to his changes of solicitors. The husband’s grounds of appeal are:1.That the applicant/appellant was denied procedural fairness and natural justice. 2. That the primary judge heard the interim application of the respondent in circumstances where an interim hearing as to contested interlocutory relief was conducted by a Senior Judicial Registrar of Division 2 on 23 May 2023 with no decision ever delivered by that Senior Judicial Registrar. 3. That the primary judge erred in failing to have regard to the submissions of the applicant/appellant made to the Senior Judicial Registrar hearing the interim application on 23 May 2023 in cirusmtances (sic) where the applicant/appellant contested the interim relief sought by the respondent in the hearing held on 23 May 2023, filed a case outline and made oral submissions. 4. The primary judge erred in making orders that provided for an interim distribution that prejudiced the final claim for relied sought by the applicant/appellant. The circumstances he asserts to achieve leave to appeal are:1.The appeal is from an interlocutory judgment. 2.The appeal raises concerns of natural justice. 3.An interim hearing as to the contested interlocutory relief was conducted by a Senior Judicial Registrar of Division 2 on 23 May 2023. Judgment was reversed. Despite this, no decision was delivered by the Senior Judicial Registrar. 4.The interim property distribution prejudices the final relief sought by the applicant/appellant. As to a consideration as to the husband’s prospects of success on appeal:(a)Ground 1 as to a failure to afford procedural fairness was not particularised. The husband neglected to comply with the orders made as to disclosure and filing documents. He was on notice by way of Order 9 made on 26 September 2023 as to the consequences if he failed to comply with orders and the Rules. He failed to appear at the hearing. Procedural fairness requires each party to be given an adequate opportunity to be heard and present their cases (Kioa v West (1985) 159 CLR 550 at 582). It is the opportunity to present evidence and arguments which the interests of justice require, not the actuality of it. The husband has had every opportunity to be heard and present his case. He conceded in submissions that the “opportunity had been provided”. Additionally, implicit in his relief as dismissed by Rees J pursuant to r 10.13(1)(a) was a failure to satisfactorily explain his absence from the hearing on 23 October 2023, albeit that different considerations apply to that determination, including that the rules of natural justice are flexible in their content and application requiring fairness to all parties in the circumstances of a particular case. (b)Ground 2 is not a competent ground of appeal as implicitly accepted by the husband. The circumstances recorded at [3] and [4] of the primary reasons are uncontroversial.(c)The asserted error in Ground 3 is difficult to distil. The husband said that the ground required the support of particulars. As articulated, it is not a competent ground.(d)Ground 4 asserts an error as to a finding of fact. The husband made no meaningful submission as to why challenged finding could not have been made or that the available inferences could not be drawn against him from the unchallenged evidence led by the wife, or why to do so was in error (Weissensteiner v R (1993) 178 CLR 217 at 227 and 244; Katsilis v Broken Hill Pty Ltd (1977) 18 ALR 181 at 197). An appeal court should not interfere with a finding of fact if there was evidence on which that finding could be made if it was reasonably open on the evidence (Edwards v Noble (1971) 125 CLR 296 at [17]). The husband in submissions did not identify why the findings made were not open on the evidence before the court at the hearing. In Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550 at [43], it was said that an appeal court should not interfere with a finding of fact by a trial judge “unless they are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’, or they are ‘glaringly improbable’ or ‘contrary to compelling inferences’.” His evidence in support of the stay was likely to be of greater relevance to his unsuccessful r 10.13(1)(a) application.