Genesalio & Genesalio (No 4)
[2023] FedCFamC1F 1053
•27 November 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Genesalio & Genesalio (No 4) [2023] FedCFamC1F 1053
File number(s): MLC 7657 of 2018 Judgment of: JOHNS J Date of judgment: 27 November 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – application for stay of orders – where the second respondent has filed an application for a stay of orders pending appeal against orders made 25 July 2023 – where he seeks a stay in relation to orders made 26 April 2023, 11 July 2023 and 25 July 2023 not the subject of appeal – where the second respondent previously filed a notice of appeal against the orders of 26 April 2023 which was dismissed – where the second respondent is attempting to reagitate the issue of joinder – where the applicant and first respondent oppose the application – where there is no merit to the application – application dismissed Legislation: Federal Circuit and Family Court of Australia Family Law (Family Law) Rules 2021 Rule 13.12 Division: Division 1 First Instance Number of paragraphs: 26 Date of hearing: 27 November 2023 Place: Melbourne Counsel for the Applicant: Ms Frederico Solicitor for the Applicant: Mazzeo Lawyers Counsel for the Respondents: Dr Ingleby Solicitor for the Respondents: Matthew Oldham Barrister & Solicitor Solicitor for the Second Respondent: Litigant in person ORDERS
MLC 7657 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS GENESALIO
Applicant
AND: MR GENESALIO
First Respondent
MR M GENESALIO
Second Respondent
ORDER MADE BY:
JOHNS J
DATE OF ORDER:
27 NOVEMBER 2023
THE COURT ORDERS THAT:
1.That the second respondent’s Application in a Proceeding filed 4 October 2023 be dismissed.
2.That the wife’s Response to Application in a Proceeding filed 13 October 2023 and the husband’s Response to Application in a Proceeding filed 24 November 2023 be listed for hearing before a SJR at 10:00am on 14 December 2023.
3.That the question of the costs of the husband and the wife of this day be reserved.
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 Genesalio & Genesalio has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
By Application in a Proceeding filed 4 October 2023, the applicant, who is the second respondent in the principal proceedings, seeks orders that there be a stay of orders made on 26 April 2023, 11 July 2023 and 25 July 2023, pending the outcome of the Notice of Appeal filed by him and numbered NAA 223/2023.
In the alternative, he seeks orders that the Court exercise its own discretion to stay the orders indefinitely. In support of that application, the applicant relies upon his Outline of Case document filed 24 November 2023, which identifies documents relied upon, and also his affidavit sworn 27 September 2023.
That affidavit contains seven paragraphs which, in summary, provide as follows:-
·The second respondent does not hold or own any property of the marriage, that is, the marriage between his brother, the first respondent, and the applicant who is the wife in the principal proceedings. In support of that position, he relies upon his affidavit filed 3 July 2023.
·On 4 July 2023, he filed an Application in a Proceeding seeking orders that I disqualify myself from hearing the matter;
·On 25 July 2023, I dismissed the application that I disqualify myself from hearing the proceeding;
·On 23 August 2023, the second respondent filed a Notice of Appeal against that order. The Notice of Appeal is annexed to his affidavit.
The only order the subject of challenge by the applicant's Notice of Appeal is order 1 of the orders dated 25 July 2023, which provides as follows:-
That paragraph 2 of the second respondent's Application in a Proceeding filed 3 July 2023 seeking that the primary Judge recuse herself is dismissed.
The grounds of appeal relied upon by the applicant can be summarised as follows:-
·First, that the primary Judge failed to give adequate reasons for making the order;
·Second, that the primary Judge erred in making the order refusing to disqualify herself, as she departed from her obligation to determine the application on 23 April 2023 according to the legal and factual merits of the case;
·Third, the primary Judge erred in failing to accept that her findings give rise to a reasonable apprehension of bias in circumstances where those findings are inconsistent with the facts within the knowledge of the Judge before the making of the decision;
·Fourth, that the Judge's comments mocked the applicant, giving rise to a reasonable apprehension of bias;
·Fifth, that the finding that the wife had a triable cause of action gives rise to actual or, in the alternative, a reasonable apprehension of bias;
·Sixth, that the primary Judge acted on wrong principle;
·Seventh, that the primary Judge failed to afford procedural fairness;
·Eighth, that the primary Judge took into account irrelevant matters;
·Ninth, that the primary Judge erred on the facts;
·Tenth, that the primary Judge failed to take into account a material consideration; and
·Eleventh, that the primary Judge's decision is plainly unreasonable and unjust.
Although the only order appealed against is the order dismissing the application that I disqualify myself, the applicant seeks a stay of earlier orders not the subject of the appeal, being the orders made on 26 April 2023 joining him as a party to the proceedings, orders made 11 July 2023 for disclosure and listing the matter for final hearing, and orders for costs, being the orders of 25 July 2023. In circumstances where those orders are not the subject of challenge on appeal, the applicant's application to stay the operation of those orders is misconceived.
It is a matter of discretion whether or not a stay should be granted. The granting of a stay is dependent upon the circumstances of each particular case.
Rule 13.12 of the Federal Circuit and Family Court of Australia Family Law (Family Law) Rules 2021 (“the Rules”) provides as follows:
(1)The filing of a Notice of Appeal does not stay the operation or enforcement of the order appealed from, unless otherwise provided by a legislative provision.
(2)If an appeal has been started, or a party has applied for leave to appeal against an order, any party may apply for an order staying the operation or enforcement of all, or part, of the order to which the appeal or application relates.
(3)An application for a stay must:
(a) be filed in the registry in which the order under appeal was made; and
(b)be heard by the Judge or Magistrate who made the order under appeal, unless the judicial officer is unavailable.
The principles relating to the granting of a stay pending appeal are well known. The discretion to stay the operation of orders should only be exercised where special circumstances exist which justify departure from the ordinary rule that a successful litigant is entitled to the fruits of his or her litigation pending the determination of any appeal.
The Court is entitled to assume that the decision which is the subject of the appeal is correct. Indeed, the Full Court must subsequently approach the appeal on the basis of a strong presumption that the decision at first instance is correct.
Circumstances that may justify a stay of orders pending the outcome of an appeal include the need to prevent the appeal from being rendered nugatory, or where there is a real risk that it will not be possible for a successful appellant to be restored to his or her former position if the orders are executed. In determining that question, the Court should consider the prospects of the appeal and where the balance of convenience lies between the parties. The onus of establishing a proper basis for a stay of the orders rests with the applicant.
The applicant referred to and relied upon his case outline document. The focus of those submissions was the orders made by me on 26 April 2023 joining him as a party to the proceedings. The applicant's submissions essentially attempt to re-argue that issue, and heavy reliance is placed on that decision in support of his application that I ought to have disqualified myself. It is the applicant's view that if his appeal is successful, it therefore follows that the orders of 26 April 2023 will be set aside. The applicant submitted:
Bias knocks everything out.
The applicant's submission is that the fact that I made orders joining him as a party to the proceedings demonstrates bias. He also submitted that in making that decision, I relied upon "no authorities" and that I had made an "incorrect decision".
The wife opposes the application for a stay. She also rejects the applicant's submissions that her lawyers have engaged in improper conduct. She submits that the applicant's application ought not succeed, given his failure to comply with orders of the Court, particularly, the orders for valuation dated 26 April 2023 and the orders for disclosure dated 11 July 2023. The applicant confirmed that he had not complied with those orders.
The wife also submits that the application is another attempt by the applicant to delay the progress of the proceedings. In support of that submission, she relied on the applicant's two adjournment applications of his appeal, the first of which was successful, and the second of which was dismissed on 15 November 2023.
It was submitted that the wife would suffer significant prejudice if a stay of the orders for valuation and disclosure was granted, as to do so would jeopardise the capacity of the matter to be ready for its listed trial date on 19 February 2024. There is much force in that submission, particularly given that these proceedings have been on foot since 2018.
Further, the wife submits there is no prejudice to the applicant if the stay is refused.
Finally, the wife submitted that the applicant's appeal lacks merit and was little more than an attempt to reagitate the issue of joinder. Having regard to the applicant's case outline and oral submissions made this day, I accept that submission.
The husband opposes the application for a stay. It was submitted on behalf of the husband that the applicant's application was not competent having regard to Rule 13.12(2) of the Rules. I agree.
As noted earlier, the only order against which a stay could operate is the order appealed against, namely, the order made on 25 July 2023 that dismissed the application for recusal. The other orders sought to be stayed are not the subject of appeal. The husband submitted that while he had disagreed with the order for joinder, bias is different to disagreement. He submitted that the applicant does not identify the bias in this case. I accept that submission.
The difficulty with the applicant's application is twofold. First, the fact that I made a decision that the applicant does not agree with does not establish bias. Whilst the applicant complains about the decision and strenuously argues that it was wrong, he does not identify the nature of the bias that is said to have infected that decision.
Second, the applicant has previously filed a Notice of Appeal in relation to that decision, which was dismissed by the Appeals Registrar on 13 June 2023. The applicant's application to review that decision was dismissed by Austin J on 6 July 2023. Hence, the applicant has exhausted his appeal in relation to that decision. As a consequence, I am satisfied there is no basis for a stay of the operation of that order.
The applicant's Notice of Appeal is listed for hearing on 1 December 2023. Otherwise, save for this application, there is no proceeding listed before me until 19 February 2024, which is the first day of the final property hearing. Should the applicant's appeal succeed, it follows that the final hearing of the parties' competing property applications will be heard by another Judge.
Given that position, in my view, there is little utility in the applicant's application for a stay of the operation of my orders dismissing his application that I disqualify myself.
As to the balance of the application seeking the stay of earlier orders, in my view, there is no merit to that application in circumstances where, firstly, the applicant's appeal against the orders of 26 April 2023 was dismissed, and, secondly, there is no appeal against the orders made 11 July 2023 in relation to disclosure and trial directions, or the orders of 25 July 2023 in relation to costs.
Having regard to those matters, in my view, the application in a proceeding filed 4 October 2023 should be dismissed, and I make orders to that effect.
I certify that the preceding twenty-six (26) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johns. Associate:
Dated: 27 November 2023
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