Guo & Zoric

Case [2023] FedCFamC1F 628

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Guo & Zoric [2023] FedCFamC1F 628  

File number: PAC 4845 of 2021
Judgment of: BRASCH J
Date of judgment: 26 July 2023
Catchwords:

FAMILY LAW – STAY – Where husband failed to participate in substantive proceedings – Where final property orders made in husband’s absence in November 2022 – Where no appeal filed – Where husband sought a stay of final orders “up until the making of a further order” – Where s 79A orders sought on a final basis - Where husband filed no material on the stay, or at any time in the entire proceedings - Application dismissed

FAMILY LAW – COSTS – Where husband, through his solicitor, was ordered to file a Costs Notice as required by r 12.06(7) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Legislation:

Family Law Act 1975 (Cth) ss 79A, 79A(1)(a)

Federal Circuit and Family Court of Australia Act 2021 (Cth) s 25(1)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 10.13, 12.06(7)

Cases cited:

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27

Gull & Gull (Stay Application) [2009] FamCAFC 104

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378

Jackson & Balen [2009] FamCAFC 131

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

Philkin & Philkin (No 3) [2021] FedCFamC1F 224

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48

Zhai & Niu [2015] FamCA 639

Division: Division 1 First Instance
Number of paragraphs: 93
Date of hearing: 24 July 2023
Place: Sydney
Solicitor for the Applicant: Kerrisons Legal Services
Counsel for the Respondent: Ms Hamilton
Solicitor for the Respondent: Family Focus Legal Pty Ltd

ORDERS

PAC 4845 of 2021

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

MR ZORIC

Applicant
AND:

MS GUO

Respondent

order made by:

BRASCH J

DATE OF ORDER:

26 JULY 2024

THE COURT ORDERS THAT:

1.Order 4 as contained in the Proposed Interim Orders in the Amended Initiating Application filed on 14 February 2023 is dismissed.

2.Order 9 as contained in the Proposed Interim Orders in the Amended Initiating Application filed on 14 February 2023 is dismissed.

3.The husband, through his solicitor, is to file a Costs Notice pursuant to r 12.06(7) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) by no later than 4.00 pm on Friday 28 July 2023.

4.The wife, through her solicitor, is at liberty to provide a copy of this order and Reasons to B Lawyers.

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)),…

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AGLC
Guo & Zoric [2023] FedCFamC1F 628
Case
[2023] FedCFamC1F 628
Decision Date

CaseChat Overview and Summary

In this case, the husband, Mr Zoric, sought an interim order to stay certain final property orders made by the trial judge, Her Honour Judge Murdoch, on 10 November 2022, pending further orders. The wife, Ms Guo, opposed the application. The primary legal issue the court had to address was whether it should grant an interim stay of the final property orders made by the trial judge, pending further orders, in the absence of an appeal against those orders. The court considered several factors in deciding this issue, including the husband's history of non-compliance with court orders, the delay in seeking the stay, and the potential impact on the wife if the stay was not granted. The court also noted the lack of evidence provided by the husband in support of his application, as well as the failure to file a Case Outline and a Costs Notice as required by the relevant rules of court.

The court found that the husband's application was incompetent and/or lacking any evidential basis, as he had failed to provide the necessary material and comply with the court's orders. The court also found that the husband had engaged in a strategy of delay, which did not assist his case. Furthermore, the court considered the potential impact on the wife if the stay was not granted, and found that the husband had not demonstrated that the appeal (if it were to be filed) would be rendered nugatory. The court concluded that the husband had not met the onus cast upon him to grant the stay, and dismissed the application. The court also ordered the husband to comply with certain procedural requirements, including filing a Case Outline and a Costs Notice.

In conclusion, the court dismissed the husband's application for an interim stay of the final property orders made by the trial judge, pending further orders. The court found that the application was incompetent and/or lacking any evidential basis, and that the husband had not met the onus cast upon him to grant the stay. The court also ordered the husband to comply with certain procedural requirements, including filing a Case Outline and a Costs Notice. The final orders of the court are that the application for an interim stay be dismissed, and that the husband comply with the procedural requirements within the specified timeframes.

Orders

Orders of the court

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Background

Background to the litigation

These are my ex tempore reasons. I will correct the transcript for grammatical errors and to make my oral reasons more amenable to the written word.Background Final property orders were made in this matter on 10 November 2022 and reasons published on 15 November 2022. The husband is obviously unhappy with the trial judge’s decision. However, he has not appealed. Instead, he asks that those 2022 final orders be set aside pursuant to s 79A(1)(a) of the Family Law Act 1975 (Cth) (“the Act”). That application was not before me for determination yesterday. Rather, the husband asks for an interim order that I stay some of those final orders “up until the making of a further order”. To be clear, this is not a stay pending appeal. The applicant is Mr Zoric, who was born in 1961. The respondent is Ms Guo, born 1958. The parties commenced cohabitation in 1995, were married in 2002 and separated in April 2016. They have one adult child, being Mr C born 1998. The wife instituted property proceedings on 7 October 2021. The matter worked its way through Division 2 and ended up in the trial judge’s docket. Ultimately, on 10 November 2022 the trial judge gave ex tempore reasons and made final orders with respect to the parties’ property proceedings. The reasons, as said, were published on 15 November 2022. The trial judge’s reasons give many examples of the husband not complying with orders. Indeed, on 26 April 2022, the matter was listed for an undefended hearing. The husband appeared on that day and was represented by Mr Kerrison, who remains his solicitor. Orders were subsequently made by consent for the parties to attend a conciliation conference and for the husband to file and serve a Response, supporting affidavit, Financial Statement and Financial Questionnaire by 7 June 2022, along with further orders to facilitate the conciliation conference and for disclosure. The trial judge’s reasons indicate the husband did not comply with those directions and the conciliation conference was vacated. The matter then came before the trial judge on 28 October 2022 for a Compliance and Readiness Hearing. Despite Kerrison Legal Service being on the record for the husband, there was no appearance by him on that date. The husband still had not filed any material, which by that time was over one year after service of the wife’s application upon him. There are many orders for the husband to file material, but he did not. The matter was listed before the trial judge on 10 November 2022 for an undefended hearing. The husband did not appear at that hearing, but his solicitor instructed Mr D of counsel to appear on his [the husband’s] behalf and seek the undefended hearing date be vacated. The trial judge records, “there has been no evidence filed in support of that application”. The trial judge refused the oral application to vacate the hearing date. Mr D withdrew and the hearing proceeded. The trial judge was satisfied in the circumstances of the case a 60 per cent division to the wife ($1,423,736) and 40 per cent adjustment to the husband ($949,158) was just and equitable. The trial judge determined the property pool totalled $2,372,894, although the value of the husband’s savings account/s and any superannuation was unknown.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

I have already determined to dismiss Order 4 for being incompetent and/or lacking any evidential basis. If I am wrong on that, and if the principles to a stay pending an appeal apply, then it will become apparent that the husband has failed to meet the onus that is cast upon him if I use the principles analogous to a stay pending an appeal.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; These considerations favour the wife.the mere filing of an appeal is an insufficient basis for granting a stay; No appeal has been filed.the applicant’s bona fides; The trial judge listed the husband’s many failures to comply with orders. He also failed to comply with the order to file and serve an affidavit before me on this hearing. The wife submitted the husband has engaged in a strategy of delay and that continues before me. Looking at the trial judge’s reasons, and the orders he has subsequently ignored, I accept there is some force in that submission. I am not however prepared to go so far as to say the application is male fide, rather it is both incompetent in the form of order and lack of evidence. whether there has been a delay in applying for the stay; The stay order was first sought by the amended application on 14 February 2023. The reasons and orders were handed down on 10 November 2022 and published on 15 November 2022. That delay, and any reasons therefore, is unexplained by the husband. That does not assist the husband.the time that will elapse before the appeal can be heard; Mr Kerrison did not favour me with any evidence when the s 79A hearing might occur. That does not assist the husband.a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor; That consideration refers to appeals. There is no appeal, but a s 79A application. The husband put on no evidence to assist me in this regard other than the rather obvious submission if the wife takes the funds in trust then she takes them. However, the funds in trust are not the only assets available between these parties. The property pool found by the trial judge was almost $2.4 million. The funds in trust are almost $600,000 of which Mr Kerrison gives opinion evidence that the husband is really only entitled to $172,000. Indulging that evidence from the bar table for a moment, that means the dispute then is about an approximate $400,000 (if I accept, for argument’s sake Mr Kerrison’s opinion evidence). Thus, on a pool of almost $2.4 million, I do not accept the s 79A application would be rendered nugatory if the wife has access to her entitlements that find their way into the trust account. I also do not understand how the trial judge’s reliance upon the figure of $900,000 for the Suburb F property would be rendered nugatory if the stay was not granted.some preliminary assessment of the strength of the proposed appeal –whether the appellant has an arguable case; and

Ratio Decidendi

Legal Principle Established

Orders 4 and 9 of the proposed interim orders were before me, although the applicant did not press Order 9. Order 4 reads as follows: Stay or Suspension of the Operation of Orders 1, 2 and 8 of the Orders made by Her Honour Judge Murdoch on 10 November 2022.That, until further Order, the operation of Orders 1, 2 and 8 of the Final Orders made by Her Honour Judge Murdoch on 10 November 2022 be stayed or suspended and therefore cease to have any validity or effect for the period of the stay or suspension up until the making of a further Order. (emphasis in original) It is important to note the words used in proposed Order 4 - the applicant seeks a stay “up until the making of a further Order”. He does not seek a stay in the more traditional way pending an appeal; there is no appeal on foot. He also does not seek a stay pending the determination of his s 79A application for final orders. All he seeks is a stay pending further orders.Material Contrary to the requirements of the Central Practice Direction paragraph 5.18, the husband did not file a Case Outline seven days prior to yesterday’s hearing. Indeed, he did not file a Case Outline at all. Accordingly, it was not apparent to me or the respondent (as confirmed by her counsel Ms Hamilton) what material the husband was relying on in support of his application. Whilst Justice Rees dismissed the husband’s application that he have leave to rely on the affidavit of Mr Kerrison “in support of the orders sought in his Initiating Application”, Justice Rees made an order in the following terms:5.That the husband file and serve any material upon which he seeks to rely in support of his application for a stay not later than 4:00 pm on 8 May 2023.(emphasis in original) The husband did not take up this opportunity. When I ruled that I would not ignore Justice Rees’ order of April, Mr Kerrison then made an oral application for an adjournment. Ms Hamilton for the wife opposed to that. For the short reasons given yesterday I dismissed that oral application. Accordingly, the husband relied upon: ·Amended Initiating Application filed 14 February 2023, and moved on Order 4. The husband also failed to comply with the requirements in r 12.06 for the filing of a Costs Notice. Mr Kerrison was unable to give any reason why that had not been complied with. It was something that was well within his power to do - Mr Kerrison as the solicitor on the record for the husband. I drew Mr Kerrison’s attention to r 12.06(7) and will require him to comply with that within three days of yesterday when I brought it [the rule] to his attention. The wife also did not file a Case Outline but that is understandable when she simply did not know the material the husband was relying upon and thus what case she had to meet. An order was made that the wife is to file and serve any material upon which she sought to rely no later than 4.00 pm on 6 June 2023 (Order 6 of the orders made 11 April 2023). She complied. Thus, the wife relied upon:·Response to Final Orders filed 13 March 2023; and·Affidavit of the wife Ms Guo filed 6 June 2023.