Krupin & Krupin (No 5)

[2024] FedCFamC1F 272

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Krupin & Krupin (No 5) [2024] FedCFamC1F 272

File number(s):

BRC 5459 of 2014

Judgment of:

BAUMANN J

Date of judgment:

23 April 2024

Catchwords:

FAMILY LAW – PRACTICE AND PROCEDURE – Application for stay of final property adjustment Orders  

Legislation:

Family Law Act 1975 (Cth)

Cases cited:

Aldridge & Keaton [2009] FamCAFC 106

Krupin & Krupin (No 2) [2024] FedCFamC1F 56

Division:

Division 1 First Instance

Number of paragraphs:

18

Date of hearing:

19 April 2024

Place:

Brisbane

Solicitor for the Applicant:

Litigant in person

Solicitor for the First Respondent:

Litigant in person

Solicitor for the Second Respondent:

Litigant in person

Solicitor for the Third Respondent:

Litigant in person

Solicitor for the Fourth Respondent:

Litigant in Person

Solicitor for the Other:

Peter J Sheehy Solicitor

ORDERS

BRC 5459 of 2014

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR KRUPIN

Applicant

AND:

MS KRUPIN

First Respondent

MS ANGELOFF

Second Respondent

MS PETROV (and another named in the Schedule)

Third Respondent

PETER J SHEEHY SOLICITOR

Other

ORDER MADE BY:	BAUMANN J
DATE OF ORDER:	23 APRIL 2024

THE COURT ORDERS:

1.That pending determination of the Applicant’s Appeal against the orders of the Court made 18 March 2024, the operation of Orders 1, 2, 3, 4, 7, 8, 9, 12, 15, 17, 18, 23, 24, 25, 26, 27 and 28 are stayed.

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 Krupin & Krupin has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

BAUMANN J:

1. On 18 March 2024, Howard J pronounced Reasons in respect of a determination of contested property proceedings, which began in 2014 and has involved 3 trials and 2 earlier successful Appeals.

2. The most recent trial took place over six days in mid-2023 with the parties being relevantly:

   (a)Mr Krupin, the husband and Applicant;

   (b)Ms Krupin, the first wife and First Respondent;

   (c)Ms Angeloff, Ms Krupin’s mother and Second Respondent; and

   (d)Ms Petrov, the second wife and Third Respondent.

   A fourth Respondent was a company called B Pty Ltd, which is an entity controlled by the Third Respondent.

3. In the Reasons published 9 February 2024 (Krupin & Krupin (No 2) [2024] FedCFamC1F 56), Howard J set out numerous findings which, for context, and I accept, this is a simplified characterisation, included:

   (a)the husband has no equitable interest in a property at C Street, Suburb D (“the C Street property”) despite his claims to the contrary, and that Ms Angeloff holds the legal interest in the property, and as such the C Street property “does not form part of the pool of property for distribution in the matrimonial proceedings between [Mr Krupin] and [Ms Krupin]” [102];

   (b)a determination of a nett pool (including superannuation) of $781,249.85 with the two major assets being two real properties being:

   (i)E Street, Suburb F registered in the joint names of Mr Krupin and Ms Krupin (“the Suburb F home”); and

   (ii)G Street, Suburb H – an investment property which is rented and is registered in the name of B Pty Ltd as Trustee – the Fourth Respondent (“the Suburb H property”).

4. The husband and his second wife (although they are now divorced) live in the Suburb F property with at least the two young children of the parties.  The husband says he has lived in the Suburb F property for over 15 years.  As much is accepted by Ms Krupin who, in her affidavit filed 18 April 2024, makes the point that the husband has had the benefit of living in the home whilst she has paid rent to occupy (with her mother Ms Angeloff) her mother’s property at Suburb D.

5. The essential effect of the final orders made on 18 March 2024 are that:

   (a)an independent trustee Mr CC be appointed as trustee for sale of the Suburb F home and Suburb H property, with the power to sell the properties and to disburse the nett proceeds broadly in the proportions of 55% to the husband and 45% to Ms Krupin;

   (b)under Order 3, the Applicant and Third Respondent shall vacate the Suburb F home “within 21 days of receiving written notice from the Trustee directing them to do so” and until such time the husband is at liberty to reside in the property upon the conditions set out in Order 5(b); and

   (c)as earlier referred to, the C Street property remains in the sole property of Ms Angeloff (both in law and equity) (at Order 16) with the husband, by Order 17, to remove the caveat he has lodged over the C Street property.

   THE HUSBAND’S APPEAL

6. Within the required time limits prescribed by the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), the husband filed a Notice of Appeal against the final property Orders. The grounds of appeal articulated are:

   1. The Judge has made an error of facts, that have influenced the outcome of the proceeding

   2.        The Judge failed to consider relevant material

   3. The Judge considered facts that could not be supported by evidence and/or irrelevant

   4.        The ineffective assistance of Counsel

   5.        The Judge was biased

   6.        The Judge failed to accord procedural fairness

   7.        The Judge gave inadequate reasons for the decision

   8.        The abuse of discretion by the Judge

   9.        The Judge made a decision that was plainly wrong, unreasonable or unjust

   10.      There was a denial of natural justice

   (As per original)

7. The husband, as a self-represented litigant, attempted to articulate in the Notice of Appeal, under each ground, what appears to be in effect a summary of his argument.

8. I have read the Notice of Appeal.  Although I was not the trial judge and have not, as a result, read the trial material or a transcript of the evidence, based on the published Reasons I have read, I am not persuaded that there are no arguable grounds.

9. On 15 April 2024, the husband filed an Application “in a Case” seeking an order that the orders “from 18 March 2024 to stay as they are subject of an appeal”.  In support of the Application for a stay the husband relies upon his affidavit filed 15 April 2024.

10. Ms Krupin, by her Response (and I sense also on behalf of her mother Ms Angeloff) opposes a stay being granted and relies upon her affidavit filed 18 April 2024.  The Third Respondent (and the Fourth Respondent) support an order for a stay and rely upon the affidavit of the Third Respondent filed 19 April 2024.  I have read and considered all three affidavits relied upon by the parties.

    PRINCIPLES TO BE APPLIED

11. The principles to be applied in determining an application for a stay of orders are well known and stress the discretionary nature of the application which should be determined on its merits.  In Aldridge & Keaton [2009] FamCAFC 106 at [18], the Full Court provided a helpful summary of the relevant principles (some of which only apply to parenting orders) which include the following:

    a.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;

    b.a person who has obtained a judgment is entitled to the benefit of that judgment;

    c.a person who has obtained a judgment is entitled to presume the judgment is correct;

    d.the mere filing of an appeal is insufficient to grant a stay;

    e.the bona fides of the applicant;

    f.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;

    g.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;

    h.some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;

    i.the desirability of limiting the frequency of any change in a child’s living arrangements;

    j.the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of the stay for a short period of time; and

    k.the best interests of the child the subject of the proceedings are a significant consideration.

12. When the Application for the stay came before me on 19 April 2024, all parties appeared without legal representation.  A Country M language interpreter provided by the Court was also available but used by only the Third Respondent.

    DISCUSSION

13. Following, for the assistance of these parties, the principles earlier identified in these Reasons, I make the following findings:

    (a)I accept the husband has the onus to establish a proper basis for the stay;

    (b)Ms Krupin in particular says she has been working for over 10 years to receive her entitlements which over three hearings have resulted in a determination broadly between 60% (first trial) to 45% (third trial).  She is in a financially difficult position and wants finality.  She is entitled to receive the benefit of the Judgment, although Ms Krupin accepted the husband had a right to appeal;

    (c)Ms Krupin is entitled to presume the Judgment is correct

    (d)The mere filing of a Notice of Appeal is insufficient, by itself, to compel the Court to grant a stay;

    (e)Ms Krupin and her mother assert the husband is not bona fide and that first, the husband should be regarded as a vexatious litigant and “rejects all but his own estimation of a just settlement”.  It must be noted that the husband has appealed successfully twice, however;

    (f)I am not satisfied there are any terms or conditions that, in a practical sense, should be ordered if a stay is granted, as I explain in my conclusion.

    (g)The issues of whether the appeal may be “rendered nugatory if a stay is not granted” is a substantial factor.  The husband says if a stay is not granted (even though Mr CC the trustee has given no notice to vacate) his home could be sold and he (and the Third Respondent) will be unable to remain in the Suburb F home.  His application has always been to retain the Suburb F home;

    (h)With the limitations already noted, I say the grounds and particulars identified, from a preliminary assessment, are arguable.  I understand that Ms Krupin claims the grounds of appeal are the same as those advanced in the 2022 Appeal, and Mr Krupin attaches a copy of the husband’s affidavit sworn 25 March 2022 to establish her claim.  Whilst the grounds are almost identical, the Notice of Appeal in this appeal provided quite different particulars;

    (i)Not relevant; and

    (j)Thankfully, the appeal is likely to be listed for determination quickly and a decision will also issue in a timely manner.  I would be surprised if the result of the husband’s appeal is not known within six months.  I accept that Ms Krupin says, after 10 years, even another six months is unfair to her to wait, and she needs her share of the proceeds from the Judgment to allow her to move on with her life.

    CONCLUSION

14. In my view, the Application for a stay of the orders which if not stayed would otherwise entitle Mr CC to give notice to husband and Third Respondent to vacate the property and commence steps to sell both the Suburb F home and Suburb H property, should be granted.

15. The husband and the Third Respondent effectively regard it as necessary to stay Orders 16 and 20, but there is nothing to stay.  They propose to challenge the declarations in the appeal.

16. Mr CC indicated, that rather than stay the Orders, he would be prepared to give an undertaking to take no action pending the appeal.  However, as sensible as that suggestion is, as he is not a party to the proceedings I prefer to stay the Orders.

17. An additional concern raised by Ms Krupin on behalf of her mother was that the husband’s caveat over the C Street property is preventing monies being borrowed so as to enable necessary repairs to the property to be arranged and paid for by Ms Angeloff.  However, in circumstances where Ms Krupin says (her mother not having filed any evidence in the stay Application) that her mother “does not plan to dispose or refinance the property”) (see paragraph 18), I am not persuaded that it is appropriate to require the husband to withdraw the long registered Caveat over the C Street property, pending the appeal.  The husband’s concern is that removal of the caveat could result, despite the evidence of his first wife Ms Krupin, in the legal owner Ms Angeloff either selling or refinancing or securing a loan.  For the short period that will elapse before the appeal is determined, on the balance I will stay Orders 17 and 18.

18. For the reasons delivered, I make the orders which appear at the commencement of these Reasons.

I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Baumann.

Associate:  

Dated:       23 April 2024

SCHEDULE OF PARTIES

BRC 5459 of 2014
Respondents
Fourth Respondent:	B PTY LTD