ZANDI & ZANDI

[2015] FCCA 2458

FEDERAL CIRCUIT COURT OF AUSTRALIA

ZANDI & ZANDI [2015] FCCA 2458

Catchwords:
FAMILY LAW – Stay application – no appearance by the Applicant – application dismissed – costs ordered.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MS ZANDI

Respondent: MR ZANDI

File Number: MLC 1864 of 2015

Judgment of: Judge Hartnett

Hearing date: 31 August 2015

Delivered at: Melbourne

Delivered on: 31 August 2015

REPRESENTATION

Counsel for the Applicant: No appearance

Solicitors for the Applicant: Maxwell Meredith & Co

Counsel for the Respondent: Mr McLeod

Solicitors for the Respondent: Taft Lawyers

ORDERS

1. The Stay Application filed by the wife on 19 August 2015 is dismissed.

2. The husband’s costs of his Response to an Application in a Case filed on 28 August 2015, supporting Affidavit filed on 28 August 2015 and the costs of this day are fixed in the sum of $3,300 and are to be paid by the wife upon judgment in, or settlement of, these proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Zandi & Zandi is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 1864 of 2015

MS ZANDI

Applicant

And

MR ZANDI

Respondent

REASONS FOR JUDGMENT

(Edited ex tempore reasons)

1. This Court made Orders on 16 June 2015. Those Orders are as follows:-

   “1. The Respondent file and serve a response, affidavit and financial statement within seven days hereof.

   2. The parties attend a Conciliation Conference with a Registrar of the Federal Circuit Court at the Melbourne Registry on 11 September 2015 at 11:00am with leave to the Respondent to appear by telephone.

   3. Unless otherwise exempted from payment, the Applicant must pay the Conciliation Conference fee of $370 in accordance with the Family Law (Fees) Regulation 2012 (Cth) 28 days prior to the Conciliation Conference.

   4. Should the Applicant fail to comply with order 3 herein the matter be listed for mention before the Court as soon as practical prior to the Conciliation Conference.

   5. The parties’ solicitors (and if they are unrepresented, the parties themselves) send to the other, and the nominated organisation to conduct the Conciliation Conference, at least seven days before the Conciliation Conference, copies of:-

   (a) an outline of case document;

   (b) a copy of a market appraisal or valuation of any asset or financial resource, the value of which is in dispute and valuations of any superannuation interests;

   (c) a copy of the actual terms of orders required to give effect to their settlement proposal; and

   (d) written confirmation by each party or their solicitor that:-

   (i) all relevant documents have been exchanged between the parties; and

   (ii)    the superannuation trustee of any fund that may be the subject of a splitting order has been accorded procedural fairness.

   6. In the event that the matter does not settle at the Conciliation Conference and the parties have not complied with orders 5 (a) to (d), the Registrar is directed to contact the Chambers of Judge Hartnett prior to the end of the Conciliation Conference in order to urgently list the matter before Judge Hartnett for further directions and submissions with respect to costs.

   7. All extant applications are adjourned to 28 October 2015 at 10.00am for final hearing (with an estimated hearing time of one day).

   8. The parties file and serve any further affidavit material they intend to rely upon not less than seven days prior to the final hearing.

   AND THE COURT NOTES THAT:

   The party responsible for the payment of any fee including a setting down or hearing fee do pay or cause to be paid such of the fees as shall be payable by that party in accordance with, and within the time specified in, the Federal Circuit Court Regulations 2000 (Cth).”

2. Following the making of the above Orders, the wife appealed same by Notice of Appeal filed by her on 13 July 2015.  I note the orders made were interim orders.  They dealt with competing property applications, and fixed a conciliation conference in the Melbourne Registry of this Court on 11 September 2015 at 11am; and fixed the matter for trial (in the event that it did not settle before then) on 28 October 2015 at 10am.  Such trial is listed in Melbourne.

3. In her Application in a Case filed on 19 August 2015, the wife also sought in order number 2 therein, and pending the hearing of the application for permission to appeal and the substantive appeal itself, that the Orders of the Court made 16 June 2015 be stayed.  In support of that application, the wife filed an Affidavit sworn by her on 13 August 2015.  She annexed various medical documents to that Affidavit.  The Court has before it this day that material.

4. The wife failed to answer the call outside the court room this day, and is not here to prosecute her application.

5. The husband in response to the Application in a Case, filed a Response to an Application in a Case and Affidavit on 28 August 2015.  The content of his Affidavit is unchallenged by the wife, in that she is not present in Court, nor has she made any arrangements to be represented and/or present in Court on the hearing of this matter. No communication was had with Chambers or the solicitor for the husband. The Court has read both affidavits.  The Court, of course, is mindful that the wife fails to prosecute her claim. The husband opposes the application for a stay order for the reasons as set out in paragraphs 3 to 12 of his Affidavit which are as follows:-

   “3. Those orders provided for a conciliation conference on 11th September 2015 and a trial on 28th October 2015. The Court expedited the timelines on the submissions of both parties.

   4. This matter clearly needs urgent attention, because:

   a) I am currently effectively homeless. I am staying at my Sister’s home in Ballarat as I have nowhere else to live and no access to funds. The assets of the parties are tied up in the former matrimonial home.

   b) The Wife continues to reside in the former matrimonial home. She has negotiated an arrangement with the bank to stave off foreclosure of the mortgage. This arrangement is eating into the equity available to the parties.

   c) The current payment arrangement concludes on 11th January 2016 with a payment of $391.70 per fortnight in the meantime. I do not know if the arrangement will continue after that date.

   d) The mortgage as of 3rd August 2015 was $6,287 in arrears. As of 4th May 2015 the mortgage was $4,912 in arrears (See annexure N of the Wife’s affidavit filed 3rd August 2015). Attached hereto and marked with the letters FZ1 and FZ2 are letters from the ANZ bank detailing the re-finance arrangements.

   e) The Wife will be on an aged pension as of [date omitted]. She is currently on a sickness benefit from Centrelink. I do not know whether the Wife’s income will increase or decrease when she becomes an aged pensioner.

   f) Interest continues to accrue during the agreement period. Our financial position worsens as each day passes.

   g) All the other reasons set out in my affidavit filed 10th March 2015

   5. The wife complains in her notice of appeal that the Judge did not have a copy of her material because it had been requisitioned by the Court. My solicitor handed unsealed copies to the Court on the day. The Wife’s solicitor in making submissions to the Court referred to and relied upon the Wife’s Affidavit.

   6. The stay of proceedings will simply delay the Court process and is of no benefit to anyone. Costs are continuing to be incurred by both parties in circumstances where neither party can afford it. If the Wife proceeds with her appeal I will seek security for costs for that appeal.

   7. The only witnesses for the trial to date are myself and the Wife.

   8. The Court has already expedited proceedings in circumstances where the mortgagor might otherwise force the sale. The Court gave us accelerated dates for the conciliation conference and trial. My interim application for sale of the former matrimonial home was not entertained on the 16th June as the Court was able to give us the accelerated hearing dates.

   9. Neither party can afford to buy the other party out given both are pensioners. The house is going to have to be sold eventually.

   10. The appeal listing might be many months away and would only further delay the trial by up to a year or more. I am informed that a date has not even been set as at the date of swearing this

   my affidavit.

   11. The appeal may not be successful and the parties would just go back in the queue for a new conciliation conference and trial date.

   12. I am not able to afford additional court dates and seek the costs of and incidental to this response and the appearance.”

6. The Court accepts the contents of the husband’s Affidavit, as described in the preceding paragraph, which are unchallenged.  The Court will accordingly dismiss the stay application.  This matter is due to proceed to a conciliation conference in approximately 11 days, and a trial next month.  In the circumstances of the parties, as set out in the husband’s Affidavit, the matter needs a prompt hearing and has been given one in this Registry in October this year.

7. The husband sought in his responding document that the wife pay his costs of this application. That is appropriate in particular given the absence of the wife to prosecute her application, and its dismissal. The parties have both very limited income and financial resources available to them.  The husband has incurred the costs of counsel this day and has incurred the costs of an instructing solicitor to prepare the Response to an Application in a Case and Affidavit in support, and no doubt the other matters that go with that.  By reference to this Court’s schedule scale of costs, the amount claimed by the husband is reasonable and the Court shall accede to that application but stay, effectively, the payment of such sum until the parties have resolved their property proceedings either by judgment or by agreement.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of Judge Hartnett

Associate: 

Date:  8 September 2015