ZHAI & NIU

[2015] FamCAFC 192

FAMILY COURT OF AUSTRALIA

ZHAI & NIU [2015] FamCAFC 192

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXPEDITION – Where the husband seeks to expedite an appeal against interim property orders and a refusal of a stay orders – Whether the case should be given priority to the detriment of other cases – Where an appeal from stay orders would be rendered nugatory by a significant delay in those matters coming before the court – Where the appeals are expedited.  

Family Law Act 1975 (Cth) s 94(2D)
Family Law Rules 2004 (Cth) r 12.10A

APPELLANT: Mr Zhai

RESPONDENT: Ms Niu

FILE NUMBER: SYC 8031 of 2014

APPEAL NUMBER: EA 117 of 2015

DATE DELIVERED: 13 August 2015

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Aldridge J

HEARING DATE: 13 August 2015

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 16 July 2015

LOWER COURT MNC: [2015] FamCA 599

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Campton SC

SOLICITOR FOR THE APPELLANT: Kells

SOLICITOR FOR THE RESPONDENT: Barkus Doolan

Orders

1. That the Applications for leave to Appeal and the Appeals EAA117/2015 and EAA130/2015 be heard together.

2. The hearing of those applications and appeals be expedited.

3. The parties are promptly to request a directions hearing before the Registrar of the Appeals Division.

4. The costs of the parties are to be their costs in the appeal.

IT IS NOTED THAT:

1. The parties will take a hearing date at short notice. 

IT IS NOTED that publication of this judgment by this Court under the pseudonym Zhai & Niu has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

IN THE APPELLATE JURRISDICTION  OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 117 of 2015
File Number: SYC 8031 of 2014

Mr Zhai

Appellant

And

Ms Niu

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. By an Application in an Appeal filed on 22 July 2015, Mr Zhai (“the husband”) seeks an order that leave be granted to appeal against the interim property orders made by Austin J on 16 July 2015 and that the appeal be expedited.  The proceedings concern interim property settlements, spousal maintenance, litigation funding and injunctions made to preserve the parties’ property rights.

2. In the proceedings before the trial judge, Ms Niu (“the wife”) sought orders that the husband provide to her a motor vehicle, spousal maintenance and a “dollar for dollar” costs order for payment of her legal fees.  Further, the wife sought injunctions which would prevent any alteration of the financial affairs of various trusts and companies in which the husband has an interest or in which he appears to be in a position of control.  The proceedings also involved interim parenting issues, however these are not the subject of appeal. 

3. The trial judge ordered, amongst other orders, that the husband give to the wife his Audi motor vehicle or pay her $30 000 so that she may purchase a vehicle herself, that he pay spouse maintenance in the sum of $1400 per week, that he pay to the wife’s solicitors an amount equal to the amount that the husband pays to his solicitors.  The husband was restrained from dealing with his various trusts and interests in such a way so as to dilute the value of those entities. 

4. By the Notice of Appeal filed on 22 July 2015, the husband seeks to discharge the orders made by the trial judge or, in the alternative, have the matter remitted for further hearing.

5. On 22 July 2015, the husband filed an Application in a Case seeking a stay of the orders made by the trial judge in relation to the property proceedings.  On 28 July 2015, the trial judge varied the restraint against the husband dealing with what were described by the trial judge as his financial resources so as to enable the husband to use those resources to comply with the order for spousal maintenance. The trial judge otherwise refused the stay.    

6. I am informed that an application to discharge the orders for the provision of the motor vehicle, spousal maintenance and the interim costs order is listed before the court on 30 November 2015.  The application will be to discharge those orders on the basis of changed circumstances which are, as I understand it, primarily that the husband’s father is no longer supporting him.

7. On 10 August 2015 the husband filed an application for leave to appeal and if granted, to appeal against the orders of Austin J made on 28 July 2015. On the same day an Application in an Appeal was filed seeking expedition of that application and that the application for leave to appeal be consolidated with the appeal against the interim orders themselves.

8. The wife’s position is that she agrees that it would be sensible for application for leave and the two appeals to be heard together and does not wish to be heard on the issue of expedition. 

9. Section 94(2D) of the Family Law Act 1975 (Cth) (“the Act”) provides for an order to be made expediting an appeal. Rule 12.10A of the Family Law Rules 2004 provides that when considering an application for expedition of a trial, the court may consider whether the applicant has acted reasonably and without delay in bringing the application, prejudice to the respondent and whether there is a relevant circumstance in which the case should be given priority to the possible detriment of other cases. This rule does not apply to appeals but the same considerations are relevant.

10. Here, the husband has acted promptly in bringing his applications for expedition.

11. The husband asserts that the appeal from the interim orders themselves should be expedited as he is unable to meet the orders.  In his affidavit in support of the Application in the Appeal, the husband claims to owe his solicitors a sum of approximately $50 000 and claims that his parents, who have supported the husband since at least May 2014, are now not providing the financial support.    The wife maintains that the husband has the financial resources to meet the interim orders made by Austin J.  These issues cannot be resolved in the context of this hearing.  Those circumstances of themselves do not and would not justify expedition of the appeal.

12. The application for expedition of the stay appeal is somewhat different. First, one of the issues on the appeal itself will be the power of the court to make an order for costs in the manner that it was framed by the trial judge. It will be submitted on appeal that the trial judge did not have the power under the Act to make that particular order. That is not something that will be dealt with by the application to discharge the orders listed before the court on 30 November 2015. That application is based upon what is said to be the refusal of the husband’s father to continue to support him.

13. Any appeal from the stay orders, in the event that leave is granted, would be rendered nugatory by a significant delay in those matters coming before the court.  This is because the obligation to pay spousal maintenance and the interim costs will continue whilst the application for leave and the appeal remain to be determined.  That is a significant matter that justifies expedition of the application for leave to appeal and the appeal from any stay.

14. As I have said, the parties agree that both applications for leave and both appeals should be heard together. That is a sensible position and I propose to make that order.  I note that both parties agreed that in the event expedition was granted they would be prepared to accept a hearing date upon short notice.

15. Accordingly I make the orders set out at the commencement of my reasons for judgment.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Aldridge J delivered on 13 August 2015.

Associate: 

Date:  2 October 2015