Zigouras & Zigouras - [2024] FedCFamC2F 824

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Zigouras & Zigouras [2024] FedCFamC2F 824

File number(s): MLC 3901 of 2023

Judgment of: JUDGE A. HUMPHREYS

Date of judgment: 28 June 2024

Catchwords: FAMILY LAW – DIVORCE – respondent lacks capacity to participate in proceedings – efforts of court and solicitor for the application to appoint a litigation guardian for respondent unsuccessful, including by request to Attorney-General pursuant to rule 3.16(4) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – hearing of application in absence of respondent or a litigation guardian appointed on her behalf – consideration of evidence of separation under the one roof in context of respondent’s illness and disability and applicant’s role caring for her – unreliable corroborative evidence – application dismissed.

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) s 39, 48, 49

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 2.37, 2.42, 3.12, 3.13, 3.14, 3.15, 3.16

Reithmuller, Grant and Robin Smith, Family Law (Thompson Reuters, 7^th edition, 2022)

Cases cited:
In the Marriage of Falk (1977) FLC 90–247; [1977] FamCA 46

In the Marriage of Spanos (1980) FLC 90–871; [1980] FamCA 10

In the Marriage of Todd (No 2) (1976) FLC 92–008

Pavey & Pavey (1976) FLC 90–051; [1976] FamCA 36

Rainger & Cadis [2023] FedCFamC2F 591

Division: Division 2 Family Law

Number of paragraphs: 66

Date of hearing: 28 June 2024

Place: Melbourne

Solicitor-advocate for the applicant: Mr Lee

Solicitors for the applicant: Resolve Conflict Family Lawyers

Representative for the Respondent: No appearance
ORDERS

MLC 3091 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR ZIGOURAS

Applicant

AND:
MS ZIGOURAS

Respondent

ORDER MADE BY:

JUDGE A. HUMPHREYS

DATE OF ORDER:

28 JUNE 2024

THE COURT ORDERS THAT:
1.The Application for Divorce filed on 27 March 2023 be dismissed.
2.The solicitor for the applicant serve a copy of these orders upon Ms B, being the guardian and administrator appointed for the respondent wife by an order of the Victorian Civil and Administrative Tribunal dated late 2023.

AND THE COURT NOTES THAT:
A.A copy of these orders and the settled reasons for making the orders will be provided by the chambers of Judge A. Humphreys to the Victorian Civil and Administrative Tribunal (VCAT reference number …).
B.Section 114Q of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public or a section of the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Zigouras & Zigouras

Details

AGLC: Zigouras & Zigouras [2024] FedCFamC2F 824
Case: [2024] FedCFamC2F 824
Decision Date: 28 June 2024

CaseChat Overview and Summary

In the case of Zigouras & Zigouras, the applicant, Mr. Zigouras, filed for divorce against his wife, Ms. Zigouras, on 27 March 2023. Ms. Zigouras, who suffers from an illness and disability, was unable to participate in the proceedings due to her incapacity. Despite the court's and the applicant's solicitor's attempts to have a litigation guardian appointed for Ms. Zigouras, including a request to the Attorney-General under rule 3.16(4) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, these efforts were unsuccessful. Consequently, the divorce application was heard in the absence of Ms. Zigouras or a litigation guardian on her behalf.

The primary legal issues before the court were whether the application for divorce could proceed in the absence of Ms. Zigouras, and if the evidence presented could substantiate the claim of separation under the one roof. The court had to consider the context of Ms. Zigouras's illness, disability, and Mr. Zigouras's role in caring for her, along with the reliability of the corroborative evidence. Given that Ms. Zigouras could not participate in the proceedings, and considering the unreliable nature of the corroborative evidence, the court found that the application for divorce could not be upheld. The court dismissed the application, noting that a copy of the orders and the reasons for making the orders would be provided to the Victorian Civil and Administrative Tribunal.

In conclusion, the court dismissed the application for divorce filed by Mr. Zigouras and ordered that a copy of the orders and the settled reasons be served on Ms. Zigouras's guardian and administrator, Ms. B. Furthermore, the court noted that it would provide a copy of these orders and reasons to the Victorian Civil and Administrative Tribunal. The court also reminded all parties of the legal restrictions on publishing or disseminating information that identifies the parties, witnesses, or others involved in family law proceedings under section 114Q of the Family Law Act 1975.

Orders

Orders of the court

MLC 3091 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR ZIGOURAS

Applicant

AND:

MS ZIGOURAS

Respondent

ORDER MADE BY:

JUDGE A. HUMPHREYS

DATE OF ORDER:

28 JUNE 2024

THE COURT ORDERS THAT:

1. The Application for Divorce filed on 27 March 2023 be dismissed.

2. The solicitor for the applicant serve a copy of these orders upon Ms B, being the guardian and administrator appointed for the respondent wife by an order of the Victorian Civil and Administrative Tribunal dated late 2023.

AND THE COURT NOTES THAT:

A. A copy of these orders and the settled reasons for making the orders will be provided by the chambers of Judge A. Humphreys to the Victorian Civil and Administrative Tribunal (VCAT reference number …).

B. Section 114Q of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to publish or disseminate to the public or a section of the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the court.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number(s):	MLC 3901 of 2023
Judgment of:	JUDGE A. HUMPHREYS
Date of judgment:	28 June 2024
Catchwords:	FAMILY LAW – DIVORCE – respondent lacks capacity to participate in proceedings – efforts of court and solicitor for the application to appoint a litigation guardian for respondent unsuccessful, including by request to Attorney-General pursuant to rule 3.16(4) of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) – hearing of application in absence of respondent or a litigation guardian appointed on her behalf – consideration of evidence of separation under the one roof in context of respondent’s illness and disability and applicant’s role caring for her – unreliable corroborative evidence – application dismissed.
Legislation:	Evidence Act 1995 (Cth) s 140 Family Law Act 1975 (Cth) s 39, 48, 49 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 2.37, 2.42, 3.12, 3.13, 3.14, 3.15, 3.16 Reithmuller, Grant and Robin Smith, Family Law (Thompson Reuters, 7^th edition, 2022)
Cases cited:	In the Marriage of Falk (1977) FLC 90–247; [1977] FamCA 46 In the Marriage of Spanos (1980) FLC 90–871; [1980] FamCA 10 In the Marriage of Todd (No 2) (1976) FLC 92–008 Pavey & Pavey (1976) FLC 90–051; [1976] FamCA 36 Rainger & Cadis [2023] FedCFamC2F 591
Division:	Division 2 Family Law
Number of paragraphs:	66
Date of hearing:	28 June 2024
Place:	Melbourne
Solicitor-advocate for the applicant:	Mr Lee
Solicitors for the applicant:	Resolve Conflict Family Lawyers
Representative for the Respondent:	No appearance

MLC 3091 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR ZIGOURAS Applicant
AND:	MS ZIGOURAS Respondent

ORDER MADE BY:	JUDGE A. HUMPHREYS
DATE OF ORDER:	28 JUNE 2024