ZUBCIC & ZUBCIC &ORS - [2015] FamCA 771

FAMILY COURT OF AUSTRALIA

ZUBCIC & ZUBCIC &ORS

[2015] FamCA 771

FAMILY LAW – PROPERTY – INTERIM PROCEEDINGS – Where consent orders were made for the sale of the former matrimonial home – Where the wife now seeks to be appointed as sole trustee for the sale – Where the husband now opposes the sale and has failed to do all things necessary to cause the sale of the property – Where the wife is facing enforcement action by two creditors for jointly owed debts – Where the wife seeks an interim property settlement for legal expenses as well as periodic spousal maintenance – Capacity of the husband to pay in circumstance where the husband has failed to disclose his financial circumstances – Where the husband has previously consented to pay the wife periodic spousal maintenance – Where the Court finds it in the interests of justice to make the orders as sought by the wife.

Family Law Act 1975 (Cth) ss 72, 74, 75, 79, 80
Family Law Rules 2004 (Cth)

Efthimiadis & Efthimiadis (1993) FLC 92-361
In the Marriage of Redman (1987) FLC 91-805
McCrossen & McCrossen (2006) FLC 93-283

Mitchell & Mitchell (1995) FLC 92-601
Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466

Weir & Weir (1993) FLC 92-338

APPLICANT:

Ms Zubcic

1^st RESPONDENT:

Mr Zubcic

2^nd RESPONDENT:

Mr B Zubcic

3^rd RESPONDENT:

Mr Gomes

4^th RESPONDENT:

Ms Gomes

INTERVENOR:

Dooley & Associates

COMMISSIONER OF TAXATION:

Mr Shizas

FILE NUMBER:

SYC

6290

2013

DATE DELIVERED:

17 September 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

19 August 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Connor

SOLICITOR FOR THE APPLICANT:

M Legal

FOR THE 1^STRESPONDENT:

Mr Zubcic appeared for and on his own behalf

SOLICITOR FOR THE 2^ND RESPONDENT:	Mr Sivsothy of Family Legal
SOLICITOR FOR THE 3^RD & 4^TH RESPONDENTS	Mr Tilley of Tilley Family Law & Mediation
COUNSEL FOR THE INTERVENOR:	Mr Fermanis

SOLICITOR FOR THE INTERVENOR:

Not applicable

The Court orders, pending further order, that:

Order 1 of the Orders made on 24 February 2015 by Johnston J be discharged.
The wife is appointed sole trustee for the sale of the property situated at and known as B Street, Suburb C, being the whole of the land contained in certificate of title folio identifier … (“the B Street property”).
The wife shall do all acts and things necessary to sign all documents (on her behalf and on behalf of the husband) as may be necessary to cause the B Street property to be listed for sale by private treaty.
The husband is hereby restrained from interfering, disrupting or otherwise impeding the sale of the B Street property.
The wife must sell the B Street property for an amount not less than $3 000 000.
In respect to the sale of the B Street property, the wife shall appoint:

6.1.an independent solicitor to act on the sale; and,
6.2.an agent…

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.

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Details

AGLC: ZUBCIC & ZUBCIC &ORS [2015] FamCA 771
Case: [2015] FamCA 771
Decision Date: 17 September 2015

CaseChat Overview and Summary

In the matter of *ZUBCIC & ZUBCIC & ORS*, the wife sought various interim orders from the Court concerning the sale of the former matrimonial home and financial relief. The parties had previously made consent orders for the sale of this property. However, the husband had subsequently opposed the sale and failed to take necessary steps to facilitate it. The wife also sought interim property settlement for legal expenses and periodic spousal maintenance, citing her exposure to enforcement actions from creditors for jointly owed debts and the husband's failure to disclose his financial circumstances, despite a prior agreement to pay spousal maintenance.

The Court was required to determine several key issues. Firstly, whether it was appropriate to appoint the wife as the sole trustee for the sale of the former matrimonial home, given the husband's opposition and non-compliance with previous orders. Secondly, the Court had to consider the wife's application for interim property settlement to cover her legal expenses. Thirdly, the Court needed to assess the husband's capacity to pay periodic spousal maintenance, particularly in light of his non-disclosure of financial information and his previous consent to such payments.

McClelland J reasoned that it was in the interests of justice to grant the orders sought by the wife. The husband's failure to comply with the consent orders for the sale of the property, coupled with his non-disclosure of his financial position, necessitated intervention. The Court considered the wife's precarious financial situation, including the threat of creditor action, and the husband's prior agreement to pay spousal maintenance. These factors collectively supported the making of interim orders to address the immediate financial pressures and to ensure the progression of the property sale.

Orders