Husband Appeals Interim Property Orders
Zan & Wen [2022] FedCFamC1A 158 (6 October 2022)
The husband appeals from interim orders providing for the sale of a property and distribution of the proceeds of sale. The Court, in determining whether to grant an application for leave, considered that the relief which the husband seeks by way of the appeal remains available to him at trial.
Facts
Final parenting orders were made on 28 May 2019, which left the property issues in dispute. The husband has been incarcerated at a correctional facility in Victoria since September 2018, after being convicted of offences against the wife. The parties’ property pool is comprised of considerable assets in both Australia and Country B. The property trial has been ongoing since November 2018, with the latest tranche of the part-heard trial occurring in October 2019.
The combination of COVID-19 restrictions and the fact that the husband is incarcerated had prevented further trial dates since, however the trial is now due to resume on 3 and 4 November 2022. On 2 June 2022, the wife filed an application seeking, inter alia, the sale of the Suburb A property (which was subject to a default notice by the mortgagee) and that there be a part property settlement in her favour of the net sale proceeds. The husband did not file any response to the wife’s application, and asserts that he was never served with her application before the hearing.
The application came before the primary judge on 14 June 2022 for determination. The husband did not appear at that hearing seemingly due to technical difficulties connecting via video link from the prison. The second respondent also experienced technical difficulties initially but was able to appear by the end of the hearing. At the conclusion of the hearing, the primary judge made a raft of interim orders concerning the sale of the Suburb A property and distribution of the proceeds of sale.
Her Honour ordered that the sale costs be paid, the two mortgages be discharged and that the remaining balance be held on trust for the parties pending the final judgment. The order providing for the distribution of the sale proceeds is the only order the husband appeals in his Notice of Appeal. On 11 July 2022, the husband filed an application before the primary judge seeking, in effect, that the Order of 14 June 2022 be set aside, and for the wife to provide disclosure of rental income and tax information associated with the sale of the Suburb A property. That application is listed before the primary judge for interim hearing on 7 October 2022.
Issue
Whether or not substantial injustice would result if leave were refused.
Applicable law
Federal Circuit and Family Court of Australia Act 2021(Cth) s 28 - imposes the requirement for leave to appeal an interlocutory order.
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34 - provides that leave to appeal will only be granted where:
(a) The decision of the primary judge was “attended by sufficient doubt” to warrant its reconsideration; and(b) If leave were refused, a “substantial injustice” would ensue.
Analysis
As to the issue of substantial injustice. Unfortunately, none of the husband’s material addressed this issue. Even more unfortunately, it seems clear that the husband is under the misunderstanding that the 14 June 2022 orders preclude him from contending at the resumed trial that the payment of taxes, utility arrears and the contended loan ought be made from the net sale proceeds. Plainly those orders effect no such thing.
It seems that the husband is under the misapprehension that the order that the net sale proceeds to be placed into the wife’s solicitor’s trust account vests those monies in those solicitors. That is not the case. All of the relief which the husband seeks by way of the appeal remains available to him at trial. More, he seeks by his Application in a Proceeding filed 11 July 2022 to, in effect, set aside the 14 June 2022 orders.
Conclusion
The application for leave to appeal is dismissed. The applicant’s Application in an Appeal filed 12 September 2022 is dismissed. The first respondent’s Application in an Appeal filed 16 September 2022 is dismissed. The Notice of Appeal filed 12 July 2022 is dismissed. The applicant is to pay the first respondent’s costs fixed in the sum of $20,000 within 28 days of the finalisation of proceedings MLC 11085 of 2016.
