Barran & Sobolev (No 2) [2021] FCCA 1202 (25 May 2021)

Last Updated: 25 June 2021

FEDERAL CIRCUIT COURT OF AUSTRALIA

Barran & Sobolev (No 2) [2021] FCCA 1202

File number(s):	PAC 3935 of 2019
Judgment of:	JUDGE MYERS
Date of judgment:	25 May 2021
Catchwords:	FAMILY LAW – stay of orders pending appeal
Cases cited:	Aldridge v Keaton [2009] FamCAFC 106
Number of paragraphs:	13
Date of hearing:	25 May 2021
Place:	Parramatta
For the Applicant:	The Applicant represented himself
Counsel for the Respondent:	Mr Othen
Solicitor for the Respondent:	Thornton Storgato Law Pty Ltd

ORDERS

		PAC 3935 of 2019
BETWEEN:	MR BARRAN Applicant
AND:	MS SOBOLEV Respondent

ORDER MADE BY:	JUDGE MYERS
DATE OF ORDER:	25 MAY 2021

THE COURT ORDERS THAT:

1. The Court receives into evidence the email dated 19 April 2021 from the solicitor for the Respondent to the Applicant Mr Barran. This will form Exhibit ‘A’ in today’s proceedings.
2. The Application for a Stay of the Hearing is dismissed.
3. The Court confirms the resumption of the part heard Hearing commencing 8 June 2021 at 10:00 am allocating two days.
4. The Court reserves the Respondent Ms Sobolev’s Application for Costs till 8 June 2021.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment under the pseudonym Barran & Sobolev (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

EXTEMPORE REASONS FOR JUDGMENT

JUDGE MYERS:

1. This is an Application that comes before the Court today in circumstances where on 30 March 2021, orders were made dismissing an Application by the Respondent in the substantive proceedings, and the Applicant in today’s proceedings, Mr Barran, for summary dismissal of the Applicant’s de facto property application. The matter has proceeded now for some four days, with the last hearing date being 30 July 2020, for the purposes of the Court determining a threshold issue as to whether the parties were or were not in a de facto relationship.
2. The Court made various orders, including an order dismissing Mr Barran’s application for summary dismissal. Mr Barran caused to be filed an Appeal on 26 April 2021. On 30 March 2021, the part heard hearing was set to resume for a further two days commencing on 8 June 2021. Mr Barran comes before the Court today and asks that in effect the orders for the resumption of a hearing be stayed, pending the determination of his Appeal as against various orders of the Court, substantially including the order dismissing the application for summary dismissal.
3. The law to be applied in as to whether a court should or should not grant a stay is well settled and outlined in the matter of Aldridge v Keaton [2009] FamCAFC 106 at paragraph 18. The Court has heard of the parties’ respective submissions and has read Mr Barran’s two Affidavits with respect to the issue. One of the factors the Court must take into account is the onus to establish a proper basis for a stay falls on the Applicant, however it’s not necessary for the Applicant to demonstrate any special or exceptional circumstances.
4. Having heard Mr Barran’s submissions, the Court does not accept that there is a proper basis for the stay. Mr Barran took exception with respect to the Applicant in the substantive proceedings having obtained a judgment and being entitled to the benefit of the judgment. To be clear, the judgment that the substantive Applicant and the Respondent in these proceedings received is that of the dismissal of the summary dismissal application, that is its refusal, and the continuation of the matter proceeding for a further two days on 8 June 2021. The Court notes that Mr Othen, on behalf of the Respondent in today’s application, seeks to presume that the judgment is correct.

5. The Court is conscious that the mere filing of an Appeal is insufficient to a grant of stay because if the Court simply granted a stay upon the basis of any appeal it would certainly open the flood gates, and invite anybody to simply stay proceedings by the filing of an Appeal. The Court considers the bona fides of the Applicant in today’s application for the stay. The Court is concerned that there has been no inquiry made of the Appeals Division as to when the Appeal is likely to be heard, or indeed in circumstances where the Applicant knew full well the matter had been listed for a further two days of hearing on 8 June 2021, selected not to ask the Appeal Court to deal with the matter by way of expedition.
6. The Court is concerned having heard the submissions of the Applicant as to his understanding of the Appeal and the way in which the Appeal is run. It’s true to say that the stay could be granted in terms that are fair to all parties and this may involve a Court weighing the balance of convenience and the competing rights of the parties. The Applicant in these substantive proceedings, is four days into an Application in which the Respondent, Mr Barran, has put her to the test to determine whether or not the parties were or were not in a de facto relationship.
7. The matter is now part heard. The Applicant in the substantive proceedings is privately represented. The matter has been listed now for some period of time, and the Applicant simply wants the matter to proceed so that she can have the Court determine whether the parties were or were not in a de facto relationship. The Court lacks understanding of any inconvenience caused to Mr Barran in the proceedings if the stay were not granted. There is some inconvenience occasioned to the Respondent in today’s proceedings, being the Applicant in the substantive proceedings, in that if the stay is granted, she is deprived of the right of having the matter determined in an expeditious fashion.
8. As I’ve said, the matter was last before the Court on 30 July 2020. The matter has been listed almost 12 months later for the resumption of the part heard hearing on the question of the threshold argument as to whether the parties were or were not in a de facto relationship. The matter has been moving at a glacial pace. The Court accepts that there would be some inconvenience occasioned to the Respondent in today’s proceedings if the Court simply conceded to a stay of an unknown length in circumstances where expedition is not being sought, and it could be some 12 months, perhaps even longer that the matter takes to come back from an Appeal hearing.

9. The question as to whether the Appeal might be rendered nugatory if the stay is not granted will be a substantial factor in determining whether it is appropriate to grant to stay. It is the view of the Court that the Appeal will not be rendered nugatory if the Full Court overturns the decision of this Court to not grant the summary dismissal. The matter would be referred to another judge and at that point it would be open to the other judge to redetermine the application for summary dismissal.
10. In circumstances where we are at a threshold hearing only and the matter is not advanced to that of a determination as to what property adjustment there might be between the parties, if any, there is no, for instances, property that would be sold or other actions taken by the Court that would put, for instance, let’s just say the property sought by Ms Sobolev, out of reach of the parties. The substantive matter is for the moment simply a determination on a threshold basis as to whether the parties were or were not in a de facto relationship.
11. It is the view of the Court, the Appeal would not be rendered nugatory if a stay were not granted. There has been considerable submissions made by both parties with respect to some preliminary assessment of the strength of the Appeal. The Court notes the grounds of appeal contained with an Appeal lodged by Mr Barran, filed 26 April 2021. Having heard the submissions by both parties, with respect to the grounds of Appeal, a preliminary assessment of the strengths of the Appeal would lend the Court to form the view that much, if not all, of the grounds of appeal are misconceived.
12. The question of the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the grant of a stay for a short period of time, is a factor the Court cannot determine in circumstances, firstly where Mr Barran hasn’t sought expedition of the Appeal, and is not able to advise the Court as to any conversations or correspondence he may have had with the Appeals Registry so that the Court might be informed as to the period of time in which the Appeal might be heard.
13. As I have said, it might be a month, two, six or 12 months before the Appeal is heard, which in the view of the Court, on the balance of convenience, deprives the Applicant, Ms Sobolev, in the substantive proceedings, the right to properly and timely prosecute her Application as to the Court making a preliminary finding or threshold finding as to whether the parties were or were not in a de facto relationship. Having considered the respective parties submissions, having read and considered the submissions that are found in part in Ms Sobolev’s Affidavit material, having heard the submissions, having considered the applicable principles relating to a stay application as annunciated by the Full Court and the case of Aldridge v Keaton, the application for a stay of the hearing is dismissed.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Myers.

Associate:

Dated: 4 June 2021