ALMANOCK & ALMANOCK
[2014] FamCAFC 79
FAMILY COURT OF AUSTRALIA
| ALMANOCK & ALMANOCK | [2014] FamCAFC 79 |
| FAMILY LAW – APPEAL – AMENDED NOTICE OF APPEAL – where there is no proper ground of appeal – where as a result there is no reasonable prospect of success – appeal dismissed. FAMILY LAW – APPEAL – COSTS – where the respondent seeks his costs – where the appellant opposes the application – where the appellant has been wholly unsuccessful – costs ordered as sought by the respondent. |
| |||
| APPELLANT: | Mrs Almanock | ||
| RESPONDENT: | Mr Almanock |
| FILE NUMBER: | DGC | 3785 | of | 2011 |
| APPEAL NUMBER: | SOA | 75 | of | 2013 |
| DATE DELIVERED: | 9 May 2014 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 9 May 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court |
| LOWER COURT JUDGMENT DATE: | 12 November 2013 |
| LOWER COURT MNC: | [2013] FCCA 2289 |
REPRESENTATION
| THE APPELLANT: | In Person |
| FOR THE RESPONDENT: | Mr Da Gama |
| SOLICITOR FOR THE RESPONDENT: | Vernon Da Gama & Associates |
Orders
The Amended Notice of Appeal filed on 23 April 2014 be dismissed.
The appellant pay the sum of EIGHT HUNDRED AND SIXTY-THREE DOLLARS AND FIFTY CENTS [$863.50] to the respondent’s solicitors by way of costs, such sum to be paid within twenty-eight [28] days of the date hereof.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Almanock & Almanock has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 75 of 2013
File Number: DGC 3785 of 2011
| Mrs Almanock |
Appellant
And
| Mr Almanock |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Introduction
The matter before me today is an Amended Notice of Appeal filed by
Mrs Almanock (“the appellant”) on 23 April 2014. In that Amended Notice of Appeal the appellant seeks to appeal against orders made by Judge Reithmuller on 12 November 2013.
I also note that in the Amended Notice leave to appeal is sought. However, it is unclear whether leave is required, and to avoid any complexity I propose to proceed on the basis that it is not required.
Mr Almanock (“the respondent”) seeks an order that the Amended Notice of Appeal be dismissed, primarily on the ground that no proper grounds of appeal are set out in that document.
Turning then to the recent history of this matter.
Judge Reithmuller made orders on 12 November 2013, a Notice of Appeal was filed by the appellant against those orders on 28 November 2013, and as she was required to under the Family Law Rules 2004 (Cth) (“the Rules), she filed a draft appeal index on 30 January 2014.
On 26 March 2014 I conducted a directions hearing in relation to the appeal. I did that because on my reading of the Notice of Appeal, no proper ground of appeal was set out in that document, and as I recall, I also wanted to raise with the appellant whether leave to appeal was required.
In any event, at that directions hearing I indicated my view to the appellant and to the respondent’s solicitor. In response to me saying that as the appeal stood I had no choice but to dismiss it, the appellant sought an adjournment in order to prepare and file an Amended Notice of Appeal.
I granted that adjournment and on 23 April 2014 the appellant filed an Amended Notice of Appeal, and the hearing today is to consider that Amended Notice.
In that Amended Notice of Appeal the appellant sets out the following grounds of appeal:
1.I do not agree with this order because the ex-husband withdrew $37,836.31 from the home loan and spent the money for himself. Therefore, I cannot trust him enough to be the trustee for sale.
4.[sic]I do not agree with this order because the ex-husband is the one that wasted money and time. I was not the one that wasted time in court.
In my view, the grounds of appeal set out in the Amended Notice of Appeal are not proper grounds of appeal, and they do not indicate any relevant error of law or fact allegedly made by the trial judge. Indeed, they very much mirror the grounds of appeal set out in the initial Notice of Appeal.
I have invited the appellant to make submissions to me as to why I should not dismiss the Amended Notice of Appeal for those reasons. Unfortunately though the appellant appears without legal representation, and she has not been able to make any relevant submissions on that issue.
As I have indicated Mr Da Gama for the respondent seeks an order that the Amended Notice of Appeal be dismissed. It is my firm view that that is what should happen.
I observe that s 96AA of the Family Law Act 1975 (Cth) (“the Act”) provides, in summary, that if it appears to the court that the appeal has no reasonable prospect of success having regard to the grounds of appeal, the court may at any time order that the appeal be dismissed.
I now have an application for costs made on behalf of the respondent as a result of the order I propose to make namely, dismissing the Amended Notice of Appeal.
The amount sought by the respondent is a total of $863.50 which covers the two appearances by Mr Da Gama namely, on 26 March 2014 and today.
Section 117 of the Family Law Act 1975 (Cth) which governs the question of costs relevantly provides as follows:
(1)Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2)If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4) (4A), and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a)the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c)the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d)whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e)whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f)whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
I proceed on the basis that the costs are sought because there is a circumstance justifying an order for costs under s 117, and that is that the appellant has been wholly unsuccessful in her appeal.
In my view, that is a circumstance justifying an order for costs being made, and I propose to make an order in the terms sought by the respondent.
The appellant raised the issue of payment by instalments, but I am told that pursuant to the orders for property settlement a property has now been sold, and the appellant can expect to receive a significant share of the proceeds of sale of that property. However, settlement is being held up by the fact that the appellant has had a caveat placed on the title to the property. From my knowledge of this matter there would be absolutely no reason for the caveat to remain, and as I understand it, it has been warned.
Thus, I propose to make an order that the appellant pay the costs sought within 28 days of the date hereof.
I certify that the preceding twenty (20) paragraphs are a true copy of the
ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 9 May 2014.
Associate:
Date: 13 May 2014
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