BRITOS & BRITOS

[2012] FamCAFC 100

FAMILY COURT OF AUSTRALIA

BRITOS & BRITOS [2012] FamCAFC 100

FAMILY LAW – APPEAL – NOTICE OF APPEAL – where leave to appeal is required but not sought in the Notice of Appeal filed on 19 April 2012 – where an amended Notice of Appeal needs to be filed in any event – where the applicant does not want the former matrimonial home sold and wants the opportunity to buy out the husband – where the Federal Magistrate ordered the former matrimonial home be sold – where the property is not yet on the market – where a sale cannot take place before the matter is back before the Federal Magistrate on the final hearing – where it is agreed that in the circumstances the appeal is futile – appeal dismissed.

FAMILY LAW – APPEAL – NOTICE OF APPEAL – COSTS – where the respondent seeks an order for costs – where the applicant opposes such an order – where given the bona fides of the appeal and the circumstances surrounding it the justice of the case is that there should be no order for costs – application dismissed.

Family Law Act 1975 (Cth) s 117

APPLICANT: Ms Britos

RESPONDENT: Mr Britos

FILE NUMBER: MLC 9056 of 2011

APPEAL NUMBER: SOA 31 of 2012

DATE DELIVERED: 12 July 2012

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Strickland J

HEARING DATE: 12 July 2012

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 22 March 2012

LOWER COURT MNC: [2012] FMCAfam 381

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr McMonnies (solicitor)

SOLICITOR FOR THE APPLICANT: Allan McMonnies

COUNSEL FOR THE RESPONDENT: Mr Kourkoulis (solicitor)

SOLICITOR FOR THE RESPONDENT: S. Kourkoulis & Associates

Orders

1. The Notice of Appeal filed on 19 April 2012 be dismissed.

2. The oral application made by the respondent for costs be dismissed.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Britos & Britos 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 31 of 2012
File Number: MLC 9056 of 2011

Ms Britos

Applicant

And

Mr Britos

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

1. This is a Notice of Appeal filed by the wife on 19 April 2012 seeking to appeal against orders made by Federal Magistrate Riley on 22 March 2012.

2. There are issues which I have raised with counsel to do with the fact that leave to appeal needed to be sought in the Notice of Appeal, and it was not, and there needed to be an amended Notice of Appeal filed in any event, the Notice having been filed by the appellant in person, and she now being represented.

3. Apart from those issues I listed this matter today because the order which is the subject of the appeal, is an order which provides for the sale of property at EP.  Her Honour made that order on 22 March 2012 intending that a sale would then take place such that by the time the matter came back before her for final hearing on property settlement, the settlement of any sale would be about to take place and her Honour would deal with the proceeds of sale as part of the issues before her on property settlement.

4. The complaint that the wife seeks to raise in her Notice of Appeal is that she is opposed to the house being sold and she wants the opportunity to buy out the husband.  The Federal Magistrate dealt with that in her reasons for judgment, but the difficulty now is that this appeal has been lodged primarily against that order for sale, yet the appeal cannot be heard before the final hearing on property settlement which is set for 13 August 2012.

5. I enquired of counsel what the state of play was with the sale of the house pursuant to her Honour’s orders and I am told that relevant paperwork has been prepared, but the wife has not yet signed it, and thus the property is not even on the market yet.  Both counsel concede that in those circumstances it is almost certainly the case that a sale cannot take place before 13 August 2012 when the matter is back before her Honour on a final hearing.

6. Given those circumstances I raised today the utility of the appeal, in that it cannot be heard before the final hearing, and the sale of the property is certainly not going to take place in any event before the final hearing.

7. I am pleased to record that after some discussion counsel agree with me that the appeal is futile as a result, and Mr McMonnies has indicated that his client does not wish to proceed with the appeal, and has asked me to dismiss it upon noting that that is being done for the reasons which I have already outlined, but importantly and specifically because the sale cannot take place before the hearing before her Honour.  That therefore leaves open for the wife at that hearing to raise again with her Honour, this time in the context of final orders, that she retain the house property rather than it being sold, which is what the husband seeks as I understand it.

8. I congratulate counsel on being able to come to that realisation and that position.

9. I now have an application for costs before me.  Mr Kourkoulis on behalf of the respondent makes an oral application that the appellant pay his client’s costs thrown away in the sum of $750.

10. Mr McMonnies opposes the order for costs although he concedes that the amount of costs sought is not unreasonable.

11. Any application for costs has to be dealt with within the parameters of s 117 of the Family Law Act 1975 (Cth) and the primary position under that section of course is that each party bears their own costs. There is provision though for costs to be awarded if there are circumstances that justify an order for costs. The factors to be addressed in that exercise are set out in ss 117(2A) and are well known.

12. Mr Kourkoulis says that his client has been put to unnecessary expense as a result of this appeal being lodged, and now it is being dismissed those costs are wasted.  On the other hand Mr McMonnies says that it was appropriate for his client to bring the appeal given the complaint that his client makes, and the circumstances surrounding it, namely that if nothing was done the house would be sold and that would then prevent the wife from pursuing that issue at the final hearing.  Whether that is an error by the Federal Magistrate I am not intending to comment on because I do not have enough information about that.  It seems to me though that given the bona fides of the appeal and the circumstances surrounding it, although I am sympathetic to the husband’s position, the justice of the case is that there should be no order for costs and the application will be dismissed.

I certify that the preceding twelve (12) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 12 July 2012.

Associate:     

Date:              18 July 2012