DA COSTA & DA COSTA

[2018] FCCA 2319

FEDERAL CIRCUIT COURT OF AUSTRALIA

DA COSTA & DA COSTA [2018] FCCA 2319

Catchwords:
FAMILY LAW – Application in a case for stay pending appeal – where no such notice of appeal had been filed – where timeframe for such notice had passed – application dismissed.

Applicant: MR DA COSTA

Respondent: MS DA COSTA

File Number: BRC 2053 of 2015

Judgment of: Judge Egan

Hearing date: 18 July 2018

Date of Last Submission: 18 July 2018

Delivered at: Brisbane

Delivered on: 18 July 2018

REPRESENTATION

Applicant: Self Represented

Solicitors for the Respondent: V. Pennisi & Associates

IT IS ORDERED ON A FINAL BASIS:

1. That the Application in a case filed by the husband on 4 June 2018 be dismissed.

2. That the Amended Application in a case filed by the husband on 13 July 2018 be dismissed.

3. That the wife deliver to the husband, the husband’s belongings left by him at the property situated at Property B and that such belongings be delivered to Property A between 9:00am and 5:00pm within seven (7) days of the date hereof.

4. That the husband pay the costs of and incidental to such Applications as assessed in accordance with Schedule 1 of the Federal Circuit Court Rules 2001.

IT IS NOTED:

A.That if the husband is not home at the time the wife arranges for delivery of his belongings to Property A then the wife is permitted to leave his belongings on the front lawn at such address.

IT IS NOTED that publication of this judgment under the pseudonym Da Costa & Da Costa is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 2053 of 2015

MR DA COSTA

Applicant

And

MS DA COSTA

Respondent

REASONS FOR JUDGMENT

1. I have before me two applications.  One is an application in a case headed, “Urgent ex parte”, filed on 4 June 2018.  That application, by paragraph 1, seeks an order that the orders made by me on 29 May 2018 be stayed pending the hearing of an appeal.  This matter has a long and protracted history in the court.  It is clear that no notice of appeal has been filed by the husband in respect of orders made by me on 29 May 2018.  It is also clear, and admitted by the husband, that the notice of appeal period in respect of those orders has expired.  In all of those circumstances, I consider that it is an abuse of the court’s due process, for the husband to seek a stay of orders pending appeal, when he has not asserted any right to appeal such orders. 

2. The other application is entitled, “An amended application in a case”.  That application was filed on 13 July 2018.  It is apparent from the orders sought in paragraphs 2 to 13 inclusive of that amended application that the husband seeks to revisit and re-argue matters which have already been the subject of the making of final court orders.  For example, paragraph 7 of that application seeks that the husband be appointed as the sole seller for the former matrimonial property situated at Property B, when by paragraph 4 of the orders made by me on 29 May 2018, it is clear that I ordered that the applicant wife have the sole right to engage estate agents for the listing and sale of such property.  In all of the circumstances, therefore, I consider that such amended application in a case also constitutes an abuse of the due process of the court, and I dismiss such amended application in a case.

3. The Husband has lost each application before me and costs should follow the event and be paid by him.

I certify that the preceding three (3) paragraphs are a true copy of the reasons for judgment of Judge Egan

Date: 21 August 2018