DAVALOS & DAVALOS
[2016] FamCAFC 91
•25 May 2016
FAMILY COURT OF AUSTRALIA
| DAVALOS & DAVALOS | [2016] FamCAFC 91 |
| FAMILY LAW – APPEAL –Where the appeal is finalised by consent – Where the parties agree the appeal should be allowed and the matter remitted for rehearing – Appeal allowed. FAMILY LAW – APPEAL – COSTS – Where the wife has incurred significant costs in progressing the appeal – Where an order for costs can be made by a single judge pursuant to s 94(2B)(b) of the Family Law Act 1975 (Cth) – The husband to pay the wife’s costs. |
| Family Law Act 1975 (Cth) s 94(2B)(b) |
| APPLICANT: | Mr Davalos |
| RESPONDENT: | Ms Davalos |
| FILE NUMBER: | SYC | 6919 | of | 2011 |
| APPEAL NUMBER: | EA | 154 | of | 2015 |
| DATE DELIVERED: | 25 May 2016 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | May J |
| HEARING DATE: | 25 May 2016 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 18 August 2015 |
| LOWER COURT MNC: | [2015] FamCA 649 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Lloyd SC |
| SOLICITOR FOR THE APPLICANT: | Blanchfield Nicholls Partners |
| COUNSEL FOR THE RESPONDENT: | Mr Sansom SC |
| SOLICITOR FOR THE RESPONDENT: | Delaney Lawyers |
It is ordered by consent
The appeal be allowed.
The application for property settlement be remitted for rehearing before a judge other than Justice Johnston.
The husband pay the costs of the wife of and incidental to the appeal, to be agreed or assessed.
No order as to costs of the application filed 29 April 2016.
It is noted that
A. The rehearing of the property proceedings should be heard with expedition.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Davalos & Davalos has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 154 of 2015
File Number: SYC 6919 of 2011
| Mr Davalos |
Appellant
And
| Ms Davalos |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
On 18 August 2015 Johnston J made property settlement orders after a contested hearing spanning some seven days in 2014. The application before his Honour concerned the distribution of property as between Mr Davalos (“the husband”), and Ms Davalos (“the wife”). On 14 September 2015, the wife filed a Notice of Appeal from these orders. On 29 April 2016 the husband filed an Application in an Appeal seeking to concede the appeal and also to have the matter remitted for rehearing. At that time, the wife did not consent. The husband also sought costs of that application. The wife, in a response filed on 17 May 2016, seeks the costs of the appeal.
I am informed this morning by Senior Counsel each for the husband and the wife that it is now agreed that the appeal should be allowed and that the application for property settlement be remitted for rehearing. It is hoped the matter may be resolved and, in view of the circumstances, that is a result that should be aimed for by both parties.
In the wife’s affidavit filed on 17 September 2016, she deposes to the chronology of the matter and also the costs that have been incurred by her. It has been quite properly conceded that the husband should pay the wife’s costs of and incidental to the appeal, the wife having done all that she was required to do in preparation for the appeal, including filing seven volumes of an appeal book and eight copies thereof.
It is not surprising that there has been significant costs incurred as described by her in her affidavit. Section 94(2B)(b) of the Family Law Act 1975 (Cth) (“the Act”) provides:
(2B)A Full Court of the Family Court, or a Judge of the Appeal Division or other Judge if there is no Judge of the Appeal Division available, may:
…
(b)make an order by consent disposing of an appeal under subsection (1) or (1AA) (including an order for costs);
Therefore, that section empowers me, as a single judge of the Appeal Division, to make an order for costs, including disposing of the appeal. In view of the submissions I have most helpfully received from Senior Counsel on each side, I will make the orders by consent.
I certify that the preceding five (5) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 25 May 2016.
Associate:
Date: 8 June 2016
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