DAVONT & DAVONT

[2014] FamCAFC 225

FAMILY COURT OF AUSTRALIA

DAVONT & DAVONT [2014] FamCAFC 225

FAMILY LAW – APPEAL – AMENDED NOTICE OF APPEAL – where the appellant abandoned all of the grounds of appeal – where the appeal had no merit – appeal dismissed.

FAMILY LAW – APPEAL – AMENDED APPLICATION IN AN APPEAL – where the application falls away given the fate of the amended notice of appeal – where the application is not pursued – application dismissed.

FAMILY LAW – APPEAL – COSTS – where the respondent seeks costs – where the application is opposed – costs ordered in relation to the amended notice of appeal – application dismissed in relation to the costs of the amended application in an appeal.

APPELLANT: Mr Davont
as legal personal representative for
Mr Davont (Snr)

RESPONDENT: Ms Davont

FILE NUMBER: PTW 6956 of 2006

APPEAL NUMBER: WA 14 of 2013

DATE DELIVERED: 30 October 2014

PLACE DELIVERED: Perth

PLACE HEARD: Perth

JUDGMENT OF: Strickland, Ryan & Murphy JJ

HEARING DATE: 30 October 2014

LOWER COURT JURISDICTION: Family Court of Western Australia

LOWER COURT JUDGMENT DATE: 18 May 2011

LOWER COURT MNC: [2011] FCWA 52

REPRESENTATION

THE APPELLANT: In Person

COUNSEL FOR THE RESPONDENT: Mr Rynne

SOLICITOR FOR THE RESPONDENT: G A Lacerenza & Associates

Orders

1. The Amended Notice of Appeal filed by the appellant on 15 October 2013 be dismissed.

2. The Amended Application in an Appeal filed by the respondent on 23 October 2014 be dismissed.

3. The application for costs in relation to the Application in an Appeal filed on
   2 December 2013 be dismissed.

4. The appellant pay the respondent’s costs of and incidental to the Amended Notice of Appeal filed 15 October 2013 such costs to be as assessed in default of agreement.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Davont & Davont has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT PERTH

Appeal Number: WA 14 of 2013
File Number: PTW 6956 of 2006

Mr Davont
as legal personal representative for Mr Davont (Snr)

Appellant

And

Ms Davont

Respondent

EX TEMPORE REASONS FOR JUDGMENT

STRICKLAND J

1. In relation to the Amended Notice of Appeal filed on 15 October 2013, although in discussions between the appellant and the bench, the court spoke of giving the appellant leave to withdraw or discontinue that Notice of Appeal, in the circumstances I propose to dismiss the appeal.  The reason for that is, as is apparent, the appellant abandoned all of the grounds of appeal on the basis of acceptance of the Schedule, marked Exhibit 1, which clearly demonstrated that the appeal had no merit.

2. Similarly, in relation to the Amended Application in an Appeal which was filed by the respondent on 23 October 2014, as counsel for the respondent has rightly put to us, given the fate of the Notice of Appeal, that application has fallen away and is not pursued, and I would propose to formally dismiss that application as well.

3. In terms of costs, we have before us an application by the respondent seeking the costs of and incidental to the appeal, and the costs of an Application in an Appeal filed by the respondent on 2 December 2013, which was dismissed by Thackray J on 21 February 2014, but the question of the costs of that application were reserved to this Full Court.  Both of those applications are opposed by the appellant.

4. In support of the applications, counsel for the respondent has put to us that the appeal was always “doomed to fail” and, thus, costs should be ordered.  The appellant says that although he now accepts that the appeal has no merit, from his understanding of what happened in relation to this matter, he was justified in bringing the appeal.  He also puts to us his financial circumstances namely, that he is on a disability pension and he is in poor health, as reasons why costs should not be ordered against him.

5. I would propose to make orders that the appellant pay the respondent’s costs of and incidental to the Amended Notice of Appeal filed on 15 October 2013, but dismissing the application for costs in relation to the Application in an Appeal filed on 2 December 2013.  With the former, there are clear circumstances that justify an order for costs being made.  With the latter, Thackray J found that the appellant’s position was “highly arguable”, and thus there is no basis for the respondent to be awarded the costs of that application, which to repeat, was dismissed.

Ryan J

1. I agree with the orders proposed by the presiding judge and the reasons given for them.

Murphy J

1. I also agree.

I certify that the preceding seven (7) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Strickland, Ryan & Murphy JJ) delivered on 30 October 2014.

Legal Associate: 

Date:  25 November 2014