Dinci and Smith - [2014] FamCA 76

FAMILY COURT OF AUSTRALIA

DINCI & SMITH

[2014] FamCA 76

FAMILY LAW – PROPERTY – Where the Applicant Husband sought orders pursuant to s 79A of the Family Law Act 1975 (Cth) – Where the Applicant Husband failed to appear and has failed to comply with directions and orders of the Court – Application dismissed

FAMILY LAW – COSTS – Where the circumstances justify the making of a costs order on an indemnity basis

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)

Allesch v Maunz (2000) 26 Fam LR 237 Kohan and Kohan (1992) 16 FamLR 245 Penfold & Penfold (1980) 144 CLR 311 Prantage & Prantage (2013) 49 FamLR 197
APPLICANT:	Mr Dinci

RESPONDENT:

Ms Smith

FILE NUMBER:

BRC

10762

2008

DATE DELIVERED:

17 February 2014

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

17 February 2014

REPRESENTATION

FOR THE APPLICANT:

No appearance

SOLICITOR FOR THE RESPONDENT:

Murdoch Lawyers

Orders

it is ordered that

The Amended Initiating Application filed by the Applicant Husband on 4 June 2013 seeking orders pursuant to s 79A of the Family Law Act 1975 (Cth) be dismissed.
The Applicant Husband pay the Respondent Wife’s costs of, and incidental to, these proceedings (including the application for indemnity costs) on an indemnity basis to be assessed.
The Respondent Wife be at liberty to apply to any balance of funds currently held in Murdoch Lawyers trust account (as per Order 6 of the 9 September 2013 Orders) to satisfy the costs Order made against the Applicant Husband.
That following Order 3 herein, any balance of funds currently held in Murdoch Lawyers trust account (as per Order 6 of the 9 September 2013 Orders) be released to the Applicant Husband with it being noted that Murdoch Lawyers have been served with Notice to Pay Money Directly to the Child Support Registrar Pursuant to Section 72A Child Support (Registration and Collection) Act 1988 in the sum of $8,642.20, in relation to the Applicant Husband’s child support arrears.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 10762 of 2008

Mr Dinci

Applicant

And

Ms Smith

Respondent

EX TEMPORE REASONS FOR JUDGMENT

The relevant history concerning the previous substantive property proceedings between these parties is set out in part in reasons for judgment delivered by Murphy J on 19 September 2012 and in reasons for judgment I delivered on 9 September 2013. Briefly stated, on 8 April 2013, final property orders were made by consent of both parties by me, as it happens, in circumstances where, on that day, the then three-day final trial of the property proceedings was to take place. As I say, in the event, consent orders were made.
Relevantly to the present application, those orders contained a provision for the Wife to pay…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Dinci and Smith

Details

AGLC: Dinci and Smith [2014] FamCA 76
Case: [2014] FamCA 76
Decision Date

CaseChat Overview and Summary

In *Dinci & Smith*, the Family Court of Australia considered an application by the Husband (Mr Dinci) pursuant to s 79A of the *Family Law Act 1975* (Cth) to set aside consent property orders made on 8 April 2013. The Wife (Ms Smith) sought the dismissal of the Husband's application and an order for her costs on an indemnity basis. The Husband failed to appear at the hearing and had not complied with previous directions and orders of the Court.

The primary legal issue before the Court was whether the Husband's application under s 79A should be dismissed due to his non-compliance with court orders and directions, and whether the Wife should be awarded costs on an indemnity basis. The Court was required to consider the provisions of Rule 11.02 of the *Family Law Rules 2004* (Cth) regarding a party's failure to comply with procedural orders, and the principles governing costs orders under s 117 of the *Family Law Act 1975* (Cth), including the circumstances justifying an award of indemnity costs.

Justice Kent found that the Husband had manifestly failed to comply with numerous directions and orders of the Court in managing the s 79A proceedings. Applying Rule 11.02, the Court determined that dismissal of the Husband's application was warranted. Regarding costs, the Court noted the general rule that parties bear their own costs but that s 117(2) grants a broad discretion to make such orders as are just. His Honour considered the principles of finality in litigation and the Husband's conduct, including his failure to participate and comply with court processes, as justifying an order for costs. The Court further found that the circumstances justified departing from the usual order for costs and awarding indemnity costs to the Wife, citing the Husband's lack of cooperation and the Wife's entitlement to finality.

The Court ordered that the Husband's application pursuant to s 79A of the *Family Law Act 1975* (Cth) be dismissed. The Husband was also ordered to pay the Wife's costs of and incidental to the proceedings, including the application for indemnity costs, on an indemnity basis to be assessed. The Wife was granted liberty to apply to satisfy the costs order from funds held in trust by her solicitors, with any remaining balance to be released to the Husband, subject to a notice to pay child support arrears.

Orders