DIONETT & REYNES
[2015] FamCAFC 191
•1 October 2015
FAMILY COURT OF AUSTRALIA
| DIONETT & REYNES | [2015] FamCAFC 191 |
| FAMILY LAW – APPEAL – Application for expedition of appeal – Where the wife seeks to expedite an appeal against final property orders that require the sale of a property overseas – Where the wife is concerned that the husband will cause the property to be sold for less than the market value – Where the husband alleges that the wife is obstructing the sale of the property in order to maintain spousal maintenance payments – Whether there is any fact or circumstance which would cause this matter to be given priority over other cases to their possible detriment – Application dismissed. |
| Family Law Act 1975 (Cth) ss 94(2D), 117 Family Court Rules (2004) r 12.10A(4) |
| Moxon & Moxon [2010] FamCAFC 67 |
| APPLICANT: | Ms Dionett |
| RESPONDENT: | Mr Reynes |
| FILE NUMBER: | SYC | 1686 | of | 2012 |
| APPEAL NUMBER: | EA | 163 | of | 2015 |
| DATE DELIVERED: | 1 October 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ainslie-Wallace J |
| HEARING DATE: | 30 September 2015 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 27 August 2015 |
| LOWER COURT MNC: | [2015] FamCA 791 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Simpson |
| SOLICITOR FOR THE RESPONDENT: | Ms Adams of Hamish Cumming Family Lawyers |
Orders
The application for expedition of the appeal against the orders of Stevenson J is dismissed.
The applicant to pay the respondent’s costs of and incidental to the application, such costs to be agreed or assessed and the payment of those costs to be deferred until the distribution of the proceeds of the sale of the property at F Street, G Town, Country H.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dionett & Reynes 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 SYDNEY |
Appeal Number: EA 163 of 2015
File Number: SYC 1686 of 2012
| Ms Dionett |
Applicant
and
| Mr Reynes |
Respondent
REASONS FOR JUDGMENT
Ms Dionett (“the wife”) seeks expedition of an appeal lodged by her against orders made by Stevenson J on 14 August 2015. Mr Reynes (“the husband”) opposes the application.
On 11 August 2014 Aldridge J made final orders in property, parenting and spouse maintenance proceedings as between the wife the husband. Relevantly the orders provided for the sale of a property at F Street, G Town, Country H (“The G Town property”) and that the proceeds of the sale of the property be divided as to 63.5 per cent to the wife and 36.5 per cent to the husband. The orders further provided that until the sale of the property, the husband was to pay the wife $870 per week by way of spousal maintenance and thereafter that the amount be reduced to $370 per week.
The orders of Aldridge J provided a mechanism for sale of the property including the appointment of a real estate agent to act on the sale.
No appeal was brought from Aldridge J’s orders.
Despite his Honour’s orders, the property was not sold.
In June 2015, the husband filed an application for orders to give effect to the sale of the G Town property. He further sought orders that he have sole authority to conduct the sale of the property and to receive and distribute the proceeds in accordance with Aldridge J’s orders.
Stevenson J, on 27 August 2015 ordered:
(1)Pursuant to section 111C of the Child Support (Registration and Collection) Act 1988 (Cth), the operation of all child support assessments payable by [Mr Reynes] (“the husband”) to [Ms Dionett] (“the wife”) for [C Dionett] (born … 2008) be stayed pending the determination of the husband’s Initiating Application filed on 27 May 2015.
(2)The husband has sole authority to conduct the sale of [the G Town property] and to receive and distribute the purchase money in accordance with the orders of 11 August 2014.
(3)Both parties will do all things and execute all documents required to effect the following:
3.1the leasing of the property for a period of three months from the date of these orders or such further period as they may agree in writing; and
3.2 the sale of the property at a price determined by the husband in consultation with real estate agents [T Real Estate].
(4)That, otherwise, all outstanding applications and responses by which interim relief is sought are dismissed.
On 24 September 2015, the wife filed an appeal against her Honour’s orders.
By Application in an Appeal also filed on 24 September 2015, the wife seeks a stay of Stevenson J’s order and an order for expedition of the appeal because of “the imminent sale of [the G Town property]”.
The solicitor for the wife who appeared in the application indicated that a stay had been sought from Stevenson J and had not yet been determined. The only order pressed was the order seeking expedition.
Relevant Principles
Section 94(2D) of the Family Law Act 1975 (Cth) (“the Act”) provides for the expedition of appeals although no criteria or considerations for making that determination are provided. Recourse is often had to rule 12.10A of the Family Court Rules (2004) which address applications for expedition of hearings before a judge (see Moxon & Moxon [2010] FamCAFC 67).
The considerations thus are:
·Whether the applicant has acted reasonably and without delay;
·Whether the application has been brought on expeditiously;
·Whether there is any prejudice to the respondent; and
·Whether there is a relevant circumstance which would cause the case to be given priority over other cases and to their possible detriment.
Rule 12.10A(4) provides a definition of a “relevant circumstance”, one of which is:
(e)whether the purpose of the case will be lost if it is not heard quickly (for example, a job opportunity will be lost if not taken; property will be destroyed; an occasion will have passed); …
Evidence on the application
The wife’s affidavit in support of the application for expedition states:
5. I am concerned that the evidence to date indicates the applicant father is willing to sell the property at less than its market value. He has been prepared to accept an offer of GBP 275,000, where I have a current and firm offer from my parents of GBP 279,995. … The applicant father has refused to accept the GBP279,995 offer and the earlier offer of GBP279,950 fell through due to financing issues. Sale of the property to my parents would also result in lower fees and costs of sale.
Annexed to the wife’s affidavit is her email of 15 September 2015 informing the husband of her parents’ offer to buy his share of the property based on a sale price of £279,995. Also annexed to the wife’s affidavit is the husband’s advice to her that offers had been made on the property, it seems in the range of between £269,000 and £275,000.
In his affidavit in reply, the husband annexed an email from the wife’s father and the option of purchasing the husband’s share of the property. The wife’s father further said that the funds to complete that purchase are to be provided by the sale of a company and said:
However, there is a due diligence process on-going at the moment and this could delay the sale a little so I cannot guarantee exact timings.
Further, on 29 September 2015, the husband accepted an offer from a third party to purchase the property at £275,000.
It is within the context of these facts that the wife’s application for expedition must be considered. It appears that, even if the application was successful, the property may well be sold before the appeal came to be heard.
However, nothing in the evidence or in the submission made on behalf of the wife persuades me that there is any fact or circumstance that should cause it to have priority over other cases listed for appeal.
The application will thus be dismissed.
Costs
The question of costs of this application falls to be determined according to the matters contained in s 117 of the Act. In this case, it was submitted on behalf of the wife that she does not have the present capacity to meet any order for costs as she was not currently working.
The application has been wholly unsuccessful and, in my view, an order should be made that the wife pay the husband’s costs of and incidental to the application. However I will order that payment of those costs be deferred until the settlement of the sale of the G Town property and the distribution of the proceeds.
I certify that the preceding twenty two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on
1 October 2015.
Associate:
Date: 1 October 2015
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