FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Elliott & Hopkins (No 2) [2023] FedCFamC1A 142
Appeal from: Hopkins & Elliott [2023] FedCFamC1F 167 Appeal number: NAA 83 of 2023 File number: SYC 5636 of 2021 Judgment of: MCCLELLAND DCJ, GILL & WILLIAMS JJ Date of judgment: 23 August 2023 Catchwords: FAMILY LAW – APPEAL – LEAVE TO APPEAL – PROPERTY – Where the applicant wife sought leave to appeal against property orders requiring her to vacate the respondent’s property – Family violence injunctions – The attribution of weight given to the possibility of homelessness – Where the applicant advanced no proper legal reason for her sole use and exclusive occupation of the respondent’s property – Decision of the primary judge not plainly wrong – No error of fact or law established – Adequate reasons – Application for leave to appeal dismissed – Applicant to pay the respondent’s costs in a fixed sum. Legislation: Family Law Act 1975 (Cth) ss 79, 114(1)(f), 117
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 28
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Pts 10.01, 10.3, 10.4, 10.5, 10.6
Federal Court andFederal Circuit and Family Court Regulations 2022 reg 4.02
Cases cited: Bhatt & Acharya (Costs) [2017] FamCAFC 71
Bonnett & Bonnett [2021] FedCFamC1A 95
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Donnell & Dovey (2010) FLC 93-428; [2010] FamCAFC 15
Fedele and Fedele (1986) FLC 91-774; [1986] FamCA 14
Gong & Wei (2017) 59 Fam LR 1; [2017] FamCAFC 55
Gronow & Gronow (1979) 144 CLR 513; [1979] HCA 63
Kassam v Hazzard; Henry v Hazzard (2021) 106 NSWLR 520; [2021] NSWCA 299
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28
Mullane v Mullane (1983) 158 CLR 436; [1983] HCA 4
Naylen & Naylen [2021] FamCA 392
Sarto & Sarto (2022) FedCFamC1A 16
Sieling and Sieling (1979) FLC 90-627; [1979] FamCA 23
Willmore & Menendez [2022] FedCFamC1A 73
Number of paragraphs: 90 Date of hearing: 31 July 2023 Place: Sydney Counsel for the Applicant: Mr Cohen Solicitor for the Applicant: Eddy Neumann Lawyers Counsel for the Respondent: Ms Rusiti Solicitor for the Respondent: Parker Law ORDERS
NAA 83 of 2023
SYC 5636 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS ELLIOTT
Applicant
AND: MR HOPKINS
Respondent
order made by:
MCCLELLAND DCJ, GILL & WILLIAMS J
DATE OF ORDER:
23 AUGUST 2023
THE COURT ORDERS THAT:
1.The Applications in an Appeal filed 14 June 2023 and 12 July 2023 are dismissed.
2.The application for leave to appeal as contained in the Further Amended Notice of Appeal filed 1 June 2023 is dismissed.
3.The applicant pay the respondent’s costs of the application for leave to appeal, fixed at $19,173.90, at…
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Details
- Case
- [2023] FedCFamC1A 142
- Decision Date
CaseChat Overview and Summary
The case of Elliott & Hopkins (No 2) involves a dispute between the parties regarding the ownership and occupation of a property in Suburb C. The parties cohabitated from either 2014 or 2015, married in 2016, and separated in early 2021. The relationship lasted approximately seven years. The respondent filed an Initiating Application seeking interim and final orders for injunctive and financial relief, including an order for the applicant to vacate the matrimonial home and remove her personal belongings. The applicant responded by seeking sole occupation of the property. The parties' financial circumstances are significantly different, with the respondent being the sole owner of the property and having substantial debts secured by his assets, while the applicant has little to no assets but has significant debt. The case proceeded through various interlocutory hearings, with orders being made and subsequently reviewed. The applicant appealed the orders made by the primary judge, and the appeal was considered for leave to be summarily dismissed.
The legal issues the court was required to decide include whether the primary judge exercised his discretion correctly in making the orders pertaining to the occupation of the Suburb C property, and whether the applicant had established reasonable prospects of success in the appeal. The court also had to consider whether granting leave to appeal would be futile given the applicant's financial circumstances and the outcome of the property settlement proceedings. The applicant argued that the primary judge's determination was not reasonably available on the evidence, particularly regarding the respondent's financial hardship and the applicant's assertion of homelessness. The court found that the primary judge had considered multiple factors in making his determination and that the applicant's argument did not establish sufficient doubt in the primary judge's reasons.
The court concluded that the primary judge's reasons were not attended by sufficient doubt to warrant reconsideration by the Full Court and that there would be no utility in granting leave to appeal. The applicant's appeal was devoid of merit and had little regard to relevant authority. The court found that there were circumstances justifying an order for costs, and it ordered the applicant to pay the respondent's costs on a party/party basis, with the payment deferred until the finalisation of the property settlement proceedings. The court found that the applicant's limited financial means did not prevent the making of a costs order.
The legal issues the court was required to decide include whether the primary judge exercised his discretion correctly in making the orders pertaining to the occupation of the Suburb C property, and whether the applicant had established reasonable prospects of success in the appeal. The court also had to consider whether granting leave to appeal would be futile given the applicant's financial circumstances and the outcome of the property settlement proceedings. The applicant argued that the primary judge's determination was not reasonably available on the evidence, particularly regarding the respondent's financial hardship and the applicant's assertion of homelessness. The court found that the primary judge had considered multiple factors in making his determination and that the applicant's argument did not establish sufficient doubt in the primary judge's reasons.
The court concluded that the primary judge's reasons were not attended by sufficient doubt to warrant reconsideration by the Full Court and that there would be no utility in granting leave to appeal. The applicant's appeal was devoid of merit and had little regard to relevant authority. The court found that there were circumstances justifying an order for costs, and it ordered the applicant to pay the respondent's costs on a party/party basis, with the payment deferred until the finalisation of the property settlement proceedings. The court found that the applicant's limited financial means did not prevent the making of a costs order.
Orders
Orders of the court
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Background
Background to the litigation
For the reasons that follow, leave to appeal will not be granted and the application will be dismissed.BACKGROUND Cohabitation between the parties commenced in 2014 according to the applicant or 2015 according to the respondent. The parties married in 2016 and separated in early 2021. The relationship was approximately seven years in duration. On 5 August 2021, the respondent filed an Initiating Application in Division 2 of this Court, seeking interim and final orders for injunctive and financial relief. At proposed order 2 of the interim orders sought in the Initiating Application, the respondent sought an order that the applicant “forthwith vacate the former matrimonial home at [the Suburb C property] and shall not thereafter enter upon or loiter near or in the vicinity of the matrimonial home”. He also sought orders for the applicant to remove her personal goods and chattels from the Suburb C property. On 10 November 2022, fifteen months after the commencement of the proceedings, the applicant filed a Response to an Initiating Application. At proposed order 13 of Annexure B to her Response, the applicant sought an interim order for “sole occupation of the Suburb C property to the exclusion of the [respondent]”. The respondent is the sole owner of the Suburb C property, where the parties lived during cohabitation and where the applicant resided at the time of the hearing in March 2023. The respondent’s assets and business interests secure significant debts owed to his bank and the Australian Taxation Office (“ATO”). The applicant has no assets of any significant value but has significant debt. On 31 January 2023, interlocutory orders were made by a registrar pertaining to multiple issues in dispute between the parties, including purportedly “withdrawing” both parties’ applications for occupation of the Suburb C property (Orders 14 and 15). On 10 February 2023, the applicant filed an Application for Review seeking a review of the registrar’s orders of 31 January 2023, which is referred to at [3] of the primary judge’s reasons. The review application entailed a hearing de novo of the interlocutory applications, which occurred before the primary judge on 17 March 2023. Immediately following the hearing, the primary judge made orders and delivered ex tempore reasons. On 5 April 2023, the applicant filed a Notice of Appeal against the March orders. The appeal was subsequently listed by the appeal registrar for consideration as to whether or not the appeal should be summarily dismissed as being fundamentally misconceived. On 17 April 2023, a judge other than the primary judge made orders striking out the grounds in the first Notice of Appeal and granting leave to the applicant to file an Amended Notice of Appeal. The applicant subsequently filed an Amended Notice of Appeal on 28 April 2023. Thereafter, both parties filed interlocutory applications in the appeal, which were heard and determined by the appeal registrar. On 1 June 2023, the applicant filed a Further Amended Notice of Appeal.
Evidence
Evidence Before The Court
This ground must fail. Ground 16 – His Honour erred in the exercise of His Honour’s discretion by making a determination not reasonably available on the evidence. The applicant contends in her Summary of Argument that the respondent’s claim he would suffer financial hardship was “unspecified to a large degree” and that the untested evidence of unspecified financial hardship could not prevail over the applicant’s assertion of homelessness, when determining the competing applications for exclusive possession of the property. We do not accept the proposition that the respondent’s asserted financial hardship was unspecified, because as noted by the primary judge at [5], the respondent relied upon a Further Amended Financial Statement filed 24 February 2023, less than a month prior to the hearing de novo which sets out in detail the respondent’s financial circumstances. At [13], the primary judge accepted the respondent’s unchallenged evidence of his obligations, including payments to the ATO, his rent, the mortgage repayments on the property and the fact that the cost of maintaining his liabilities outstripped income. The primary judge was mindful that the applicant’s application for exclusive occupancy of the property was on the basis the respondent continue to meet the mortgage payments referable to the property. At [17], the primary judge was also aware of the applicant’s assertion of potential homelessness, prior to finding at [36] she would likely be able to “subsist” until the property settlement dispute is resolved. The applicant could not identify where in the reasons the primary judge said the respondent’s financial hardship prevailed over the applicant’s assertion of homelessness or that these were the only two factors considered by the primary judge. When read as a whole, the reasons demonstrate the primary judge did not exercise his discretion by balancing and weighing these two factors alone. The primary judge reached his determination after considering multiple additional factors, to which we have earlier referred. There is no merit in this ground.No substantial injustice For the reasons we have provided, the primary judge’s reasons are not attended by sufficient doubt to warrant reconsideration by the Full Court. We are not satisfied that the applicant has established reasonable prospects of success. Additionally, authorities recognise that leave to appeal will be refused where the granting of leave would lack utility: Kassam v Hazzard; Henry v Hazzard (2021) 106 NSWLR 520 at [27] per Bell P (as his Honour then was), with whom Meagher and Leeming JJA agreed. Here, a lack of utility is firstly established by the applicant having already vacated the property and secondly, because it is not apparent that the financial circumstances of either parties are such that either of them has, or will have at the conclusion of the proceedings, sufficient income, property or financial resources to sustain the mortgage and outgoings necessary to retain the property.Other orders referred to in the Further Amended Notice of Appeal
Decision
Reasons for decision
The Summary of Argument of the applicant and oral argument during the hearing for leave to appeal were directed towards the sole use and occupation of the Suburb C property and no submissions were made pertaining to the other orders. CONCLUSION AND COSTS Having regard to the foregoing, the application for leave to appeal will be dismissed. The primary judge’s reasons are neither attended by sufficient doubt to warrant reconsideration by the Full Court, nor are we satisfied that there would be any utility in granting such leave. If the applicant was unsuccessful, the respondent applied for the applicant to pay his costs on a party/party basis, which are calculated at $19,173.90 according to the Schedule of Costs filed 24 July 2023. The respondent relied on the applicant being wholly unsuccessful as a grounds for departure from the usual rule that each party shall bear his or her own costs expressed in s 117(1) of the Act. The applicant submitted that if leave to appeal were not granted, costs should be payable by the applicant as sought by the respondent, but payment should be deferred until the conclusion of the property settlement proceedings. Because the application was devoid of merit and had little regard to relevant authority, we are persuaded that there are circumstances justifying an order for costs. Even if the applicant is currently of limited financial means, an order should be made that she pays the costs of the respondent. Impecuniosity does not generally prevent the making of a costs order, nor should it in the present case (Bhatt & Acharya (Costs) [2017] FamCAFC 71), save that we agree with the parties the payment of costs should be deferred until finalisation of the extant property proceedings.
Ratio Decidendi
Legal Principle Established
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