Faldyn & Badenoch

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FAMILY COURT OF AUSTRALIA

Faldyn & Badenoch [2021] FamCAFC 85

Appeal from: Badenoch & Faldyn [2020] FCCA 1530
Appeal number(s): SOA 58 of 2020
File number(s): HBC 184 of 2019
Judgment of: STRICKLAND J
Date of judgment: 4 June 2021
Catchwords:

FAMILY LAW – LEAVE TO APPEAL – PROPERTY – Where the “facts” as pleaded by the appellant do not demonstrate that the decision is attended by sufficient doubt to warrant it being considered by the Full Court and that substantial injustice would result if leave were refused, supposing the decision to be wrong – Where there is no merit in any of the grounds of appeal – Application for leave to appeal dismissed – Appeal dismissed.

FAMILY LAW – COSTS – Where the respondent seeks costs – Where the appellant has been wholly unsuccessful – Where even impecuniosity is not a bar to making an order for costs where there are circumstances that justify an order for costs otherwise being made – Where it is appropriate to make an order for costs in favour of the respondent – Costs order made.
Legislation: Family Law Act 1975 (Cth) ss 106B, 117
Cases cited:

Concrete Pty Ltd v Parramatta Design and Development Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

D & D (Costs) (No 2) (2010) FLC 93-435; [2010] FamCAFC 64

Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34

SCAA v Minister for Immigration and Multicultural and Indigenous Affairs [2000] FCA 668
Division: Appeal Division
Number of paragraphs: 64
Date of hearing: 3 December 2020 by video-link
Place: Adelaide by video link
The Appellant: In person
Counsel for the First Respondent: Mr Foster
Solicitor for the First Respondent: Murdoch Clarke Solicitors
The Second Respondent: Did not participate in the proceedings

ORDERS

SOA 58 of 2020
HBC 184 of 2019

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA
BETWEEN:

MR FALDYN

Appellant
AND:

MS BADENOCH

First Respondent

MR A FALDYN

Second Respondent

ORDER MADE BY:

STRICKLAND J

DATE OF ORDER:

4 JUNE 2021

THE COURT ORDERS THAT:

1.The application seeking leave to appeal be dismissed, and for the avoidance of any doubt, the appeal be dismissed.

2.The appellant husband pay the costs of the respondent wife fixed in the sum of $3,200.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

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

REASONS FOR JUDGMENT

INTRODUCTION

  1. On 15 July 2020, Mr Faldyn (“the husband”) filed a Notice of Appeal seeking leave to appeal, and if leave is granted, to appeal from an…

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Details
Case
[2021] FamCAFC 85
Decision Date

CaseChat Overview and Summary

In the appeal, the husband sought leave to appeal against the orders made by the primary judge in the property settlement proceedings between him and his former wife. The husband also appealed against the orders made by the primary judge in relation to the intervention of the husband's father in the proceedings. The wife opposed the application for leave to appeal, and sought an order for costs. The court had to decide whether the husband had demonstrated that the decision was attended by sufficient doubt to warrant it being considered by the Full Court, and that substantial injustice would result if leave were refused, supposing the decision to be wrong. The court also had to decide whether the husband had demonstrated any merit in the grounds of appeal. The court found that the husband had not demonstrated any merit in the grounds of appeal. The "facts" as pleaded did not demonstrate that the decision was attended by sufficient doubt to warrant it being considered by the Full Court, and that substantial injustice would result if leave were refused, supposing the decision to be wrong. The court also found that the husband had no reasonable prospect of success in prosecuting a claim under s 106B of the Family Law Act 1975 (Cth), and that the primary judge's refusal to add the wife's father as a party was entirely open. The court dismissed the application for leave to appeal, and the appeal. The court also made an order for costs in favour of the wife, in the sum of $3,200.

The court found that the husband had no reasonable prospect of success in prosecuting a claim under s 106B of the Family Law Act 1975 (Cth). The court also found that the primary judge's refusal to add the wife's father as a party was entirely open. The court found that the husband had not demonstrated any merit in the grounds of appeal. The court found that the "facts" as pleaded did not demonstrate that the decision was attended by sufficient doubt to warrant it being considered by the Full Court, and that substantial injustice would result if leave were refused, supposing the decision to be wrong. The court found that the husband had not demonstrated any merit in the grounds of appeal. The court found that there was no basis to grant leave to appeal, and that the application must be dismissed, and for the avoidance of doubt, the appeal must also be dismissed.

The court made an order for costs in favour of the wife, in the sum of $3,200. The court found that the husband had been wholly unsuccessful in the appeal, and that this was a circumstance that justified an order in the wife's favour. The court found that the wife's financial circumstances were such that she worked part-time and had no assets or major liabilities. The court found that the husband's financial circumstances were such that he received a Centrelink benefit and had no assets, and that he owed $80,000 in legal fees. The court found that it was appropriate to make an order for costs in favour of the wife, and that the amount sought included $411.85 for attending upon delivery of judgment. The court found that there was no requirement to attend to receive judgment, and that the order would be that the husband pay the costs of the wife fixed in the sum of $3,200 (rounded off).

Orders

Orders of the court

SOA 58 of 2020

HBC 184 of 2019

APPEAL DIVISION OF THE FAMILY COURT OF AUSTRALIA

BETWEEN:

MR FALDYN

Appellant

AND:

MS BADENOCH

First Respondent

MR A FALDYN

Second Respondent

ORDER MADE BY:

STRICKLAND J

DATE OF ORDER:

4 JUNE 2021

THE COURT ORDERS THAT:

1. The application seeking leave to appeal be dismissed, and for the avoidance of any doubt, the appeal be dismissed.

2. The appellant husband pay the costs of the respondent wife fixed in the sum of $3,200.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

In the wife’s Response to the husband’s Application in a Case, she sought that the application be summarily dismissed, and that was what her Honour was called upon to determine.BACKGROUND The parties married in 2009, and separated in 2016. There is one child of the marriage, namely X born in 2010. She lives with the wife in Tasmania, whereas the husband resides in New South Wales. The subject property was sold by the wife in 2018, without giving the husband notice or seeking his consent. That of course was unnecessary given that the property was registered in the wife’s name, and no proceedings were then on foot. Initially the property was listed for auction on 3 June 2018. However, before the auction the method of sale was changed to private treaty, and the sale price was advertised in the range of $340,000 to $360,000. The property was sold in June 2018 for $340,000. To repeat, the wife commenced property settlement proceedings on 6 March 2019, seeking an order that the net proceeds of sale of the property, namely $200,000, be paid to her. That was the only asset of the parties of any value. On 3 September 2019, the court granted the application of the husband’s father for leave to intervene in the proceedings. He sought an order that the wife pay him $143,915.86. After filing a Response on 11 June 2019, an Amended Response on 10 September 2019, the husband filed a Further Amended Response on 20 September 2019 seeking parenting orders, and an order that the proceeds of sale of the property be “placed in trust to be administered for and on behalf of the child and for her best interests”. The purchasers of the property were not added as parties to the proceedings, but they were served with the husband’s application and the affidavit material in support of that application. They did not take any part in the proceedings.LEAVE TO APPEAL The husband requires leave to appeal the order made by the primary judge. Unfortunately though, all that the husband, who is without legal representation did in that regard, is to set out as the “facts” relied on in support of the application, what he has pleaded as his grounds of appeal in the event that leave is granted. What is required of course to obtain leave, is for the husband to demonstrate that the decision is attended by sufficient doubt to warrant it being considered by the Full Court, and that substantial injustice would result if leave were refused, supposing the decision to be wrong (Medlow & Medlow (2016) FLC 93-692 at [57]). The “facts” as pleaded do not address this requirement. However, no point was taken about that at the hearing of the appeal, and I proceeded on the basis that the grounds of appeal should be addressed, and if merit is found, then leave should be granted, and vice versa.THE GROUNDS OF APPEAL It is useful to set out the grounds of appeal in full, and then deal with each ground discretely, although for reasons which I will shortly explain, it will be necessary to address Ground 3f first.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

This ground also has no merit.CONCLUSION Having found no merit in any of the grounds of appeal, there is no basis to grant leave to appeal, and that application must be dismissed, and for the avoidance of doubt the appeal must also be dismissed. Her Honour’s conclusion that the husband has no reasonable prospect of success in prosecuting a claim under s 106B of the Act was entirely open, as was her Honour’s refusal to add the wife’s father as a party.COSTS In the event that the appeal was dismissed, the wife sought an order for costs in the total amount of $3,610.10. The husband opposed any order for costs because of his poor financial circumstances. He says that he receives a Centrelink benefit and has no assets. He also owes $80,000 in legal fees. For the wife’s part, she works part-time and has no assets or major liabilities. Pursuant to s 117 of the Act, a court is able to make an order for costs if the circumstances justify it. Here, the fact of the husband being wholly unsuccessful in the appeal is a circumstance that justifies an order in the wife’s favour (s 117(2A)(e)). Certainly, the court is obliged to take into account the financial circumstances of the parties, but there is ample authority that even impecuniosity is not a bar to making an order for costs, where there are circumstances that justify an order for costs being made otherwise (D & D (Costs) (No 2) (2010) FLC 93-435). That is the case here, and it is appropriate to make an order for costs in favour of the wife. However, as to the amount sought, that includes $411.85 for attending upon delivery of judgment. There is no requirement to attend to receive judgment, and thus the order will be that the husband pay the costs of the wife fixed in the sum of $3,200 (rounded off).

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.