Feiteiro v Feiteiro - [2019] FamCAFC 49

FAMILY COURT OF AUSTRALIA

FEITEIRO & FEITEIRO

[2019] FamCAFC 49

FAMILY LAW – APPEAL – SUMMARY DISMISSAL – Where the appellant’s grounds of appeal are incompetent and do not identify any appealable error by the trial judge – Where the appeal is doomed to fail and should be dismissed to relieve this Court of the burden of wasting time in relation to an action which has no chance of success – Appeal dismissed.

FAMILY LAW – COSTS – Where there are circumstances which justify an order for costs being made – Where the respondent has been completely successful in her application for summary dismissal – Where the financial circumstances of the appellant are not such as would prevent an order for costs being made – Costs ordered in the sum sought by the respondent.

Family Law Act 1975 (Cth) ss 96AA and 117

Lindon v Commonwealth (No 2) (1996) 136 ALR 251

APPELLANT:

Mr Feiteiro

RESPONDENT:

Ms Feiteiro

FILE NUMBER:

DGC

3222

2017

APPEAL NUMBER:

SOA

2018

DATE DELIVERED:

21 March 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

21 March 2019

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Kanarev

SOLICITORS FOR THE RESPONDENT:

Alphastream Lawyers

Orders

The Notice of Appeal filed on 7 December 2018 be dismissed.
The appellant husband pay the costs of the respondent wife of and incidental to the Notice of Appeal and the Application in an Appeal filed on 1 February 2019 fixed in the sum of FOUR THOUSAND THREE HUNDRED DOLLARS [$4,300] with such costs to be paid within 28 days of the date hereof.

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

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

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 r 17.02 Family Law Rules 2004 (Cth).

THE APPELLATE DIVISION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 89 of 2018
File Number: DGC 3222 of 2017

Mr Feiteiro

Appellant

And

Ms Feiteiro

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Before the court today is the Notice of Appeal filed by Mr Feiteiro (“the appellant”) on 7 December 2018, appealing against a divorce order made by Judge Burchardt in November 2018.
In the Notice of Appeal, the grounds of appeal are as follows:
1.Appeal against the divorce order – s55A(1)(b)(i) and have it dismissed. The case to be heard from the start with the IVO that was taken under lies and deceit and then withdrawn by Ms Feiteiro when it was contested as they could not take the cross examination. Refer attached affidavit with the court marriage certificate which is null & void.
2.Accept the sworn affidavit of Ms Feiteiro in the property case that all documents were destroyed or thrown out, if so how come now they are presented now as documented evidence in court proceedings refer attached affidavit.
Also before the court today is an Application in an Appeal filed by Ms Feiteiro (“the respondent”) on 1 February 2019 seeking dismissal of the appeal and, in the alternative, if the appeal is not dismissed, seeking an order for security for costs. The basis of the application to dismiss the Notice of Appeal which is, in effect, an application to summarily dismiss the Notice of Appeal, is that in considering the grounds of appeal in that Notice, there is no reasonable prospect of success, and pursuant to s 96AA(1) of the Family Law Act 1975 (Cth) (“the Act”), it is open to this Court to dismiss an appeal if the court is satisfied of that.
In my view, that is the case here.
To repeat, this is an appeal against a divorce order, and his Honour delivered reasons for judgment addressing the issues raised by the appellant in his response to the respondent’s application for divorce which was filed on 3 April 2018. His Honour found that the parties separated certainly by 29 March 2017, and that the marriage had well and truly irretrievably broken down. There are children of this marriage, but at the time that his Honour dealt with the divorce, the children were all adults and, thus, there was no requirement for his Honour to address their circumstances as part of considering whether he would grant the divorce.
As can be seen, the two grounds of appeal relied on by the appellant have no relevance whatsoever to the matters which his Honour had to determine in deciding to grant the divorce order.
The first ground of appeal refers to an intervention order which, indeed, was taken out and executed on 29 March 2017 and which, at the latest, commenced the period of separation. Nothing in that ground of appeal demonstrates that his Honour erred in finding that the parties had separated by 29 March 2017, or that the marriage had well and truly broken down irretrievably, as his Honour described it.
The second ground of appeal refers to property matters. Apparently there are ongoing property settlement proceedings between the parties, but those proceedings have no relevance to the application for divorce which his Honour dealt with, and just as with Ground 1, nothing in Ground 2 demonstrates any error by his Honour in the finding as to the date of separation, and that the marriage had irretrievably broken down.
The dismissal of an appeal under s 96AA of the Act is plainly of a similar nature to any other summary dismissal of an action, and the relevant approach to such actions is set out by Kirby J in the High Court decision of Lindon v Commonwealth (No 2) (1996) 136 ALR 251. His Honour there set out six principles at page 256. However, not all of those principles are relevant to this matter. One that is relevant though, is the second principle identified by his Honour which reads as follows:
To secure such relief, the party seeking it must show that it is clear, on the face of the opponent’s documents, that the opponent lacks a reasonable cause of action or is advancing a claim that is clearly frivolous or vexatious.
Pausing there, that principle is well and truly satisfied here.
There is one other principle I will also mention that was identified by his Honour, and that is the sixth principle which reads:
The guiding principle is, as stated in O 26, r 18(2), doing what is just. If it is clear that proceedings within the concept of the pleading under scrutiny are doomed to fail, the court should dismiss the action to protect the defendant from being further troubled, to save the plaintiff from further costs and disappointment and to relieve the court of the burden of further wasted time which could be devoted to the determination of claims which have legal merit.
(Footnotes omitted)
Again, that principle plainly applies here.
This appeal is doomed to fail and it should be dismissed to relieve this Court of the burden of wasting time in relation to an action which has no chance of success. To repeat, in my view, this appeal has not only no reasonable prospect of success, it has no prospect of success. The grounds of appeal are simply incompetent and they do not identify any appealable error by the trial judge. Thus, I propose to dismiss the Notice of Appeal.
There is now before the court an application for costs consequent upon my indication that I will be dismissing the Notice of Appeal.
The amount sought is a total of $4,300 comprising $2,800 for solicitor’s fees and $1,500 for counsel fees. I am told, and I accept, that that amount is calculated on a party/party basis, and indeed, it may even be less than a party/party basis.
The application is opposed.
The issue of costs is governed by s 117 of the Act. The position under s 117 is that each party is to bear their own costs, but, subject to where there are circumstances that justify it, an order for costs can be made.
In this instance there are circumstances which justify an order for costs being made, in that the appellant has been wholly unsuccessful in his Notice of Appeal which has been dismissed today or, put another way, and relying on s 117(2A)(g), namely any other circumstance, the respondent has been completely successful in her application for summary dismissal. Thus, whichever factor is relied upon, there are clearly circumstances justifying an order for costs.
I am obliged though to also take into account the respective financial circumstances of the parties.
In that regard the appellant tells me that he is unemployed and he has no assets. However, there are property settlement proceedings on foot and I am told, and there is no dissension from the appellant about this, that the matrimonial home has been sold and there is $143,000 sitting in the respondent’s solicitor’s trust account. It is conceded by the respondent’s counsel that the appellant will receive some of that money as a result of the property settlement proceedings and, certainly, at least $4,300.
Given that, I do not need to look any further at the financial circumstances of the parties in relation to whether I make an order for costs.
There are circumstances that justify such an order, and the financial circumstances of the appellant, as explained to me, are not such as would prevent an order for costs being made. As to how those costs are paid, that will be a matter between the appellant and the respondent’s solicitors. It is proposed for example, that the $4,300 be released to the appellant from the moneys that are in the trust account, and then that money used to meet the costs order. That would be a sensible and logical way to deal with this matter, but I will leave that to the parties. I will be making an order that the sum as sought be paid, and it will need to be paid within 28 days.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 21 March 2019.

Associate:

Date: 18 April 2019