FAMILY COURT OF AUSTRALIA
| GENESALIO & GENESALIO | [2020] FamCAFC 113 |
| FAMILY LAW – APPEAL – COSTS – Where leave is granted to the husband to adduce the further evidence sought to be relied on – Where the husband had not complied with court orders – Where a further adjournment was granted to enable the husband to comply with those orders – Where it is well settled that the Full Court is reluctant to interfere with the exercise of discretion by a trial judge to make costs orders – Where the discretion was not exercised erroneously – Where there were circumstances justifying an order for costs being made – Where there is no merit in any of the grounds of appeal – Appeal dismissed. FAMILY LAW – LEAVE TO APPEAL – APPEAL – PROPERTY – SOLE USE AND OCCUPATION – Where the further evidence sought to be adduced with the exception of a solicitor’s affidavit was admitted – Where leave to appeal is reliant on the success of the grounds of appeal – Where the husband asserts that as the wife had instituted proceedings in the Magistrates Court at Melbourne she was not entitled to institute proceedings in the Federal Circuit Court of Australia (s 114AB(2) of the Family Law Act 1975 (Cth)) – Where the wife contends that no order having been made in the Magistrates Court at Melbourne excluding the husband from the home, that can be viewed in the same way as if an order had been made but had been set aside or had lapsed (s 114AB(2)(a)(ii) of the Family Law Act 1975 (Cth)) – Where the primary judge erred in failing to dismiss the application as being in breach of s 114AB(2) or at the very least to adjourn the application before him pending finalisation of the Magistrates Court proceedings – Where the primary judge was in error in striking out the husband’s affidavit as being non-compliant with Practice Direction No. 2 of 2017 as the Practice Direction did not apply to this affidavit – Where the affidavit of the wife was accepted even though it did not comply with the Practice Direction – Where the contents of the husband’s affidavit were crucial to the husband’s opposition to the wife’s application for sole use and occupation, but also in support of his application in his response in that regard and thus could be relied on by the husband for those purposes (r 4.05(2)(a) of the Federal Circuit Court Rules 2001 (Cth)) – Where the husband’s various medical conditions were matters highly relevant to the issue of sole use and occupation and relevant medical reports were annexed to the husband’s affidavit which was struck out – Where by striking out the husband’s affidavit the primary judge did not have before him to weigh in the balance the husband’s position as to the financial circumstances of the parties or in relation to the ability of the parties to relocate and did not take into account the wife’s interest… |
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- AGLC
- GENESALIO & GENESALIO [2020] FamCAFC 113
- Case
- [2020] FamCAFC 113
- Decision Date
CaseChat Overview and Summary
The court found that the husband's application for leave to appeal should be granted because there was merit in the ground of appeal asserting apprehended bias. The court found that the primary judge had erred in striking out the husband's affidavit as being non-compliant with Practice Direction No. 2 of 2017 as the Practice Direction did not apply to this affidavit. The court also found that the primary judge had not given proper consideration to the husband's medical conditions and financial circumstances, which were highly relevant to the issue of sole use and occupation. The court found that the primary judge had exercised his discretion to make costs orders correctly, and that there were circumstances justifying an order for costs being made.
The court allowed the husband's appeal, set aside the orders made on 8 November 2018, and dismissed the wife's application for interim orders insofar as she seeks an order for the sole use and occupation of the former matrimonial home and for the husband to vacate that property within 14 days. The court ordered that any party seeking an order for costs file and serve written submissions in support of that application by the close of business on Thursday 4 June 2020, and that the other party file and serve written submissions in response within 14 days of the date of receipt of the written submissions by the party seeking an order for costs. The form of the order is subject to the entry of the order in the Court’s records.
Orders
Orders of the court
1.
The Application in an Appeal filed by the appellant husband on 4 April 2019 seeking leave to adduce further evidence be granted.
2.
The appeal be dismissed.
Appeal no. SOA 88 of 2018
Orders
3.
The Application in an Appeal filed by the appellant husband on 4 April 2019 seeking leave to adduce further evidence be granted in part, and all of the documents sought to be adduced be received, save and except for the affidavit of the appellant husband’s solicitor.
4.
The Application in an Appeal filed by the appellant husband on 21 August 2019 seeking leave to adduce further evidence be granted.
5.
Leave to appeal be granted.
6.
The appeal be allowed.
7.
Orders 1 and 2 made on 8 November 2018 be set aside.
8.
The application for interim orders filed by the respondent wife insofar as she seeks an order for the sole use and occupation of [Property A] and for the husband to vacate that property within 14 days be dismissed.
Appeal nos. SOA 83 of 2018 and SOA 88 of 2018
Orders
9.
Any party who seeks an order for costs file and serve written submissions in support of that application by the close of business on Thursday 4 June 2020.
10.
The other party file and serve written submissions in response within 14 days of the date of receipt of the written submissions by the party seeking an order for costs.
11.
The party seeking an order for costs file and serve any written submissions in reply within seven days of the date of receipt of the written submissions of the other party in response.
Note: The form of the order is subject to the entry of the order in the Court’s records.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
It is with that background that the husband raises s 114AB(2) of the Act. That subsection provides as follows:114AB Operation of State and Territory laws…(2)Where a person has instituted a proceeding or taken any other action under a prescribed law of a State or Territory in respect of a matter in respect of which the person would, but for this subsection, have been entitled to institute a proceeding under section 68B or 114, the person is not entitled to institute a proceeding under section 68B or 114 in respect of that matter, unless:(a)where the person instituted a proceeding:(i)the proceeding has lapsed, been discontinued, or been dismissed; or(ii)the orders (if any) made as a result of the institution of the proceeding have been set aside or are no longer in force; and(b)where the person took other action—neither that person nor any other person is required, at the time that the person institutes a proceeding under section 68B or 114, to do an act, or to refrain from doing an act. The husband submits that because the wife had instituted the proceedings identified above in the Magistrates Court at Melbourne, she was not entitled to institute proceedings in the Federal Circuit Court of Australia seeking sole use and occupation. Plainly those proceedings were in relation to the same matter as the Magistrates Court proceedings, and those latter proceedings were proceedings which could have been instituted in the Federal Circuit Court of Australia pursuant to s 114 of the Act. However, the wife submits that s 114AB(2)(a)(ii) applies, and thus the wife was not prevented from instituting the proceedings in the Federal Circuit Court of Australia, seeking sole use and occupation. The argument is that no order having been made excluding the husband from the home, that can be viewed in the same way as if an order had been made but had been set aside, or had lapsed. The difficulty with that submission is that where proceedings have already been commenced in the state court, the purpose of the subsection is to prevent there then being two sets of proceedings in different courts, wherein the same matter is being litigated. Thus, the prime example of where the subsection applies, is where proceedings are still on foot in the state court at the time a party seeks to institute proceedings in relation to the same matter in the federal court. In other words, the precise situation here. The wife also submitted that where proceedings are instituted in a federal court, and the evidence requires protective orders to be made, the federal court would have the power to make those orders regardless of there being proceedings on foot in the state court. That is no doubt correct, but this is not about the power of the federal court to make orders, it is about the ability of a litigant to institute the proceedings in that federal court where there are relevant proceedings already in the state court. The final argument put by the wife was that at the hearing before the Magistrate on 24 May 2018, the wife did not press for an exclusion order, and no such order was made. However, I do not accept that the wife did not pursue an exclusion order before the Magistrate. That was her application, and remained her application, but the Magistrate indicated that she would not be making that order at that stage, and whether it would be made would be left to the final contested hearing.