Gibson & Gibson

[2008] FamCAFC 200

FAMILY COURT OF AUSTRALIA

GIBSON & GIBSON [2008] FamCAFC 200

FAMILY LAW - APPEAL – from decision of a Federal Magistrate – PROPERTY – non-compliance with directions for the preparation of the appeal - no merit found in the ground of appeal - appeal dismissed.

FAMILY LAW - APPEAL – from decision of a Federal Magistrate – COSTS – order made for the appellant husband to pay the respondent wife’s costs fixed in the sum of $5,000.

Family Law Act 1975 (Cth)

APPELLANT: MR GIBSON

RESPONDENT: MS GIBSON

INTERVENOR: MR T. GIBSON

FILE NUMBER: MLM 10419 of 2005

APPEAL NUMBER: SOA 103 of 2007

DATE DELIVERED: 8 May 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Mushin J

HEARING DATE: 8 May 2008

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 2 November 2007

LOWER COURT MNC: [2007] FMCAfam 905

REPRESENTATION

COUNSEL FOR THE APPLICANT: N/A

SOLICITOR FOR THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr R.J. Spicer

SOLICITOR FOR THE RESPONDENT: McCarthy Hoey

COUNSEL FOR THE INTERVENOR: Mr T. Moisidis

SOLICITOR FOR THE INTERVENOR: David Gibbs & Associates

Orders

1. That the husband's appeal filed on 21 November 2007 against the orders made by Federal Magistrate Phipps on 2 November 2007 be dismissed. 

2. That paragraph 1 of the order made by Federal Magistrate Phipps on 7 December 2007 be discharged.

3. That the husband pay the wife's costs of this appeal fixed in the sum of $5000 with a stay of three months.

IT IS NOTED that publication of this judgment under the pseudonym Gibson & Gibson is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

File number: MLM10419 of 2005
Appeal number:  SOA 103 of 2007

MR GIBSON

Applicant

And

MS GIBSON

Respondent

REASONS FOR JUDGMENT

1. This appeal has been listed for hearing before me by direction of the Chief Justice pursuant to s 94AAA(3) of the Family Law Act 1975.

2. In May and June 2007 Phipps FM conducted proceedings pursuant to s 79 of the Act with regard to the alteration of property interests between the parties to the marriage.  His Honour delivered a reserved judgment on 2 November 2007 and made final orders.  On 21 November 2007 the husband filed a notice of appeal against his Honour's orders.  The notice of appeal provides as its only ground, "Files that were requested to be produced by court order were not all produced (some files are missing and as a consequence a full financial consideration surrounding the circumstances behind this judgment could not be presented)."

3. The orders sought in the appeal were as follows:

   (1)All personal property to be returned,

   (2)All business files to be presented,

   (3)All financial information to both parties be presented,

   (4)Access be given to the family home.

4. The appeal came on for the making of directions and orders for the conduct of the appeal before Kay J on 14 December 2007.  His Honour ordered that the appeal be listed before me or such other judge as may be nominated by the Coordinating Judge of the appeal division on 18 March 2008.  His Honour also provided certain orders and directions for the usual filing of documents and notification of the various matters to prepare the appeal for hearing.  The husband was required to comply with the various orders and directions by 15 February 2008, and the wife and the second respondent were then required to file certain documents by 7 March 2008. 

5. The husband failed to comply with any of the orders made by Kay J as a result of which the matter was listed for a further directions hearing before me on 4 March 2008.  On that date I vacated the appeal date and set the appeal down before me for hearing today.  I made orders for the husband to comply with the various requirements of filing documents by 1 April 2008 and for the respondents to file in response by 22 April 2008.  Again, the husband has failed to comply with those orders and directions.  His explanation is that he has been seeking the documents and has also been seeking legal advice.  I find both of those explanations unacceptable in terms of absolving him from the requirement of complying with orders of the court which he has failed to do now on two occasions. 

6. In the circumstances, and particularly by virtue of the fact that the notice of appeal displays a ground which in my view has no merit whatsoever, the appeal will be dismissed.

7. Arising out of my decision to dismiss this appeal, the respondent wife has now sought an order for costs against the appellant husband.  The default provision in section 117 is that each party pays his or her own costs of proceedings.  However, I may make such order as to costs as I deem to be just.  I may not make any such order without taking into account the various factors of subsection (2A) to which I now turn.

8. Neither party is on Legal Aid.  The financial situation of each of the parties is not at all good.  The substantive proceedings before his Honour which were the subject of this appeal resulted in a finding that the appellant husband is not in employment and is unlikely to be in employment in the future.  The respondent wife was found to have income of approximately $500 per week.  The husband pays minimal child support, there being two subject children.  As a result, the wife has the almost exclusive burden of financially maintaining the children of the parties. 

9. His Honour found that the asset pool totalled $375,000 and that was divided basically as to 70 per cent to the wife; a specified amount to the estate of the husband's deceased father and some small amounts, including some shares, to the husband.  The husband, it was found by his Honour, had entitlements to superannuation totalling a little more than $110,000 in two separate policies but he is unable to access that for some years.  The wife as a result of the orders will need to leave the home with the children.  That is being sold and is the main asset from which the orders are to be given effect to.  She is therefore going to need to rehouse herself and the children with what his Honour calculated as being her share amounting to $262,600 - in the circumstances a meagre amount indeed which will undoubtedly place financial burdens on her. 

10. It is clear that the respondent wife has been wholly successful in this appeal and that is as a result of the husband's conduct in not complying with directions and orders of the court for preparation of the appeal.  There is no relevance of any other factor in the subsection.  It is submitted on behalf of the wife that an appropriate order for costs is $7356 broken up into detailed costs and outlays as itemised.  This matter was in fact listed for hearing today, and accordingly the matter has had to be prepared. 

11. In the circumstances, it is appropriate that an order be made for the husband to pay the wife's costs fixed in the sum of $5000.

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate: 

Date:  12 December 2008