Kable and DODD

[2006] FamCA 1323

FAMILY COURT OF AUSTRALIA

KABLE & DODD [2006] FamCA 1323

APPLICATION FOR LEAVE TO APPEAL – Application for sole use and occupation of the former matrimonial home

Family Law Act 1975 (Cth)

APPELLANT HUSBAND: KABLE

RESPONDENT WIFE: DODD

FILE NUMBER: MLF 2479 of 2005

APPEAL NUMBER: SA 33 of 2006

DATE DELIVERED: 26 September 2006

PLACE DELIVERED: Adelaide

JUDGMENT OF: BRYANT CJ, KAY & BOLAND J

HEARING DATE: 26 September 2006

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 4 April 2006

LOWER COURT MNC:

REPRESENTATION

COUNSEL FOR THE APPELLANT: In person

SOLICITOR FOR THE APPELLANT:

COUNSEL FOR THE RESPONDENT: Ms Johnson

SOLICITOR FOR THE RESPONDENT: Maddens Lawyers

Orders

1. That the oral Application of the Husband made this day for Leave to Appeal be dismissed.

2. That the Appeal filed 29 May 2006 be dismissed.

3. That the Husband pay the Wife’s costs in the sum of $2,000 to be paid by the Husband at the conclusion of the proceedings, and specifically:-

   (a)       If the proceedings are settled at a time agreed between the parties; or

   (b)If the trial proceeds to judgment at such time as judgment is delivered by the Trial Judge.

IN THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SA 33  of 2006
File Number: MLF 2479  of 2005

KABLE

Appellant Husband

And

DODD

Respondent Wife

REASONS FOR JUDGMENT

BRYANT CJ:

1. I propose to give short reasons in this matter pursuant to section 94(2A) of the Family Law Act 1975 (Cth) as, in my view, the appeal should be dismissed.

2. The husband seeks to appeal the order of Strickland J which was made on 4 April 2006.  The husband and wife are engaged in property proceedings which were transferred from Melbourne registry to Adelaide, to be heard in Mount Gambier on circuit.  At the April circuit in Mount Gambier the husband brought an interlocutory application seeking sole use and occupation of the marital home… and seeking that the wife, who was in occupation of [the marital home], have occupation of [an investment property] in Mount Gambier.   

3. His Honour relied on affidavit material filed by both of the parties and there was oral evidence and cross‑examination which occurred before his Honour.  Having read the material before him and having heard the evidence of the parties, his Honour dismissed the husband's application filed 13 December and two other applications were removed from the active pending cases list. 

4. His Honour also ordered that the husband pay the sum of $1,000 by way of costs to the wife within six months.

5. The application for sole use and occupation pending the hearing of the property application of the parties was an interlocutory application.  The Family Law Act 1975 (Cth) requires that an application for permission to bring proceedings must be made in respect of an interlocutory order. No such application was made by the husband, but, when this was pointed out to him at the hearing of this matter, he sought to make an oral application for permission to appeal in relation to the sole use and occupation order and we granted that application.

6. The principles in relation to seeking permission or leave to appeal from interlocutory orders are that it is necessary for the party seeking such leave to demonstrate that there has been an error of principle and/or a substantial injustice.

7. Before briefly turning to his Honour's decision there is one matter that needs some comment.  The husband contends that there should have been an affidavit before his Honour which was filed on 23 March 2006, which was in response to an affidavit of the wife which contained material relevant to his application.  Though attended by some confusion, in the end it seems to me that the affidavit was probably not before his Honour.  This was so as a result of an error by the husband in referring to the documents to be relied upon.

8. However, if it was the case that the affidavit was not before his Honour, there was oral evidence by the husband in support of his application in cross‑examination.  The cross‑examination went to each of the issues identified by the husband in his earlier affidavit as being the reasons which supported his application.  I am satisfied that even if his Honour did not have before him the affidavit of 23 March 2006, nevertheless he heard evidence in support of the husband's application, and in any event, the husband had the opportunity by virtue of the cross‑examination and his oral evidence to put matters before his Honour that were germane to the application.

9. As to whether there was an error of principle on the part of his Honour, the appellant submitted nothing to suggest that his Honour made an error of principle in the manner in which he dealt with this matter or the manner in which he applied the law.  Indeed, the appellant did not seek to press this point.

10. As to whether there was a substantial injustice, the appellant contends that there was.  In essence, he contends that his Honour could not reasonably have come to the conclusion that he did on the evidence.

11. Whilst I understand that the husband feels aggrieved that the wife is in the home and effectively in possession of two houses and that he has been excluded, nevertheless in my view this was a discretionary judgment by his Honour in which his Honour considered all the relevant matters and came to a conclusion.  I cannot see that the appellant has demonstrated either any error in the manner in which his Honour reached his decision, nor that there is any substantial injustice to the husband. 

12. That, in my view, is highlighted by the fact that, with the effluxion of time, this matter will be dealt with, it would seem, in the November 2006 circuit at Mount Gambier.  The determination of the proceedings will obviously overtake the need for the husband to have exclusive occupation.

13. For those reasons, in my view the husband has not satisfied the test and I would not grant him leave to appeal.  I would accordingly dismiss his oral application for leave to appeal.

14. As to the appeal against the order for costs, whilst it is not necessary for the appellant to obtain leave, the appellant conceded before us that if he was successful on his appeal in relation to the exclusive occupation order then he sought that the costs order be discharged but that, effectively, he did not wish to put anything before us if he was unsuccessful.  Accordingly, the application to appeal in relation to the order for costs must also be dismissed.

15. The orders I would make therefore are:

    1That the oral application of the husband made this day for leave to appeal be dismissed.

    2That the appeal dated 29 May 2006 be dismissed.

KAY J:

1. I agree with the orders proposed by the Chief Justice for the reasons given.  I think it is important to note that everybody now agrees that this case is ready to proceed and should proceed in November at the Mount Gambier sittings. 

2. In the event that, for some as yet unforeseen reason, this does not occur, it may well be appropriate for the husband to be given another opportunity to seek either use and occupation of one of the two pieces of real estate currently in the control of the wife or else some finance to be provided by the wife to him to obtain some other accommodation pending the ultimate determination of the proceedings.

BOLAND J:

1. I too, agree with the reasons of the Chief Justice, the additional reasons of Kay J and the orders proposed by the Chief Justice, and I have nothing further to add.

BRYANT CJ:  

1. I further order:

3That the Husband pay the Wife’s costs in the sum of $2,000 to be paid by the Husband at the conclusion of the proceedings, and specifically:-

(a)If the proceedings are settled at a time agreed between the parties; or

(b)If the trial proceeds to judgment at such time as judgment is delivered by the Trial Judge.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court 

Associate:   

Date:  7 December 2006