Kalnian and Kalnian
[2013] FamCAFC 56
FAMILY COURT OF AUSTRALIA
| KALNIAN & KALNIAN | [2013] FamCAFC 56 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the husband seeks an extension of time to file an appeal against orders made on 6 December 2012 – where the husband failed to attend the hearing – where there is no utility in the appeal given that the property the subject of the application has been sold – appeal dismissed. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – where the wife’s solicitors on behalf of the wife seek costs in the sum of $660 – where there are circumstances justifying an order for costs being made – costs order made as sought by the wife. |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mr Kalnian |
| RESPONDENT: | Ms Kalnian |
| FILE NUMBER: | MLC | 10346 | of | 2012 |
| APPEAL NUMBER: | SOA | 5 | of | 2013 |
| DATE DELIVERED: | 5 April 2013 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 5 April 2013 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 6 December 2012 |
| LOWER COURT MNC: | [2012] FMCAfam 1478 |
REPRESENTATION
| THE APPLICANT: | No Appearance |
| COUNSEL FOR THE RESPONDENT: | Mr Galatas (solicitor) |
| SOLICITORS FOR THE RESPONDENT: | GPZ Legal Pty |
Orders
The application in an appeal filed by the husband on 22 January 2013 be dismissed.
The husband pay to the wife’s solicitors on behalf of the wife the sum of
six hundred and sixty dollars [$660]by way of costs thrown away today, such amount to be paid within two [2] months of the date hereof.
IT IS NOTED that publication of this judgment by this Court under the Kalnian & Kalnian has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE |
Appeal Number: SOA 5 of 2013
File Number: MLC 10346 of 2012
| Mr Kalnian |
Applicant
And
| Ms Kalnian |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
The application before me today is an application in an appeal filed by the husband on 22 January 2013 seeking an extension of time to file an appeal against orders made on 6 December 2012 by Federal Magistrate Whelan.
That application is supported by an affidavit filed on the same date.
I note from the court file that on 23 January 2013 a letter was sent to
Mr Kalnian, the applicant, returning service copies of the application and the affidavit, and indicating that the parties would be advised of a hearing date in the near future. That was followed by a letter dated 4 March 2013 which was sent both to Mr Kalnian and the wife’s solicitors, and in that letter the parties were advised that the application had been listed before me in Melbourne on
5 April 2013 at 2:00pm. I note that there is no correspondence from the applicant on the court file subsequent to that date, and I have not been informed of any telephone message from Mr Kalnian, or anyone on his behalf, to indicate that he would not be attending the hearing today.
In any event that is what has happened, there has been no appearance by
Mr Kalnian today.
Mr Galatas has appeared for the wife and he has informed me that the property which was the subject of the orders appealed against has now been sold, and the settlement of that sale occurred approximately two weeks ago.
The order of 6 December 2012 was that the parties accept an offer that had been made and execute a contract of sale of the property. Although there were many other orders made on 6 December, they related to setting up this matter for a final hearing on 8 July 2013, and it is quite apparent that the primary order against which the applicant sought to appeal, was that order which effectively provided for the sale of the property.
As I say, that property has now been sold.
I cannot speculate, but it may be that because that has happened that is why
Mr Kalnian has not attended today. Even if that is the case I am extremely concerned that he has not informed the Court that he would not be pursuing his application, and equally, I am concerned that he has not advised the other side that he would not be pursuing his application. It seems that all he has done is not attend. That, as I say, is concerning given that this Court is funded by the taxpayer, and it has been a significant cost to set up this hearing today.
Given that background the wife’s solicitor seeks that the application be dismissed. In my view, that is what should happen, not only because of the failure by Mr Kalnian to appear, but also, given that the property has now been sold, even if he was successful in his application to extend the time to appeal, and he was able to pursue an appeal, such an appeal would be futile.
The other observation I make is that in preparation for the hearing today I had read the documents that were before me, including the reasons for judgment of the Federal Magistrate, and obviously Mr Kalnian’s documents seeking an extension of time. In my view Mr Kalnian had not sufficiently made out a case to have an extension of time. I was intending to challenge him about that and see if his case could be enhanced by any oral submissions that he might make today, but of course in his absence, that cannot occur. Thus, on the documents that are before me, in my view Mr Kalnian’s application cannot succeed.
For all those reasons I propose to dismiss the application.
Given that, the wife’s solicitor on her behalf, makes an application for costs in the sum of $660.
I am satisfied that there are circumstances which justify an order for costs being made.
There is of course Mr Kalnian’s failure to appear today, the circumstance that as it stands today on his documents, I do not consider that he has any reasonable prospects of success, and of course, his failure to advise his wife’s solicitors, if this was the case, that he was not pursuing the application.
Thus, to repeat, in my view there are ample circumstances justifying an order for costs, and the amount sought is reasonable given that it would cover the receipt of the documents by the wife’s solicitors, taking instructions in relation to those documents, and attending today.
I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on
18 January 2013.
Associate:
Date: 16 April 2013
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