MANOLIS & MANOLIS
[2011] FamCAFC 33
•20 January 2011
FAMILY COURT OF AUSTRALIA
| MANOLIS & MANOLIS | [2011] FamCAFC 33 |
| FAMILY LAW - APPEAL – Application for expedition – Where there has been unnecessary delay due to the husband’s failure to file documents by required dates – Where that delay is causing prejudice to the wife – Where it is possible for both the appeal and the cross appeal to be expedited – Application allowed. FAMILY LAW - APPEAL – Application for the release of monies – Where it is appropriate for a Federal Magistrate unconnected to the appeal process to determine this application – Application dismissed. FAMILY LAW - COSTS – Costs of the application for both the wife and the husband reserved to the Full Court. |
| Family Law Act 1975 (Cth) |
| APPELLANT: | Ms Manolis |
| RESPONDENT: | Mr Manolis |
| FILE NUMBER: | BRC | 7940 | of | 2008 |
| APPEAL NUMBER: | NA | 85 | of | 2010 |
| DATE DELIVERED: | 20 January 2011 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | May J |
| HEARING DATE: | 20 January 2011 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 17 June 2010 |
| LOWER COURT MNC: | [2010] FMCAfam 573 |
REPRESENTATION
| SOLICITOR FOR THE APPELLANT: | Jones Mitchell Lawyers |
| SOLICITOR FOR THE RESPONDENT: | Family Law Solutions |
Orders
The hearing of the appeal and the cross appeal be expedited. The appeal, if possible, be listed for hearing in the week commencing 28 March 2011, in the Brisbane sittings.
The costs of the applicant and respondent of this application be reserved to the Full Court.
IT IS NOTED that publication of this judgment under the pseudonym Manolis & Manolis is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| IN THE APPELLATE JURISIDICTION OF THE FAMILY COURT OF AUSTRALIA AT BRISBANE |
Appeal Number: NA 85 of 2010
File Number: BRC 7940 of 2008
| Ms Manolis |
Appellant
And
| Mr Manolis |
Respondent
EX TEMPORE
REASONS FOR JUDGMENT
Introduction
The wife filed an application in an appeal on 17 December 2010 seeking that the hearing of the husband’s appeal, filed on 30 August 2010, and the wife’s cross appeal, filed 21 September 2010 be expedited. Further that the sum of $100,000 be released from a trust account to the wife by way of a partial property settlement.
In respect of the application for expedition, the husband neither supports nor opposes the application. In terms of the application for the release of monies, it can be said, by having regard to the response filed 17 January 2011, that the husband asks for radically different orders. There has been some discussion between the solicitors about this matter and perhaps, ultimately, this issue may be resolved. However in my view, the application can only be heard by a Federal Magistrate, unconnected with the appeal proceedings.
History
In support of the wife’s application, her solicitor filed an accompanying affidavit. This affidavit sets out a brief chronology of the matter.
It is useful to repeat parts of the solicitor’s affidavit:
2.These proceedings originally commenced when the husband filed his Initiating Application in the Federal Magistrates Court of Australia on 29 August 2008. The Trial took place before Federal Magistrate Demack in the Federal Magistrates Court of Australia at Lismore on 11 May 2011. Federal Magistrate Demack delivered her Judgment on 17 June 2010.
3.The husband was due to file his Notice of Appeal on or before 15 July 2010. That did not occur. On 23 July 2010, the husband filed an Application for Leave to file a Notice of Appeal out of time. That Application was heard by Her Honour Justice May in this Court on 26 August 2010. On the following day, Her Honour Justice May delivered Judgment which extended the time for the husband to file his Notice of Appeal to 30 August 2010. Her Honour also ordered the husband to pay the wife’s costs of and incidental to that Application. The husband did then file his Notice of Appeal on that same day, 30 August 2010.
4.On 31 August 2010, Appeals Registrar Spink directed the husband to file and serve a draft Index to Appeal Books by 27 September 2010. The husband failed to do so.
5.On 21 September 2010, my client, [the wife] filed a Cross-Appeal.
6.On 28 September 2010, Appeals Registrar Spink notified the parties in writing that the husband’s Appeal was taken to have been abandoned.
7.On 23 October 2010, the husband filed an Application in an Appeal seeking to extend the time to file a draft Index to Appeal Books. That Application came on for hearing before the Honourable Justice May on 15 November 2010. On the following day, 16 November 2010, the Honourable Justice May delivered her Judgment and ordered that:
(a)the husband’s Appeal be reinstated;
(b)the husband’s time within which to file a draft Index to Appeal Books be extended to 19 November 2010; and
(c)the husband pay the wife’s costs of the Application on an indemnity basis.
8.There was a Procedural Hearing before Appeals Registrar Spink on 15 December 2010, at which time:
(a)the Index to Appeal Books was settled; and
(b)the Appeals Registrar made certain directions for the filing of documents and submissions by each the Appellant and Cross-Appellant.
9.On 24 November 2010, I was advised by Appeals Registrar Spink that based on his Appeal List as at that day, it appeared that the earliest date that the Appeal and Cross-Appeal in these proceedings would be heard by the Full Court of this Court was August or possibly September 2011.
The wife’s solicitor explains that this will mean that there will be approximately 13 to 15 months between the trial and the date of the hearing of the appeal. The husband’s failure to file his notice of appeal, and the subsequent failure to file the draft appeal index, accounts for a delay of some 5 months.
The orders, the subject of both the appeal and the cross appeal are those made by Federal Magistrate Demack on 17 June 2010. Those orders provided the wife with certain property including a residence in Greece.
The solicitor explains that the wife has instructed him to facilitate the expedition of the formal transfer of the Greek property into her name. It is explained that the wife wishes to return to Greece and take up residence in the house. The wife has no family in Australia and is very anxious to return to Greece.
The solicitor also submits that the wife has become very upset and distressed by the significant delay and that her health has been affected. Annexed to the affidavit is a report from the wife’s doctor, which supports the solicitor’s assertion. In this letter the doctor states:
… I believe that it is imperative [the wife’s] current appeal proceedings be expedited. Prolonging this process takes its toll on anyone involved, and with [the wife’s] current response she is at risk of developing & precipitating a depressive illness from which she may have difficulty recovering …
It is also explained that the wife’s mother recently had a severe heart attack, from which the wife has been told she will not recover. It is said that “[t]he prospect of losing her mother has significantly exacerbated [the wife’s] health and mental state”.
The wife’s legal fees and outlays to date are said to total $78,956.23. Of this amount, what is termed “the Appeal period” accounts for $32,000. As a result of those fees, the wife is said to have “almost run out of money”.
The solicitor for the wife explains that there is $909,761.93 held for the parties, by solicitors, on trust in Tasmania, which represent the net proceeds from the sale of a Tasmanian property. Her solicitor has asked for the husband to consent to the release of $100,000 from the trust account.
The correspondence surrounding this request is attached to the affidavit of the wife’s solicitor. The consent required to release these monies was not provided, despite numerous attempts between the solicitors to find other solutions.
The first letter written by the wife’s solicitor on 24 November 2010 carefully explained the reason why the monies were necessary for the wife. There was nothing threatening about the letter. It is not profitable to refer further to the correspondence, other than to observe that a large part of that from the solicitor for the husband was extremely lengthy.
As I have said, it must be hoped that this aspect of the matter can be resolved. The response file by the solicitor for the husband on 17 January 2011 only compounds the difficulties.
Conclusion
I have been advised, by the Appeals Registrar, that it is possible for the Full Court sitting in Brisbane to hear the matter in the March sittings.
Having considered the circumstances of the case, as explained by the wife’s solicitor, I am of the view that the hearing of this matter should be expedited.
In regard to the application for the release of the sum of $100,000, the matter will either be resolved or could be heard by a Federal Magistrate. It would be expected by me, that if necessary, an urgent hearing could be allocated.
Costs
It is appropriate for the costs of both the wife and the husband in respect of this application to be reserved to the Full Court.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice May delivered on 20 January 2011.
Associate:
Date: 24 February 2011
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