Panaleon and Panaleon (No 2)
[2014] FamCAFC 181
•10 September 2014
FAMILY COURT OF AUSTRALIA
| PANALEON & PANALEON (NO. 2) | [2014] FamCAFC 181 |
| FAMILY LAW – APPEAL – NOTICE OF APPEAL – where the respondent seeks that the appeal be dismissed – where the application is opposed – where the appellant did not appear at the hearing on 16 December 2013 – where the appellant asserts that he was not given notice of that hearing and orders were made in his absence including an order for costs – where it is apparent that the appellant was aware of the hearing on FAMILY LAW – APPEAL – NOTICE OF APPEAL – COSTS – where the respondent seeks costs in the amount of $2,200 being for counsel fees for the hearing today – where there are circumstances that justify an order for costs being made – where the appellant has been wholly unsuccessful – where the amount sought is reasonable – costs ordered as sought by the respondent. |
| |||
| APPELLANT: | Mr Panaleon | ||
| RESPONDENT: | Mrs Panaleon |
| FILE NUMBER: | MLC | 8294 | of | 2010 |
| APPEAL NUMBER: | SOA | 6 | of | 2014 |
| DATE DELIVERED: | 10 September 2014 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 10 September 2014 |
| LOWER COURT JURISDICTION: | Federal Circuit Court |
| LOWER COURT JUDGMENT DATE: | 16 December 2013 |
| LOWER COURT MNC: | [2013] FCCA 2372 |
REPRESENTATION
| THE APPELLANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Ms Swart |
| SOLICITORS FOR THE RESPONDENT: | MacGregor Solicitors |
Orders
The Notice of Appeal filed by the husband on 5 June 2014 be dismissed.
The husband pay the costs of the wife in relation to the appeal fixed in the sum of $2,200.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Panaleon & Panaleon (No. 2) 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 6 of 2014
File Number: MLC 8294 of 2010
| Mr Panaleon |
Appellant
And
| Mrs Panaleon |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
Before the court today is a Notice of Appeal filed by Mr Panaleon (“the husband) on 5 June 2014, seeking to appeal against orders made by Judge Burchardt on 16 December 2013.
Ms Swart, counsel for the respondent, Mrs Panaleon (“the wife”), has made an oral application that the appeal be dismissed, and the basis for that application arises in the following way.
On 16 December 2013 Judge Burchardt made certain orders, including granting leave for the application before him to proceed on an urgent ex parte basis, orders directed to the Registrar of the Federal Circuit Court of Australia to execute certain transfers of land pursuant to previous orders made, and an order that the husband pay the wife’s costs of and incidental to the application before him fixed in the sum of $3,594.50. Brief reasons for judgment were delivered by his Honour in support of those orders.
The husband was not present at that hearing.
The husband on 21 January 2014 filed an application in an appeal seeking, in effect, an extension of time to appeal against the orders made by Judge Burchardt on 16 December 2013, and that application was supported by an affidavit filed on the same date. There was also a draft Notice of Appeal filed in support of the application, and that represented the Notice of Appeal which the husband wished to pursue if he was granted an extension of time to appeal.
Turning to that draft Notice of Appeal. There were a number of problems with it, but as I have said on previous occasions, and I repeat, the husband is without legal representation and I have taken that into account, and continue to take that into account, in relation to documents that he has filed. Nevertheless, as I set out in subsequent reasons for judgment delivered on 8 May 2014, the husband apparently had some assistance from a solicitor in preparing this draft Notice of Appeal.
Putting aside problems such as an incorrect date for the making of the orders, what the husband sought to do in that draft Notice of Appeal was to appeal against all orders made by Judge Burchardt on 16 December 2013, and he set out two grounds of appeal as follows:
1.The COURT erred to sit on hearing on the 16th of December 2013 without NOTICE giving to husband MR [PANALEON] in the first instances and made unjustified ORDERS in favour of
MRS [PANALEON] the wife that are scandalous and inappropriate also.2.The COURT erred in make COST ORDERS against
MR [PANALEON] in respect to COSTS also.The application in an appeal came before me on 8 May 2014 when the husband appeared in person, and the wife was represented by counsel, Ms Jenkinson.
In my reasons for judgment delivered on that day, I indicated that I was satisfied that there was an adequate explanation provided by the husband as to why he had not filed an appeal within the 28 day time period permitted under the Family Law Rules 2004 (Cth) (“the Rules”), but in relation to the question of the merits of the proposed appeal I found that there was no merit whatsoever, and not to put too fine a point on it, no chance of success whatsoever, in the proposed challenge to the orders made by Judge Burchardt on 16 December 2013, save and except, in relation to the order for costs.
As I said in my reasons for judgment:
29.Ms Jenkinson has persuasively submitted that the first ground of appeal has no prospects of success. She says that is because the orders complained of are final orders in a lengthy process to execute the orders for property settlement made by the trial judge in the face of determined opposition by the applicant, and his failure and indeed refusal to cooperate to ensure that for example, necessary land transfers were completed.
30.Ms Jenkinson tells me, and I accept, that the application that was before his Honour, needed to be made as a result of a requirement of the Land Titles Office as to the form of documentation necessary to complete the land transfers, which were originally ordered some time ago by his Honour, in the context of final property settlement orders. It was seen, and in my view, understandably so, that it was unnecessary for the applicant to be brought to court in relation to that application, or indeed to have any say in relation to that application, because the point had been reached where it was entirely up to the respondent to complete the transfers, and there was nothing that the applicant could do, or could say, which could prevent the orders relating to the land transfers being made, or alter those orders in any way given, as I say, the format was a requirement of the Land Titles Office. Thus, although the applicant was not served with the application and the affidavit which led to the hearing when his Honour made these orders, and his Honour, as he says in his reasons for judgment, granted leave for the application to proceed on an urgent ex parte basis, I do not consider that the applicant has any chance of success in suggesting that the court has erred in proceeding to make those orders in relation to the land transfers on that day in his absence.
31.Indeed, as Ms Jenkinson has emphasised, those orders being made, the land transfers have been registered and there is nothing more to be done and indeed nothing in that regard which can be undone. To pursue an appeal against those orders namely, the orders relating to the land transfers, can be considered futile.
32.As is clear from what I have said about the prospects of Ground 1, I have had regard to the history of the matter, and the fact that the applicant has attempted at every stage to prevent completion, or execution, of the orders for property settlement made by the trial judge, and he has failed and/or refused to cooperate in that process. That history has been highly relevant in the view that I have taken in relation to Ground 1.
However, as I say, I took a different view in relation to the challenge to the order for costs. I took that different view because I was given to understand that the husband had not been served with the applications or the affidavits that were before his Honour on 16 December 2013.
The husband’s position was that he had not been served, and doing the best I can in trying to recall what occurred on 8 May 2014, Ms Jenkinson who appeared for the wife, was not able to satisfy me otherwise. Thus, I considered that that created an arguable case on appeal. In other words, the trial judge had made an order for costs in the absence of the husband, without him being aware that such an application was being sought, and without him having the opportunity to make any submissions about it.
Given that I was satisfied that there were adequate reasons for the failure to comply with the timeframe for the filing of a Notice of Appeal, and that I was satisfied that there was an arguable case on appeal in relation to one aspect of that draft Notice, namely the challenge to the costs order, I granted an extension of time to the husband to file a Notice of Appeal. I indicated to him though that he should confine any Notice of Appeal that he filed as a result of that order to a challenge to the costs order.
On 5 June 2014 the husband filed a Notice of Appeal within the time period that I allowed on 8 May 2014. Unfortunately, the husband took some, but not much notice, of what I had said about the chances of success in relation to a challenge to the orders made by Judge Burchardt, apart from the costs order. For example, in the Notice of Appeal, the husband indicates that he is appealing against all orders made on 16 December 2013. In the grounds of appeal it is somewhat unclear, but it seems that although Grounds 2 and 3 clearly relate to the costs order, Ground 1 can be read as a challenge to all orders made on 16 December 2013.
Then there are the orders sought in the appeal. Not only has the husband in setting out these orders ignored what I said on 8 May 2014, but in effect he looks to return to issues that have been well and truly dealt with by this court in subsequent attempts by the husband to appeal earlier orders made by Judge Burchardt. I am referring here to Orders 2 and 3 in particular.
It is apparent to me, and I have said this in previous reasons for judgment delivered in respect of attempts by the husband to appeal earlier orders, the husband cannot accept the finality of the orders that have been made, and that it is no longer open to him to pursue those issues.
The result of that analysis of the husband’s Notice of Appeal is that in any event, regardless of the specific basis of the application that is made today to dismiss the husband’s appeal, I would be dismissing the appeal to the extent that it seeks to appeal against any orders made on 16 December 2013, save and except for the costs order.
However, as to the costs order, it is now apparent that an appeal against that order cannot succeed either.
On 19 August 2014 an application in an appeal and a supporting affidavit were filed on behalf of the wife. The affidavit is by the wife’s solicitor and in that affidavit she tells the court that the documents that were before Judge Burchardt on 16 December 2013 were served upon the husband, and that there was an affidavit of service filed on 5 December 2013. The solicitor goes on and says that she understands that the affidavit of service filed on 5 December 2013, had been mislaid in the court file, and as a result she arranged for the person who made that initial affidavit of service to swear a substituted affidavit of service, and that is annexed to the affidavit filed in support of this application. I should say that this application was seeking leave to in fact file that substituted affidavit of service.
As a result of that affidavit, I have accessed the first instance file in this matter and I have located the original affidavit of service. It is document 48 in the first instance file. It is an affidavit of service filed on 5 December 2013, by one Ms G, deposing to serving Mr Panaleon namely, the husband, on 4 December 2013, by posting the documents by pre-paid post in an envelope addressed to the husband at C. I indicate that the husband has confirmed today that that is his address. The documents that were served were two applications in a case namely, those filed on 27 November 2013 and 29 November 2013, together with three affidavits, two affidavits of the wife’s solicitor affirmed on
26 November 2013 and 27 November 2013, and an affidavit of one Ms U affirmed on 27 November 2013.The husband when this was put to him today, indicated that he had not been served. However, I am satisfied from the affidavit of service that he was served with the documents. In particular, and referring to the documents that were served, the application in a case filed on 27 November 2013 sought orders in relation to the execution of the various transfers of land, and in Order 4, sought that the husband pay the wife’s costs of and incidental to that application.
To explain one circumstance that developed with this application though. The application, together with the supporting affidavit, was originally given a return date of 3 March 2014, and that is apparent from document 43 in the first instance file. What then happened, and which is apparent from subsequent affidavit material on the first instance file, is that a request was made of the Registry to list the matter earlier than that, given the urgency of the application. That request was refused by a Registrar. That then led to the second application in a case which is the one filed on 29 November 2013, which sought a review of that decision by the Registrar, and sought that the initial application be given an urgent hearing date, and that the wife be granted leave to proceed on an urgent ex parte basis. That application was given a return date of 16 December 2013.
Thus, that is how these documents came to be before the court on 16 December 2013, and as I say, I am satisfied that they were served upon the husband, and I am satisfied that he was given notice that an order for costs would be sought.
Clearly given the history that I have relayed in the earlier part of these reasons, if it had been made known to me on 8 May 2014 that the husband had been served, I can say that I would have taken an entirely different position in relation to the application for an extension of time, but that is now water under the bridge. I granted an extension of time and I now have the Notice of Appeal before me, but, to repeat, I propose to disregard any aspect of that Notice of Appeal save and except insofar as it challenges the order for costs.
In relation to the grounds of appeal which challenge the costs order, the basis of the challenge is that the husband was given no notice of the hearing on
16 December 2013, and thus the judge erred in making the order in his absence, and without any submissions being made by or on his behalf.In my view, given the facts as I have set them out in these reasons, they are grounds of appeal which cannot succeed, and it is on that basis that the application for dismissal is made.
In my view that application is made out in the circumstances. There is no prospect of success of any aspect of the Notice of Appeal filed by the husband on 5 June 2014, and I propose to dismiss it.
I now have an application for costs on behalf of the wife. The amount sought is $2,200 being the counsel fees for today.
The husband opposes the application.
Any application for costs is governed by s 117 of the Family Law Act 1975 (Cth) (“the Act”), ss (1) of which provides that each party should bear their own costs, but ss (2) of which provides that where there are circumstances that justify it, then an order for costs can be made. Subsection 117(2A) sets out the factors to be taken into account, whether there should be an order for costs and, if so, what that order should be.
In my view, there are circumstances here that justify an order for costs being made. I propose to dismiss the husband’s appeal, and thus, he has been wholly unsuccessful in relation to that appeal. Nothing specifically has been put to me in relation to any of the other paragraphs in ss 117(2A). I note though, that in relation to financial circumstances, the property settlement has not yet been completed, and there will be money as a result of the sale of properties to come to the husband, and I am aware of that circumstance from previous hearings I have conducted in this matter. I note that the husband does not raise that in answer to the order for costs sought, but I mention it in any event
Given that there are circumstances justifying an order for costs, I propose to make an order, and in my view, the amount sought is reasonable.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the
ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 10 September 2014.
Associate:
Date: 19 September 2014
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