Panaleon and Panaleon (No 2) - [2013] FamCAFC 123

FAMILY COURT OF AUSTRALIA

PANALEON & PANALEON (NO. 2)

[2013] FamCAFC 123

FAMILY LAW – APPEAL – NOTICE OF APPEAL – where the husband seeks to appeal orders made by the Federal Magistrate (as he then was) on 19 February 2013 – where the application is opposed by the wife – where it is apparent that the husband has a misconception about the orders made and what he is able to do about them – where the husband is not entitled to 45 per cent of all of the properties of the parties – where that aspect of the appeal is unmeritorious – where no error is identified in relation to the costs order made by the Federal Magistrate – appeal dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the husband seeks to have two of the properties of the parties valued – where that application is based on his misconception that that needs to be done so that he can achieve his 45 per cent entitlement – where the application has no relevance to the orders under appeal – application dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – where the husband seeks that the court provide transcript of the hearing before the Federal Magistrate (as he then was) and copies of orders made – where the court does not have funds available to provide litigants with transcript – where transcript is provided at the discretion of the court only in rare circumstances – where transcript of the hearing is not necessary to determine the appeal – application dismissed.

FAMILY LAW – APPEAL – NOTICE OF APPEAL – COSTS – where the wife seeks costs – where the application is opposed by the husband – where there are circumstances which justify an order for costs being made – where the husband has been wholly unsuccessful – costs ordered.

Family Law Act 1975 (Cth) – s 117

APPELLANT:

Mr Panaleon

RESPONDENT:

Ms Panaleon

FILE NUMBER:

MLC

8294

2010

APPEAL NUMBER:

SOA

2013

DATE DELIVERED:

15 August 2013

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

15 August 2013

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

19 February 2013

LOWER COURT MNC:

[2013] FMCAfam 276

REPRESENTATION

FOR THE APPELLANT:

In person

SOLICITORS FOR THE RESPONDENT:

MacGregor Solicitors

Orders:

The applications in an appeal filed by the husband on 9 July 2013 and 29 July 2013 be dismissed.
The Notice of Appeal filed by the husband on 1 March 2013 be dismissed.
The husband pay the wife’s costs fixed in the amount of TWO THOUSAND THREE HUNDRED AND TEN DOLLARD [$2,310] with such costs to be paid within three [3] months of the date hereof.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Panaleon & Panaleon 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 10 of 2013
File Number: MLC 8294 of 2010

MR PANALEON

Appellant

And

MS PANALEON

Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

This is an appeal filed by Mr Panaleon (“the husband”) on 1 March 2013 against orders made by Federal Magistrate Turner (as he then was) on

19 February 2013.
The husband has appeared without legal representation today, while counsel has appeared for Ms Panaleon (“the wife”)
The wife’s counsel told me that the appeal is opposed. I say that because there have been no responding written submissions filed by the wife in accordance with my orders of 14 June 2013. Ms Jenkinson has explained to me that it was determined that that was unnecessary after sighting the written submissions of the husband, and the straightforward submission that she has made today is that the husband has not made out a case for his appeal to succeed, and it should be dismissed.
In the circumstances I am comfortable with that position, given, as will become apparent, that that is my view as well.
The other matter I mention at this stage is that in the Notice of Appeal filed on 1 March 2013 the husband sought leave to appeal, and then if leave was granted, he sought to appeal against the orders I have mentioned above. In my view there is no need for leave to appeal. It seems to me that the orders made by the Federal Magistrate were final orders and thus that obviates the need for leave to be obtained.
There are also two applications in an appeal filed by the husband, the first being an application filed on 9 July 2013 in which the effect of what the husband sought was to gain access to a property at B Street for the purpose of valuing that property, and also it seems for a similar order in relation to a property at C. There was an affidavit filed in support of that application. That application is opposed by the wife and I will return to it in a moment.
The second application is an application filed by the husband on 29 July 2013 in which in effect he seeks that the court provide him with copies of the relevant transcripts for the purpose of the appeal, and he also seeks that the court make available further copies of the court orders that have been made in the past in relation to this matter. In relation to the issue of the provision of transcript I do not understand the wife to have taken any position in relation to that, but I will also come back to that application shortly.
The orders made by the Federal Magistrate which are the subject of the appeal are as follows:
UNTIL FURTHER ORDER OR A STAY THE COURT ORDERS THAT:
(1)The orders of Federal Magistrate Burchardt made on 23 November 2011 remain in full force and effect.
THE COURT FURTHER ORDERS THAT:
(2)Pursuant to r.16.01 of the Federal Magistrate Court Rules 2001, the Registrar of Titles in the State of Victoria cancel the following Certificates of Title:
(a)Volume …. Folio … being the land situated at and known as Lot [X, M];
(b)Volume …. Folio … being the land situated at and known as Lot [Y, M];
(c)Volume ….. Folio … … being the land situated at and known as [XX] Road, [LB];
(d)Volume 9800 Folio 549 being the land situated at and known as [XY] Road, [LB]; and
(e)Volume ….. Folio … being the land situated at and known as [FN].
(3)The Registrar of Titles in the State of Victoria create new Folios of the Register and Certificate of Title for the land in Certificates of Title:
(a)Volume …. Folio … being the land situated at and known as Lot [X, M];
(b)Volume …. Folio … being the land situated at and known as Lot [Y, M];
(c)Volume ….. Folio … … being the land situated at and known as [XX] Road, [LB];
(d)Volume …. Folio … being the land situated at and known as [XY] Road, [LB]; and
(e)Volume ….. Folio … being the land situated at and known as [FN].
THE COURT DECLARES THAT:
(4)The wife [MS PANALEON] is the person entitled to delivery of the said Certificates of Title to be created pursuant to order 3 herein.
IT IS FURTHER ORDERED BY THE COURT THAT:
(5)Pursuant to s.114(1)(e) of the Family Law Act 1975, the husband [MR PANALEON] is restrained by injunction from lodging and any caveats against any of the Certificates of Title or properties referred to orders 2 and 3 herein.
(6)The husband pay the wife’s costs fixed in the amount of $3,073.00 within one month.
(7)All extant applications are dismissed and the matter is removed from the list of pending cases.
Of those orders though it is the delivery of the certificates of title to the wife and the costs order which are apparently of concern to the husband. I do not understand the husband challenges the other orders.
In the husband’s Notice of Appeal filed on 1 March 2013 the grounds of appeal as they appear are as follows:
1.The COURT erred to declare ALL FARMS in favour of
MS [PANALEON].
2.
The COURT erred in make COST ORDERS against

MR [PANALEON] in this respect.
The orders sought by the husband in that Notice of Appeal are:
1.That the ORDERS made by Federal Magistrate TURNER on paragraphs 4 & 6 of orders are STAYED or and SET ASIDE in FULL in favour of MR [PANALEON].
2.THAT the COURT declares that both FARMS are the rightful share of MR [PANALEON] instead of his wife MS [PANALEON].
3.COSTS and OTHER remedies the COURT finds fit to make or APPLY during the future hearings if any.

Background

The hearing in relation to property settlement took place before Federal Magistrate Burchardt (as he then was) on 23 May 2011.
Prior to that hearing there had been an application to adjourn the hearing made by or on behalf of the husband, who, at that time, was overseas and who alleged that he was suffering from ill-health. On 18 May 2011 the Federal Magistrate refused that application, and in effect directed that the hearing proceed on 23 May 2011 when it was initially listed.
As is apparent from his Honour’s reasons for judgment delivered on 23 May 2011, both parties were represented at the hearing by counsel and their counsel made oral submissions. The application to adjourn that I have just adverted to was not further pressed. There was also an application on file for the husband to attend by telephone, but that application was not pressed. At paragraph 22 of his reasons for judgment his Honour said this:
Both parties, without objection, simply made submissions adopting in part the affidavit material filed, but also a series of dates set out in their case outlines and also submitted on their instructions.
I note that not only was there affidavit material before his Honour addressing the relevant issues, but there were case outlines filed by both parties, and ultimately at the hearing there were submissions made on behalf of both parties.
His Honour delivered his reasons for judgment on 3 August 2011. His Honour dealt with all the relevant matters that he was obliged to in determining a property settlement application and he concluded in paragraphs 48 as follows:
This was a marriage that lasted from 1974 to 1996. Both parties contributed as best they were able and they seem to have done very well on limited resources. In my opinion, a division of some 55 per cent to the wife and 45 per cent to the husband is entirely just and equitable.
His Honour then canvassed the orders that both parties were seeking. His Honour indicated though that he would give the parties an opportunity to consider his reasons for judgment and then make further submissions as to what orders the court should make, to give effect to the conclusions reached in those reasons for judgment. His Honour said this:
49.The husband has sought that there be a 50/50 split of the value of all of the properties except [C] and the balance be paid to the wife. How he would propose to do that with his income being a disability pension quite escapes me. He has asserted that he wishes to keep the [FN] property along with the others because the property has, for him, a sentimental attachment even though he has never predominantly lived there.
50.The wife’s proposal is that the [C] property be sold and the husband’s share be paid out of the proceeds. Given the division I propose, bearing in mind that the only liability is a mortgage of approximately $61,000 on the [FN] property, it would seem to me more probable than otherwise that neither party will be able to buy the other out. In the circumstances, I will give the parties an opportunity to consider these Reasons for Judgment and then make further submissions as to what orders the Court should make to give effect to these conclusions.
The matter next came before his Honour on 30 September 2011 and his Honour delivered further reasons for judgment on 4 October 2011. The issue confronting his Honour at that time was that it had been made known to

his Honour by solicitors representing the wife that valuable water rights worth in excess of $100,000 could be attached to at least one of the properties of the parties, and there was an extension of time sought to file materials in light of that new information. There were further materials filed and his Honour made orders on 4 October 2011 as follows:
1)The Applicant wife be authorised to instruct Mr Kennon [a solicitor] to:
a) Complete the transfer of water rights to the [Panaleons]; and
b)give or obtain a valuation of the property (or properties) once the water rights are transferred.
2)The Applicant wife be authorised to indicate to Mr Kennon that his fees will be paid from the proceeds of sale of the [LB] property if they are not otherwise paid.
3)The matter be otherwise adjourned to the court for mention on
28 October 2011 at 9.30am.
On 28 October 2011 his Honour further adjourned the matter to 23 November 2011 and ordered that each party file documents as to the form of orders the court should make.
On 23 November 2011 his Honour delivered further reasons for judgment and made final orders as follows:
1.The Applicant Wife be authorised to sell the properties at [LB] and [E].
2.That the Wife have full authority to act in relation to the sale/auction and transfer of the properties at [LB] and [E] as directed by the nominated Real Estate Agent to give effect to settlement of that property.
3.That the Wife be at liberty to do all acts and things necessary to give effect to these orders without the requirement to obtain the Husband’s consent or signature on any of the documents, and these orders act as authority for the Wife to do so.
4.That the Wife’s solicitor be appointed to conduct any conveyancing necessary to give effect to these Orders.
5.That the proceeds of the sale of the [LB] and [E] properties be applied as follows:
a)Firstly to pay real estate agents fees, commission and any other fees incurred in marketing the properties;
b)Secondly to pay the conveyancing costs associated with the sale of the [LB] and [E] properties.
c)Thirdly to pay [M & S] for all costs associated with the “water matter”.
d)Fourthly to pay all outstanding rates and charges associates [sic] with the land.
e)To disburse the proceeds in accordance with Judgment handed down on 3^rd August, 2011 by this Honourable Court subject to valuations of the [FN] and [C] properties as adopted by His Honour at paragraph 32.
6.That the [FN] property be transferred to the Wife.
7.That the Husband retain the [C] property.
8.That the Husband pay 1/3 of the costs of the Wife of and incidental to these proceedings.
9.Such further or other orders as this Honourable Court deems appropriate.
10.That the wife be authorised to sell the water rights either as a single entity or in separate lots at a reserved price agreed to by Mr Kennan [sic] of [M and S].
11.That the [LB] and [M] properties be sold with reserve prices of:
(a)[LB] $50,000;
(b)[M] $55,000
Although the wife be permitted to sell either or both the properties privately or by Public Auction at her discretion.
12.That the wife’s costs be as agreed or be taxed failing agreement.
13.Reserve liberty to apply for ancilliary orders should same be necessary.
The husband has previously sought to appeal the orders of 3 August 2011 and 23 November 2011. However, for various reasons which I do not need to go into for the purposes of this appeal, he needed extensions of time to proceed with those appeals and he appropriately made applications to this court for that purpose. I heard both those applications and I dismissed them. Thus, at least as far as this court is concerned, there was then no further opportunity for the husband to challenge the orders made by Federal Magistrate Burchardt on

3 August 2011, to the extent that that is relevant, given that all his Honour did was adjourn the matter. More importantly, there was no further opportunity to challenge the orders made on 23 November 2011.
Apparently the relevant certificates of title were not made available to enable the wife to carry out Federal Magistrate Burchardt’s orders namely, the sale of two properties and the transfer of one property to her. Accordingly the wife made an application to the Federal Magistrates Court seeking the cancelation of those certificates of title and the creation of new certificates of title, and that is the application that was heard by Federal Magistrate Turner.
His Honour’s reasons for judgment are necessarily brief, and in relation to the issue of the certificates of title, comprise two paragraphs. In the first paragraph his Honour referred to the orders made by Federal Magistrate Burchardt on

23 November 2011, and in the second paragraph his Honour said this, “Certificates of Title are required for those things to be done. The wife therefore is entitled to delivery to her of the relevant Certificates of Title”.
The balance of the reasons address the issue of costs and they comprise a further eight paragraphs. In the end result, as is obvious from what I have said, his Honour determined there were circumstances which justified the making of an order for costs, and he did so.

Discussion

It is quite apparent from the written summary of argument filed by the husband, from his affidavit filed in support of his application in an appeal filed on 9 July 2013, from certain written submissions in relation to that particular application filed by him on 19 July 2013, and to recall, that application was where the husband sought access to properties for the purposes of valuation, from the Notice of Appeal and particularly the second ground of appeal, and from the orders sought by the husband, and particularly paragraph 2 of those orders, that he has a misconception about the orders for property settlement made in this matter and what he is able to do about them. The husband seems to think that he is entitled to 45 per cent of the properties the parties had, and that is why he is pursuing the issue of valuations, and that is why he has framed Ground 2 in the Notice of Appeal in the way he does, and also the second order that he seeks.
However, that is not what Federal Magistrate Burchardt has ordered. As I have attempted to explain to the husband, not only during the hearing of this appeal, but on previous occasions, the final orders for property settlement are those made by Federal Magistrate Burchardt on 23 November 2011. The only aspect relevant to a division of 45 per cent / 55 per cent between the parties is paragraph 5(e) of the orders where, after the sale of the two properties, and after the payment of costs and other expenses, the balance is to be divided in accordance with the findings made by Federal Magistrate Burchardt and set out in his reasons for judgment of 3 August 2011.
The fact of the matter is that those two properties still have to be sold, and his Honour’s orders have to be carried out so that the husband can look forward, presumably, to receiving his share from the proceeds of those properties in accordance with those orders. It is not, to repeat, that the husband is entitled to 45 per cent of all of the properties. That is the fundamental misconception held by the husband, and which, as I say, I have attempted to disabuse him of, and to explain to him the correct position, but he seems not to take any notice of what I have to say about that.
The point in me particularly mentioning that is that that renders this appeal unmeritorious. In his written documents and his oral submissions the husband has persistently reverted to what he thinks his entitlement is, and the need for valuations. He complains that Federal Magistrate Turner has taken away his properties, and taken away his entitlements. As I have attempted to explain to the husband that is simply not what has happened.

What has happened is that Federal Magistrate Burchardt made final orders for property settlement which provided for two properties to be sold and one property to be transferred t the wife. Because certificates of title were required to effect that order, Federal Magistrate Turner made the orders that he did. It is as simple as that.
There is no error made by Federal Magistrate Turner in making the orders that he did identified by the husband either in his Notice of Appeal or in any written submission or in any oral submission made today. In relation to the issue of costs, likewise, there is no error that the husband has pointed to that the Federal Magistrate made in making the order for costs on 19 February 2013, and thus that too is an unmeritorious challenge.
Clearly what I have just said also determines the application in an appeal filed on 9 July 2013. The husband there seeks the ability to value properties, but unfortunately that application is based on his misconception that that needs to be done so that he can achieve his 45 per cent entitlement of all of the properties. That is simply not the case and that application in an appeal must be dismissed. Indeed, in any event, apart from that, it has no relevance whatsoever to the orders under appeal.
With the application in an appeal filed on 29 July 2013, and which is an application by the husband to be provided with transcript of the hearing of the 19 February 2013, that application has to be dismissed as well. The court does not have the funds to provide transcripts of hearings to litigants. The court does have a discretion to provide transcripts, but it has only done so in rare cases. Here, in my view, there is no utility or purpose to be served by obtaining the transcript of the hearing before Federal Magistrate Turner because of the fundamental misconception that the husband has about what his entitlement is pursuant to the orders made by Federal Magistrate Burchardt. That was not the issue before Federal Magistrate Turner and thus I fail to see how that transcript would assist the husband in this appeal, or indeed provide any necessary elucidation to enable this court to properly determine this appeal. As events have transpired I have found that the appeal is unmeritorious, and that is a relevant factor in determining whether transcript should be provided by the court.
Thus I propose to dismiss that application as well.

Conclusion

Having found no merit in either of the grounds of appeal the appeal must be dismissed.

Costs

I now have an application for costs before me and that is an application by the wife for her costs in relation to the directions hearing conducted by me on

14 June 2013 to list the matter for hearing today, and in relation to the hearing today.
The costs sought are $2,200 being fee on brief for counsel today, and $110 for the solicitor’s appearance on 14 June 2013. Those amounts are inclusive of GST and thus the total costs sought are $2,310.
The application is opposed by the husband.
As with any application for costs in this court whether in a first instance matter or on appeal is governed by s 117 of the Family Law Act 1975 (Cth) (“the Act”). That section insofar as it is relevant provides as follows:
(1) Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AC and 118, each party to proceedings under this Act shall bear his or her own costs.
(2) If, in proceedings under this Act, the court is of opinion that there are circumstances that justify it in doing so, the court may, subject to subsections (2A), (4), (4A) and (5) and the applicable Rules of Court, make such order as to costs and security for costs, whether by way of interlocutory order or otherwise, as the court considers just.
(2A)In considering what order (if any) should be made under subsection (2), the court shall have regard to:
(a) the financial circumstances of each of the parties to the proceedings;
(b)whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer; and
(g) such other matters as the court considers relevant.
As is apparent the section provides that each party is liable for their own costs, however if there are circumstances which justify it, this court has the discretion to make an order for costs. In considering whether to make an order for costs, and if so, what quantum that should be, the court is directed to take into account those factors set out in s 117(2A).
The most relevant factor for the purposes of this appeal is that the husband has been wholly unsuccessful. His appeal will shortly be dismissed and the applications in an appeal that he has filed will also shortly be dismissed.
That provides a sufficient and obvious circumstance to justify the making of an order for costs against the husband. However, I am obliged to take into account other factors and principally the respective financial circumstances of the parties.
I understand that the wife receives a disability pension of approximately $700 per fortnight, she has the care of the parties’ child Y who was born in 1996. I also understand the husband pays no child support because of his own financial position and the wife is not in receipt of any spousal maintenance. I would expect that all of that disability payment is expended by the wife on her living expenses, and having to support the parties’ child. In terms of property the wife resides in a property which is freehold and which is a property she received pursuant to the property settlement orders.
I also note that the property settlement orders have not yet been finalised. Of the two properties that were to be sold one has been sold, but not yet settled, and the other has not yet been sold. There will therefore be money the wife will receive, but it is unclear how much she will receive.
On the husband’s side he also receives a disability pension and I proceed on the basis that his expenses would also cover all of that pension. In terms of property, under the property settlement orders the husband retains the C property, but apart from that he says he has nothing. However, he has overlooked that he too, like the wife, will receive monies from the proceeds of sale of the two properties I have referred to. Again though, it is unclear how much.
Both parties are obviously in a difficult financial position. The wife perhaps more so than the husband given that he only has to support himself, whereas the wife has to support herself and the child.
It has often been said by the Full Court of this court that impecuniosity is no bar to costs where an appeal has been unsuccessful, and that is the view I take today, despite the difficult financial position that the husband finds himself in. I also note that there are outstanding costs orders that he has not met totalling something in the order of $20,000, so clearly he is in a difficult financial position.
What the husband must appreciate though, is that he is the one who has brought this appeal, he is the one who has obliged the wife to instruct her legal representatives to appear on this appeal, he is the one who has been completely unsuccessful in this appeal, and as I say, unfortunately, that arises out of a misconception that he has as to his entitlements under the property settlement orders.
I repeat, at every stage of this matter I have attempted to explain that to the husband but he has insisted on proceeding, and thus, he must take the consequences of that which is not only the dismissal of his appeal, but an order for costs. It cannot be the case that the husband brings an unmeritorious appeal causing the wife to incur significant legal expenses, and he not have to meet those costs.
I therefore propose to make an order for costs as sought.

I certify that the preceding forty-nine (49) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on

15 August 2013.

Associate:

Date: 21 August 2013