Perdicari & Perdicari

Case [2019] FamCAFC 147

FAMILY COURT OF AUSTRALIA

PERDICARI & PERDICARI [2019] FamCAFC 147

FAMILY LAW – APPEAL – INJUNCTION – Appeal against interim orders – Leave to appeal – Exclusive occupation –Where the primary judge correctly determined the balance of hardship and the balance of convenience –  Application to adduce further evidence – Had this evidence been adduced at first instance, the consideration of hardship in relation to the appellant’s ability to re-house would have been different – By reason of further evidence error demonstrated – Leave to appeal granted – Appeal allowed – Discretion re-exercised.  

FAMILY LAW – APPEAL – COSTS – Where an order for costs would not be appropriate – Costs certificates to issue for the appeal. 

Family Law Act 1975 (Cth) ss 93A, 94AAA, s 114(1)(b)
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 9
Akston & Boyle [2010] FamCAFC 56
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v the King (1936) 55 CLR 499; [1936] HCA 40
In the Marriage of Sieling (1979) 24 ALR 357
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
APPELLANT: Mr Perdicari
RESPONDENT: Ms Perdicari
INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW
FILE NUMBER: SYC 8041 of 2017
APPEAL NUMBER: EA 21 of 2019
DATE DELIVERED: 2 September 2019
PLACE DELIVERED: Sydney
PLACE HEARD: Sydney
JUDGMENT OF: Ryan J
HEARING DATE: 14 June 2019
LOWER COURT JURISDICTION: Federal Circuit Court of Australia
LOWER COURT JUDGMENT DATE: 20 February 2019
LOWER COURT MNC: [2019] FCCA 832

REPRESENTATION

SOLICITOR FOR THE APPELLANT: Self-represented
COUNSEL FOR THE RESPONDENT: Mr G Kenny
SOLICITOR FOR THE RESPONDENT: Bell Lawyers
SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

  1. That the appellant have leave to adduce further evidence in the application for leave to appeal and the appeal, being Annexure ‘H’ to the affidavit of Mr Perdicari filed on 28 May 2019.

  2. Other than as provided for in Order 1 above, the application to adduce further evidence be dismissed.

  3. The appellant be granted leave to appeal Orders 1-6 (inclusive) dated 20 February 2019.

  4. The appeal be allowed.

  5. Orders 1, 2, 3, 4, 5 and 6 of 20 February 2019 be set aside.

  6. Pending further order, within seven (7) days of the date of these orders (or within such further period as the lending authority requires), the parties shall do all acts and sign all documents necessary to cause a drawdown of $50,000 from funds held in the D Bank home loan account, account number: …01, and the parties shall thereafter cause that $50,000 to be deposited in an account held by the appellant.

  7. Pending further order, that any additional interest charged against the D Bank home loan account referred to in the above order (Order 6), in relation to the abovementioned drawdown, be met by the respondent. 

  8. Pending further order, no later than twenty one (21) days from the date upon which the appellant receives the funds referred to in Order…

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AGLC
Perdicari & Perdicari [2019] FamCAFC 147
Case
[2019] FamCAFC 147
Decision Date

CaseChat Overview and Summary

Perdicari & Perdicari was an appeal concerning interim family law orders, including an injunction against the appellant vacating a family home. The court was tasked with determining whether the appellant should be granted leave to adduce further evidence and whether an order for costs would be appropriate. The appeal centred on whether the primary judge had correctly exercised their discretion in granting the interim orders, particularly regarding the balance of hardship and the balance of convenience. The appellant argued that had the additional evidence been presented at the first instance, the primary judge’s consideration of hardship would have differed, leading to a different outcome.

The court found that the primary judge had correctly exercised their discretion in determining the balance of hardship and the balance of convenience. However, the court identified an error in the consideration of hardship in relation to the appellant’s ability to re-house, which was not evident from the evidence presented at the first instance. This error demonstrated that had the additional evidence been adduced, the primary judge might have reached a different conclusion regarding the hardship to the appellant. Consequently, the court granted the appellant leave to appeal the interim orders and allowed the appeal, setting aside the original orders. The court also declined to make an order for costs but granted costs certificates to both parties under the Federal Proceedings (Costs) Act 1981 (Cth).

The court's orders included allowing the appellant to adduce further evidence, setting aside the interim orders, and directing specific actions regarding the property and financial obligations between the parties. The orders provided for a drawdown from a home loan account and specified that the appellant must vacate the property within a certain period. The respondent was granted exclusive occupation of the property and required to maintain it and pay associated costs. The court's final orders reflect a detailed re-exercise of discretion, balancing the interests of both parties and addressing the specific circumstances of the case.

Orders

Orders of the court

1.

That the appellant have leave to adduce further evidence in the application for leave to appeal and the appeal, being Annexure ‘H’ to the affidavit of Mr Perdicari filed on 28 May 2019.

2.

Other than as provided for in Order 1 above, the application to adduce further evidence be dismissed.

3.

The appellant be granted leave to appeal Orders 1-6 (inclusive) dated 20 February 2019.

4.

The appeal be allowed.

5.

Orders 1, 2, 3, 4, 5 and 6 of 20 February 2019 be set aside.

6.

Pending further order, within seven (7) days of the date of these orders (or within such further period as the lending authority requires), the parties shall do all acts and sign all documents necessary to cause a drawdown of $50,000 from funds held in the D Bank home loan account, account number: …01, and the parties shall thereafter cause that $50,000 to be deposited in an account held by the appellant.

7.

Pending further order, that any additional interest charged against the D Bank home loan account referred to in the above order (Order 6), in relation to the abovementioned drawdown, be met by the respondent.

8.

Pending further order, no later than twenty one (21) days from the date upon which the appellant receives the funds referred to in Order 6 above, he shall vacate the property at Suburb C (“Property A”) and remain away therefrom.

9.

Pending further order, commencing twenty two (22) days from the date upon which the appellant receives the funds referred to in Order 6 above, the respondent shall have exclusive occupation of Property A.

10.

Pending further order, upon the respondent taking occupation, she shall be responsible for paying the mortgage, statutory rates and charges, utilities, house and contents insurance and outgoings including water rates, council rates and the like in relation to repairs and improvements and any other sums due or accruing in respect of Property A.

11.

Pending further order, the respondent shall be responsible for maintaining and keeping the property in a clean and presentable condition.

12.

Pending further order, the respondent shall not remove any of the household contents unless otherwise agreed between the parties.

13.

There be no order as to costs.

14.

The Court grants to the appellant a costs certificate pursuant to the provisions of s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.

15.

The Court grants to the respondent a costs certificate pursuant to the provisions of s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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