Perica & Perica

[2022] FedCFamC1A 184

Federal Circuit and Family Court of Australia

(DIVISION 1) APPELLATE JURISDICTION

Perica & Perica [2022] FedCFamC1A 184

Appeal from:	Perica & Perica [2022] FedCFamC2F 921
Appeal number(s):	NAA 177 of 2022
File number(s):	HBC 984 of 2021
Judgment of:	TREE J
Date of judgment:	14 November 2022
Catchwords:	FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the applicant appeals from an order dismissing an Application for Review of a registrar’s decision – Where the registrar dismissed the applicant’s interim property application for sole occupation – Where the applicant transferred the subject property into the respondent’s sole name post-separation – Where the decision of the primary judge is attended by significant doubt – Whether the refusal of leave would occasion the applicant a substantial injustice – No substantial injustice – Leave to appeal refused – Appeal dismissed – Application in an Appeal dismissed – Costs ordered against applicant.
Cases cited:	Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Number of paragraphs:	20
Date of hearing:	10 November 2022
Place:	Cairns (via video link)
The Applicant:	Self-represented litigant
Solicitor for the Respondent:	Murdoch Clarke

ORDERS

NAA 177 of 2022
HBC 984 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR PERICA

Applicant

AND:

MS PERICA

Respondent

order made by:	TREE J
DATE OF ORDER:	14 november 2022

THE COURT ORDERS THAT:

1.Leave to appeal is refused.

2.The Application in an Appeal filed 17 October 2022 is dismissed.

3.The Notice of Appeal filed 18 August 2022 is dismissed.

4.The applicant is to pay the respondent’s costs in the sum of $1,223.17 within 28 days.

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

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Perica & Perica has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

TREE J:

introduction

1. Mr Perica (“the husband”) seeks leave to appeal, and if granted, to appeal from an order made by the primary judge on 21 July 2022 that dismissed his Application for Review of a Senior Judicial Registrar’s decision. That decision, made on 26 April 2022, dismissed the husband’s application for various interim property orders, directed that all further interim applications be listed before that Senior Judicial Registrar, and ordered costs against the husband in the sum of $3,500.

2. Ms Perica (“the wife”) opposes any grant of leave and, if leave is granted, the appeal itself.

3. For the reasons that follow, leave will be refused and hence the appeal will be dismissed.

   background

4. The husband and wife were in a relationship for approximately 16 years from 1999 until 2015. Thereafter they remained living under the one roof until the husband left the former matrimonial home (“the home”) in 2018. The wife has remained living there since.

5. Three now adult children were born to the parties’ relationship.

6. In 1992, the husband purchased in his sole name the land on which the home is located and subsequently built it. The wife moved into the home at the time of the commencement of the relationship in 1999.

7. After separation, in 2019 the husband transferred the home into the wife’s sole name, although at the commencement of these proceedings, he lodged a caveat over it.

8. In September 2021, the husband initiated property settlement proceedings. On 15 February 2022, he filed an Application in a Proceeding seeking sole occupancy of the home, that the wife vacate the home, and that she be restrained from entering or being within 100 m of it. The wife sought that the application be dismissed with costs.

9. As indicated earlier, the Senior Judicial Registrar heard the application and made the orders as outlined at [1]. On 16 May 2022, the husband filed an Application for Review of the Senior Judicial Registrar’s decision and after a hearing on the papers, the primary judge dismissed it. The husband now appeals from that decision, although he acknowledges he needs leave to bring any such appeal.

   leave to appeal

10. Whilst not prescriptive, the usual and conjunctive criteria adopted in this Court for leave to appeal are as set out in Medlow & Medlow (2016) FLC 93-692 (“Medlow”) namely that leave to appeal will only be granted where:

    (a)The decision of the primary judge was “attended by sufficient doubt” to warrant its reconsideration; and

    (b)      If leave were refused, a “substantial injustice” would ensue.

11. It may be safely assumed that the decision of the primary judge relating to the sole occupation order is attended by significant doubt, as the husband contends. For instance at [39] the primary judge said:

    39.The application was an application that, in effect, the Court remove the wife from the property and restrain her from coming within 100 m of the property, therefore allowing the husband to have exclusive use of the property.  Obviously, this was a matter for trial and not for an interim hearing.

12. To like effect at [44] the primary judge continued:

    44.What the husband has asked for, in his interim application, is a decision that is the same result which he has sought in his application for final orders.  This simply cannot be done on an interim basis.

13. Assuming that the primary judge was there saying that no sole occupation order could be made until after a trial, that is plainly erroneous, particularly as the husband only sought it on an interim basis (although perhaps his application did not specifically make that clear), and given that it would ordinarily be counter-intuitive to, on a final basis, allow sole occupation of a property not owned by a party. The first limb of Medlow therefore is easily satisfied.

14. The focus then, is whether the refusal of leave would occasion the husband a substantial injustice. As to that, in his Notice of Appeal he contended:

    2.If leave to appeal is refused, substantial injustice would result: the [wife] will continue living rent-free in the house that she did not contribute to, near her late father’s vacant house; whilst I will continue paying rent, despite possessing the house outright before cohabitation. 

15. Even the most cursory examination of that demonstrates that no injustice – much less any substantial injustice – would flow to the husband if leave were refused. His paying rent, rather than living rent free in the home he gifted to the wife post-separation, is plainly something which, upon reflection, he now regrets, but is entirely of his making. How that could be unjust is entirely unclear. I do not overlook the husband’s claims that he only transferred the home under duress, but even if that were so, and I cannot be satisfied to the requisite standard on the present material, it is still not a substantial injustice that the wife remain entitled to occupy the home until trial.

16. Although it might be that the husband also seeks to appeal the other aspects of the Senior Judicial Registrar’s decision dealt with by the primary judge in the review, no ground challenges them, and hence I do not need to consider them further.

17. Leave to appeal is refused.

18. That obviates any need to consider the husband’s Application in an Appeal filed 17 October 2022 in which he seeks to introduce into evidence in the appeal his contemporaneously filed 111 page affidavit. That application will be dismissed.

    costs

19. In the event leave was refused, the wife sought costs in the sum of $1,223.17. Notwithstanding the primary judge’s error, nonetheless the husband’s application for leave to appeal was never likely to succeed, and hence should not have been brought.

20. The husband should pay the wife’s costs in the sum claimed within 28 days.

I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree.

Associate:

Dated:       14 November 2022