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

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.
Ms Perica (“the wife”) opposes any grant of leave…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Perica & Perica

Details

AGLC: Perica & Perica [2022] FedCFamC1A 184
Case: [2022] FedCFamC1A 184
Decision Date

CaseChat Overview and Summary

In the case of Perica & Perica, the husband appeals the primary judge's decision to dismiss his application for review. The dispute revolves around the ownership and occupancy of the former matrimonial home, which the husband had purchased and built prior to the relationship. The wife has remained in the home since the separation. The husband sought sole occupancy of the home and sought an order to prevent the wife from entering or being within 100 meters of the home. The wife opposed the application and sought dismissal with costs. The Senior Judicial Registrar dismissed the husband's application, and the primary judge upheld that dismissal in the application for review. The husband now appeals, seeking leave to do so.

The central legal issues in this case pertain to the authority of the court to grant an interim sole occupancy order in property settlement proceedings and the circumstances under which leave to appeal should be granted. Specifically, the court needed to determine whether the primary judge's decision to dismiss the husband's application for review was attended by sufficient doubt and whether refusing leave to appeal would result in substantial injustice. The husband argued that the primary judge erred in not granting the sole occupancy order, while the wife maintained that the order was correctly dismissed.

The court examined the criteria for granting leave to appeal as outlined in Medlow & Medlow. The court found that the primary judge's decision to dismiss the husband's application for review was indeed attended by significant doubt, as the husband's request for sole occupancy was erroneous and counter-intuitive on an interim basis. However, the court held that the second limb of Medlow was not satisfied. The court found that the husband's argument that refusing leave would cause substantial injustice was not compelling enough to warrant an appeal. The court concluded that the primary judge's decision was sound and that no substantial injustice would result from refusing leave to appeal.

The appeal was dismissed, and the decision of the primary judge was upheld. The husband was not granted leave to appeal, and the orders made by the Senior Judicial Registrar and upheld by the primary judge remain in place.

Orders

Orders of the court

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Background

Background to the litigation

For the reasons that follow, leave will be refused and hence the appeal will be dismissed.background 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. Three now adult children were born to the parties’ relationship. 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. 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. 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. 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 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. 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. 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. 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.

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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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

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

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