ROBECK & ROBECK
[2017] FamCAFC 224
•25 October 2017
FAMILY COURT OF AUSTRALIA
| ROBECK & ROBECK | [2017] FamCAFC 224 |
| FAMILY LAW – APPEAL – NOTICE OF APPEAL – Where the appeal is incompetent – Where no appealable error by the trial judge is identified – Appeal dismissed. FAMILY LAW – APPEAL – COSTS – Where the respondent seeks her costs – Where there are circumstances which justify such an order – Costs ordered in favour of the respondent. |
| Family Law Act 1975 (Cth) ss 94AAA(3) and 117 |
| APPELLANT: | Mr Robeck |
| RESPONDENT: | Ms Robeck | ||||
FILE NUMBER: | MLC | 6500 | of | 2017 | |
| APPEAL NUMBER: | SOA | 69 | of | 2017 |
| DATE DELIVERED: | 25 October 2017 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Strickland J |
| HEARING DATE: | 25 October 2017 |
| LOWER COURT JURISDICTION: | Federal Circuit Court of Australia |
| LOWER COURT JUDGMENT DATE: | 16 August 2017 |
| LOWER COURT MNC: | NA – Transcript of hearing |
REPRESENTATION
| THE APPELLANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Mr Robertson |
| SOLICITOR FOR THE RESPONDENT: | Zervos Lawyers |
orders
UPON NOTING that this Order is made subject to a Direction of the Chief Justice pursuant to s 94AAA(3) of the Family Law Act 1975 (Cth)
IT IS ORDERED THAT:
The application in an appeal filed on 20 October 2017 be dismissed.
The Notice of Appeal filed on 13 September 2017 be dismissed.
The appellant husband pay the respondent wife’s costs of and incidental to the Notice of Appeal fixed in the sum of ONE THOUSAND THREE HUNDRED AND TWENTY DOLLARS ($1,320).
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Robeck & Robeck has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
|
Appeal Number: SOA 69 of 2017
File Number: MLC 6500 of 2017
| Mr Robeck |
Appellant
And
| Ms Robeck |
Respondent
EX TEMPORE REASONS FOR JUDGMENT
This is a directions hearing in relation to a Notice of Appeal filed by Mr Robeck (“the husband”) on 13 September 2017 appealing against orders made by Judge Curtain on 16 August 2017. The appeal is opposed by Ms Robeck (“the wife”).
The intention today was to list the appeal for hearing. However, it has become apparent upon reading the documents, and hearing submissions today, that this is an appeal that is incompetent and should be dismissed. It has no basis whatsoever, and it would be a waste of this Court’s time to allow it to proceed.
The proceedings commenced in the Federal Circuit Court of Australia on 30 June 2017 when the wife filed an Initiating Application seeking orders for property settlement and spousal maintenance.
There was, as is required, a Response filed to that Initiating Application by the husband. That Response was prepared by the husband, it seems without the assistance of any legal representative, and in that Response, as in the application to which I have just referred, the husband is described as “Mr Robeck”.
The proceedings then came before Judge Curtain on 16 August 2017 for the purpose of orders being made listing the matter for final hearing, and making appropriate orders to prepare for that final hearing.
The husband appeared before Judge Curtain in person, the wife was represented by counsel.
It seems that there were Minutes of Order prepared by the wife’s legal representatives, and they were sought to be tendered before Judge Curtain. However, before that happened it is apparent from the transcript that the matter was stood down to enable the parties to confer.
When the matter resumed before his Honour, to repeat, Minutes of Order were sought to be tendered, but there were three matters which counsel for the wife indicated to his Honour were matters that the husband wished to raise in terms of orders that the husband wanted, different from those orders that the wife sought in the Minutes of Order.
Pausing there, in an attempt to understand what this appeal is about, and in response to a question to that effect that I asked at the commencement of this directions hearing, the husband indicated that his concern was that the orders made on 16 August 2017 were in fact not made by consent, and he had not signed the Minutes of Order. However, it is not correct to suggest that the orders were made by consent when one looks at the transcript. His Honour asked counsel for the wife whether the orders he sought were by consent, and counsel answered “No, your Honour” and he continued, “I understand, as best I can, your Honour – I’ve had conversations with my friend Mr Robeck – that they’re all but, I think, three matters that he wants – that are by consent” (Transcript 16 August 2017, page 2, lines 36, 46 – 47, page 3, line 1). His Honour then dealt with those three matters and ultimately made what I consider to be appropriate orders in the circumstances, to both list the matter for final hearing, and to prepare the matter for that final hearing.
There was nothing unusual whatsoever either in the orders his Honour made, or in the discussions that took place before his Honour on that day.
On 13 September 2017 the husband filed his Notice of Appeal. As I raised with the husband this morning, it is impossible to discern from that Notice of Appeal what his complaint is about these orders, and more specifically, given that this is an appeal, it is impossible to discern what the alleged appealable errors made by the trial judge are.
In the Notice of Appeal under the heading “Grounds of Appeal” there are five pages of narrative which it is impossible to understand in terms of identifying any competent ground of appeal against the orders made by the trial judge. That was the purpose in asking the husband today what his complaint was, and what the appeal was about. As I say, his first response was in relation to whether there was consent or not to the orders made on 16 August 2017. I have indicated to the husband that that is not a basis for an appeal. Indeed, the orders made by his Honour are not even described as having been made by consent, and, I repeat, counsel in his opening to the trial judge did not express them to be such.
In any event, whether the orders were by consent or not is irrelevant; they were appropriate orders, and it has not been demonstrated to this Court that any error has been made by the trial judge in making those order.
The second issue the husband put to me in relation to what the appeal is about is, like his Notice of Appeal, impossible to understand. He says his name is not Mr T Robeck. He concedes his surname is Robeck, but says that his first name is A. He made comments like “T Robeck is an entity”, whatever that means. I attempted to clarify that with him, but frankly, I did not receive a sensible answer.
It is also readily apparent that that issue, for what it is worth, and for what relevance it has, was not raised before the trial judge, and as I have indicated in referring to the Initiating Application and the Response, it is not a matter which was raised at the time the proceedings were commenced. Indeed, to repeat, the husband has responded using the name T Robeck.
I have available to me earlier proceedings between these two parties in the Family Court of Australia in 1997. They were proceedings for property settlement which were ultimately discontinued. Significantly though, in that file, there is a Certificate of Marriage which describes the parties as “T Robeck”, the husband, and “H S” the wife. “S” was of course the wife’s maiden name. There is no suggestion in that file that the husband in these proceedings is not T Robeck.
In any event, even if his first name is incorrect on the documents, that does not demonstrate appealable error by the trial judge.
There was one other matter which I addressed in order to further confirm and clarify whether these proceedings were between the appellant husband who has appeared before me in this directions hearing, and the wife. I went to the first instance file and identified two properties which were the subject of the dispute, and Mr Robeck, the man who has appeared before me today, indicated that he owns those two properties and that there is a dispute about them.
In summary then, this is an incompetent appeal. No appealable error by the trial judge is identified, and I propose to dismiss the appeal
I now have an application for costs consequent upon my order dismissing the Notice of Appeal.
The costs sought total $4,766.85, of which $1320 is the brief fee of counsel who appeared on behalf of the wife.
In terms of whether costs should be ordered, that is governed by s 117 of the Family Law Act 1975 (Cth), and what needs to be demonstrated is that there is a circumstance justifying an order for costs, otherwise each party is to bear their own costs.
Plainly there is a circumstance here justifying an order for costs in that the appeal has been wholly unsuccessful, and in my view costs are warranted. However, they are not warranted to the extent of the amount sought. In my view it is exorbitant for solicitors to claim costs of $3,446.85 in a matter where they have filed nothing. Plainly they would have had to undertake some work in perusing the Notice of Appeal, and providing advice to the client, but in my view it is unreasonable to suggest that the costs associated with that exercise would be $3,446.85. In any event, unless there is a justification for indemnity costs, an order for costs is always on a party/party basis. Further, the wife’s counsel has not been able to indicate to me whether the amount sought by his solicitors is on scale, although frankly, I would doubt that, but if it is on the basis of indemnity costs, there is nothing he could put to me as he has no instructions about that.
In the circumstances I am only prepared to make an order for costs in the sum of $1,320.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Strickland delivered on 25 October 2017.
Associate:
Date: 31 October 2017
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