SEMENOV & SEMENOV - [2012] FamCAFC 117

FAMILY COURT OF AUSTRALIA

SEMENOV & SEMENOV

[2012] FamCAFC 117

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – EXTENSION OF TIME TO FILE - where the applicant says he was not aware of the timeframe that applied to the filing of a Notice of Appeal – where the applicant had a lawyer acting for him and is therefore treated as knowing the Rules of Court – where an appeal is not the correct process in this case given the grounds of appeal – where there is no merit in the appeal – application dismissed.

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – COSTS – application by the respondent for costs in the sum of $1,400 – where the application is opposed by the applicant on the basis of his financial situation – where the property settlement orders provide for the applicant to receive $150,000 – where the applicant has been wholly unsuccessful – where there are circumstances that justify an order for costs – costs ordered in the sum of $700.

Family Law Act 1975 (Cth) – s 117
Family Law Rules 2004 (Cth)

APPLICANT:

MR SEMENOV

RESPONDENT:

MS SEMENOV

FILE NUMBER:

MLC

10280

2010

APPEAL NUMBER:

SOA

2012

DATE DELIVERED:

2 August 2012

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

2 August 2012

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

22 March 2012

LOWER COURT MNC:

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Appellant appeared in person

COUNSEL FOR THE RESPONDENT:

Mr Moisidis

Orders

The application in an appeal filed on 30 May 2012 be dismissed.
The applicant pay the sum of SEVEN HUNDRED DOLLARS ($700) by way of costs, such sum to be paid out of the amount of ONE HUNDRED AND FIFTY THOUSAND DOLLARS ($150,000) to be paid to the applicant pursuant to paragraph 12 of the Consent Orders made by Federal Magistrate Riley on 22 March 2012.

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

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 44 of 2012
File Number: MLC 10280 of 2010

MR SEMENOV

Applicant

And

MS SEMENOV

Respondent

EX TEMPORE REASONS FOR JUDGMENT

I have before me an application in an appeal filed by Mr Semenov in which he seeks an extension of time to file a Notice of Appeal against consent orders made by Federal Magistrate Riley on 22 March 2012.
That application initially came before me on 22 June 2012. At that time I indicated to Mr Semenov who was acting for himself, and who had prepared his documents himself, that the affidavit was inadequate, and did not allow me to properly consider his application. Therefore, by consent of the respondent, I adjourned the application to today to enable Mr Semenov to file amended documentation. He has done that and he has now filed an amended Draft Notice of Appeal and a further Affidavit. In that Affidavit he has certainly attempted to address the issues that I raised with him at the previous hearing.
One of the factors that I need to address in considering the application for an extension of time is any explanation given for the failure to file the Notice of Appeal within the 28 day time period allowed under the Family Law Rules 2004 (Cth). Mr Semenov has explained to me, and it is in his Affidavit as well, that his reason for not filing his Notice of Appeal was that he did not know that he had to. I have explored with him today though, the discussions he had with his lawyer at the time about this, and I am not able to come to any concluded view, save and except to say that I accept at face value that Mr Semenov was unaware of the timeframe. On the other hand, as I am sure Mr Moisidis would have put to me in submissions, that is not necessarily an adequate explanation. Mr Semenov had a lawyer acting for him, and he indeed continued to act for him for several weeks after the order was made. In those circumstances

Mr Semenov is treated as knowing the Rules of Court and in particular the timeframe for filing an appeal, but as I say I have not come to any concluded view about the adequacy of the explanation.
I have been more concerned to address with Mr Semenov whether the appeal process is in fact the process that he should have embarked upon and I am concerned about that because of the specific grounds of appeal that

Mr Semenov has now set out in his amended Notice of Appeal.
One of the prime factors that I need to consider in determining an application for an extension of time is of course the merits of the appeal, but, as I say, here, not only is it a question of whether there are any grounds of appeal that can succeed, but more to the point whether an appeal is the correct process.
I will not go through the grounds of appeal again but I have taken Mr Semenov through his specific grounds of appeal, and it is quite apparent to me that none of those grounds will be successful. They do not demonstrate in any way an error by the Federal Magistrate, and as I have explained to Mr Semenov that is the central issue in any appeal.
Those grounds of appeal comprise complaints for example against his lawyers at the time, and against the interpreter used, and allege a miscarriage of justice. On that basis I have indicated to Mr Semenov that there are other applications that he may be able to make in an attempt to achieve the results that he seeks. For example, an application pursuant to s 79A of the Family Law Act 1975 (Cth) (“the Act”)in relation to the property order, and in relation to the parenting orders an application to vary or discharge those orders.
However, it is a matter obviously for Mr Semenov to take that on board and consider his position and seek legal advice if he thinks he needs to and pursue those applications. I have stressed to Mr Semenov and I stress again, that in raising those matters with him I am not to be taken to be saying anything about whether he will succeed in those applications, and indeed I am not in any position to provide him with any legal advice.
Given that it is quite apparent that there is no merit in the appeal, and specifically there is no ground of appeal that could succeed, albeit there may be an adequate explanation for the delay, it seems to me that I have no other choice but to dismiss the application. The effect of that is that Mr Semenov will not be able to pursue the appeal that he has sought to file.
I now have an application by the respondent for costs in the sum of $1,400. I am told that those costs cover the two appearances by counsel that have been made in this matter on 22 June 2012 and today. I note that there have been no documents filed by the respondent.
Mr Semenov opposes the application for costs. He says that he is in such a financial position that he cannot afford to pay those costs, he says he has ongoing expenses, and he says that he still owes money to lawyers. The problem he has though, as far as I am concerned, is that the property settlement orders that were made provide for him to receive $150,000. I understand that some of that money is committed to expenses but I proceed on the basis that not all of it is.
Any application for costs whether it be in an appeal or in a first instance matter is governed by s 117 of the Act and relevantly that provides as follows:
(1) Subject to subsection (2), subsection 70NFB(1) and sections 117AA, 117AB, 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) 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.
In summary those sub-sections provide for each party to bear their own costs but if there are circumstances that justify an order for costs then an order for costs can be made and that is to be considered in the context of the factors set out in s 117(2A).
One of the relevant factors is the financial circumstances of the parties and another very relevant factor is whether a party has been wholly unsuccessful. Here we have a situation where Mr Semenov has been wholly unsuccessful in his application; indeed it was a misguided application. Mr Semenov is representing himself and I do not know what legal advice he has sought about this application, maybe none, but Mr Semenov cannot hide behind the fact that he is representing himself when the action that he has taken has inevitably led to the need for the respondent to incur legal costs in meeting this application
I find that there are circumstances that justify an order for costs and the question for me now is how much that order should be. I also add that because I am relying on the fact that Mr Semenov will in due course receive $150,000 by way of the property settlement order, any order that I make will necessarily be on the basis of the amount of costs being met out of that $150,000.
Taking into account the relevant scale of costs I consider that an amount approximately mid-way between the available range is appropriate.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered on 2 August 2012.

Associate:

Date: 9 August 2012