Versace & Versace - [2009] FamCAFC 122

FAMILY COURT OF AUSTRALIA

VERSACE & VERSACE

[2009] FamCAFC 122

FAMILY LAW - APPEAL – Application for leave to appeal from Federal Magistrate – parties consent to dismissing Notice of Appeal – application for costs – property settlement proceedings continuing in Federal Magistrate’s Court.

Family Law Act 1975 (Cth), ss 106B, 117

APPELLANT:

MRS VERSACE

RESPONDENT:

MR VERSACE

INTERVENOR:

MR NICOLI

FILE NUMBER:

ADC

4576

2008

APPEAL NUMBER:

2009

DATE DELIVERED:

27 May 2009

PLACE DELIVERED:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

27 May 2009

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

10 March 2009

LOWER COURT MNC:

[2009] FMCAfam 336

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Polson

SOLICITOR FOR THE APPELLANT:

Loretta Polson Lawyer

COUNSEL FOR THE RESPONDENT:

Mr Harris

SOLICITOR FOR THE RESPONDENT:

Robinson & Mason

COUNSEL FOR THE INTERVENOR:

Mr Starke

SOLICITOR FOR THE INTERVENOR:

Starke Lawyers

Orders

That the Notice of Appeal filed on 2 April 2009 be dismissed and removed from the active pending cases list.
That the wife pay to the trust account of the solicitors for the husband on behalf of the husband the sum of FIVE HUNDRED AND FIFTY DOLLARS [$550.00] by way of costs such sum to be paid upon the conclusion of the property settlement proceedings currently before the Federal Magistrates Court in this matter.
That the wife pay to the trust account of the solicitors for the second respondent on behalf of the second respondent the sum of FIVE HUNDRED AND FIFTY DOLLARS [$550.00] by way of costs such sum to be paid upon the conclusion of the property settlement proceedings currently before the Federal Magistrates Court in this matter.

IT IS NOTED that publication of this judgment under the pseudonym Versace & Versace & Nicoli is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SA 26 of 2009
File Number: ADC 4576 of 2008

MRS VERSACE

Appellant

And

MR VERSACE

Respondent

And

MR NICOLI

Intervenor

EX TEMPORE REASONS

This is an application for leave to appeal against orders made by Brown FM on 10 March 2009, and in the event of leave being granted an appeal against those orders.
This matter was last before me on 12 May 2009 when Ms Polson for the applicant sought an adjournment to clarify her instructions as to whether the matter would be proceeding or not. Today, Ms Polson has advised that her client has instructed her not to proceed with the appeal.
Ms Polson has prepared a Notice of Discontinuance but that has not been filed as yet. I can save some time and effort with that though by dismissing the Notice of Appeal today. Ms Polson asks me to do that and that is consented to by the other parties to the Application. Thus I propose to make that order.
Consequent upon the dismissal of the Notice of Appeal, both respondents make an application for costs. That was foreshadowed on the last occasion in the event that the applicant determined not to proceed with the matter.
There is no question here that there are circumstances justifying an order for costs. I still need though, as required under s 117 of the Family Law Act 1975, to take into account, in exercising my discretion as to whether I will make an order for costs and also if I do what the amount of those costs might be, the financial circumstances of the parties.
There is no other factor arising from sub-section 117(2A) to which I have been referred by any of the parties.
In terms then of the respective financial circumstances, I fortuitously have financial statements available to me from the Federal Magistrates Court file.
The wife's financial statement, was filed on 18 November 2008. That tells me that the wife has an income of $500, which is a Social Security pension, and she has expenses of $485 per week. She has the care of the two children of the relationship and they are aged nine and six years respectively.
Since the filing of the document, I am aware that there has been an order made in the Federal Magistrates Court for the husband to pay the wife $500 per week by way of maintenance. Ms Polson's instructions are that that amount is not being paid. Mr Harris for the husband tells me that his client is paying $300, and why that is being done is that his client is apparently seeking to vary the order made by the Federal Magistrate.
With the husband's financial circumstances there is a financial statement which has been filed quite recently, namely on 28 April 2009. That tells me the husband is employed as a finance broker. He has an income of $557 per week and he has expenditure of $379 per week. He says he has no property. He has superannuation of $11,000 and he has liabilities of $70,000.
In terms of the second respondent Mr Nicoli, Mr Starke appears for him. Mr Nicoli has not filed any financial documents in this matter, and thus I have relied upon what his counsel has put to me today in general terms. That is that he works, he has income and he has assets. His financial position is relatively stable and secure.
Both respondents seek an order for costs in the same amount, namely they each seek $550. That is loosely based on a schedule which has been provided to me by Mr Harris for the husband, setting out the detail of the work Mr Harris has performed and the relevant amount from the Family Law scale. $550 is not the precise amount, but it is near enough and Mr Starke is prepared to adopt that as well on behalf of his client.
Mr Harris has put to me that his client would not be adverse to me making an order that the payment of any costs be delayed until the property settlement proceedings in this case in the Federal Magistrates Court have been concluded either by judgment or settlement.
Mr Starke does not make the same concession on behalf of his client. I note though that Mr Starke's client is now well and truly involved in this case in that there has been an amendment by the wife to her final orders application seeking an order under s 106B of the Act to set aside the transfer of the former matrimonial home from a company to Mr Nicoli.
I just perhaps need to dwell on that for the moment, because it is relevant to the financial circumstances of the parties. It seems that the major asset of the parties in this case was a home at M. It apparently was registered in the name of a company. I am not quite sure what interest the parties had in it, but it was certainly their matrimonial home.
That property was transferred to Mr Nicoli by the company, but arranged, as I understand it, by the husband. That property is now owned by Mr Nicoli and he rents it out. Thus these proceedings are very much about that property. I understand it has been formally valued at in excess of $1 million. There were significant liabilities attached to it, by way of mortgage but they have all been paid out.
Thus there is a complicated set of facts in relation to that issue, which obviously I cannot make any findings about or deal with in any way in this costs application, but I note that in the background there is a substantial property which is being argued about, and it may be that that property comes back into the pool and that will provide some funds ultimately for the wife. But again, I do not know what the result of that is going to be.
That is all I can say about the financial circumstances of the parties. As I say, it is relevant. To repeat though, there are certainly circumstances here justifying orders for costs and I propose to make those orders. The two queries in my mind at the moment is how much and the time to pay.
In the circumstances I do not consider that the amounts sought are unreasonable. There have been two hearings in this case, 12 May 2009 and today, and obviously work done by the solicitors in terms of getting to those hearings.
I might have perhaps fixed lesser amounts if the orders were to require immediate payment, because I am concerned at the wife's current financial circumstances. On the face of it, she cannot afford to meet orders for costs immediately, and thus what I am disposed to do is to make orders in terms of the amounts sought, but delay payment of those sums until the property settlement proceedings in the Federal Magistrates Court have been concluded.

I certify that the preceding 20 paragraphs are a true copy of the reasons for judgment of the Honourable Justice Strickland delivered 27 May 2009.

Associate