Somers and Ettridge (No 2)

FAMILY COURT OF AUSTRALIA

SOMERS & ETTRIDGE (NO 2)

[2019] FamCAFC 229

FAMILY LAW – APPEAL – WARRANT – REFUSAL OF STAY – Where the appellant does not seek to pursue his appeal and makes no submission in opposition to the appeal being dismissed – Appeal dismissed.

FAMILY LAW – COSTS – Where the respondent seeks her costs on a party/party basis – Where the appeal has been wholly unsuccessful – Where the appellant makes no submission in opposition to an order for costs being made in the terms as sought – Costs ordered in the sum as sought by the respondent.

Family Law Act 1975 (Cth)

APPELLANT:

Mr Somers

RESPONDENT:

Ms Ettridge

FILE NUMBER:

MLC

11262

2015

APPEAL NUMBER:

SOA

2019

DATE DELIVERED:

25 November 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland, Aldridge & Kent JJ

HEARING DATE:

25 November 2019

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

2 August 2019

LOWER COURT MNC:

[2019] FamCA 520

REPRESENTATION

THE APPELLANT:

In Person

COUNSEL FOR THE RESPONDENT:

Ms Paterson

SOLICITOR FOR THE RESPONDENT:

Carew Counsel Pty Ltd

Orders

The Notice of Appeal filed on 6 August 2019 be dismissed.
The appellant husband pay the costs of the respondent wife fixed in the sum of $5,898.89.

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 Somers & Ettridge (No 2) 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).

THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT MELBOURNE

Appeal Number: SOA 38 of 2019
File Number: MLC 11262 of 2015

Mr Somers

Appellant

And

Ms Ettridge

Respondent

EX TEMPORE REASONS FOR JUDGMENT

STRICKLAND J

Before the Court today was the Notice of Appeal filed by Mr Somers (“the appellant”) on 6 August 2019, appealing from orders made by Johns J on 2 August 2019. In addition, there was an Application in an Appeal filed by the appellant on 12 November 2019, seeking an adjournment of the hearing of that appeal.
When the matter was called on today, and after hearing submissions primarily from the appellant, he indicated that he did not wish to pursue the appeal, and further indicated that he had nothing to say in opposition to the appeal being dismissed on that basis. Thus, this Court made an order that the Notice of Appeal be dismissed.
Consequent upon that order, Ms Ettridge (“the respondent”) made an application for costs on the basis of the appeal being dismissed.
As is required, the respondent has filed a schedule of costs on 18 November 2019. The amount was slightly amended today, but the total amount of costs sought was $5,898.89, and those costs we were told were calculated on a party/party basis. The appellant indicated that he had nothing to put to us in opposition to an order for costs being made in the terms sought by the respondent.
In those circumstances, the order of the Court is that the appellant husband pay the costs of the respondent wife fixed in the sum of $5,898.89.

ALDRIDGE J

I agree.

KENT J

I agree. I would only add that it was clear in the hearing that there was nothing about the appellant’s financial circumstances as would stand in the way of the making of a costs order, it being confirmed he has now received the capital sum from the sale of the property, he says, in the amount of $73,000, and it is clear that the respondent has been wholly successful in these appeal proceedings, and those are reasons supplementary to the reasons given by the presiding judge for making the orders sought.

STRICKLAND J

The formal orders of the Court are:
(1)The Notice of Appeal filed on 6 August 2019 be dismissed.
(2)The appellant husband pay the costs of the respondent wife fixed in the sum of $5,898.89.

I certify that the preceding eight (8) paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Full Court (Strickland, Aldridge & Kent JJ) delivered on 25 November 2019.

Associate:

Date: 28 November 2019

In the case of Somers and Ettridge, the appellant, the husband, brought an appeal against a decision of the Family Court of Australia, with the dispute concerning matters of family law. The respondent, the wife, sought to have the appeal dismissed and requested costs on a party/party basis. The appeal was heard by the Full Court of the Family Court of Australia, which was required to determine whether the appeal should be dismissed and if so, whether the appellant should be ordered to pay the respondent's costs.

The legal issues before the court were whether the appeal should be dismissed due to the appellant's inaction and lack of submission, and if so, whether the costs sought by the respondent were appropriate given the circumstances. The court noted that the appellant did not seek to pursue the appeal and made no submission in opposition to the appeal being dismissed. The court also considered the appellant's failure to oppose the respondent's costs application. Given these factors, the court found that the appeal was wholly unsuccessful and that the appellant's inaction justified the dismissal of the appeal.

In light of the above, the court dismissed the Notice of Appeal filed on 6 August 2019. The court further ordered that the appellant husband pay the costs of the respondent wife in the sum of $5,898.89. The form of the order is subject to the entry of the order in the Court’s records.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established