Tamas & Spanou

[2025] FedCFamC1A 130

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Tamas & Spanou [2025] FedCFamC1A 130

Appeal from:

Orders dated 7 May 2025

Appeal number:

NAA 212 of 2025

File number:

BRC 5367 of 2024

Judgment of:

AUSTIN J

Date of judgment:

24 July 2025

Catchwords:

FAMILY LAW – APPEAL – Practice and Procedure – Show Cause – Where the applicant was invited to show cause why the appeal should not be summarily dismissed – Where on the morning of the appeal hearing the applicant emailed notice to the registry of his intention to discontinue the appeal – Where no Notice of Discontinuance had been filed at the time of the hearing – Where the applicant needs leave to appeal from interim financial orders – Where the interim orders are now superfluous as final settlement was reached at first instance – Where there is no longer a justiciable matter and appellate jurisdiction is exhausted – Application for leave to appeal is summarily dismissed.

Legislation:

Family Law Act 1975 (Cth) Pt VIII

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 5.01

Federal Circuit and Family Court of Australia Act 2021 (Cth)

Cases cited:

AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 411 ALR 615; [2023] HCA 26

Sadasivam & Seshan (2019) FLC 93-899; [2019] FamCAFC 76

Shipton & Garwood (2024) FLC 94-189; [2024] FedCFamC1A 83

Number of paragraphs:

16

Date of hearing:

24 July 2025

Place:

Newcastle (via MS Teams)

The Applicant:

Litigant in person (Did not participate)

Counsel for the Respondent:

Mr Ziman

Solicitor for the Respondent:

Ziman & Ziman Solicitors

ORDERS

NAA 212 of 2025
BRC 5367 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR TAMAS

Applicant

AND:

MS SPANOU

Respondent

ORDER MADE BY:	AUSTIN J
DATE OF ORDER:	24 JULY 2025

THE COURT ORDERS THAT:

1.The application for leave to appeal is summarily dismissed and the Notice of Appeal filed on 9 May 2025 is dismissed.

2.The respondent’s application for costs of the appellate proceeding is dismissed.

NOTATION

A.The respondent does not require the publication of reasons for Order 2 hereof.

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).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of 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 Tamas & Spanou has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

EX TEMPORE
REASONS FOR JUDGMENT

AUSTIN J:

1. These reasons explain the summary dismissal of the husband’s application for leave to appeal from interim financial orders made by a judge of the Federal Circuit and Family Court of Australia (Division 2) on 7 May 2025.

   Background

2. Proceedings between the parties for financial relief under Pt VIII of the Family Law Act 1975 (Cth) (“the Act”) were commenced by the wife in 2024.

3. As the proceedings progressed towards trial in July 2025, numerous interim orders were made, though it is only necessary to mention those that are now relevant.

4. On 7 February 2025, a judge conditionally appointed the wife as the sole trustee for the sale of a parcel of real property at Suburb B, Qld (“the Qld property”) (Order 2).

5. The parties then fell into disagreement about whether the conditions were fulfilled for the invocation of the trustee for sale order, causing a flurry of interlocutory applications which were listed before a senior judicial registrar.

6. On 9 April 2025, the senior judicial registrar suspended the trustee for sale order (Order 1).

7. The husband then applied to review and set aside all the orders made by the senior judicial registrar, which application was listed before the primary judge on 30 April 2025, when her Honour dismissed the husband’s review application.

8. Then, on 7 May 2025, the primary judge discharged the suspension order made by the senior judicial registrar in April 2025 (Order 1), endorsed the trustee for sale order made by the other judge in February 2025 (Orders 2 and 3), and ordered the husband to pay the wife’s costs of the dispute on a “standard basis” (Order 11).

9. On 9 May 2025, the husband filed a Notice of Appeal seeking leave to appeal from those four orders made by the primary judge.

10. In the meantime, the litigation proceeded to trial on 1 July 2025, when the dispute was compromised and resolved by final consent orders. Relevantly, the final orders make provision for the sale of the Qld property and the proportional division of the net sale proceeds.

11. Given the final resolution of the financial cause, the appellate proceeding was listed to give the husband the chance to explain why the application for leave to appeal from the anterior interim orders should not be summarily dismissed.

12. The husband did not appear at the hearing. He sent an email to the Court early on the morning of the hearing giving notice of his intention to discontinue the appeal (Exhibit A) but, by the time of the hearing, no Notice of Discontinuance had been filed.

    Disposition

13. The husband’s Notice of Appeal comprises seven intended grounds of appeal.

14. Grounds 1, 2, 3, 4 and 5 all concern Orders 1, 2 and 3, which discharge the senior registrar’s suspension order and re-instate the other judge’s trustee for sale order. The dispute over those orders is now superfluous because of the final settlement reached on 1 July 2025, by which the sale of the Qld property must now proceed to completion. The procedural implementation of the sale of the Qld property is no longer a justiciable matter, in consequence of which there is no appellate jurisdiction to entertain the application for leave to appeal from those interim orders (AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 411 ALR 615 at [30], [32]–[35], [58], [66], [68]–[74] and [91]–[92]).

15. Grounds 6 and 7 both concern Order 11 and comprise dual complaints of the denial of natural justice and an error of law. The intended prosecution of these grounds is misconceived because Order 11 comprises an interim costs order which did not survive the final orders (r 5.01 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)). Interim costs orders are not final costs orders (Shipton & Garwood (2024) FLC 94-189 at [23]–[26]). When the parties reached the final settlement, the interim costs order was not expressly preserved and, because the final orders were silent on the question of costs, the parties necessarily agreed to bear their own costs of the proceedings. Order 11 was thereby discharged ipso facto by the final orders (Sadasivam & Seshan (2019) FLC 93-899 at [16]–[27]).

16. The application for leave to appeal from the interim orders made on 7 May 2025 discloses no reasonable prospects of success and so the Notice of Appeal is summarily dismissed (s 32(3)(b) and s 46(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth)).

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of the Honourable Justice Austin.

Associate:

Dated:       24 July 2025