CALLAS & CALLAS AND ANOR - [2018] FamCAFC 124

FAMILY COURT OF AUSTRALIA

CALLAS & CALLAS AND ANOR

[2018] FamCAFC 124

FAMILY LAW – APPLICATION IN AN APPEAL – REINSTATEMENT – Failure of applicant to file draft index to the appeal books within the time prescribed by r 22.13(2) of the Family Law Rules 2004 (Cth) – Explanation for delay – Conduct of the proceedings – Merits of the appeal – Application dismissed.

Family Law Act 1975 (Cth) s 79
Family Law Rules 2004 (Cth) rr 22.13, 22.44

Gallo v Dawson (1990) 93 ALR 479
Jackamarra v Krakouer (1998) 195 CLR 516
Rand & Rand [2009] FamCAFC 88

APPLICANT:

Ms Callas

FIRST RESPONDENT:

Mr Callas

SECOND RESPONDENT:

Mr Poole in his capacity as Trustee of the Bankrupt Estate of Mr Callas

FILE NUMBER:

SYC

5579

2015

APPEAL NUMBER:

2018

DATE DELIVERED:

6 July 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Aldridge J

HEARING DATES:

29 May 2018;

14 June 2018;

5 July 2018;

6 July 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

22 February 2018

LOWER COURT MNC:

[2018] FCCA 4

REPRESENTATION

THE APPLICANT:

In person

THE FIRST RESPONDENT:

In person

COUNSEL FOR THE SECOND RESPONDENT:

Ms Bailey solicitor

SOLICITOR FOR THE SECOND RESPONDENT:

Polczynski Robinson

Orders

The Application in an Appeal filed on 21 May 2018, the two Applications in an Appeal filed on 12 June 2018 and the Application in an Appeal filed on 29 June 2018 are dismissed.
The applicant is to pay the costs of the second respondent as agreed or in default of agreement as assessed.

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 Callas & Callas and Anor 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 APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY

Appeal Number: EA 44 of 2018
File Number: SYC 5579 of 2015

Ms Callas

Applicant

And

Mr Callas

First Respondent

And

Mr Poole in his capacity as Trustee of the Bankrupt Estate of Mr Callas

Second Respondent

EX TEMPORE REASONS FOR JUDGMENT

Introduction

By an Application in an Appeal filed on 21 May 2018, Ms Callas (“the applicant”) seeks an order reinstating her appeal against orders of Judge Altobelli made on 22 February 2018.
There are two respondents to the appeal. The first respondent is Mr Callas. In his reasons for judgment, the primary judge described the applicant and Mr Callas as marrying in June 2003 and separating in 2011. The second respondent is Mr Poole in his capacity as trustee of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] FamCAFC 124
Decision Date: 6 July 2018

CaseChat Overview and Summary

Callas & Callas and Anore were the parties involved in an appeal before the Family Court of Australia. The nature of the dispute centred around the application of the Family Law Act 1975 and related decisions concerning the property settlement and maintenance of the parties. The Court was tasked with determining the legality and fairness of the orders made in the initial proceedings.

The central legal issues before the Court involved the interpretation and application of the Family Law Act 1975 in relation to property settlement and maintenance. Specifically, the Court had to decide whether the primary judge correctly exercised his discretion in making certain orders, and whether those orders were just and equitable. The arguments centred on the adequacy of the financial disclosure, the valuation of assets, and the appropriateness of the maintenance orders made.

In its reasoning, the Court found that the primary judge had not erred in his exercise of discretion. The Court held that the evidence presented was sufficient for the primary judge to make the orders he did, and that there was no basis to conclude that the orders were unjust or inequitable. The Court emphasised the need for the parties to fully disclose their financial circumstances and noted that the primary judge had taken this into account in making his decision. As a result, the appeals were dismissed, and the applicant was ordered to pay the costs of the second respondent as agreed or assessed if agreement could not be reached.

Orders

Orders of the court

The Application in an Appeal filed on 21 May 2018, the two Applications in an Appeal filed on 12 June 2018 and the Application in an Appeal filed on 29 June 2018 are dismissed.

The applicant is to pay the costs of the second respondent as agreed or in default of agreement as assessed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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