Cappola & Cappola - [2022] FedCFamC1F 838

Federal Circuit and Family Court of Australia
(DIVISION 1)
Cappola & Cappola [2022] FedCFamC1F 838

File number(s): SYC 3032 of 2021

Judgment of: STRUM J

Date of judgment: 1 November 2022

Catchwords: FAMILY LAW – PROPERTY – INTERIM PROCEEDINGS – Competing applications for interim property orders – Where the husband sought an order for spousal maintenance pursuant to s 74 of the Family Law Act (1975) (Cth) – Where the wife sought an order for the sale of the former matrimonial home and for the proceeds of sale to be distributed as a partial property settlement pursuant to s 79 of the Act – Where there is insufficient evidence from either party to support their applications – Where both applications are dismissed.

Legislation:
Family Law Act 1975 (Cth) ss 72(1), 74, 79

Federal Circuit and Family Court of Australia Act 2021 s 67

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 r 5.08

Federal Circuit and Family Court of Australia, Central Practice Direction: Family Law Case Management, 1 September 2021, para 3

Federal Circuit and Family Court of Australia, Family Law Practice Direction: Major Complex Financial Proceedings List, 30 September 2022, para 2

Cases cited:
Kennon v Spry (2008) 238 CLR 366; [2008] HCA 56

Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52

Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466; [2011] FamCAFC 126

Sully & Sully (No 2) [2016] FamCA 706

Division: Division 1 First Instance

Number of paragraphs: 57

Date of hearing: 12 August 2022

Place: Heard in Melbourne, via Microsoft Teams; delivered in Brisbane

Counsel for the Applicant: Mr Hill

Solicitor for the Applicant: Greg Alfonzetti Solicitor

Counsel for the First Respondent: Mr Hodgson

Solicitor for the First Respondent: U Lawyers

Counsel for the Proposed Respondent Company: Mr Rayment
ORDERS

SYC 3032 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS CAPPOLA

Applicant

AND:
MR CAPPOLA

Respondent

order made by:

STRUM J

DATE OF ORDER:

1 November 2022

THE COURT ORDERS THAT:
1.The Respondent Husband’s Application in a Proceeding filed 1 June 2022 and the Applicant Wife’s Response thereto filed 21 June 2022 be dismissed.
2.All extant applications be listed for a Case Management Hearing before the Honourable Justice Strum at 11:30 am on 18 November 2022.

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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment…

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.

Continue reading Cappola & Cappola

Details

AGLC: Cappola & Cappola [2022] FedCFamC1F 838
Case: [2022] FedCFamC1F 838
Decision Date

CaseChat Overview and Summary

These proceedings are an application by Ms Cappola, the wife, for an order for the sale of the former matrimonial home and for the proceeds of sale to be distributed as a partial property settlement pursuant to s 79 of the Family Law Act 1975 (Cth) ("Act"). The husband, Mr Cappola, opposes the application and, in turn, seeks an order for spousal maintenance pursuant to s 74 of the Act. The court must decide whether it is just and equitable to exercise its discretion to make an interim property settlement order and whether the husband is unable to support himself adequately, such that the wife is liable to maintain him. The wife’s application for the sale of the former matrimonial home and for the proceeds of sale to be distributed as a partial property settlement will be dismissed. The husband’s application for the payment by the wife of 50 per cent of various outgoings and expenses of the former matrimonial home will similarly be dismissed. The reasoning of the court is that neither party has demonstrated that it is just and equitable to make an interim property settlement order, or that the husband is unable to support himself adequately, such that the wife is liable to maintain him. Further, in the circumstances, the court will not exercise its discretion to make an interim property settlement order. The court also found that the husband could meet his expenses, and that the wife did not have the means to make the payments sought by him. As such, the husband’s application for spousal maintenance will be dismissed. The court ordered that the wife’s application for the sale of the former matrimonial home and for the proceeds of sale to be distributed as a partial property settlement be dismissed. The court further ordered that the husband’s application for the payment by the wife of 50 per cent of various outgoings and expenses of the former matrimonial home be dismissed.

Orders