Cosio & Cosio (No 3) - [2023] FedCFamC1A 6

Federal Circuit and Family Court of Australia
(DIVISION 1) APPELLATE JURISDICTION
Cosio & Cosio (No 3) [2023] FedCFamC1A 6

Appeal from: Cosio & Cosio [2022] FedCFamC2F 987

Appeal number(s): NAA 179 of 2022

File number(s): SYC 6131 of 2019

Judgment of: TREE J

Date of judgment: 30 January 2023

Catchwords: FAMILY LAW – APPLICATION IN AN APPEAL – ANCILLARY RELIEF – Where the husband’s appeal from final property settlement orders was allowed – Where the matter was remitted for rehearing – Where the appeal orders were amended pursuant to the slip rule to include setting aside the orders – Where the husband seeks repayment of the funds under the original orders plus interest – Where the wife seeks restraints in relation to the repayment of funds and the former matrimonial home – Whether the appellate court has power to impose such restrictions on the repayment sought by the wife – Where the wife is ordered to repay the funds to the husband – Where the question of interest on such repayment is reserved to the court below – Applications dismissed.

Legislation: Family Law Act 1975 (Cth) s 79

Cases cited:
Australian Eagle Insurance Co Ltd v Parry (1992) ANZ Conv R 166

Commonwealth v McCormack (1984) 155 CLR 273; [1984] HCA 57

Cosio & Cosio [2022] FedCFamC1A 187

Number of paragraphs: 21

Date of hearing: 24 January 2023

Place: Cairns (via video link)

The Applicant: Self-represented litigant

Solicitor for the Respondent: Marsdens Law Group
ORDERS

NAA 179 of 2022
SYC 6131 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION

BETWEEN:
MR COSIO

Applicant

AND:
MS COSIO

Respondent

order made by:

TREE J

DATE OF ORDER:

30 january 2023

THE COURT ORDERS THAT:
1.The wife is to forthwith repay the husband the sum of $824,369 (“the repayment sum”).
2.The question of whether interest on the repayment sum should be paid by the wife, and if so, at what rate and in what sum, is reserved to the Federal Circuit and Family Court of Australia (Division 2).
3.Otherwise, the husband’s Application in an Appeal filed 20 December 2022 is dismissed.
4.The wife’s Response to an Application in an Appeal filed 18 January 2023 is dismissed.

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 by this Court under the pseudonym Cosio & Cosio (No 3) has been approved pursuant to…

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 Cosio & Cosio (No 3)

Details

AGLC: Cosio & Cosio (No 3) [2023] FedCFamC1A 6
Case: [2023] FedCFamC1A 6
Decision Date

CaseChat Overview and Summary

The husband appealed the final property settlement orders made in the Federal Circuit and Family Court of Australia (Division 2) in Cosio v Cosio, which required him to pay the wife the sum of $824,369. The husband’s appeal was allowed and the matter was remitted for rehearing. The husband subsequently sought to vary the appeal order to include setting aside the original orders and to require the wife to repay the sum of $824,369 to him, plus interest. The wife opposed the husband’s application and sought that the husband be restrained from dealing with the repayment funds or the former matrimonial home pending finalisation of the rehearing. The wife also sought her costs of the application from the husband. The court was required to determine whether it had the power to impose conditions on the repayment sought by the husband and if so, whether such conditions should be imposed in this case.

The court found that the husband was entitled to seek repayment of the sum paid to the wife under the original orders, as that was ancillary to the orders setting aside the primary judge’s orders. The court also found that the wife did not oppose the repayment of the funds unconditionally, and hence it was not necessary to determine whether the husband’s contentions in this respect were correct. The court also found that it was not necessary to determine the rate of interest, or the sum of interest, to be paid by the wife on the repayment amount, as that question was reserved to the Federal Circuit and Family Court of Australia (Division 2); most likely the judge ultimately dealing with the rehearing. The court found that the wife’s application for restraints on the repayment and on the former matrimonial home was not supported by any statutory, regulatory or judicial authority and was therefore dismissed. The court found that the wife should repay the sum of $824,369 to the husband, with the question of interest on such repayment reserved to the Federal Circuit and Family Court of Australia (Division 2).

The court ordered that the wife is to forthwith repay the husband the sum of $824,369. The question of whether interest on the repayment sum should be paid by the wife, and if so, at what rate and in what sum, is reserved to the Federal Circuit and Family Court of Australia (Division 2). Otherwise, the husband’s Application in an Appeal filed 20 December 2022 is dismissed. The wife’s Response to an Application in an Appeal filed 18 January 2023 is dismissed.

Orders