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 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: 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 s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
TREE J:
introduction
On 2 August 2022, a judge of the Federal Circuit and Family Court of Australia (Division 2) made final property settlement orders under which the husband was obliged to pay the wife the sum of $824,369. He did so on 29 September 2022.
On 16 November 2022, I allowed the husband’s appeal from those orders and remitted the matter for rehearing before another judge of the Federal Circuit and Family Court of Australia (Division 2) (Cosio & Cosio [2022] FedCFamC1A 187). Although it was my intention to then also set aside the appealed orders, that was inadvertently overlooked.
On 20 December 2022, the husband filed an Application in an Appeal seeking to vary the orders of 16 November 2022 pursuant to the slip rule so as to include an order setting aside the appealed orders. Consequently, I made an order in chambers on 21 December 2022 varying the 16 November 2022 orders to that effect.
The husband further sought in his application that “[u]pon the order for payment below being set aside, an order for repayment of the sum of $824,369.00 paid in accordance with those orders, plus interest since the date of payment”.
On 18 January 2023, the respondent wife filed a Response to the husband’s application seeking relief which I shall shortly discuss. Whilst the wife did not per se oppose an order requiring her to repay the funds under the orders to the husband, she opposed the payment of any interest, and also sought that the husband be restrained from dealing in any way with the funds and his interest in the former matrimonial home pending finalisation of the rehearing. She also sought her costs of the application from the husband.
I heard the parties’ respective applications on 24 January 2023, and reserved my decision. For the reasons that follow, the husband’s application will be allowed in part, and the wife’s Response will be dismissed.
husband’s application for repayment
In his Amended Notice of Appeal, the husband sought, if the appeal was allowed, that the court re-exercise the primary judge’s discretion, such that there be no property division in favour of the wife save for a 10 per cent superannuation split. That necessarily entailed the repayment of monies paid by him to the wife under the original orders, and he sought an order in those terms.
However such an order was not pressed for in the event the appeal succeeded, but the matter was remitted for rehearing, as occurred, nor was any oral submission advanced to that effect.
It appears that the husband contends that the repayment order is nonetheless able to now be sought by him, as it is ancillary to the orders setting aside the primary judge’s orders. The wife did not argue to the contrary, but only opposed any unconditional order for repayment, as I shall detail later. Hence it is not necessary for me to determine whether the husband’s contentions in this respect are correct.
However the husband’s claim for interest on repayment was opposed, essentially on the basis that the wife may yet be found to be entitled to some, or all, of that amount. More, the rate at which any interest should be ordered is not clear on the authorities, and in any event, the amount will depend on the date of the repayment.
Given that, neither party opposed the question of interest on the repayment amount being reserved to the Federal Circuit and Family Court of Australia (Division 2); most likely the judge ultimately dealing with the rehearing. It appears that the court from which the appeal was brought has the power to thereafter give effect to the orders made on appeal (Commonwealth v McCormack (1984) 155 CLR 273) and in the circumstances, as regards the question of interest, that seems the most expedient course. An order to that effect will therefore be made.
That only leaves the question of the conditions on the repayment sought by the wife. Unless I am persuaded such conditions ought be imposed, then the repayment should be unconditional.
wife’s application for restraints
By her Response to an Application in an Appeal filed 18 January 2023, the wife relevantly sought orders as follows:
…
2.Within 14 days, the [wife] shall cause the amount of $824,369 … held by the [wife’s] solicitors trust account to be paid to the [husband’s] nominated NAB bank account bearing BSB: … and account number: …, provided that the [husband] produce a copy of a current bank statement of the nominated NAB bank account to the [wife].
3.The [husband] is hereby restrained from, in any way, withdrawing, transferring, disposing of, dealing with or otherwise applying the funds received in the nominated NAB bank account, referred to in Order 2 above, without the [wife’s] prior written consent or except as permitted by an Order of the Court.
4.The [husband] is hereby restrained from, in any way, selling, encumbering, transferring, disposing or otherwise dealing with his interest in the [former matrimonial home] without the [wife’s] prior written consent or except as permitted by an order of the Court.
5.The [husband] hereby consents to the lodgement of a caveat by the Wife on the [former matrimonial home] to secure her interest in the property pending finalisation of the substantive family law proceedings.
…
The first restriction thereby sought was as to the account into which the husband could deposit the repayment, although the wife asserted she did not know if it was in fact the stipulated account, was offset against the mortgage over the former matrimonial home which matter remained unresolved at the conclusion of the 24 January 2023 hearing (although the husband appears by his letter of 28 November 2022 to concede payment into that particular account is appropriate).
The second restriction (which together with all other restrictions was said to be a condition of any repayment) was, in effect, a freezing order on the repayment.
The third restriction had nothing to do with the repayment, but was an injunction restraining any dealing with the former matrimonial home.
The fourth order sought was to permit the wife to caveat the former matrimonial home. Of course her entitlement to seek s 79 relief against the husband’s interest in that property is not able to support a caveat (Australian Eagle Insurance Co Ltd v Parry (1992) ANZ Conv R 166) and hence this order would create a right in her (if indeed the court could so order) to do something not otherwise allowed.
Not only had the wife not sought any such orders at the hearing of the appeal, but unsurprisingly, she was unable to point to any statutory, regulatory or judicial authority for the imposition of the conditions which she sought. The husband contended that no such power existed and even if it did, it could not be exercised in the wife’s favour absent the usual undertakings which accompany such injunctions as she applied for.
Moreover the wife conceded that all such orders could be sought on application to the Federal Circuit and Family Court of Australia (Division 2) which indeed is patently the case. In my view, that is the appropriate procedure, even if I do have power to impose such restrictions on the repayment (as to which I am presently unpersuaded, but do not need to determine).
The wife’s Response to an Application in an Appeal filed 18 January 2023 is dismissed.
outcome
There will be an order for repayment of the sum of $824,369 by the wife to the husband, with the question of interest on such repayment reserved to the Federal Circuit and Family Court of Australia (Division 2), but otherwise the parties’ respective applications are dismissed.
I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Tree. Associate:
Dated: 30 January 2023
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