Cosio & Cosio (No 4)

Case [2024] FedCFamC1A 149

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Cosio & Cosio (No 4) [2024] FedCFamC1A 149

Appeal from: Cosio & Cosio (No 3) [2024] FedCFamC2F 260
Appeal number(s): NAA 71 of 2024
File number: SYC 6131 of 2019
Judgment of: SCHONELL J
Date of judgment: 6 September 2024
Catchwords: FAMILY LAW – APPEAL – Appeal from final financial orders – Adequacy of reasons – Where the primary judge did not err in his treatment of s 75(2) and 79(2) of the Family Law Act 1975 (Cth) – Appeal dismissed.
Legislation:

Family Law Act 1975 (Cth) ss 75(2), 79(2)

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited:

Bahonko v Sterjov (2008) 166 FCR 415; [2008] FCAFC 30

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148

Browne v Dunn (1893) 6 R 67; [1893] 1 WLUK 44

Commercial Union Assurance Co of Australia Ltd v Ferrcom (1991) 22 NSWLR 389;

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55

Cosio & Cosio (No 3) [2024] FedCFamC2F 260

Dawes & Dawes (1990) FLC 92-108

De Winter and De Winter (1979) FLC 90-605

Dickons v Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63

Edwards v Noble (1971) 125 CLR 296; [1971] HCA 54

Ferraro and Ferraro (1993) FLC 92-335; [1992] FamCA 64

Gregory R Ball Pty Ltd v Stead (1993) 9 NSWCCR 148

Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378

John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77; [2003] HCA 50

Koyroyshs & Koyroyshs [2021] FedCFamC1A 54

Lenehan and Lenehan (1987) FLC 91-814

Metwally v University (1985) 60 ALR 68; [1985] HCA 28

Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17

Parshen v Parshen (1996) FLC 92-720; [1996] FamCA 141

Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103

Royal Guardian Mortgage Management Pty Ltd v Nguyen (2016) 332 ALR 128; [2016] NSWCA 88

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

Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54

Sydneywide Distributors Pty Ltd & Anor v Red Bull Australia Pty Ltd (2002) 234 FCR 549; [2002] FCAFC 157

Tame v New South Wales (2002) 211 CLR 317; [2002] HCA 35

Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49

Vakauta v Kelly (1989) 167 CLR 568; [1989] HCA 44

Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; [2003] HCA 48

Yarrow & Yarrow (2022) FLC 94-112; Yarrow & Yarrow (2022) FedCFamC1A 135
Number of paragraphs: 144
Date of hearing: 1 August 2024
Place: Sydney
The Appellant: Litigant in person
Counsel for the Respondent: Ms McMahon
Solicitor for the Respondent: Marsdens Law Group

ORDERS

NAA 71 of 2024
SYC 6131…

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Details
AGLC
Cosio & Cosio (No 4) [2024] FedCFamC1A 149
Case
[2024] FedCFamC1A 149
Decision Date

CaseChat Overview and Summary

In the matter of Cosio & Cosio (No 4), the appellant, Mr Cosio, appealed against the final financial orders made by the primary judge. The dispute centered around the adequacy of the reasons provided for the division of the parties’ assets, specifically the Suburb B property, a bank account, and superannuation, in the proportions of 55% to the respondent and the balance to the appellant. The appeal was heard in the Federal Circuit and Family Court of Australia's appellate jurisdiction.

The court was required to determine whether the primary judge erred in his treatment of sections 75(2) and 79(2) of the Family Law Act 1975 (Cth). Specifically, the court examined whether the primary judge adequately considered the contributions of both parties during the relationship and whether the orders made were just and equitable. The court also had to assess whether the primary judge properly applied the relevant statutory provisions and if there were sufficient reasons provided for the orders made.

The court found that the primary judge did not err in his treatment of the relevant sections of the Family Law Act. The judge properly considered the contributions of both parties, and the orders made were just and equitable. The court determined that the primary judge's reasons were adequate and that there was no basis for the appeal to succeed. Consequently, the appeal was dismissed.

The court also made orders regarding the costs of the appeal. The application for costs filed on 15 July 2024 and the further amended notice of appeal filed on 31 May 2024 were both dismissed. Any party wishing to apply for costs was directed to file written submissions within 28 days, with the other party to file a reply within 14 days. The question of costs was reserved to chambers. All documents were to be filed and served by email, and the form of the order was subject to review for any minor errors or variations.

Orders

Orders of the court

NAA 71 of 2024

SYC 6131 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR COSIO

Appellant

AND:

MS COSIO

Respondent

ORDER MADE BY:

SCHONELL J

DATE OF ORDER:

6 SEPTEMBER 2024

THE COURT ORDERS THAT:

1. The Application in an Appeal filed 15 July 2024 is dismissed.

2. The Further Amended Notice of Appeal filed 31 May 2024 is dismissed.

3. In the event that any party wishes to make an application for costs they are to file and serve within 28 days written submissions limited to seven pages (excluding annexures) setting out the basis for a costs order with the other party to file and serve any written submission in reply limited to seven pages (excluding annexures) within a further 14 days thereafter.

4. The question of costs will be reserved to chambers.

THE COURT NOTES THAT:

A. All documents are to be filed by email to ...@... copying in each other party and served upon each other party by email.

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.

Background

Background to the litigation

For reasons which follow there is no merit to any of the grounds and the appeal will be dismissed.BACKGROUND The parties commenced cohabitation in 1991, married in 1992 and separated in November 2017. A divorce order was made in 2019. The parties have two children, one born 1997 and the other born 2002. At the time of hearing both children were over the age of 18. The appellant was employed in the technology industry, subsequently as a professional and in 2017 he became self employed. The respondent was in full-time employment until early 1997 when she ceased work due to the impending birth of the parties’ first child. She did not return to employment until 2008 when she commenced working with a government department. For the first 16 years or so of the relationship, the parties lived in rented accommodation. In 2007, the appellant acquired in his own name a property at Suburb B (“the Suburb B property”). The purchase of the Suburb B property was funded by way of a mortgage, together with the proceeds of sale of shares and options arising from his employment. During the course of the relationship, he also received moneys by way of inheritance. Following the breakdown of the relationship, the respondent commenced proceedings for property settlement. In late 2022, a judge of Division 2 made final orders pursuant to s 79 of the Act. The appellant lodged an appeal against those orders which was successful, and the matter was remitted for hearing before another judge of Division 2. On the rehearing, the respondent sought an adjustment pursuant to s 79 of the Act contending that the assets of the parties which primarily comprised of the Suburb B property, a sum of money in a bank account in the respondent’s name and superannuation should be divided in the proportions as to 55 per cent to the respondent and the balance to the appellant. The appellant contended at hearing that the Court should not make any adjustive order. The primary judge captured the parties’ respective positions in Cosio & Cosio (No 3) [2024] FedCFamC2F 260 (“the judgment”) as follows:62.The wife argued that it was just and equitable for there to be property orders made in this matter. The parties were married [i]n [...] 1992 having commenced cohabitation in [...] 1991. They separated on a final basis on 19 November 2017 and, accordingly, their relationship lasted for, approximately, 26 years. The wife maintained that at the crux of the dispute between the parties was the husband’s failure to understand and apply the Act as he had wholly misinterpreted the law in relation to the interpretation of s.79 of the Act and that the circumstances of the parties’ relationship were not, as the husband asserted, “unusual” but rather that the parties’ relationship was an ordinary marriage where they cohabitated, then married and then had children for which both shared parental responsibilities. The fact that the [Suburb B] property was acquired some 16 years into the parties’ relationship but was wholly owned by the husband meant that, without a property adjustment order, the wife would be entitled to nothing from her efforts during the parties’ relationship. The wife submitted that, in those circumstances, it was clearly just and equitable that there be some property adjustment order. 63.The Court accepts the husband’s submission that its purpose under the law is not to assess compensation but, rather, contribution. The contribution assessment being based on the parties’ efforts during the parties’ relationship. The husband argued that there should be no adjustment in terms of the parties’ interests in property as it would not be just and equitable to make a property settlement order. The thrust of the husband’s position was, as articulated, that he believed the parties had conducted their affairs based on running their own separate finances throughout their relationship and that, from his perspective, his acquisition of the [Suburb B] property was his alone. It was put to the husband that his case was predicated upon the contention that there was some agreement between him and the wife that if the marriage ever ended the net result would be that what was his was his and what was hers was hers. The husband responded, “that is part of it”. The husband agreed that there was no binding financial agreement to that effect and nothing in writing to evidence this agreement and that his view was his “subjective impression”. His commitment to that position appeared to blind him to any perceived justice in the wife’s cause or perceived injustice in his position.

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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