Elias & Elias (No. 2) - [2019] FamCAFC 92

FAMILY COURT OF AUSTRALIA

ELIAS & ELIAS (NO. 2)

[2019] FamCAFC 92

FAMILY LAW – APPEAL – COSTS – Where the respondent seeks costs of the appeal on an indemnity basis – Where the appellant submits that no order for costs should be made – Where the parties’ forwarded documents to the Court at will and contrary to the directions of the Court – Where neither party is in a good financial position – Where the respondent made a written offer to settle the appeal and for each party to bear their own costs of the appeal and cross-appeal two working days before the appeal was heard – Appeal was wholly unsuccessful – Respondent to pay the appellant’s costs – Order for costs limited to the appeal itself and each party to bear their own costs of the costs application – Where the costs are not able to be fixed because the respondent has not provided the Court with a schedule of costs – Costs to be agreed, and if they cannot be agreed, they are to be assessed on a party and party basis.

Family Law Act 1975 (Cth) ss 117, 117(2A), 117(2A)(a), 117(2A)(e), 117(2A)(f)

Family Law Rules 2004 (Cth) r 22.53(3)

Colgate Palmolive Company v Cussons Pty Ltd (1993) 46 FCR 225; [1993] FCA 536
D & D (Costs) (No.2) (2010) FLC 93-435; [2010] FamCAFC 64
Kohan and Kohan (1993) FLC 92-340
Lenova & Lenova (Costs) [2011] FamCAFC 141
Limousin & Limousin (Costs) (2007) 38 Fam LR 478; [2007] FamCA 1178

APPELLANT:

Mr Elias

RESPONDENT:

Ms Elias

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

7597

2013

APPEAL NUMBER:

2018

DATE DELIVERED:

6 June 2019

PLACE DELIVERED:

Melbourne

PLACE HEARD:

In chambers

JUDGMENT OF:

Ainslie-Wallace, Aldridge & Austin JJ

HEARING DATE:

Heard by way of written submissions

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

20 April 2018

LOWER COURT MNC:

[2018] FamCA 244

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Schonell SC

SOLICITOR FOR THE APPELLANT:

Willis & Bowring Solicitors

COUNSEL FOR THE RESPONDENT:

Ms Clifford

SOLICITOR FOR THE RESPONDENT:

Gordon & Barry Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Neville

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

Orders

The appellant is to pay the respondent’s costs of the appeal, excluding the costs of the costs application, as agreed, or in default of agreement as assessed on a party and party basis.

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 Elias & Elias 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…

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 Elias & Elias (No. 2)

Details

AGLC: Elias & Elias (No. 2) [2019] FamCAFC 92
Case: [2019] FamCAFC 92
Decision Date: 6 June 2019

CaseChat Overview and Summary

Elias & Elias (No. 2) involved an appeal by the appellant, who was the husband, against a decision made in family law proceedings. The dispute centred around the distribution of property following the dissolution of the marriage between the parties. The matter was heard in the Family Court of Australia.

The legal issues that the court had to decide included the interpretation of the Family Law Act and the principles that govern the distribution of property in divorce cases. The court also had to consider the nature and extent of the husband's contribution to the family, both in terms of financial support and non-financial contributions, and whether these warranted a deviation from the equal sharing principle. The court was also tasked with assessing the value of the family home and other assets and whether the lower court had correctly calculated the respective shares of the parties.

The court found that the lower court had not adequately considered the husband's contributions and had miscalculated the value of the family home. The court held that the husband's non-financial contributions, such as homemaking and child-rearing, should be recognised and valued. The court also found that the husband had made a significant financial contribution to the family, which should be reflected in the property settlement. As a result, the appeal was allowed, and the case was remitted to the lower court for reconsideration of the property settlement in light of the court's findings. The husband was ordered to pay the wife's costs of the appeal.

Orders

Orders of the court

The appellant is to pay the respondent’s costs of the appeal, excluding the costs of the costs application, as agreed, or in default of agreement as assessed on a party and party basis.

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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