Farrah & Cisek

Case [2024] FedCFamC1A 38

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Farrah & Cisek [2024] FedCFamC1A 38

Appeal from: Cisek & Farrah (No 2) [2023] FedCFamC1F 804
Appeal number: NAA 292 of 2023
File number: PAC 1160 of 2021
Judgment of: TREE, BAUMANN & WILLIAMS JJ
Date of judgment: 28 March 2024
Catchwords: FAMILY LAW – APPEAL – PROPERTY – Where the appellant appeals from final property orders effecting a 100 per cent division of a piece of real property and 100 per cent of his superannuation interests to the first respondent after sale costs of that property and a cash payment to the second respondent – Where the primary judge made no discretionary error in applying Kennon & Kennon (1997) FLC 92-757 – Where the findings of the primary judge were reasonably open on the evidence – Adequacy of reasons – Where the primary judge’s reasons make plain the basis upon the conclusion was reached – No error established – Appeal dismissed – Costs ordered in a fixed sum
Legislation: Family Law Act 1975 (Cth) ss 75, 90SF, 90RD 117
Cases cited:

Benson & Drury (2020) FLC 93-998; [2020] FamCAFC 303

House v The King (1936) 55 CLR 499; [1936] HCA 40

Keating & Keating (2019) FLC 93-894; [2019] FamCAFC 46

Kennon & Kennon (1997) FLC 92-757; [2020] FamCAFC 303

Mayhew & Fairweather (2022) 64 Fam LR 633; [2022] FedCFamC1A 53

Sun Alliance Insurance Ltd v Massoud [1989] VR 8
Number of paragraphs: 52
Date of hearing: 1 February 2024
Place: Heard in Sydney, delivered in Cairns
Counsel for the Appellant: Mr Stapleton
Solicitor for the Appellant: D’Agostino Solicitors
Counsel for the First Respondent: Mr Fowler
Solicitor for the First Respondent: Hikma Legal
Counsel for the Second Respondent: Mr Heazlewood
Solicitor for the Second Respondent: Coleman Greig Lawyers

ORDERS

NAA 292 of 2023
PAC 1160 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:

MR FARRAH

Appellant
AND:

MS CISEK

First Respondent

NEW SOUTH WALES TRUSTEE & GUARDIAN ON BEHALF OF MS ELSNER

Second Respondent

ORDER MADE BY:

TREE, BAUMANN & WILLIAMS JJ

DATE OF ORDER:

28 MARCH 2024

THE COURT ORDERS THAT:

1.The appeal is dismissed.

2.The appellant pay the first respondent’s costs in the sum of $20,000 within 60 days.

3.The appellant pay the second respondent’s costs in the sum of $5,000 within 60 days.

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).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Farrah & Cisek has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS…

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AGLC
Farrah & Cisek [2024] FedCFamC1A 38
Case
[2024] FedCFamC1A 38
Decision Date

CaseChat Overview and Summary

In the matter of Farrah & Cisek, the appellant, Mr Farrah, sought to appeal against the final property orders that were made by the primary judge. These orders provided for a 100 per cent division of a piece of real property and 100 per cent of his superannuation interests to the first respondent, Ms Cisek, after deducting sale costs of the property and a cash payment to the second respondent, who is the New South Wales Trustee and Guardian, on behalf of Ms Elsner. The appeal centred on whether the primary judge made a discretionary error in applying the principles set out in Kennon & Kennon (1997) FLC 92-757. The court was required to determine whether the findings of the primary judge were reasonably open on the evidence and whether there was any adequacy of reasons provided.

The court examined the primary judge’s application of the principles from Kennon & Kennon and found that no discretionary error was made. The court noted that the findings of the primary judge were reasonably open on the evidence, and the reasons provided were sufficient to make clear the basis on which the conclusion was reached. The appeal was dismissed as no error was established. The court also addressed the issue of costs, ordering the appellant to pay the first respondent’s costs in a fixed sum of $20,000 and the second respondent’s costs in a fixed sum of $5,000, both within 60 days.

Orders

Orders of the court

NAA 292 of 2023

PAC 1160 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

DIVISION 1 APPELLATE JURISDICTION

BETWEEN:

MR FARRAH

Appellant

AND:

MS CISEK

First Respondent

NEW SOUTH WALES TRUSTEE & GUARDIAN ON BEHALF OF MS ELSNER

Second Respondent

ORDER MADE BY:

TREE, BAUMANN & WILLIAMS JJ

DATE OF ORDER:

28 MARCH 2024

THE COURT ORDERS THAT:

1. The appeal is dismissed.

2. The appellant pay the first respondent’s costs in the sum of $20,000 within 60 days.

3. The appellant pay the second respondent’s costs in the sum of $5,000 within 60 days.

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).

Background

Background to the litigation

The first respondent opposes the appeal, and for the reasons that follow, the appeal shall be dismissed. The second respondent, whose benefit under the final orders was not challenged by either the appellant or the first respondent, did not participate in the appeal, save to seek an order for their costs.BACKGROUND The appellant was 57 years old and the first respondent was 43 years old at the time the reasons for judgment by the primary judge were delivered on 22 September 2023. The parties were born in Country C and Country B respectively and began dating in Australia around 1998. Although the parties participated in an Islamic marriage ceremony in November 1999, and the first respondent was pregnant at the time, some days later the first respondent entered into a civil marriage ceremony with the appellant’s brother. A child born in July 2000 (whose birth registration falsely recorded the appellant’s brother as the father) and a child born in March 2002, were both children of the appellant and the first respondent. In 2013, the property at Suburb E, which constituted the most significant asset at the time of the hearing, was purchased in the sole name of the appellant and was the family home until final separation, which at the latest occurred by August 2015 when the appellant was incarcerated for 99 days for family violence perpetrated against the first respondent. Whilst the relationship between the appellant and the first respondent was intact, the appellant commenced a relationship with the second respondent, a married lady in her eighties, she being his customer in the business he operated in Suburb H. By May 2016, the second respondent was telling her doctor she wanted to leave her husband to be with her boyfriend (the appellant), and by July 2016 the second respondent and her husband separated under the one roof. By October 2016, the appellant and the second respondent commenced cohabitation and remained living together in the second respondent’s home until it was sold in February 2017. The reasons of the primary judge deal with allegations by the second respondent, first advanced against the appellant in proceedings commenced against him in the Supreme Court of New South Wales and transferred to the Federal Circuit and Family Court of Australia (Division 1) on 19 October 2022. Although the primary judge found at [178] that the appellant had failed to disclose his use and application of $2,257,291 received by him from the second respondent, it was clear that the second respondent had made a direct contribution to the Suburb E property of $625,711 by paying off the outstanding mortgage balance. At the time of the hearing before the primary judge, the second respondent had been diagnosed with dementia and was living in a nursing home. The second respondent’s incapacity to manage her financial affairs had caused the New South Wales Civil and Administrative Tribunal (“NCAT”) to appoint the New South Wales Trustee and Guardian (“NSWTAG”) to manage the second respondent’s financial affairs since November 2017.

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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