Ganakis & Ganakis - [2022] FedCFamC1F 262

Federal Circuit and Family Court of Australia
(DIVISION 1)
Ganakis & Ganakis [2022] FedCFamC1F 262

File number(s): SYC 7736 of 2020

Judgment of: SCHONELL J

Date of judgment: 22 April 2022

Catchwords: FAMILY LAW – PARENTING AND FINANCIAL – Where the husband sought a permanent stay of the wife’s Initiating Application on the grounds of claim or issue estoppel, or alternatively abuse of process – Where the husband contended that final orders were made in Country B – Where the wife contended that the proceedings should not be stayed on the grounds of estoppel and that the husband’s unconscionable conduct needed to be taken into account – Where it was found that the principles of estoppel do not apply to parenting proceedings – Where it was determined that the spousal maintenance orders and child support orders were not final orders incapable of variation – Application for stay of proceedings dismissed other than in relation to property orders.

Legislation:
Child Support (Assessment) Act 1989 (Cth) s 121

Family Law Act 1975 (Cth) s 83

Cases cited:
Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502; [1988] HCA 21

Clayton v Bant (2020) 385 ALR 41; [2020] HCA 44

Elmi & Munro (2019) FLC 93-912; [2019] FamCAFC 138

Federal Treasury Enterprises (FKP) Sojuzplodoimport & Anor v Spirits International BV (2021) 389 ALR 612; [2021] FCAFC 777

Mehta & Crimmins (2021) FLC 94-062; [2021] FedCFamC1A 73

Tomilson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28

Division: Division 1 First Instance

Number of paragraphs: 72

Date of hearing: 14 April 2022

Place: Sydney

Counsel for the Applicant: Ms Vohra SC

Solicitor for the Applicant: Katsikaris Family Lawyers

Senior Counsel for the Respondent: Mr Beaumont SC

Junior Counsel for the Respondent: Ms Hughes

Solicitor for the Respondent: Blanchfield Nicholls
ORDERS

SYC 7736 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS GANAKIS

Applicant

AND:
MR GANAKIS

Respondent

order made by:

SCHONELL J

DATE OF ORDER:

22 APRIL 2022

THE COURT ORDERS THAT:
1.The Initiating Application filed in this matter by the wife on 2 November 2020 be permanently stayed in so far as it relates to property settlement orders (Orders 1–13 of the Initiating Application).
2.The husband’s application for a permanent stay of the proceedings is otherwise 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…

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 Ganakis & Ganakis

Details

AGLC: Ganakis & Ganakis [2022] FedCFamC1F 262
Case: [2022] FedCFamC1F 262
Decision Date: 22 April 2022

CaseChat Overview and Summary

The matter of Ganakis & Ganakis involved a dispute between the wife and the husband over parenting and financial arrangements following the parties' separation. The husband sought a permanent stay of the wife's Initiating Application, which was filed in the Family Court of Australia, on the grounds of claim or issue estoppel, or alternatively abuse of process. The husband contended that final orders were made in Country B, whereas the wife argued that the proceedings should not be stayed due to estoppel and that the husband's unconscionable conduct should be considered.

The court was required to determine whether the principles of estoppel applied to the parenting proceedings and whether the spousal maintenance and child support orders made in Country B were final orders incapable of variation. The court also had to consider whether the husband's conduct amounted to abuse of process, justifying a stay of the proceedings. In addressing these issues, the court found that the principles of estoppel do not apply to parenting proceedings. Additionally, the spousal maintenance and child support orders were not considered final orders incapable of variation.

The court dismissed the husband's application for a permanent stay of the proceedings, except in relation to property settlement orders. It was ordered that the Initiating Application filed by the wife be permanently stayed in so far as it relates to property settlement orders. The husband’s application for a permanent stay of the proceedings was otherwise dismissed.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The Initiating Application filed in this matter by the wife on 2 November 2020 be permanently stayed in so far as it relates to property settlement orders (Orders 1–13 of the Initiating Application).

2. The husband’s application for a permanent stay of the proceedings is otherwise dismissed.

Background

Background to the litigation

The wife relied upon the following documents:(1)Initiating Application filed 2 November 2020;(2)Affidavit of wife filed 30 October 2020 (paragraphs 16–24 only);(3)Affidavit of wife filed 23 September 2021;(4)Affidavit of the single expert Ms C filed 11 April 2022; and (5)Case Outline document.Background facts Both parties were born in Australia. The husband is currently aged 52 years, and the wife is currently aged 51 years. The parties married and commenced cohabitation in 1999. The parties have two children, X currently aged 14, and Y currently aged 13. In 2015, the parties along with their two children relocated to Country B for the husband's employment. The wife was the primary carer of the children and remained financially dependent on the husband. In or around October 2018, the parties separated but remained living under the one roof until late 2020, when the wife and children returned to Australia. Between May/June 2020 and July 2020, the parties attended three joint mediation sessions. The husband says that they discussed parenting and financial arrangements for the children. The wife says that property settlement and/or spousal maintenance was not discussed in these sessions. The wife contends that despite not reaching a final settlement on all issues, the parties reached an agreement in mid-2020 that the wife would return to Sydney with the children. In late 2020, the husband commenced proceedings in the Country B Court seeking a divorce, parenting orders, property settlement and that no spousal maintenance be payable to the wife. The wife contends that the husband commenced proceedings without any prior notice to her. About a week later, the wife contends that she transferred $165,000 from the parties joint account to an account in her name because the husband had stopped depositing his income into the joint account. The wife says that following this, the husband threatened to report her to the police if she did not return the money, and that he became increasingly hostile. About a week later, the wife commenced proceedings in the Family Court of Australia (as it was then). The wife's lawyer in Country B also filed a Memorandum of Appearance in the Country B Court with the intention of challenging the Country B Court’s jurisdiction. About a week later, the wife was advised by the husband's lawyer that he had removed the children's passports, and that the husband did not consent to the children returning to Sydney without an agreement or court order. A week later, the wife filed a Summons for Stay of Proceedings in the Country B Court on the basis of forum non conveniens. The next month, the wife signed draft Country B Court consent orders. The husband contends that the wife subsequently terminated her retainer with her Country B lawyer. The wife contends that on that day, she had no legal representation as her Country B lawyer had ceased acting for her on that day and her Australian lawyer was on leave. She contends that she signed the Country B consent orders because the husband was exerting extreme pressure on her and she was desperate to get away from him. The wife says that the husband's lawyer arranged for a witness, and that she felt that she no choice but to sign.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number(s):	SYC 7736 of 2020
Judgment of:	SCHONELL J
Date of judgment:	22 April 2022
Catchwords:	FAMILY LAW – PARENTING AND FINANCIAL – Where the husband sought a permanent stay of the wife’s Initiating Application on the grounds of claim or issue estoppel, or alternatively abuse of process – Where the husband contended that final orders were made in Country B – Where the wife contended that the proceedings should not be stayed on the grounds of estoppel and that the husband’s unconscionable conduct needed to be taken into account – Where it was found that the principles of estoppel do not apply to parenting proceedings – Where it was determined that the spousal maintenance orders and child support orders were not final orders incapable of variation – Application for stay of proceedings dismissed other than in relation to property orders.
Legislation:	Child Support (Assessment) Act 1989 (Cth) s 121 Family Law Act 1975 (Cth) s 83
Cases cited:	Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502; [1988] HCA 21 Clayton v Bant (2020) 385 ALR 41; [2020] HCA 44 Elmi & Munro (2019) FLC 93-912; [2019] FamCAFC 138 Federal Treasury Enterprises (FKP) Sojuzplodoimport & Anor v Spirits International BV (2021) 389 ALR 612; [2021] FCAFC 777 Mehta & Crimmins (2021) FLC 94-062; [2021] FedCFamC1A 73 Tomilson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507; [2015] HCA 28
Division:	Division 1 First Instance
Number of paragraphs:	72
Date of hearing:	14 April 2022
Place:	Sydney
Counsel for the Applicant:	Ms Vohra SC
Solicitor for the Applicant:	Katsikaris Family Lawyers
Senior Counsel for the Respondent:	Mr Beaumont SC
Junior Counsel for the Respondent:	Ms Hughes
Solicitor for the Respondent:	Blanchfield Nicholls

SYC 7736 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS GANAKIS Applicant
AND:	MR GANAKIS Respondent

order made by:	SCHONELL J
DATE OF ORDER:	22 APRIL 2022