KAPPAS & KAPPAS - [2020] FamCAFC 227

FAMILY COURT OF AUSTRALIA

KAPPAS & KAPPAS

[2020] FamCAFC 227

FAMILY LAW – APPEAL – PROPERTY – SECTION 79A Family Law Act 1975 (Cth) – Where no error by the primary judge is identified – Where none of the grounds of appeal have merit – Appeal dismissed.

FAMILY LAW – COSTS – Where the respondent seeks costs – Where the appellant has been wholly unsuccessful in the appeal – Costs ordered in favour of the respondent.

Family Law Act 1975 (Cth) ss 79A, 117

Kappas & Kappas(No.3) [2017] FCCA 577
La Rocca and La Rocca (1991) FLC 92-222; [1991] FamCA 97

APPELLANT:

Mr Kappas

RESPONDENT:

Ms Kappas

FILE NUMBER:

MLC

7430

2015

APPEAL NUMBER:

SOA

2019

DATE DELIVERED:

10 September 2020

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Strickland J

HEARING DATE:

9 April 2020

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

11 October 2019

LOWER COURT MNC:

[2019] FCCA 3010

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Ms Swann

SOLICITOR FOR THE RESPONDENT

Kennedy Guy Lawyers

Orders made 9 April 2020

The appellant husband have leave to rely on the email forwarded to the Southern Appeal Registry on 6 April 2020 which email sets out the appellant’s summary of argument and orders sought.
The appeal be dismissed.
The appellant husband pay the respondent wife’s costs of and incidental to the appeal, such costs to be as taxed or assessed on a party/party basis in default of agreement.

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 Kappas & Kappas 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 r 17.02 Family Law Rules 2004 (Cth).

IN THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT ADELAIDE

Appeal Number: SOA 65 of 2019
File Number: MLC 7430 of 2015

Mr Kappas

Appellant

And

Ms Kappas

Respondent

REASONS FOR JUDGMENT

Introduction

By Notice of Appeal filed on 8 November 2019, Mr Kappas (“the husband”) appeals against orders made by a Judge of the Federal Circuit Court of Australia on 11 October 2019.
The appeal is opposed by Ms Kappas (“the wife”).
The appeal was heard on 9 April 2020, and orders were made, including dismissing the appeal with costs. However, because of the behaviour of the husband, and time constraints, it was not possible to deliver reasons for judgment, and I indicated that I would do so as soon as possible. These are those reasons.
The applications before the primary judge were the husband’s application pursuant to s 79A of the Family Law Act 1975 (Cth)…

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 KAPPAS & KAPPAS

Details

AGLC: KAPPAS & KAPPAS [2020] FamCAFC 227
Case: [2020] FamCAFC 227
Decision Date: 10 September 2020

CaseChat Overview and Summary

In the case of Kappas & Kappas, the appeal arose from a decision concerning property distribution in the context of a family law matter. The parties, referred to as the appellant and the respondent, had been married and were subject to a property settlement order. The appellant challenged the primary judge's decision, arguing that the distribution of the property was unjust. The Family Court of Australia was tasked with reviewing the appeal.

The central legal issues before the court were whether the primary judge had made any errors in assessing and distributing the property, and whether the appeal had merit based on the grounds raised. Specifically, the court considered whether the primary judge had correctly applied the principles of section 79A of the Family Law Act 1975 (Cth) in making the property distribution order.

The court found that the primary judge had not erred in his assessment of the property distribution. The appeal did not identify any error in the primary judge's decision-making process, and none of the grounds of appeal presented had merit. Consequently, the court dismissed the appeal. Furthermore, because the appellant had been wholly unsuccessful in the appeal, the court ordered that costs be paid by the appellant to the respondent. This decision reinforces the principle that costs may be awarded to the respondent in such circumstances.

Orders