KAPPAS & KAPPAS - [2018] FamCAFC 61

FAMILY COURT OF AUSTRALIA

KAPPAS & KAPPAS

[2018] FamCAFC 61

FAMILY LAW – APPLICATION IN AN APPEAL – FURTHER EVIDENCE – Where the only admissible piece of evidence sought to be presented by the appellant was received subject to it demonstrating that the orders under appeal were erroneous – Where that evidence does not establish that the primary judge erred in accepting the evidence of the wife and making the findings that she did – Application dismissed.

FAMILY LAW – APPEAL – PROPERTY – Where the one complaint gleaned from the appellant’s documents that needed to be addressed was whether the primary judge erred in her conclusions as to appellant’s parents’ contribution and interest in a property – Where there was no admissible or credible evidence that established that the husband’s parents provided funds towards the purchase of the property on the understanding that they would have an equitable interest in the same, held on trust for them by the parties – Where the appellant failed to establish his case before the primary judge – Where the appellant has not demonstrated that the primary judge erred in any of her findings, the findings being reasonably open on the evidence – Where it is insufficient to establish that an alternative finding might have been available – Appeal dismissed.

FAMILY LAW – COSTS – Where the respondent seeks costs on an indemnity basis – Where the appellant opposed any order for costs based on his alleged poor financial circumstances – Where impecuniosity is not a bar to there being an order for costs where there are circumstances otherwise that justify it, which is the case here – Where although the issues raised have some synergy with the circumstances that have been found to be sufficiently exceptional, the normal rule should not be departed from – Costs ordered on a party/party basis fixed in the sum sought by the respondent.

Evidence Act 1995 (Cth) – s 69(3)
Family Law Act 1975 (Cth) – ss 117(2) and (2A)(e)

Family Law Rules (2004) (Cth)

CDJ v VAJ (1998) 197 CLR 172
Colgate-Palmolive Company v Cussons Pty Limited (1993) 118 ALR 248
D & D (Costs) (No. 2) (2010) FLC 93-435
Kohan & Kohan (1993) FLC 92-304
Limousin & Limousin (Costs) (2007) 38 Fam LR 478

APPELLANT:

Mr Kappas

RESPONDENT:

Ms Kappas

FILE NUMBER:

MLC

7430

2015

APPEAL NUMBER:

SOA

2017

DATE DELIVERED:

6 April 2018

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Melbourne

JUDGMENT OF:

Strickland J

HEARING DATE:

31 January 2018

LOWER COURT JURISDICTION:

Federal Circuit Court of Australia

LOWER COURT JUDGMENT DATE:

24 March 2017

LOWER COURT MNC:

[2017] FCCA 577

REPRESENTATION

THE APPELLANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Marchetti

SOLICITOR FOR THE RESPONDENT

Kennedy Guy

Orders

The application in an appeal filed on 24 November 2017 be dismissed.
The appeal be dismissed.
The husband pay the costs of the wife of and incidental to the appeal fixed in the sum of EIGHT THOUSAND SEVEN HUNDRED DOLLARS ($8,700).

Note: The…

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 [2018] FamCAFC 61
Case: [2018] FamCAFC 61
Decision Date: 6 April 2018

CaseChat Overview and Summary

In the matter of Kappas & Kappas, the parties were involved in a family law dispute. The appeal arose from a decision concerning property division and costs. The appellant sought to introduce new evidence and challenge the findings of the primary judge regarding the property and the contributions made by the appellant’s parents. The wife, the respondent, opposed the appeal and sought costs on an indemnity basis.

The court was required to decide whether the appellant had presented admissible evidence that demonstrated errors in the primary judge’s decision. Additionally, the court needed to assess if the primary judge had erred in her conclusions about the contributions made by the appellant’s parents to the property in question. The appellant argued that the primary judge should have considered alternative findings regarding the property interests of his parents.

The court found that the new evidence presented by the appellant was received subject to it demonstrating errors in the primary judge’s decision. However, the evidence did not establish that the primary judge had erred in accepting the wife’s evidence and making the findings she did. Regarding the property, the court held that there was no admissible or credible evidence to support the appellant’s claim that his parents had an equitable interest in the property. The appellant had failed to establish his case before the primary judge, and the findings of the primary judge were reasonably open on the evidence. The court concluded that it was insufficient to merely establish that an alternative finding might have been available.

The appeal was dismissed, and the application in an appeal was also dismissed. The court ordered that the appellant pay the respondent’s costs of and incidental to the appeal, fixed in the sum of eight thousand seven hundred dollars ($8,700). This sum was sought by the respondent.

Orders

Orders of the court

The application in an appeal filed on 24 November 2017 be dismissed.

The appeal be dismissed.

The husband pay the costs of the wife of and incidental to the appeal fixed in the sum of EIGHT THOUSAND SEVEN HUNDRED DOLLARS ($8,700).

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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