Kasiopoulos and Garapiperis (No 2) - [2010] FamCA 1184

FAMILY COURT OF AUSTRALIA

KASIOPOULOS & GARAPIPERIS (NO. 2)

[2010] FamCA 1184

FAMILY LAW – PROPERTY SETTLEMENT – Contributions – Adjustment for other matters
FAMILY LAW – PRACTICE AND PROCEDURE – Leave to commence proceedings
FAMILY LAW – SPOUSE MAINTENANCE

Family Law Act 1975 (Cth) ss 44, 72, 74, 75 & 79

In the Marriage of Hickey(2003) 30 Fam LR 355
Mallett v Mallett (1984) 9 Fam LR 449
In the Marriage of Ferraro (1992) 16 Fam LR 1
In the Marriage of Shewring (1987) l2 Fam LR 139
In the Marriage of Lenehan (1987) 11 Fam LR 615
In the Marriage of Norbis (1986) 10 Fam LR 819; FLC 91-712
In the Marriage of Zyk (1995) 19 Fam LR 797
In the Marriage of Coghlan (2004) 33 Fam LR 414
In the Marriage of Whitford (1979) 4 FLR 754
In the Marriage of Althaus (1979) 8 Fam LR 169; (1982) FLC 91-233
In the Marriage of Carlon (1982) 8 Fam LR 729; [1982] FLC 91-272
In the Marriage of Neocleous (1993) 16 Fam LR 557; (1993) FLC 92-377
In the Marriage of Kowaliw (1981) FLC 91-092
In the Marriage of Clauson (1995) 18 Fam LR 693; [1995] FLC 92-595
West & Green (1993) FLC 92-395; 16 Fam LR 811
C and C [1998] FamCA 143
In the Marriage of Omacini (2005) 33 Fam LR 134
In the Marriage of DJM and JLM (1998) 23 Fam LR 396; (1998) FLC 92-816

APPLICANT:

Mr Kasiopoulos

RESPONDENT:

Ms Garapiperis

FILE NUMBER:

SYC

6432

2008

DATE DELIVERED:

2 December 2010

PLACE DELIVERED:	Sydney
PLACE HEARD:	Sydney

JUDGMENT OF:

Justice Loughnan

HEARING DATES:

2 & 3 September 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:	Mr T. Hodgson
SOLICITOR FOR THE APPLICANT:	Hancock Alldis & Roskov Lawyers & Notaries

COUNSEL FOR THE RESPONDENT:	Mr A. Givney
SOLICITOR FOR THE RESPONDENT:	Vizzone Ruggero & Associates

Orders

Within forty-two (42) days of the date of these Orders, the Respondent wife pay to the Applicant husband the sum of $91,070.85 (“the sum”).
Forthwith upon that payment:-
a.the Applicant husband shall transfer to the Respondent wife the whole of his right, title and interest in and to the matrimonial home at B being formally known as Folio Identifier … (“the matrimonial home”); and
b.the Respondent wife shall discharge, at her cost, the loan encumbering the matrimonial home and indemnify the Applicant husband in respect of all of the parties’ obligations under the said loan.
Should the wife fail to pay the sum and to discharge the mortgage on the matrimonial home within forty-two (42) days or such other period as the parties agree in writing, the husband and wife shall sign all documents and do all things necessary to list the matrimonial home for sale in accordance with the terms and conditions set out in Order 4 below and upon completion of the sale, the proceeds of sale be applied as follows:-
a.Payment to the Real Estate Agents for their proper commission and expenses;
b.Payment to the conveyancing…

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 Kasiopoulos and Garapiperis (No 2)

Details

AGLC: Kasiopoulos and Garapiperis (No 2) [2010] FamCA 1184
Case: [2010] FamCA 1184
Decision Date: 2 December 2010

CaseChat Overview and Summary

In *Kasiopoulos and Garapiperis (No 2)*, Justice Loughnan of the Federal Circuit and Family Court of Australia made orders concerning the division of property and ancillary matters between the applicant husband and the respondent wife. The dispute centred on the equitable distribution of assets, particularly the matrimonial home, and the wife's application for spousal maintenance.

The court was required to determine the terms of the property settlement, including the financial contributions and entitlements of each party, and the method for dealing with the matrimonial home. A key legal issue was whether the wife should be granted leave to bring proceedings for spousal maintenance out of time.

Justice Loughnan ordered that the wife pay the husband a sum of $91,070.85 within 42 days. Upon this payment, the husband was to transfer his interest in the matrimonial home to the wife, who was then to discharge the associated loan and indemnify the husband. In the alternative, should the wife fail to meet these obligations, the matrimonial home was to be listed for sale, with proceeds to be applied first to sale costs, then to discharge the mortgage, and the balance to be divided with 9.4 per cent to the husband and the remainder to the wife. The court also dismissed the wife's application for leave to bring proceedings for spousal maintenance out of time.

Orders

Orders of the court

Within forty-two (42) days of the date of these Orders, the Respondent wife pay to the Applicant husband the sum of $91,070.85 (“the sum”).

Forthwith upon that payment:-

a. the Applicant husband shall transfer to the Respondent wife the whole of his right, title and interest in and to the matrimonial home at B being formally known as Folio Identifier … (“the matrimonial home”); and

b. the Respondent wife shall discharge, at her cost, the loan encumbering the matrimonial home and indemnify the Applicant husband in respect of all of the parties’ obligations under the said loan.

Should the wife fail to pay the sum and to discharge the mortgage on the matrimonial home within forty-two (42) days or such other period as the parties agree in writing, the husband and wife shall sign all documents and do all things necessary to list the matrimonial home for sale in accordance with the terms and conditions set out in Order 4 below and upon completion of the sale, the proceeds of sale be applied as follows:-

a. Payment to the Real Estate Agents for their proper commission and expenses;

b. Payment to the conveyancing Solicitors for their proper fees and disbursements;

c. Payment of appropriate adjustments of Council and Water Rates;

d. Payment of the amount required to discharge the mortgage loan encumbering the matrimonial home; and

e. Payment of the balance to the husband and wife in the following shares:-

i. As to the Applicant husband, 9.4 per cent;

ii. As to the Respondent wife, the balance.

That the matrimonial home shall be sold as follows:-

a. The agent to act on the sale of the matrimonial home shall be an agent agreed upon by the parties and in the absence of agreement for a period in excess of fourteen (14) days, the agent shall be the person nominated by the President for the time being of the Real Estate Institute of New South Wales on the application of either of the parties.

b. The Solicitor to act in respect of the sale shall be Messrs. Hancock Alldis & Roskov.

c. The Contract for the sale shall be the standard form Law Society Contract and shall provide for settlement, in the absence of agreement to the contrary, to take place forty-two (42) days from the date of exchange.

d. The reserve price for the matrimonial home shall be that amount agreed upon between the parties and in the absence of agreement for a period in excess of fourteen (14) days, the reserve price shall be set by the valuer appointed by the President for the time being of the Australian Property Institute Inc. New South Wales Division, on the application of either of the parties.

e. The parties shall use their best endeavours to sell the matrimonial home by private treaty within two (2) months of the date of listing.

f. If the matrimonial home is not sold within the period referred to in sub-paragraph e. above, the parties shall list the matrimonial home for auction, with the sale to take place within a further period of two (2) months, or such other time as the parties may agree in writing. During this period and the period referred to in sub-paragraph e. above, the parties shall accept any price offered for the matrimonial home in excess of, equal to, or within 2.5 per cent below, the reserve price.

g. If the matrimonial home is not sold at the auction referred to in sub-paragraph f. above, the parties shall list the matrimonial home for sale at a further auction to take place a further two (2) months from the date of the first auction and during this period the parties shall, unless otherwise agreed in writing between them, accept any offer made for the matrimonial home which is in excess of, equal to, or within 5 per cent below, the reserve price of the matrimonial home.

h. The wife and husband shall do all things to permit the inspection of the matrimonial home by the real estate agent and prospective purchasers at any reasonable time.

Other than as herein provided, the husband and wife each be declared the sole legal and beneficial owners of all other items of property presently in their respective possession or control including but not limited to money, shares, real property, motor vehicles, entitlements to superannuation, furniture, furnishing and personal effects.

The oral application of the wife for leave to bring proceedings for spousal maintenance out of time is dismissed.

The parties shall execute all documents and do all things necessary to give effect to these Orders.

In the event that either party refuses or neglects to execute any deed or instrument, the Registrar of the Court be appointed pursuant to Section 106A to execute any deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation to the deed or instrument.

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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