Kasiopoulos & Garapiperis - [2012] FamCAFC 85

FAMILY COURT OF AUSTRALIA

KASIOPOULOS & GARAPIPERIS

[2012] FamCAFC 85

FAMILY LAW ─ APPEAL ─ PROPERTY SETTLEMENT ─ Contributions ─ Where the husband challenged the trial Judge’s conclusion with respect to the post-separation contributions of the parties ─ Where none of the findings of fact made by the trial Judge were shown to have been other than reasonably open to his Honour ─ Not established that it was not reasonably open to the trial Judge to conclude as he did with respect to the post-separation period ─ Where the Court found no error of principle with the trial Judge’s evaluation of the post-separation period ─ Where the fact that the parties are no longer cohabiting did not mean that the impacts of the wife’s substantial and equal contributions over the course of the parties’ cohabitation could not carry forward in the way in which the trial Judge accepted that they had ─ Challenge unsuccessful.

FAMILY LAW ─ APPEAL ─ PROPERTY SETTLEMENT ─ Discretion ─ Where the husband challenged the substantial s 75(2) adjustment determined by the trial Judge in the wife’s favour ─ Not demonstrated that his Honour’s conclusion with regard to s 75(2) was “plainly wrong” or that his Honour’s determination of that issue exceeded “the generous ambit within which reasonable disagreement is possible” ─ Challenge unsuccessful.

FAMILY LAW ─ APPEAL ─ PROPERTY SETTLEMENT ─ Add-backs ─ Whether the trial Judge erred in law in adding back the legal costs paid by the husband in such circumstances where those costs were asserted to have been paid from income earned after separation ─ Where the husband’s assertion that the legal fees were paid from his income had not been challenged at trial ─ Where although the trial Judge could have added back the husband’s paid legal fees, notwithstanding that they were paid out of income, having not done so on that basis, the challenge of the husband with respect to the add-back of the paid legal fees succeeds ─ The Court re-exercised the trial Judge’s discretion in relation to this topic.

FAMILY LAW ─ APPEAL ─ COSTS ─ Where the appeal was allowed in part ─ Where it was submitted on behalf of the husband that, if the appeal were allowed, the wife should pay the husband’s costs ─ Where the Court did not agree that the trial Judge’s error, to which the wife had not been shown to have caused or contributed to, should be visited upon the wife ─ Where the Court considered it to be appropriate to order that each party receive costs certificates with respect to the appeal to this Court.

Family Law Act 1975 (Cth) Part VIII; ss 75(2), 79, 79(2)

CDJ v VAJ (1998) 197 CLR 172
Dean & Dean [1999] FamCA 1846
Gabel & Yardley (2008) FLC 93-386
Gollings and Scott (2007) FLC 93-319
Gronow v Gronow (1979) 144 CLR 513
Hickey and Hickey and Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143
Mallett v Mallett (1984) 156 CLR 605

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.

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Details

AGLC: Kasiopoulos & Garapiperis [2012] FamCAFC 85
Case: [2012] FamCAFC 85
Decision Date: 21 June 2012

CaseChat Overview and Summary

The appeal by the husband, in this family law case, against the trial Judge's decision regarding property settlement, was heard by the Family Court of Australia. The husband contested the trial Judge's conclusions about the post-separation contributions of both parties, the substantial adjustment under section 75(2) of the Family Law Act, and the add-back of legal fees. The wife argued that the husband's appeal should be dismissed in its entirety.

The legal issues before the court included whether the trial Judge's findings on the post-separation contributions and section 75(2) adjustments were open to reasonable dispute and whether the trial Judge erred in not adding back the husband's legal fees. The court also had to determine the appropriate costs order in light of the partial success of the appeal.

The court found that none of the trial Judge's findings were shown to have been unreasonable, and there was no error of principle in the evaluation of the post-separation period. The court held that the trial Judge's assessment of the wife's substantial contributions was justified, and the impacts of these contributions could carry forward despite the parties no longer cohabiting. Regarding the section 75(2) adjustment, the court held that the trial Judge's conclusion was within the generous ambit of reasonable disagreement. However, the court found that the trial Judge erred in not adding back the husband's legal fees, as the husband had not challenged the assertion that these fees were paid from income earned after separation. The court thus re-exercised the trial Judge's discretion on this matter.

The court allowed the appeal in part, varied the orders to reflect a minor correction in the amount owed by the husband, and extended the time for compliance. The court also issued costs certificates for both parties under the Federal Proceedings (Costs) Act 1981 (Cth), considering it appropriate for the Attorney-General to authorise payments to both parties in respect of their appeal costs.

Orders

Orders of the court

(Amended pursuant to Rule 17.02 of the Family Law Rules 2004 (Cth))

That the appeal be allowed in part.

That order 1 of the orders of 2 December 2010 be varied by substituting the sum of $93,485.51 for the sum of $91,070.85 therein appearing.

That the time for compliance with order 1 of the orders of 2 December 2010, as amended, be varied to provide “within 42 days of this date”.

That there be no order for costs.

That the Court grants to the Appellant Husband a costs certificate pursuant to the provisions of s.9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Appellant Husband in respect of the costs incurred by the Appellant Husband in relation to the appeal.

That the Court grants to the Respondent Wife a costs certificate pursuant to the provisions of s.6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Respondent Wife in respect of the costs incurred by the Respondent Wife in relation to the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

THE J THE J

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Ratio Decidendi

Legal Principle Established

Established by: THE J, THE J

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