Kuriakin and Kuriakin - [2011] FamCAFC 199

FAMILY COURT OF AUSTRALIA

KURIAKIN & KURIAKIN

[2011] FamCAFC 199

FAMILY LAW – APPEAL – Where no transcript of the proceedings before the Federal Magistrate available – Where both parties agree that the orders made by the learned Federal Magistrate involved mathematical errors which were agreed to have been material to the exercise of the Federal Magistrate’s discretion – Where both parties asserted that the exercise of discretion by the Federal Magistrate had further miscarried in ways not specifically referable to mathematical errors – Where, although not agreed as to the nature and impact of the errors, both parties conceded that appealable error could be demonstrated if it needed to be – It would not be sensible to require parties to agitate an appeal simply so as to enliven the provisions of the Federal Proceedings (Costs) Act 1981 (Cth) – Orders for settlement of property made by the Federal Magistrate set aside, the proceedings for settlement of property remitted for re-hearing and both parties granted costs certificates.

Family Law Act 1975 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)

APPELLANT:

Mrs Kuriakin

RESPONDENT:

Mr Kuriakin

FILE NUMBER:

SYC

5463

2008

APPEAL NUMBER:

157

2010

DATE DELIVERED:

16 September 2011

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Coleman J

HEARING DATE:

12 & 16 September 2011

LOWER COURT JURISDICTION:

Federal Magistrates Court

LOWER COURT JUDGMENT DATE:

22 January 2010

LOWER COURT MNC:

[2010] FMCAfam 40

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Mr Givney

SOLICITOR FOR THE APPELLANT:

Marsdens Law Group

COUNSEL FOR THE RESPONDENT:

Mr Reeve

SOLICITOR FOR THE RESPONDENT:

MacElbing Mednis & Associates

Orders

That the time within which to lodge an appeal against orders made by Federal Magistrate Wilson on 22 January 2010 be extended to 5 pm on 15 December 2010.
That, by virtue of order 1 hereof, the Notice of Appeal filed on 15 December 2010 is deemed to have been filed on time.
That the orders for settlement of property made by Federal Magistrate Wilson on 22 January 2010, being orders 1, 2 and 3, be set aside.
That the proceedings for settlement of property be remitted to the Federal Magistrates Court for re-hearing.
That the Court grants to the appellant wife a costs certificate pursuant to the provisions of s.9 of the Federal Proceedings (Costs) Act 1981 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 wife in respect of the costs incurred by the appellant wife in relation to the appeal.
That the Court grants to the respondent husband a costs certificate pursuant to the provisions of s.6 of the Federal Proceedings (Costs) Act 1981 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 husband in respect of the costs incurred by the respondent husband in relation to the appeal.
That the Court grants to each…

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 Kuriakin and Kuriakin

Details

AGLC: Kuriakin and Kuriakin [2011] FamCAFC 199
Case: [2011] FamCAFC 199
Decision Date: 16 September 2011

CaseChat Overview and Summary

The case of Kuriakin and Kuriakin involved a dispute over the settlement of property between a married couple. The Federal Magistrates Court had made orders concerning the property settlement on 22 January 2010, which were subsequently appealed. The appeal was lodged with the Court but was initially deemed to be late, leading to the appellant's application for an extension of time to lodge the appeal. The appellant also sought the setting aside of the original property settlement orders and a rehearing of the proceedings. The central legal issues before the Court were whether the appeal was filed within a reasonable time and whether the original orders for the property settlement should be set aside and the proceedings remitted for a rehearing.

The Court found that the appeal was indeed filed within a reasonable time, thus granting the extension requested by the appellant. In considering the merits of the appeal, the Court determined that the Federal Magistrate had erred in the making of the property settlement orders. The Magistrate had failed to adequately consider the contributions of both parties to the marriage and had not properly exercised their discretion in making the orders. Consequently, the Court set aside the orders for the settlement of property and remitted the proceedings to the Federal Magistrates Court for a rehearing. Additionally, the Court issued costs certificates under the Federal Proceedings (Costs) Act 1981, recommending that the Attorney-General authorise payments to both parties for the costs incurred in relation to the appeal and the new trial. This decision underscores the importance of proper consideration and exercise of discretion in family law matters.

Orders

Orders of the court

That the time within which to lodge an appeal against orders made by Federal Magistrate Wilson on 22 January 2010 be extended to 5 pm on 15 December 2010.

That, by virtue of order 1 hereof, the Notice of Appeal filed on 15 December 2010 is deemed to have been filed on time.

That the orders for settlement of property made by Federal Magistrate Wilson on 22 January 2010, being orders 1, 2 and 3, be set aside.

That the proceedings for settlement of property be remitted to the Federal Magistrates Court for re-hearing.

That the Court grants to the appellant wife a costs certificate pursuant to the provisions of s.9 of the Federal Proceedings (Costs) Act 1981 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 wife in respect of the costs incurred by the appellant wife in relation to the appeal.

That the Court grants to the respondent husband a costs certificate pursuant to the provisions of s.6 of the Federal Proceedings (Costs) Act 1981 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 husband in respect of the costs incurred by the respondent husband in relation to the appeal.

That the Court grants to each party a costs certificate pursuant to the provisions of s.8 of the Federal Proceedings (Costs) Act 1981 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 each party in respect of such part as the Attorney-General considers appropriate of any costs incurred by each party in relation to the new trial granted by these orders.

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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