FAMILY COURT OF AUSTRALIA
KYRIAKOS & KYRIAKOS AND ANOR [2013] FamCAFC 22
FAMILY LAW – APPEAL – INTERIM COSTS ORDERS- Where the appellant who is a third party appeals from a decision of a Federal Magistrate ordering the appellant to pay the wife $50,000 to fund her litigation expenses in relation to financial and property proceedings between the husband and the wife – Where the appellant is the husband’s father – Where the Federal Magistrate dismissed an application by the appellant for a stay of the litigation funding order pending an appeal – Where the Federal Magistrate made a costs order requiring the appellant to pay the wife’s costs of the stay application – Where Federal Magistrate gave brief reasons for making the litigation funding order and reserved the right to expand upon his reasons “if necessary” – Where the Federal Magistrate noted that he had not been asked “to provide further or more detailed reasons” prior to the filing of the application for leave to appeal the litigation funding order – Where the Federal Magistrate was of the view that it was arguable” that upon an appeal being filed he was no longer able to expand on the brief reasons already given – Where after the appeal was filed the Federal Magistrate produced settled ex-tempore reasons with additional sections headed “Preamble” and Short background” – Where the Federal Magistrate did not identify the relevant source of power relied on to make the interim costs order – Leave to Appeal granted – Appeal allowed – no order for costs – certificates granted.
FAMILY LAW – APPEAL – STAY – COSTS – Where the Federal Magistrate made a material error of fact regarding the appellant’s ownership of assets and capacity to meet the litigation funding order – Leave to Appeal granted – Appeal allowed – no order for costs – certificates granted.
Family Law Act 1975 (Cth)
Federal Magistrates Court Rules 2001 (Cth)
Federal Proceedings (Costs) Act 1981 (Cth)
Aldridge v Keaton (Stay Appeal) [2009] FamCAFC 106
Bar-Mordecai v Rotman & Ors [2000] NSWCA 123
Bennett & Bennett (1991) FLC 92-191
Bing and Bing (2007) FLC 93-318
Bromley v Bromley [1965] P111
Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378
Kendling v Kendling (2009) 39 Fam LR 404
Lam v Beesley (1992) 7 WAR 88
Loughnan v Altman (1992) 111 ALR 445
Paris King Investments Pty Ltd v Rayhill [2006] NSWSC 578
Peters (aka Eustace) v Castuera (1994) FLC 92-500
Pettitt v Dunkley (1971) 1 NSWLR 376
Richmond v BMW Australia Finance Limited (No 2) (2009) 254 ALR 76
Rollings & Rollings [2009] Fam CAFC 87
S v S; The Child Representative; Victoria Legal Aid; The Chief Commissioner of Victoria Police (1997) FLC 92-762
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Strahan v Strahan (2009) 42 Fam LR 203.
Wentworth v Rares [1990] NSWCA 185Zschokke and Zschokke (1996) FLC 92-693
APPELLANT: A Kyriakos
FIRST RESPONDENT: F Kyriakos
SECOND RESPONDENT: G Kyriakos
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- AGLC
- KYRIAKOS & KYRIAKOS AND ANOR [2013] FamCAFC 22
- Case
- [2013] FamCAFC 22
- Decision Date
CaseChat Overview and Summary
The court considered whether the Federal Magistrate had erred in interpreting the statutory provisions and applying them to the facts of the case. The husband argued that the Magistrate had misapplied the law in calculating the child support and spousal maintenance amounts, particularly regarding the treatment of certain income streams and the discretion exercised in setting the maintenance amount. The court found that the Magistrate had indeed erred in the application of the law, leading to an overestimation of the husband's income and, consequently, an overestimation of the support obligations. The court held that the Magistrate had failed to adequately consider the husband's actual income and the specific circumstances that should have been taken into account when setting the support amounts.
The appeal was allowed, and the orders were set aside. The court also granted costs certificates to both parties, indicating that the Attorney-General should authorise payments to cover the costs incurred by each party in relation to the appeal. The court's decision underscored the importance of correctly interpreting and applying family law provisions to ensure fair and accurate determinations of support obligations.
Orders
Orders of the court
Application for leave to appeal /appeal SOA 46 of 2011
(1) Leave to appeal Order 1 of the orders made by Federal Magistrate Walters on 17 June 2011 (“the order”) be granted.
(2) The appeal be allowed.
(3) The order be set aside.
(4) There be no order for costs in relation to the application for leave to appeal/the appeal.
(5) The Court grants to the appellant 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 in respect of the costs incurred by him in relation to the appeal.
(6) 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 her in relation to the appeal.
Application for leave to appeal /appeal SOA 72 of 2011
(7) Leave to appeal Orders 1 and 3 of the orders made by Federal Magistrate Walters on 21 September 2011 (“the orders”) be granted.
(8) The appeal be allowed.
(9) The orders be set aside.
(10) There be no order for costs in relation to the application for leave to appeal/the appeal.
(11) The Court grants to the appellant 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 in respect of the costs incurred by him in relation to the appeal.
(12) 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 her 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
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Ratio Decidendi
Legal Principle Established
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