Leventis & Leventis - [2021] FedCFamC1F 46

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Leventis & Leventis [2021] FedCFamC1F 46

File number(s): MLC 7710 of 2018

Judgment of: WILSON J

Date of judgment: 15 September 2021

Catchwords: FAMILY LAW – PART PROPERTY APPLICATION – reversibility a major issue – earlier part property orders made – not appropriate to make such an order now – application refused.

Legislation: Family Law Act1975 ss 117(1) and 117(2A)

Cases cited:
Ashton v Pratt (2015) 88 NSWLR 281

Cao & Trong (No 2) [2019] FamCA 941

Gabel v Yardley (2008) 40 Fam LR 66

In the Marriage of Zschokke (1996) 20 Fam LR 766

Jabour v Jabour (2019) 59 Fam LR 475

Strahan v Strahan (2009) 241 FLR 1

Verdon & Verdon (2020) 62 Fam LR 573

Willians & Enmore (No 2) [2021] FamCA 340

Division: Division 1 First Instance

Number of paragraphs: 21

Date of hearing: 3 September 2021

Place: Melbourne

Counsel for the Applicant: Dr E. Kelly

Solicitor for the Applicant: Nicholes Family Lawyers

Counsel for the First Respondent: Dr R. Ingleby

Solicitor for the First Respondent: Vadarlis & Associates

Counsel for the Second and Third Respondents: Mr P.Panayi

Solicitor for the Second and Third Respondents: Pauline Madden Conveyancing & Legal
ORDERS

MLC 7710 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS LEVENTIS

Applicant

AND:
MR LEVENTIS
First Respondent

MR B LEVENTIS

Second Respondent

MR B LEVENTIS

Third Respondent

ORDER MADE BY:

WILSON J

DATE OF ORDER:

15 SEPTEMBER 2021

THE COURT ORDERS THAT:
1.I dismiss the wife’s part property claim.
2.Each party’s costs of and incidental to this application are to be his or her costs under s 117(1) of the Family Law Act 1975.

Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Leventis & Leventis is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
WILSON J

Several applications are addressed in these reasons. They include –
(a)the wife’s application for part property orders;
(b)the wife’s costs application;
(c)the husband’s costs application; and
(d)the second and third respondent’s costs application.
In this proceeding parenting issues and the alteration of property interest are fixed for trial on 22 August 2022 on an estimated duration of seven days. The wife has foreshadowed an application to bifurcate the parenting issues from the property issues.…

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 Leventis & Leventis

Details

AGLC: Leventis & Leventis [2021] FedCFamC1F 46
Case: [2021] FedCFamC1F 46
Decision Date

CaseChat Overview and Summary

In the case of Leventis & Leventis, the Federal Circuit and Family Court of Australia (Division 1) presided over by Wilson J addressed various applications brought by the wife, including a part property claim, and costs applications by all parties. The primary dispute centered around the allocation of assets, particularly the funds from a Transport Accident Commission (TAC) claim and the value of an undeveloped property in regional Victoria. The wife sought an additional part property payment of $605,248 from the TAC funds held in trust, which would bring the total part property orders to $812,248. The husband contested this claim, arguing that the wife's contribution to the TAC funds was minimal or non-existent, a matter that needed to be resolved at trial. The court also considered the equitable interests claimed by the second and third respondents over the L Street property.

The legal issues before the court involved whether it was appropriate to make an interim part property settlement order and the implications of such an order, particularly concerning reversibility and the potential for prejudicing the final outcome. The court referenced previous cases such as Strahan v Strahan, Jabour v Jabour, and Zschokke v Zschokke to highlight the importance of considering the risks of limiting the court's discretion in making final orders. Furthermore, the court scrutinized the wife's assertion of a debt to her father, noting the lack of evidence of a written demand for repayment and thus declining to recognize the debt as an immediate financial obligation.

In its reasoning, the court emphasized the need to balance the immediate needs of the wife against the potential for irreversible consequences if an interim part property order was granted. The court found that making such an order would risk prejudicing the final outcome of the property division. Additionally, the court declined to make any specific costs orders beyond requiring each party to bear their own costs for the application, citing the financial circumstances of both the wife and the husband. This decision underscored the court's adherence to the principle that costs orders under the Family Law Act must be just and take into account the parties' financial situations.

Orders