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Macris & Galanis

Case [2015] FamCAFC 234 11 December 2015

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FAMILY COURT OF AUSTRALIA

MACRIS & GALANIS

[2015] FamCAFC 234

FAMILY LAW – APPEAL – PRACTICE AND PROCEDURE – Where there was a delay between the making of final orders and publication of reasons for judgment – Consideration of s 75 Federal Circuit Court of Australia Act 1999 (Cth), Richmond v BMW Australia Finance Limited(No 2) (2009) 254 ALR 76 and Besser & McCoy (2008) FLC 93-361– Where there was no reason to depart from the ordinary practice of giving reasons for judgment contemporaneously with the orders.

FAMILY LAW – APPEAL – CHILDREN – Appeal against final parenting orders – Where before the Full Court the parties consented to vary certain parenting orders concerning the children’s time with the parties during Christmas school holidays and otherwise reserved judgment – Where appeal was allowed in part – Where the appellant failed to establish error in relation to the remaining parenting orders – Where the appeal was otherwise dismissed.

FAMILY LAW – APPEAL – PROPERTY – Appeal against final property orders – Where the challenges on appeal concern the adequacy of the trial judge’s reasons – Where the trial judge erred in evaluating initial contributions – Where findings as to initial contributions provided a springboard for subsequent findings and analysis of contributions – Where contributions assessment is fatally flawed – Error established – Whether error in contributions assessment impacted application of s 75(2) factors – Error established – Appeal allowed – Property proceedings remitted for rehearing.

FAMILY LAW – APPEAL – COSTS – Where the property appeal succeeded on an error of law – Costs certificates ordered pursuant to sections 6, 8 and 9 of the Federal Proceedings (Costs) Act 1981 (Cth).

Family Law Act 1975 (Cth): ss 65DAA(3)-(4), 75(2)
Federal Circuit Court of Australia Act 1999 (Cth): s 75
Federal Proceedings (Costs) Act 1981 (Cth): ss 6, 8, 9

Besser & McCoy (2008) FLC 93-361
Gillard & Gillard [2015] FamCAFC 169
Herridge & Handerson and Ors (2011) FLC 93-474
Mitchell v Cullingral Pty Ltd [2012] NSWCA 389
Pettitt v Dunkley [1971] 1 NSWLR 376
Richmond v BMW Australia Finance Limited(No 2) (2009) 254 ALR 76
Rollings & Rollings (2009) 230 FLR 396

APPELLANT:

Mr Macris

RESPONDENT:

Ms Galanis

FILE NUMBER:

WOC

576

2010

APPEAL NUMBER:

108

2015

APPEAL NUMBER:

109

2015

DATE DELIVERED:

11 December 2015

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Ryan, Aldridge & Cronin JJ

HEARING DATE:

26 October 2015

LOWER COURT JURISDICTION:

Federal Circuit Court

LOWER COURT JUDGMENT DATE:

Parenting orders made 12 June 2015 and judgment delivered on 18 September 2015; Property orders made 30 June 2015 and judgment delivered 7 October 2015

LOWER COURT MNC:

[2015] FCCA 2729; [2015] FCCA 2567

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Ms Kennedy

SOLICITOR FOR THE APPELLANT:

Rita Thakur & Associates

COUNSEL FOR THE RESPONDENT:

Mr Gould

SOLICITOR FOR THE RESPONDENT:

Hansons Lawyers

Orders

Appeal EA 108 of 2015 be allowed.
Order 1 dated 30 June 2015 be set aside.
Remit…

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: Macris & Galanis [2015] FamCAFC 234
Case: [2015] FamCAFC 234
Decision Date: 11 December 2015

CaseChat Overview and Summary

The case involved an appeal against final orders in family law matters, which included parenting and property orders, as well as costs. The appeal was heard by the Full Court of the Federal Circuit of Australia. The parties were a husband and wife who had been involved in lengthy family law proceedings. The husband appealed the final parenting orders concerning the children's time with the parties during the Christmas school holidays, as well as the final property orders. The wife cross-appealed against the property orders.

The legal issues before the court included whether the delay in providing reasons for the final orders was an error, whether the final parenting orders were erroneous, whether the final property orders were erroneous, and whether costs should be awarded in relation to the appeal. The court had to consider whether the delay in providing reasons for judgment was an error, whether the parenting orders were in the best interests of the children, whether the property orders were based on correct findings, and whether costs should be awarded.

The court found that there was no error in the delay in providing reasons for the final orders, and that the husband had not established any error in relation to the parenting orders. However, the court found that the trial judge had erred in evaluating initial contributions, which had led to a flawed assessment of contributions. The court found that this error impacted the application of the s 75(2) factors and that the property appeal should be allowed. The court remitted the property proceedings for rehearing in the Federal Circuit Court by a judge other than Judge Scarlett. The court also found that the husband was entitled to a costs certificate in relation to the property appeal, and that the wife was entitled to a costs certificate in relation to the appeal overall.

The court dismissed the wife's cross-appeal and the husband's appeal in relation to the parenting orders. The court ordered that the final parenting orders remain in place, and that the property proceedings be remitted for rehearing. The court also ordered that costs certificates be granted to the parties in relation to the appeal and the new trial ordered.

Orders

Orders of the court

Appeal EA 108 of 2015 be allowed.

Order 1 dated 30 June 2015 be set aside.

Remit the property proceedings for rehearing in the Federal Circuit Court by a judge other than Judge Scarlett.

Subject to Orders 1 and 2 made by this Court on 26 October 2015 Appeal EA 109 of 2015 be dismissed.

There be no order as to costs in relation to Appeals EA 108 of 2015 and EA 109 of 2015.

That the Court grants to the appellant husband a costs certificate in Appeal EA 108 of 2015 pursuant to 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.

The Court grants to the respondent wife a costs certificate in Appeal EA 108 of 2015 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 in respect of the costs incurred by her in relation to the appeal.

The Court grants to each of the parties a costs certificate in Appeal EA 108 of 2015 pursuant to the provisions of s 8 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 each of the parties in respect of the costs incurred by them in relation to the new trial ordered.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Macris & Galanis [2015] FamCAFC 234

Most Recent Citation

Bartz and Manthey [2018] FamCAFC 109

Cases citing this decision · 2 of 2 shown

VELDERMAN & VELDERMAN
[2020] FamCAFC 243

…Lines MacFarlane & Marshall Pty Ltd (2001) 4 VR 28; [2001] VSCA 167 Kioa v West (1985) 159 CLR 550; [1985] HCA 81 Macris & Galanis (2015) FLC 93-681; [2015] FamCAFC 234 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 Rollings & Rollings (2009) 230 FLR 396; [2009] FamCAFC 87 Sargent & Selwyn (2017) FLC 93-812; [201…
Bartz and Manthey
[2018] FamCAFC 109 Para 5

…the delay in delivery of reasons raises serious concerns regarding the delay. As the Full Court of the Family Court said in Macris & Galanis [2015] FamCAFC 234 at [33] A significant delay puts a litigant in an untenable position of not knowing, other than by conjecture, why the orders were made. There is also the qu…

View all 2 citing cases →

Cases cited in this decision · 9 of 9 shown

Gillard & Gillard
[2015] FamCAFC 169 Para 15

…ck and to then complain on appeal of his Honour’s failure to take a step which the husband himself could but did not initiate ( Gillard & Gillard [2015] FamCAFC 169).…
Macris & Galanis
[2015] FCCA 2623 Para 20

…nting orders. This application came before the trial judge on 17 July 2015 and on 22 July 2015 he stayed the parenting orders and the property order ([2015] FCCA 2623). The latter on condition the husband pays the wife $50,000 (rather than $400,000) by way of interim property settlement within 42 days.…
GALANIS & MACRIS (No.2)
[2015] FCCA 2729 Para 18

…pronounced the property orders. Once again he did not publish his reasons for those orders and it was not until 7 October 2015 that these were given ([2015] FCCA 2729).…
Galanis & Macris
[2015] FCCA 2567 Para 17

…d final parenting orders on 12 June 2015. It would be another three months, on 18 September 2015, before his reasons for those orders were published ([2015] FCCA 2567).…
Plaintiff M76/2013 v Minister for Immigration, Multicultural Affairs and Citizenship
[2013] HCA 53 Para 7

…on of the facts. It is for this reason that a failure to give reasons simpliciter has long been held to be an error of law ( Pettitt v Dunkley [1971] 1 NSWLR 376). Hence, the delivery of subsequent reasons both inside and outside of a designated appeal period may not cure the injustice caused by the failure to…
Mitchell v Cullingral Pty Ltd
[2012] NSWCA 389 Para 3

…side, setting out the evidence on the other side and saying that the judge prefers one body of evidence to another ( Mitchell v Cullingral Pty Ltd [2012] NSWCA 389).…
Richmond v BMW Australia Finance Limited (No 2)
[2009] FCAFC 25 Para 5

…gs and for which provision is made in s 75 of the Federal Circuit Court of Australia Act 1999 (Cth) ( Richmond v BMW Australia Finance Limited (No 2) (2009) 254 ALR 76). In Besser & McCoy (2008) FLC 93-361, Coleman J held (at 82,427) that orders made by a federal magistrate five weeks before publication of reasons “…
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq)
[1999] HCA 3 Para 3

…indings are shown to have been “unsafe” (see State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) and Others [1999] 160 ALR 588). If it is demonstrated that his Honour’s discretion was exercised in reliance upon material errors of fact, appellate intervention is likely to be enliv…
Rollings & Rollings
[2009] FAMCAFC 87 Para 1

…y in decision-making, the ground of appellate intervention is the error, or the infirmity of the decision, not the delay itself ( Rollings & Rollings (2009) 230 FLR 396). Thus, counsel for the husband properly conceded that the trial judge’s delay could not, of itself, enliven appellant intervention.…

Legislation cited in this decision · 3

Family Law Act 1975 (Cth)
1 mention (from Para 1)
Federal Circuit Court of Australia Act 1999 (Cth)
1 mention (from Para 5)
Federal Proceedings (Costs) Act 1981 (Cth)
1 mention (from Para 6)