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OTHONOS and COSTA-OTHONOS

OTHONOS and COSTA-OTHONOS

Case [2022] FCWA 189 12 September 2022

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JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: OTHONOS and COSTA-OTHONOS [2022] FCWA 189
CORAM: TYSON J
HEARD: 27 JUNE 2022
DELIVERED : 12 SEPTEMBER 2022
FILE NO/S: 9394 of 2019
BETWEEN: MR OTHONOS
Applicant
AND
MS COSTA-OTHONOS
Respondent

Catchwords:

FAMILY LAW – Expert Evidence – Where orders were made by consent for the appointment of a Single Expert Witness with respect to the wife’s health and income earning capacity – Where the husband seeks permission to appoint an expert, other than the Single Expert Witness – Where the husband has failed to comply with the relevant Rules with respect to putting questions to the Single Expert Witness – Where orders are made extending the time in which the husband is to pose questions to the Single Expert Witness, and his application to appoint an expert is adjourned – Where each party seeks orders for the appointment of an expert to provide actuarial evidence – Consideration as to whether the expert evidence is necessary to resolve or determine issues in the case – Case turns on its own facts

FAMILY LAW – Where orders were made for the husband to pay a lump sum to the wife – Where those orders were set aside on appeal and remitted – Where the wife seeks to retain the lump sum by way of partial property settlement or lump sum spousal maintenance – Consideration of the relevant factors – Where orders are made for the wife to retain the lump sum by way of partial property settlement – Case turns on its own facts

FAMILY LAW – Disclosure – Where there are competing applications for disclosure – Where there are disputes as to the relevance and proportionality of the disclosure sought by each party – Case turns on its own facts

FAMILY LAW – Where the wife seeks orders on a final basis for both property settlement and spousal maintenance – Where the husband has filed a Financial Statement, but has not completed Part N – Where the husband opposes the wife’s application, on the basis he can satisfy any order which the Court may reasonably make – Where the Court is satisfied the husband should file an amended Financial Statement – Case turns on its own facts

FAMILY LAW – Costs – Where the wife seeks lump sum costs – Where the assets owned by the husband are significantly greater than the wife – Where the issue of contributions is disputed – Where the wife’s future needs are contentious – Where both parties have incurred significant costs to date – Where the application is declined – Case turns on its own facts

Legislation:

Family Law Act 1975 (Cth)

Category: Reportable

Representation:

Counsel:

Applicant	:	Mr Penglis SC
Respondent	:	Mr Hedges SC

Solicitors:

Applicant	:	Crossing Family Lawyers
Respondent	:	O'Sullivan Davies Lawyers

Case(s) referred to in decision(s):

Andreas & Gabris [2021] FedCFamC1A 24
Atkins & Hunt and Ors (2018) 57 Fam LR 128

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 OTHONOS and COSTA-OTHONOS

Details

AGLC: OTHONOS and COSTA-OTHONOS [2022] FCWA 189
Case: [2022] FCWA 189
Decision Date: 12 SEPTEMBER 2022

CaseChat Overview and Summary

In the matter of Othonos and Costa-Othonos, the court was tasked with a number of issues arising from the dissolution of the marriage of the parties. The legal matters before the court included the necessity and scope of expert evidence, particularly in relation to the wife's health and income-earning capacity, as well as the handling of a lump sum payment previously ordered to be paid by the husband. The court was also required to consider the relevance and proportionality of disclosure sought by both parties, the wife's application for a final property settlement and spousal maintenance, and the husband's obligation to file an updated Financial Statement. Lastly, the court had to determine the appropriate allocation of costs between the parties, given their significant financial disparity and contentious issues regarding contributions and future needs.

The court examined the necessity of expert evidence, noting the husband's failure to comply with procedural rules in posing questions to the designated Single Expert Witness. It was determined that the evidence was not essential to resolve the issues at hand, and the husband's application to appoint an additional expert was adjourned. Regarding the lump sum, the court found that the wife was entitled to retain it as part of the partial property settlement, considering various factors including the parties' financial circumstances and contributions. The court also addressed the disclosure disputes, ruling on the relevance and proportionality of the information sought. In relation to the wife's final property settlement and spousal maintenance application, the court ordered the husband to file an amended Financial Statement, as the existing one was incomplete. Finally, the court declined the wife's application for lump sum costs, taking into account the significant costs already incurred by both parties and the unresolved issues of contributions and future needs.

The court made several orders in the case. It extended the time for the husband to pose questions to the Single Expert Witness and adjourned his application to appoint an additional expert. The court granted the wife's application to retain the lump sum as part of the partial property settlement. It also ruled on the disclosure disputes, determining the relevance and proportionality of the information sought. Additionally, the court ordered the husband to file an amended Financial Statement and declined the wife's application for lump sum costs, without prejudice to future applications regarding costs. These orders reflect the court's consideration of the specific facts and circumstances of the case, ensuring a fair resolution of the disputes between the parties.

Orders