Judge Allows Husband to Appeal Property Settlement Orders
Cosio & Cosio (No 3) [2023] FedCFamC1A 6 (30 January 2023)
A judge of the Federal Circuit and Family Court of AustraliaDivision 2 made an order obligating the husband to pay the wife $824,369. The husband appealed, and the judge allowed it, remitting the matter for rehearing. The wife then sought to restrain the husband from dealing with the funds and his interest in the former matrimonial home until the rehearing was finalized, as well as her costs of the application
Facts:
A judge of the Federal Circuit and Family Court of AustraliaDivision 2 made final property settlement orders obligating the husband to pay the wife $824,369. The husband appealed, and the judge allowed it, remitting the matter for rehearing before another judge.
The husband then sought to vary the orders, including an order for repayment of the sum plus interest, which the wife opposed. She also sought to restrain the husband from dealing with the funds and his interest in the former matrimonial home until the rehearing was finalized, as well as her costs of the application.
In his Amended Notice of Appeal, the husband sought for the court to re-exercise the primary judge's discretion and not grant the wife any property division other than a 10 per cent superannuation split. He also asked for the repayment of monies already paid to the wife under the original orders, but did not press for this in the event the appeal succeeded and the matter was remitted for rehearing.
Issue:
Whether the court should grant the wife's requests for repayment of the sum plus interest, and for a restraining order on the husband from dealing with the funds and his interest in the former matrimonial home until the rehearing is finalized.
Applicable law:
Family Law Act 1975 (Cth) s 79 - pursuant to which the fourth order sought was to permit the wife to caveat the former matrimonial home.
Analysis:
The husband is seeking repayment orders while the wife is opposing it. The parties have agreed to reserve the question of interest on repayment to the judge who will deal with the rehearing. The husband's contentions on the repayment order are not in dispute and it is not necessary to determine if they are correct. However, the wife is opposing any unconditional order for repayment and the rate of interest is unclear. The court has agreed to reserve the question of interest on repayment to the judge for the rehearing.
Conclusion:
The wife is to immediately repay the husband the sum of $824,369, and the question of interest is to be determined by the Federal Circuit and Family Court of Australia.
Case: Cosio & Cosio (No 3) [2023] FedCFamC1A 6
Judgment of: TREE J
Counsels:
The Applicant: Self-represented litigant
Solicitor for the Respondent: Marsdens Law Group
