Arias & Grasso - [2022] FedCFamC2F 47

Federal Circuit and Family Court of Australia
(DIVISION 2)
Arias & Grasso [2022] FedCFamC2F 47

File number(s): NCC 4198 of 2021

Judgment of: JUDGE CARTY

Date of judgment: 24 January 2022

Catchwords: FAMILY LAW – DE FACTO PROPERTY – Interlocutory application for injunction – application for property orders made more than 2 years after the breakdown of the de facto relationship – leave pursuant to s.44(6) yet to be determined – if leave granted de facto wife seeks 60% of the proceeds of sale of real property owned by de facto husband, along with her superannuation- de facto wife is registered proprietor of another parcel of real estate, in which she lives– de facto wife contends that there is a risk that de facto husband will use proceeds of sale to live in Country R or otherwise remove funds from court’s jurisdiction – de facto wife contends that her claim for final relief is likely to be defeated if injunctive relief is not granted – de facto husband proposes to use proceeds of sale to purchase a unit in retirement village – whether wife has prima facie case for final relief sought – whether interlocutory injunction is necessary – de facto wife’s application for injunction dismissed.

Legislation: Family Law Act 1975 (Cth), ss.4(1), 44, 90SB, 90SK, 90SM, 114(2A)

Cases cited: Norton v Locke (2013) 284 FLR 51; (2013) 51 FamLR 517; [2013] FamCAFC 202
In Marriage of Waugh (2000) 158 FLR 152; (2000) FLC 93-052
Jackson v. Sterling Industries Limited (1987) 162 CLR 612; [1987] HCA 23
Stowe & Stowe (1981) 6 FamLR 757; (1981) FLC-027

Division: Division 2 Family Law

Number of paragraphs: 89

Date of last submission/s: 17 January 2022

Date of hearing: 17 January 2022

Place: Newcastle

Counsel for the Applicant: Mr Weightman

Solicitor for the Applicant: Baker Love Lawyers

Counsel for the Respondent: Mr Duane

Solicitor for the Respondent: Dawson & Gardiner Solicitors
ORDERS

NCC 4198 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS ARIAS

Applicant

AND:
MR GRASSO

Respondent

order made by:

JUDGE CARTY

DATE OF ORDER:

24 JANUARY 2022

THE COURT ORDERS THAT:
1. The wife’s application for interlocutory injunction is dismissed.
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 a pseudonym Arias & Grasso has been approved pursuant to s 121(9)(g) of the Family…

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 Arias & Grasso

Details

AGLC: Arias & Grasso [2022] FedCFamC2F 47
Case: [2022] FedCFamC2F 47
Decision Date

CaseChat Overview and Summary

The applicant, Ms Arias, and the respondent, Mr Grasso, were in a de facto relationship from 1999 until February 2010. They have one child, Ms B, born in 2000. Ms Arias seeks interlocutory injunctive relief in relation to the proceeds of sale of a real property at E Street, Town F, New South Wales, which was owned solely by Mr Grasso. The husband opposed the wife’s application for interlocutory injunction and sought that the wife’s application be dismissed. The court had to determine whether the wife had established a prima facie case for the final relief sought and whether interlocutory injunction was necessary. The court held that the wife had not established a prima facie case for the relief sought and that an interlocutory injunction was not necessary in this case. The court dismissed the wife’s application for interlocutory injunction.

The court held that the wife’s case and the husband’s case on the issue of leave to institute property proceedings out of time each appeared arguable, and the court could not draw any firm conclusion as to the wife’s prospects of success on that issue. However, on the current state of the evidence, the court could not conclude that the wife had a sufficient likelihood of success in obtaining an order for her to receive 60% of the proceeds of sale of the E Street, Town F property to justify the preservation of the status quo pending the trial. The court held that the wife’s express concerns appeared to be based on nothing more than bare assertion, and there was an absence of evidence of an intention on the part of the husband to dispose of property in order to defeat the wife’s claim. The court held that the husband’s evidence as to why he had sold the E Street, Town F property and how he proposed to utilise the sale proceeds from the sale was credible and did not permit of an inference that his decision to sell the E Street, Town F property, or his proposed use of the proceeds of sale of E Street, Town F to buy a retirement unit for him to live in, was a course of action designed by him or, irrespective of his design, likely to defeat the wife’s claim for final relief. The court held that the balance of convenience in this case required consideration of the hardship the husband would likely suffer if he was unable to apply the proceeds of sale to purchase suitable housing for himself, against the evidence of hardship to the wife. The court held that the wife had the benefit of remaining in the L Street, Suburb M property for the foreseeable future and placed little weight on the wife’s evidence that she needed to buy a house for herself. The court held that any legitimate claim of the wife could be satisfied from equity that the husband would have in the retirement unit he proposes to purchase, and the balance of convenience favoured the husband being able to apply the proceeds of sale of E Street, Town F to purchase an alternative home in which he can live in his retirement. The evidence of the wife fell short of establishing a basis for the interlocutory relief by way of injunction, and the wife’s application for interlocutory injunction would be dismissed.

Orders