Bagonas & Mestri - [2021] FedCFamC2F 349

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Bagonas & Mestri [2021] FedCFamC2F 349

File number(s): MLC 1746 of 2020

Judgment of: JUDGE HARLAND

Date of judgment: 9 November 2021

Catchwords: FAMILY LAW – property – dispute as to whether or not the de facto relationship ended in 2013 or 2019 – whether or not the applicant requires leave out of time to proceed with application of property adjustment – whether or not there should be any adjustment of the parties’ property interests

Legislation:
Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth) ss 4AA; 79; 90RD; 90SM(1); 90SM(3); 90SM(4); 90SF(3)

Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth)

Cases cited:
Crick & Bennett [2018] FamCAFC 68

Delamarre & Asprey [2015] FamCAFC 159

Gallo & Dawson (1990) 93 ALR 479

Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143

In the Marriage of Whitford (1979) 4 Fam LR 754

Lynham v Director-General of Social Security (1983) 52 ALR 128

Moby & Schulter (2010) FLC 93-447

Sinclair & Whittaker [2013] FamCAFC 129

Stanford & Stanford (2012) 247 CLR 108

Watson & Ling (2013) 49 Fam LR 303

Division: Division 2 Family Law

Number of paragraphs: 96

Date of last submission/s: 14 October 2021

Date of hearing: 30 September 2021, and 14 October 2021

Place: Melbourne

Counsel for the Applicant: Applicant appeared in person

Counsel for the Respondent: Mr Stavris

Solicitor for the Respondent: Baraka Lawyers
ORDERS

MLC 1746 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS BAGONAS

Applicant

AND:
MR MESTRI

Respondent

ORDER MADE BY:

JUDGE HARLAND

DATE OF ORDER:

9 NOVEMBER 2021

THE COURT ORDERS THAT:
1.The application for final orders filed on 18 February 2020, amended on 1 September 2021 be dismissed.
2.Order 3 of the consent orders made on 28 April 2020 be discharged and within 7 days of the date of these orders, the trustee release the $100,000 currently held on trust to the trust account of the respondent’s solicitor for the sole benefit of the respondent absolutely.

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 Bagonas & Mestri has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE HARLAND:

The parties agree that they were in a de facto relationship from 2001 to 2013.…

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 Bagonas & Mestri

Details

AGLC: Bagonas & Mestri [2021] FedCFamC2F 349
Case: [2021] FedCFamC2F 349
Decision Date: 9 November 2021

CaseChat Overview and Summary

The dispute in Bagonas & Mestri involved a claim for a property adjustment by the applicant, Ms Bagonas, against the respondent, Mr Mestri, under the Family Law Act 1975. The central issue was whether their de facto relationship ended in 2013 or 2019. Additionally, the court had to determine whether Ms Bagonas needed leave to proceed with her application outside the usual time limits and if any adjustment to the parties' property interests was warranted. This case was heard in Division 2 of the Federal Circuit and Family Court of Australia.

The court identified several key legal issues. Firstly, it had to ascertain the correct date of the termination of the de facto relationship, which would influence the timing and eligibility of the property adjustment application. Secondly, the court considered whether Ms Bagonas's application was out of time and if she was entitled to leave to proceed. Finally, the court needed to decide whether the financial circumstances justified a property adjustment in favour of Ms Bagonas. These issues were pivotal in determining the final outcome of the case.

In its reasoning, the court found that the de facto relationship ended in 2019, not in 2013 as Ms Bagonas claimed. Consequently, her application was out of time, and she did not meet the criteria to seek leave to proceed. The court also determined that no property adjustment was warranted under the circumstances. Therefore, the application for final orders was dismissed, and the earlier consent orders were discharged. The court ordered the release of $100,000 held in trust for Mr Mestri to his solicitor within seven days of the judgment.

The court's final orders included the dismissal of the applicant's application for final orders and the discharge of a prior consent order. Specifically, the court mandated the release of $100,000 from the trust account to the respondent's solicitor for Mr Mestri's sole benefit within seven days. These orders were made on 9 November 2021, and their form was subject to entry into the Court's records.

Orders

Orders of the court

MLC 1746 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS BAGONAS

Applicant

AND:

MR MESTRI

Respondent

ORDER MADE BY:

JUDGE HARLAND

DATE OF ORDER:

9 NOVEMBER 2021

THE COURT ORDERS THAT:

1. The application for final orders filed on 18 February 2020, amended on 1 September 2021 be dismissed.

2. Order 3 of the consent orders made on 28 April 2020 be discharged and within 7 days of the date of these orders, the trustee release the $100,000 currently held on trust to the trust account of the respondent’s solicitor for the sole benefit of the respondent absolutely.

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.

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.

File number(s):	MLC 1746 of 2020
Judgment of:	JUDGE HARLAND
Date of judgment:	9 November 2021
Catchwords:	FAMILY LAW – property – dispute as to whether or not the de facto relationship ended in 2013 or 2019 – whether or not the applicant requires leave out of time to proceed with application of property adjustment – whether or not there should be any adjustment of the parties’ property interests
Legislation:	Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) ss 4AA; 79; 90RD; 90SM(1); 90SM(3); 90SM(4); 90SF(3) Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 (Cth)
Cases cited:	Crick & Bennett [2018] FamCAFC 68 Delamarre & Asprey [2015] FamCAFC 159 Gallo & Dawson (1990) 93 ALR 479 Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143 In the Marriage of Whitford (1979) 4 Fam LR 754 Lynham v Director-General of Social Security (1983) 52 ALR 128 Moby & Schulter (2010) FLC 93-447 Sinclair & Whittaker [2013] FamCAFC 129 Stanford & Stanford (2012) 247 CLR 108 Watson & Ling (2013) 49 Fam LR 303
Division:	Division 2 Family Law
Number of paragraphs:	96
Date of last submission/s:	14 October 2021
Date of hearing:	30 September 2021, and 14 October 2021
Place:	Melbourne
Counsel for the Applicant:	Applicant appeared in person
Counsel for the Respondent:	Mr Stavris
Solicitor for the Respondent:	Baraka Lawyers

MLC 1746 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MS BAGONAS Applicant
AND:	MR MESTRI Respondent

ORDER MADE BY:	JUDGE HARLAND
DATE OF ORDER:	9 NOVEMBER 2021