Barrese & Arrico - [2022] FedCFamC2F 1023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Barrese & Arrico [2022] FedCFamC2F 1023

File number(s): DGC 1952 of 2020

Judgment of: JUDGE BOYMAL

Date of judgment: 5 August 2022

Catchwords: FAMILY LAW – Property – short relationship – modest asset pool – assessment of contributions – wastage caused by gambling – ownership of dog

Legislation:
Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 90SF(3), 90SM(3), 90SM(4)(d)–(g)

Cases cited:
Bevan & Bevan [2013] FamCAFC 116

C & C (2006) FLC 93-269

Dagher & Batarseh [2017] FCCA 316

Dickons & Dickons [2012] FamCAFC 154

Jabour & Jabour [2019] FamCAFC 78

Kowaliw and Kowaliw [1981] FamCA 70

Stanford & Stanford (2012) 247 CLR 108

Trevi & Trevi [2018] FAmCAFC 173

Division: Division 2 Family Law

Number of paragraphs: 119

Date of hearing: 7 December 2021

Place: Dandenong

Counsel for the Applicant: Mr Smith

Solicitor for the Applicant: Andrews Legal Group Pty Ltd

Counsel for the Respondent: Ms Taylor

Solicitor for the Respondent: Duffy and Simon
ORDERS

DGC 1952 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS BARRESE

Applicant

AND:
MR ARRICO

Respondent

order made by:

JUDGE BOYMAL

DATE OF ORDER:

5 AUGUST 2022

THE COURT ORDERS THAT:
1.Within 7 days the proceeds of sale of B Street, Suburb C, held by Duffy and Simon be applied as follows:
(a)First as to $7,004.00 to the wife;
(b)Secondly the balance then remaining to be divided in the proportion of:
(i)89 percent to the wife; and
(ii)11 percent to the husband.

2.The wife discharge the loan to D Bank as soon as practicable.
3.The wife sign all such documents to transfer the registration of the Motor Vehicle 1 to the husband.
4.The husband sign all such documents and do all such acts and things at his expense to transfer the registration of the Motor Vehicle 1 into his name and notify the wife forthwith upon the registration being changed.
5.The husband retain for his sole use and benefit the Motor Vehicle 1.
6.The husband indemnify the wife against any liability she may incur or may have already incurred in relation to the Motor Vehicle 1 including by the use of the vehicle by any third party, purported purchaser or purchaser, with those liabilities to include vehicle fines, tollway authority fines and any associated legal fees.
7.The wife retain for her sole use and benefit the Motor Vehicle 2.
8.The wife retain the dog to the exclusion of the husband.
9.Unless otherwise specified in these orders and save for the purposes of enforcing the payment of any monies due under these or any subsequent orders:
(a)each party be solely entitled to the exclusion of the other to all superannuation and other property (including choses-in-action) in the possession of such party as at the date of these orders;
(b)furniture, personal possessions and like chattels presently in the possession of the parties remain in their possession; and
(c)each party be solely liable for and indemnify the other against…

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 Barrese & Arrico

Details

AGLC: Barrese & Arrico [2022] FedCFamC2F 1023
Case: [2022] FedCFamC2F 1023
Decision Date

CaseChat Overview and Summary

In the case of Barrese & Arrico, the Federal Circuit and Family Court of Australia, Division 2, was required to determine the distribution of property between the parties following the breakdown of their de facto relationship. The primary asset in dispute was the proceeds from the sale of their former matrimonial home, amounting to $146,826.00, held by the husband's solicitor. Additionally, the parties contested the ownership of their dog. The legal issues before the court involved assessing the financial and non-financial contributions of both parties to the relationship and determining whether any further adjustments to the property distribution were necessary, considering factors such as wastage and future considerations.

The court approached the property adjustment by first identifying and attributing the value of assets to the parties at the time of the hearing. It then considered the financial and non-financial contributions made by both parties to the relationship, including contributions from family members, and assessed whether any further adjustments were needed under sections 90SM(4)(d)-(g) and 90SF(3) of the Family Law Act 1975. The court determined that the husband's excessive gambling and wastage of income should be considered in the property adjustment, pursuant to section 90SF(3)(r) of the Act.

After evaluating the totality of the evidence, the court concluded that the wife's contributions during and after the relationship significantly outweighed those of the husband. The court also took into account the husband's reckless behaviour and gambling, which led to a wastage of his income. Considering all factors, the court decided to adjust the net property of the parties, excluding the dog, in the proportion of 82 percent to the wife and 18 percent to the husband. Regarding the dog, the court found that the wife had a stronger entitlement to retain the dog due to her greater financial contributions and care for the animal.

The final orders of the court directed that the proceeds of sale be distributed in the proportion of 89 percent to the wife and 11 percent to the husband, with specific provisions for the discharge of a loan, transfer of vehicle registration, and indemnification. Additionally, the wife was granted exclusive ownership of the dog.

Orders