BAZZI-CIRINO & CIRINO - [2014] FamCA 920

FAMILY COURT OF AUSTRALIA

BAZZI-CIRINO & CIRINO [2014] FamCA 920

FAMILY LAW – PROPERTY SETTLEMENT IN RELATION TO MARRIAGE – Where the parties cohabited for approximately ten years – Where there are two children of the marriage – Where the wife’s financial contributions and her contributions to the care of the children post separation are greater than the husband’s – Where the children remain in the care of the wife – Where the contributions of the wife are found to be 60 per cent and the contributions of the husband are 30 per cent – Where there is an adjustment made in favour of the wife for 75(2) factors of 5 per cent.

FAMILY LAW – PROPERTY SETTLEMENT IN RELATION TO MARRIAGE – Legal fees – Where the husband seeks that the paid legal fees of both parties and liabilities relating to the legal fees be included in the asset pool as an “add back” – Where the funds expended by the wife on legal fees were sourced from her post separation income – Where the wife’s income was generated by her professional practice – Where the husband asserted that he contributed to the practice during the marriage – Where the husband was not the co-owner or operator of the practice– Where the income produced by the practice post separation was not referable to the parties’ joint efforts – Where the legal fees and related liabilities were not included in the asset pool but were taken into account under s 75 (2).

Family Law Act 1975 (Cth) ss 75, 79
Family Law Rules 2004 (Cth) Rule 15.49

Chorn & Hopkins (2004) FLC 93-204
Eufrosin & Eufrosin [2014] FamCAFC 191
Rosati & Rosati (1998) FLC 92-804
Stanford v Stanford (2012) 247 CLR 108
Williams & Williams [2007] FamCA 313

APPLICANT: Ms Bazzi-Cirino

RESPONDENT: Mr Cirino

FILE NUMBER: SYC 2528 of 2012

DATE DELIVERED: 27 October 2014

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Rees J

HEARING DATE: 13, 14, 15 October 2014
REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Macpherson

SOLICITOR FOR THE APPLICANT: Morton Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Richards

SOLICITOR FOR THE RESPONDENT: Mills Oakley Lawyers
Orders
IT IS ORDERED
(1)That within three months of the date of these Orders Ms Bazzi-Cirino (“the wife”) pay to Mr Cirino (“the husband”) the sum of $163,000.
(2)That simultaneously with the payment in Order 1, the parties do all acts necessary to transfer to the wife the right title and interest in the property at L Street, Suburb G (“the L property”) being the land in Folio Identifier ….
(3)That from the date of these Orders the wife shall be solely responsible for all outgoings, including but not limited to mortgage payments, in relation to the L property and shall indemnify the husband and hold him safe in respect of all such liabilities.
(4)That the wife shall, if so requested by the husband in writing, cause any mortgage secured over the L property to be discharged.
(5)That in the…

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.

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Details

Case: [2014] FamCA 920
Decision Date: 27 October 2014

CaseChat Overview and Summary

In the matter of Bazzi-Cirino & Cirino, Rees J considered a property settlement dispute between a husband and wife following a ten-year cohabitation and marriage with two children. The primary dispute concerned the division of marital assets and liabilities, including the treatment of legal fees incurred by the parties.

The court was required to determine the appropriate percentage division of the parties' contributions to the marriage, considering both financial contributions and contributions to the care of the children, particularly post-separation. Furthermore, the court had to decide whether the husband's request to "add back" the legal fees paid by both parties, and related liabilities, into the asset pool for division was warranted.

Rees J found that the wife's contributions, both financially and in caring for the children post-separation, were greater than the husband's. Consequently, the court attributed 60 per cent of the contributions to the wife and 30 per cent to the husband. An additional 5 per cent adjustment was made in favour of the wife under section 75(2) of the Family Law Act 1975 (Cth) due to factors such as the children remaining in her care. Regarding the legal fees, the court determined that the wife's expenditure from her post-separation income, generated by her professional practice, was not to be added back to the asset pool. This was because the income was not referable to the parties' joint efforts during the marriage, and the husband was not a co-owner or operator of the practice. However, these legal fees and related liabilities were taken into account under section 75(2).

The court ordered that the wife pay the husband $163,000 within three months, simultaneously transferring the L property to the wife. The wife was to be solely responsible for all outgoings related to the L property and was to indemnify the husband. If the payment was not made by the due date, the L property was to be sold, with proceeds applied first to discharge the mortgage and costs of sale, then to pay the husband the $163,000 plus interest, and any balance to the wife. The D property was to be transferred to the husband, who would be solely responsible for its outgoings and indemnify the wife. The parties were also to divide certain household contents, with each party retaining other property in their possession and being responsible for liabilities not otherwise provided for.

Orders

Orders of the court

IT IS ORDERED

(1) That within three months of the date of these Orders Ms Bazzi-Cirino (“the wife”) pay to Mr Cirino (“the husband”) the sum of $163,000.

(2) That simultaneously with the payment in Order 1, the parties do all acts necessary to transfer to the wife the right title and interest in the property at L Street, Suburb G (“the L property”) being the land in Folio Identifier ….

(3) That from the date of these Orders the wife shall be solely responsible for all outgoings, including but not limited to mortgage payments, in relation to the L property and shall indemnify the husband and hold him safe in respect of all such liabilities.

(4) That the wife shall, if so requested by the husband in writing, cause any mortgage secured over the L property to be discharged.

(5) That in the event that the wife has not made the payment in Order 1 by the due date, the parties shall do all acts required to sell the L propertyand from the proceeds of sale to pay, in the following order and priority:

(a) Discharge of mortgage;

(b) Costs of sale;

(c) The sum of $163,000 together with interest from the due date until the date of payment at the rate prescribed by the Family Law Rules to the husband; and

(d) The balance to the wife.

(6) That the parties do all acts necessary to transfer to the husband the right title and interest in the property at H Street, Suburb D (“the D property”) being the land in Folio Identifier ….

(7) That from the date of these Orders the husband shall be solely responsible for all outgoings, including but not limited to mortgage payments, in relation to the D property and shall indemnify the wife and hold her safe in respect of all such liabilities.

(8) That the husband shall, if so requested by the wife in writing, cause any mortgage secured over the D property to be discharged.

(9) That within 30 days from the date of these Orders, the wife prepare two lists containing those items of the contents of the L property that are not included in the list of items valued by the Single Expert and shall provide such lists to the husband.

(10) The husband shall nominate, within seven days of receiving the lists, which list he chooses and he shall be solely entitled to those items which the wife will make available for collection within seven days.

(11) That, other than as provided in these Orders, each party shall be solely entitled to any item of real or personal property in his or her possession at the date of these Orders.

(12) That other than as provided in these Orders, each party shall be solely responsible for the repayment of any liability for which he or she is legally responsible at the date of these Orders.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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