FABIANA & BECCA - [2019] FamCA 341

FAMILY COURT OF AUSTRALIA

FABIANA & BECCA

[2019] FamCA 341

FAMILY LAW – PROPERTY – Interim application – Where the Applicant asserts that the parties were in a de facto relationship – Where the Applicant seeks periodic and lump sum spousal maintenance – Where the Applicant seeks that the Respondent indemnify her against the parties’ joint and several debts – Where the Applicant seeks that a litigation funding order be made – Application dismissed.

Family Law Act 1975 (Cth) ss. 90SE(1), 90SF(1), 90SS(1), 114(2A)(c), 117

Atkins & Hunt and Ors (2018) 57 Fam LR 128
Davidson & Davidson (No 2) (1994) FLC 92-469
Edgar & Strofield [2016] FamCAFC 93
Hall v Hall [2016] 257 CLR 490
Hogan & Hogan (1986) FLC 91-704
In the Marriage of Farr (1976) FLC 90-133
Iphostrou & Iphostrou and Ors [2011] FamCA 20
Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466

APPLICANT:

Ms Fabiana

RESPONDENT:

Mr Becca

FILE NUMBER:

SYC

212

2019

DATE DELIVERED:

18 April 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland DCJ

HEARING DATE:

11 March 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Batey

SOLICITOR FOR THE APPLICANT:

Searle & Associates

COUNSEL FOR THE RESPONDENT:

Mr Kearney SC

SOLICITOR FOR THE RESPONDENT:

Karras Partners

Orders

THE COURT ORDERS THAT:

By consent, within 14 days, the Applicant wife deliver up to the Respondent husband:
(a)The Vehicle 1 registered …; and
(b)All of the Respondent's personal items, including clothing, papers and memorabilia located at B Street, Suburb D.
The interim orders otherwise sought by the Applicant in her Initiating Application filed in these proceedings on 15 January 2019 be dismissed.
The interim orders otherwise sought by the Respondent in his Response filed in these proceedings on 11 February 2019 be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fabiana & Becca has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 212 of 2019

Ms Fabiana

Applicant

And

Mr Becca

Respondent

REASONS FOR JUDGMENT

Introduction

This decision concerns an application for interim property orders by Ms Fabiana (“the Applicant”), who contends that she was in a de facto relationship with Mr Becca (“the Respondent”) between 2007 and 2018.
In addition to a declaration regarding the nature of the parties’ relationship, the Applicant is seeking interim spousal maintenance in the sum of $15,000 per month, lump sum maintenance of $100,000, an order that the Respondent assume responsibility in respect the parties’ outstanding debts, the transfer of a Volvo motor vehicle into her…

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 FABIANA & BECCA

Details

AGLC: FABIANA & BECCA [2019] FamCA 341
Case: [2019] FamCA 341
Decision Date: 18 April 2019

CaseChat Overview and Summary

In the matter of *Fabiana & Becca*, heard by McClelland DCJ, the applicant asserted that she and the respondent were in a de facto relationship. The applicant sought various interim orders, including periodic and lump sum spousal maintenance, an indemnity from the respondent against their joint and several debts, and a litigation funding order.

The primary legal issues before the court were whether the applicant had established a de facto relationship, and consequently, whether she was entitled to the interim spousal maintenance, indemnity, and litigation funding she sought. The court was also required to consider the interim orders sought by the respondent.

McClelland DCJ dismissed the applicant's interim application. While the specific reasoning for the dismissal of the substantive interim orders is not detailed in the provided text, the court did make a consent order requiring the applicant to deliver up a vehicle and the respondent's personal items within 14 days. The court also dismissed the interim orders sought by both the applicant and the respondent.

Orders

Orders of the court

THE COURT ORDERS THAT:

By consent, within 14 days, the Applicant wife deliver up to the Respondent husband:

(a) The Vehicle 1 registered …; and

(b) All of the Respondent's personal items, including clothing, papers and memorabilia located at B Street, Suburb D.

The interim orders otherwise sought by the Applicant in her Initiating Application filed in these proceedings on 15 January 2019 be dismissed.

The interim orders otherwise sought by the Respondent in his Response filed in these proceedings on 11 February 2019 be dismissed.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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.