Ferrao v Separovich - [2010] NSWSC 213

CITATION: Ferrao v Separovich [2010] NSWSC 213

HEARING DATE(S): 2 and 3 November 2009

JUDGMENT DATE :
24 March 2010

JUDGMENT OF: McLaughlin AsJ

DECISION: 1. I order that, simultaneously upon payment to the Plaintiff by the Defendant of the sum of $160,000, the Plaintiff transfer to the Defendant her right, title and interest in the property situate at Quinalup Street, Gwandalan, subject to the mortgage thereon.
2. I order that the cross-claim be dismissed.
3. I order that the Defendant pay the costs of the Plaintiff of the proceedings.
4. The exhibits may be returned.

CATCHWORDS: FAMILY LAW - de facto relationship - adjustment of interests of parties in property - respective contributions of parties - financial contributions of Plaintiff far outweighed those of Defendant - contribution of each party, especially of Defendant, as homemaker and parent.

LEGISLATION CITED: Property (Relationships) Act 1984

CATEGORY: Principal judgment

CASES CITED: Davey v Lee (1990) 13 FamLR 688
Bilous v Mudalia [2006] NSWCA 38

PARTIES: Paula Cristina Ferrao (Plaintiff)
Steven Michael Separovich (Defendant)

FILE NUMBER(S): SC 6423 of 2008

COUNSEL: Mr R. Maurice (Plaintiff)
Mr A. Givney (Defendant)

SOLICITORS: Carlisle Attorneys (Plaintiff)
Maclarens Lawyers (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

ASSOCIATE JUSTICE McLAUGHLIN

Wednesday, 24 March 2010

6423 of 2008 PAULA CRISTINA FERRAO –v- STEVEN MICHAEL SEPAROVICH

JUDGMENT

1 HIS HONOUR: These are proceeding under the Property (Relationships) Act 1984.

2 By statement of claim filed on 24 December 2008 Paula Cristina Ferrrao claims orders adjusting the interests in property of herself and the Defendant, Steven Michael Separovich.

3 The Defendant filed a defence and a cross-claim on 9 April 2009, and the Plaintiff filed a defence to that cross-claim on 22 April 2009.

4 It was not disputed that the parties were in a de facto relationship from 30 October 1996 until about 17 June 2008. There was one child born of the relationship, being Nicholas Tyler Ferrao Separovich (who was born in February 1997 and who is now aged 13).

5 At the commencement of the relationship the Plaintiff (who was born in 1974 and is presently aged 35) was employed as an accounts officer by Schindler Lifts Pty Limited and was studying on a part-time basis at the University of Technology, Sydney. Her pre-tax income for the 1996 year was $30,193 and for the 1997 year was $22,250 (although in that latter year she was not working for six months, and thereafter was working on a part-time basis, on account of the birth of their son Nicholas).

6 At the commencement of the relationship the Defendant (who was born in 1973, and is presently aged 36) was employed as a bricklayer, his pre-tax income for the 1996 year was $20,757 and for the 1997 year was $17,810.

7 Neither party had much in the way of assets at the commencement of the relationship. The Plaintiff had savings of about $2,000, furniture and personal effects, and a superannuation entitlement of almost $6,000. The Defendant…

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 Ferrao v Separovich

Details

AGLC: Ferrao v Separovich [2010] NSWSC 213
Case: [2010] NSWSC 213
Decision Date: 24 March 2010

CaseChat Overview and Summary

In the Family Court, the matter of Ferrao v Separovich was before the Court to determine the adjustment of property interests between the parties. The parties had been in a de facto relationship and were seeking to resolve their respective property interests. The Plaintiff argued that their financial contributions significantly exceeded those of the Defendant, while the Defendant emphasised their role as a homemaker and parent.

The primary legal issue before the Court was the assessment of the respective contributions of each party to the de facto relationship, both financially and otherwise. The Court was required to determine whether the financial contributions made by the Plaintiff were sufficient to warrant a greater share of the property, or if the Defendant's non-financial contributions warranted a more equitable division. The Court also needed to consider the duration of the relationship, the extent to which the Defendant had forgone or deferred personal opportunities for economic advantage for the sake of the relationship, and the nature of the contributions made by each party.

The Court considered the evidence presented regarding the financial and non-financial contributions of each party. The Plaintiff's financial contributions were found to be substantial, but the Court also acknowledged the significant role the Defendant played as a homemaker and parent. The Court concluded that while the Plaintiff's financial contributions were greater, the Defendant's role as a homemaker and parent was of significant value. The Court determined that the contributions of each party should be balanced against each other, and the Plaintiff's financial contributions far outweighed those of the Defendant. The Court made an order adjusting the property interests of the parties in a way that reflected the respective contributions of both parties.

The Court ordered that the property interests of the parties be adjusted to reflect the respective contributions of each party, with due regard to the financial contributions of the Plaintiff and the non-financial contributions of the Defendant. The Court determined that the Plaintiff was entitled to a greater share of the property due to their financial contributions, but also recognised the value of the Defendant's role as a homemaker and parent. The Court's decision balanced the respective contributions of each party and resulted in a just and equitable outcome.

Orders