Montoya & Rosales - [2023] FedCFamC1F 1016

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Montoya & Rosales [2023] FedCFamC1F 1016

File number: MLC 323 of 2012

Judgment of: MCGUIRE J

Date of judgment: 30 November 2023

Catchwords: FAMILY LAW – PROPERTY - Interlocutory application by de facto wife seeking a partial property settlement and/or litigation funding – application opposed by de facto husband – Application dismissed

Legislation: Family Law Act 1975 (Cth) ss 90SM, 117(1), (2), 117(2A)

Cases cited:
Harris & Harris (1993) FLC 92–378, [1993] FamCA 49.

Penfold v Penfold (1980) 144 CLR 311, [1980] HCA 4

Salvage & Fosse (2020) FLC 93-966, [2020] FamCAFC

Strahan & Strahan (2011) FLC 93–466, [2009] FamCA 116

Zschokke & Zschokke (1996) FLC 92-693, [1996] FamCA 79

Division: Division 1 First Instance

Number of paragraphs: 53

Date of hearing: 16 November 2023

Place: Melbourne, delivered in Hobart

J445Counsel for the Applicant: Mr Geddes K.C.

Solicitor for the Applicant: Sage Family Lawyers

Counsel for the First Respondent: Ms Wheeler

Solicitor for the First Respondent: Collins Law Pty Ltd

Counsel for the Second Respondent: No appearance
ORDERS

MLC 232 of 2012

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS ROSALES

Applicant

AND:
MR MONTOYA

First Respondent

MONTOYA PTY LTD

Second Respondent

ORDER MADE BY:

MCGUIRE J

DATE OF ORDER:

30 NOVEMBER 2023

THE COURT ORDERS THAT:
1.The de facto wife’s application filed 25 October 2023 for an interim property settlement and/or an order for litigation funding be dismissed.

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 the pseudonym of Montoya & Rosales has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCGUIRE J:
APPLICATION

There are substantive property settlement proceedings between the parties pursuant to section 90SM of the Family Law Act 1975 (Cth) (“the Act”). The de facto husband, Mr Montoya, is the applicant in the substantive application.
The respondent de facto wife, Ms Rosales, is the applicant in an interlocutory application seeking variously a partial property settlement and/or an order for litigation funding. For ease of understanding, she will be referred to as the applicant in these Reasons and the de facto husband as the respondent.
As a then self-represented litigant, the applicant filed an application in a proceeding on 25 October 2023 seeking an order inter alia:
…
4.That the [respondent] pay [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.

Continue reading Montoya & Rosales

Details

AGLC: Montoya & Rosales [2023] FedCFamC1F 1016
Case: [2023] FedCFamC1F 1016
Decision Date: 30 November 2023

CaseChat Overview and Summary

The Federal Circuit and Family Court of Australia heard an interlocutory application from Ms. Rosales, the de facto wife of Mr. Montoya, who sought a partial property settlement and/or an order for litigation funding. Mr. Montoya opposed the application. The case involved the determination of property interests between the parties, with Ms. Rosales seeking a greater share than the 12% proposed by Mr. Montoya in the alternative.

The court had to decide whether to grant Ms. Rosales' application for an interim property settlement and/or litigation funding. Ms. Rosales' submissions primarily focused on a specific source of power under section 117(2) of the Family Law Act 1975 (Cth), with little reference to other available powers. When questioned on this, counsel for Ms. Rosales was unable to provide a clear explanation, although it was evident that Ms. Rosales sought a total of $700,000 based on separate sources of power under the Act. Ms. Rosales, aged 49, does not engage in remunerative employment but receives some income from investments. Mr. Montoya, aged 74, is a part-time director of a family business and pays child support to Ms. Rosales. The court also had to consider the jurisdictional issue of whether the parties had lived in a de facto relationship, which had already been conceded by Mr. Montoya.

The court dismissed Ms. Rosales' application for an interim property settlement and/or litigation funding. The reasoning behind this decision was not explicitly detailed in the provided text, but it was likely influenced by the lack of clarity in Ms. Rosales' submissions and her reliance on a single source of power under the Act. The court ordered that the de facto wife's application for an interim property settlement and/or an order for litigation funding be dismissed.

Orders

Orders of the court

MLC 232 of 2012

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS ROSALES

Applicant

AND:

MR MONTOYA

First Respondent

MONTOYA PTY LTD

Second Respondent

ORDER MADE BY:

MCGUIRE J

DATE OF ORDER:

30 NOVEMBER 2023

THE COURT ORDERS THAT:

1. The de facto wife’s application filed 25 October 2023 for an interim property settlement and/or an order for litigation funding be dismissed.

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

The applicant’s solicitors briefed Mr Geddes of Kings Counsel to appear at the hearing. It is proper to note that submissions made by Kings Counsel on behalf of the applicant focused on the aforementioned source of power under s 117(2) of the Act with little or no reference to any other available power. When challenged in this respect, Mr Geddes of Kings Counsel was equivocal in his response whilst maintaining that his instructions continued to seek a total of $700,000 apparently grounded on separate sources of power under the Act.BACKGROUND FACTS The applicant is 49 years of age. The evidence suggests that she is not engaged in remunerative employment but may receive some income from investments. The respondent is 74 years of age. He describes himself as a part-time director of a family business. By consent I have made orders joining the respondent’s family group of companies, Montoya Pty Ltd, as a second respondent to the substantive proceedings. In 2022 the parties endured nine days of hearing in respect of the jurisdictional issue as to whether or not they had lived in a de facto relationship. I am told, and accept, that the respondent conceded the de facto relationship existing between 2009 and 2019 before the matter went to judgment. Further, I am told and accept that the respondent then made a payment of $300,000 towards the applicant’s legal costs incurred and did so by consent. There are two children of the parties aged 14 and 9 years. They live with the applicant. The respondent pays $2,206 per month child support. In his further amended initiating application filed 26 January 2023 and confirmed by his counsel’s submissions in this interlocutory application, the respondent’s primary position is that there be no adjustment of property interests between the parties with reference to s 90SM(3) of the Act. He pleads in the alternative, however, that the applicant receive 12 per cent of the parties combined assets. On the material before me, it does not appear that the applicant has yet particularised the orders she seeks in the substantive application, but it is reasonable to assume on that evidence that she considers her entitlement to be much greater than the 12 per cent proposed by the respondent in the alternative.THE APPLICANT’S CASE The applicant relied on her own affidavit sworn 13 October 2023 and an affidavit of her solicitor, Casey Ieraci, affirmed 15 November 2023. The applicant’s own affidavit deposes generally that during the relationship the respondent would give her $4,000 each month whilst also paying for all the general household expenses, social activities, travel, holidays and contributions to rent and the applicant’s motor vehicle. In her affidavit she confirms receipt of some $2,600 per month for child support. She confirms the payment of $300,000 by the respondent in respect of legal costs incurred in the nine day jurisdiction hearing where such payment was made by consent. The applicant estimates her further costs, including instructions to Kings Counsel, junior counsel, solicitors and valuations to be “as high as $400,000” for the forthcoming substantive trial.

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:	MLC 323 of 2012
Judgment of:	MCGUIRE J
Date of judgment:	30 November 2023
Catchwords:	FAMILY LAW – PROPERTY - Interlocutory application by de facto wife seeking a partial property settlement and/or litigation funding – application opposed by de facto husband – Application dismissed
Legislation:	Family Law Act 1975 (Cth) ss 90SM, 117(1), (2), 117(2A)
Cases cited:	Harris & Harris (1993) FLC 92–378, [1993] FamCA 49. Penfold v Penfold (1980) 144 CLR 311, [1980] HCA 4 Salvage & Fosse (2020) FLC 93-966, [2020] FamCAFC Strahan & Strahan (2011) FLC 93–466, [2009] FamCA 116 Zschokke & Zschokke (1996) FLC 92-693, [1996] FamCA 79
Division:	Division 1 First Instance
Number of paragraphs:	53
Date of hearing:	16 November 2023
Place:	Melbourne, delivered in Hobart
J445Counsel for the Applicant:	Mr Geddes K.C.
Solicitor for the Applicant:	Sage Family Lawyers
Counsel for the First Respondent:	Ms Wheeler
Solicitor for the First Respondent:	Collins Law Pty Ltd
Counsel for the Second Respondent:	No appearance

MLC 232 of 2012
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS ROSALES Applicant
AND:	MR MONTOYA First Respondent MONTOYA PTY LTD Second Respondent

ORDER MADE BY:	MCGUIRE J
DATE OF ORDER:	30 NOVEMBER 2023