Murillo & Murillo

Case [2021] FedCFamC1F 227

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Murillo & Murillo [2021] FedCFamC1F 227

File number(s): SYC 3325 of 2017
Judgment of: ALTOBELLI J
Date of judgment: 30 September 2021
Catchwords:

FAMILY LAW – PRACTICE AND PROCEDURE – Cost of single expert report – Where husband asserts he is unable to pay the cost of the report – Order made for the father to initially meet the cost of one single expert report and contribute to the second expert report – Balance of second expert report to be paid from offset account.

FAMILY LAW – INJUNCTIONS – Application to preserve property pending final hearing – Orders made restraining First Respondent to preserve the matrimonial pool.

Legislation: Family Law Act 1975 (Cth) ss 75, 106A
Cases cited:

Redman & Redman (1987) FLC 91-805; [1987] FamCA 2

Williamson & Williamson (1978) FLC 90-505; [1978] FamCA 57

Soblusky & Soblusky (1976) FLC 90-124; [1976] FamCa 90

Weir & Weir (1993) FLC 92-338; [1992] FamCA 69

Division: Division 1 First Instance
Number of paragraphs: 22
Date of last submission/s: 29 September 2021
Date of hearing: 29 September 2021
Place: Sydney (via videoconference)
Counsel for the Applicant: Mr Todd
Solicitor for the Applicant Mills Oakley Lawyers
Solicitor Advocate for the First Respondent Mr Layson
Solicitor for the First Respondent: Sarah Bevan Family Lawyers
The Second Respondent: No appearance

ORDERS

SYC 3325 of 2017
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS MURILLO

Applicant
AND:

MR MURILLO

First Respondent

MS B

Second Respondent

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

30 SEPTEMBER 2021

THE COURT ORDERS BY CONSENT THAT:

1.Dr BB is appointed as the single expert in the parenting proceedings in lieu of Dr EE as ordered on 30 June 2020.

2.That within seven (7) days of the date of these orders, the Applicant and First Respondent shall jointly instruct and forward the joint letter to the single expert, Ms C of F Accounting Firm (“Ms C”) to prepare as to the forensic accounting works otherwise set out herein, for the following entities:

(a)GG Group Services (formerly known as “V Pty Ltd”)

(b)HH Pty Ltd;

(c)JJ Pty Ltd;

(d)KK Pty Ltd

(e)LL Pty Ltd;

(f)MM Pty Ltd;

(g)NN Pty Ltd;

(h)OO Pty Ltd; and

(i)PP Pty Ltd.

THE COURT ORDERS THAT:

3.The First Respondent is to pay all costs associated with Dr BB’s report as requested by the Independent Children’s Lawyer.

4.The First Respondent is to pay $10,000 towards the costs of Ms C’s report and the balance of the same be paid from the Company E Mortgage Offset Account, being Loan Account No. …40, when requested by Ms C.

5.Other than as provided for in these orders and pending further order, the First Respondent is restrained from dealing with the cash of the Entities or the funds held in the accounts of the Entities at any given time, except for payment of wages or invoices, contractors and subcontractors, ordinary business expenses and for which the Entities are required at…

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AGLC
Murillo & Murillo [2021] FedCFamC1F 227
Case
[2021] FedCFamC1F 227
Decision Date

CaseChat Overview and Summary

The case of Murillo & Murillo involved a dispute between the husband and wife regarding financial disclosure and asset division. The matter was heard in the Family Court of Australia, with the wife seeking orders for the husband to disclose his financial affairs, and the husband resisting these orders. The wife argued that the husband had failed to disclose his financial circumstances, and the court should draw adverse inferences against him. The husband, on the other hand, argued that he was entitled to structure his affairs in a way that prioritised his financial obligations to his new family.

The primary legal issue before the court was whether the husband was entitled to structure his affairs in a way that prioritised his financial obligations to his new family, as opposed to his old family. The court considered the husband's responsibility to his new family under section 75(2)(e) of the Family Law Act 1975 (Cth) and whether it should be subjugated to the responsibility of the party to his spouse. The court also considered the husband's duty of disclosure to the court concerning his financial affairs and whether he had deliberately failed to disclose his financial circumstances.

The court held that it was open to the court to draw adverse inferences against a party who had deliberately failed to disclose their financial circumstances, even at an interim hearing. However, the court noted that findings made at an interim hearing would not be as precise as findings made at a final hearing. The court also held that the husband's responsibility to his new family was a consideration that should be taken into account in determining the appropriate division of assets. Ultimately, the court found that the husband had not discharged his duty of disclosure and drew adverse inferences against him.

In conclusion, the court held that the husband had failed to disclose his financial affairs and drew adverse inferences against him. The court also found that the husband's responsibility to his new family was a consideration that should be taken into account in determining the appropriate division of assets. The court did not make any final orders in this case, as it was an interim hearing and a final hearing was scheduled for February 2022.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Any impressions formed are no more than that as the evidence has not been tested. However, the Court does bring to this case its own experience as well as an understanding of human nature, without which the judicial process would be vacuous. There is a final hearing in February 2022 which is less than four and a half months away and there is a tremendous amount to be done, especially in relation to the two experts’ reports. I make it clear that this case cannot go anywhere without the reports of Dr EE and Ms C. I would have thought that it is in the interests of both parties that these reports be obtained but sometimes, it seems to the Court that what it believes to be in the interests of the parties are not necessarily considered by the parties to be in their best interests. For example, I would have thought it was very much in the husband’s best interests to obtain Dr EE’s report so that he can start seeing his children, which I perceive is ultimately his aim. It seems that it is very much in the wife’s best interests that Ms C’s report is obtained so that she can determine the asset pool and obtain an appropriate division.EVIDENCE BEFORE THE COURT The wife relied on the following documents in support of her case:(a)Her Further Amended Initiating Application filed 9 April 2021;(b)Her Application in a Case filed 15 April 2021;(c)Her Affidavit filed 9 April 2021;(d)Her Affidavit filed 6 August 2021; (e)Her Financial Statement filed 9 April 2021; (f)Her costs notice tendered as an exhibit on 29 September 2021; and(g)The husband’s trust ledger tendered as an exhibit on 29 September 2021. The husband relied on the following documents in support of his case: (a)His Response to an Application in a Case filed 21 April 2021;(b)His Affidavit filed 23 July 2021;(c)His Financial Statement filed 23 July 2021; and(d)His costs notice tendered as an exhibit on 29 September 2021. THE APPLICABLE LAW There was no contention that the Court lacked jurisdiction or power to make any of the injunctive or other orders sought. The husband had, at all relevant times, a duty of disclosure to the Court concerning his financial affairs. The wife contended the husband failed to discharge that duty and as such, the Court should draw adverse inferences against him in relation to the issue at hand, even at an interim hearing. The Full Court in Weir & Weir (1993) FLC 92-338, 848 made it clear that it is open to the Court to draw adverse inferences against a party who has deliberately failed to disclose their financial circumstances. Whilst it is true that an interim hearing is not “as final or exhaustive a hearing as would be the case if one were hearing the matter finally” (Williamson & Williamson (1978) FLC 90-505), it is nevertheless open to the Court to making findings, noting that these findings will not be so precise as findings made at a final hearing (Redman & Redman (1987) FLC 91-805). The issue is, assuming the husband does have some capacity, whether he was entitled to structure his affairs in a way that prioritised the financial obligations he owes to his new family, as opposed to his old family. The husband’s responsibility to his new family is a consideration captured under s 75(2)(e) of the Family Law Act 1975 (Cth) (“the Act”), the operation of which is helpfully summarised by the Full Court in Soblusky & Soblusky (1976) FLC 90-124 at 75,589:A Court is required under para. (e) to consider in a realistic way the fact that a party has assumed a responsibility to support another person, and the weight to be given to that fact depends upon the circumstances of each individual case. To adopt a view that in every case the responsibility referred to in that paragraph must be subjugated to the responsibility of the party of his or her spouse is in our view to unduly restrict the scope of para. (e) and may in particular circumstances produce a result which is unrealistic in the circumstances.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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