Murillo & Murillo (No 4) - [2023] FedCFamC1F 199

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Murillo & Murillo (No 4) [2023] FedCFamC1F 199

File number(s): SYC 3325 of 2017

Judgment of: SCHONELL J

Date of judgment: 24 March 2023

Catchwords: FAMILY LAW – PROPERTY – Injunction – Where the second respondent sought orders relating to a property that she owns – Where the first respondent resides in that property – Where the property has been sold and settlement is to occur in April 2023 – Where the second respondent seeks an injunction – Where there is no evidence that relief will be imperilled if the injunction is not granted – Application dismissed.

Legislation: Family Law Act 1975 (Cth) ss 90SM, 114

Cases cited:
Sieling & Sieling (1979) FLC 90-627; [1979] FamCA 23

Tsiang & Wu and Ors (2019) FLC 93-911; [2019] FamCAFC 128

Division: Division 1 First Instance

Number of paragraphs: 27

Date of hearing: 24 March 2023

Place: Sydney

Solicitor for the Applicant: Mills Oakley

Solicitor for the First Respondent: Coleman Greig Lawyers

Counsel for the Second Respondent: Mr Lo Schiavo

Solicitor for the Second Respondent: Cruz Clowry Law Group
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:

SCHONELL J

DATE OF ORDER:

24 MARCH 2023

THE COURT ORDERS THAT:
1.The Amended Application filed 16 March 2023 is 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 Murillo & Murillo has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
SCHONELL J:

These are interlocutory proceedings brought by the second respondent against the first respondent in relation to a property at Suburb N.
The second and first respondent were in a de facto relationship that ended in February 2022. There is one child of that relationship.
During the course of that relationship, the first and second respondents purchased a property at Suburb N in the name of the second respondent. The funds to acquire the property were provided in part from a bank and in part by way of a loan from a company controlled by the first respondent.
The first respondent is also a party to proceedings brought by the applicant for financial adjustment arising out of their relationship, 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 Murillo & Murillo (No 4)

Details

AGLC: Murillo & Murillo (No 4) [2023] FedCFamC1F 199
Case: [2023] FedCFamC1F 199
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Murillo & Murillo (No 4) was brought by Ms Murillo (the applicant) against Mr Murillo (the first respondent) and Ms B (the second respondent) concerning a property located in Suburb N. The first and second respondents were in a de facto relationship which ended in February 2022 and have a child together. They purchased the Suburb N property in 2017, with the funds coming from a bank and a loan from a company controlled by the first respondent. The property was registered in the second respondent's name alone. The first respondent is also involved in proceedings for financial adjustment brought by the applicant, which predate the relationship with the second respondent. The applicant seeks orders in relation to the Suburb N property as part of her final relief. The second respondent filed an Amended Response seeking various orders in relation to the property, including that the first respondent vacate the property within 7 days and pay the mortgage over the property. The second respondent also sought an injunction under s 114 of the Family Law Act 1975 (Cth) to prevent the first respondent from removing any items from the property.

The legal issues before the court were whether the second respondent had established the requisite elements to engage the relief she sought and whether the relief she sought would prejudice the first respondent. The court considered the relevant law regarding injunctions, including that the applicant must demonstrate a serious issue to be tried and that the balance of convenience favours making the order sought. The court noted that there was no evidence that the first respondent would not vacate the property or that the second respondent's claim for relief would be imperilled if the injunction was not granted. The court was also satisfied that there was a prejudice to the first respondent in the relief the second respondent sought. The court found that the second respondent had not established the requisite elements sufficient to engage the relief she sought, and dismissed her application.

The court dismissed the second respondent's Amended Application filed on 16 March 2023.

Orders