Murillo & Murillo (No 5) - [2023] FedCFamC1F 1004

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Murillo & Murillo (No 5) [2023] FedCFamC1F 1004

File number: SYC 3325 of 2017

Judgment of: SCHONELL J

Date of judgment: 23 November 2023

Catchwords: FAMILY LAW – FINANCIAL – Litigation funding – Where the wife sought for the husband to pay her legal costs on a dollar for dollar basis – Where the Court is not satisfied at this stage that the husband has the capacity to meet her legal fees – Where the Court is not satisfied that the wife will be without representation – Application for dollar for dollar order dismissed – Where the second respondent sought that the sum of $80,000 be released to her from a controlled monies account for payment of her legal fees – Where the Court does not know what the value of the net assets are – Where the Court is not satisfied that it is in the interests of justice for the order to be made – Application for release of funds dismissed.

Legislation: Family Law Act 1975 (Cth) ss 79, 80, 90SM, 117

Cases cited:
Bing & Bing (2007) FLC 93-318; [2007] FamCA 418

Medlow& Medlow (2016) FLC 93-692; [2016] FamCAFC 34

Murillo & Murillo (No 2) [2022] FedCFamC1F 757

PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123; [2005] FamCA 158

Poletti & Poletti (1990) 15 Fam LR 794; [1990] FamCA 79

Salvage & Fosse (2020) FLC 93-966; [2020] FamCAFC 144

Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466; [2009] FamCAFC 166

Wenz v Archer (2008) 40 Fam LR; [2008] FMCAfam 1119

Division: Division 1 First Instance

Number of paragraphs: 47

Date of hearing: 20 November 2023

Place: Sydney

Counsel for the Applicant: Mr Todd

Solicitor for the Applicant: Mills Oakley Lawyers

Counsel for the First Respondent: Mr Macarounas

Solicitor for the First Respondent: Matthews Folbigg Pty Ltd

Counsel for the Second Respondent: Mr Lo Schiavo

Solicitor for the Second Respondent: Cruz & Partners Lawyers
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:

23 NOVEMBER 2023

THE COURT ORDERS THAT:
1.Paragraph five of the applicant wife’s Amended Application in a Proceeding filed 14 November 2023 for a dollar for dollar order is dismissed.
2.Paragraph 1 of the second respondent’s Application in a Proceeding filed 15 November 2023 for litigation funding in the sum of $80,000 is dismissed.
3.All outstanding interlocutory applications are stood over to the final hearing commencing on 5 February 2024.

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…

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 5)

Details

AGLC: Murillo & Murillo (No 5) [2023] FedCFamC1F 1004
Case: [2023] FedCFamC1F 1004
Decision Date: 23 November 2023

CaseChat Overview and Summary

The case of Murillo & Murillo (No 5) involved the parties Ms Murillo and Mr Murillo, with Ms B also a party as the second respondent. The dispute primarily centred around financial matters, including litigation funding and the allocation of legal costs. The case was heard in the Federal Circuit and Family Court of Australia (Division 1). Ms Murillo sought an order for Mr Murillo to cover her legal fees on a dollar-for-dollar basis, while Ms B sought the release of $80,000 from a controlled monies account for her legal fees. The court was tasked with determining whether these applications should be granted based on the respective arguments and evidence presented.

The legal issues before the court included whether Mr Murillo had the capacity to meet Ms Murillo’s legal fees and whether it was in the interests of justice to grant Ms B the requested funds from the controlled account. The court had to assess the financial positions of the parties and determine if the orders sought would defeat the entitlements of the other parties. The court also needed to ensure that the second respondent, Ms B, would not be left unrepresented if her application for funds was not granted. Given the significant disputes over the value of the assets and financial contributions, the court found itself unable to make a definitive decision on the entitlements of the parties.

The court ultimately dismissed both applications. In the case of Ms Murillo’s application for a dollar-for-dollar order, the court was not satisfied that Mr Murillo had the capacity to meet her legal fees, nor was it convinced that Ms Murillo would be left unrepresented. Regarding Ms B's application for the release of $80,000, the court determined that it could not ascertain the value of the net assets and was not satisfied that it was in the interests of justice to make such an order. The court's decision was based on the inability to determine the parties' entitlements with the available information and the potential impact on other parties' rights. Consequently, all outstanding interlocutory applications were stood over to the final hearing.

The final orders of the court dismissed the applications for a dollar-for-dollar order and the release of funds, and all other outstanding applications were deferred to the final hearing, which was set to commence on 5 February 2024. This decision was made in recognition of the unresolved financial disputes and the need for further evidence and assessment before making any final determinations on the parties' financial entitlements.

Orders

Orders of the court

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:

23 NOVEMBER 2023

THE COURT ORDERS THAT:

1. Paragraph five of the applicant wife’s Amended Application in a Proceeding filed 14 November 2023 for a dollar for dollar order is dismissed.

2. Paragraph 1 of the second respondent’s Application in a Proceeding filed 15 November 2023 for litigation funding in the sum of $80,000 is dismissed.

3. All outstanding interlocutory applications are stood over to the final hearing commencing on 5 February 2024.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The pool of assets may be as little as $530,000 as contended for by the husband or as large as $5.6 million as contended for by the wife. I am simply not in a position to be able to decide at this stage. Given the disputed factual assertions and a challenge to the second respondent’s asserted financial contributions, I am unable at this time to determine the parties’ entitlements to the unascertained pool pursuant to s 79 and s 90SM. The onus rests upon the second respondent, consistent with their Honours’ observations in Medlow, to establish that the order she seeks is able to be reversed or would not defeat the other parties’ entitlements. It may be that a payment to her of $80,000 has the effect of defeating one or both of the other parties’ entitlements. In those circumstances the second respondent has not discharged the onus she carries. Accordingly, the relief sought by the second respondent will be refused.CONCLUSION For the above reasons, the orders sought by the wife and second respondent in their respective applications will be dismissed and I will stand over all outstanding applications to the final hearing.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	SYC 3325 of 2017
Judgment of:	SCHONELL J
Date of judgment:	23 November 2023
Catchwords:	FAMILY LAW – FINANCIAL – Litigation funding – Where the wife sought for the husband to pay her legal costs on a dollar for dollar basis – Where the Court is not satisfied at this stage that the husband has the capacity to meet her legal fees – Where the Court is not satisfied that the wife will be without representation – Application for dollar for dollar order dismissed – Where the second respondent sought that the sum of $80,000 be released to her from a controlled monies account for payment of her legal fees – Where the Court does not know what the value of the net assets are – Where the Court is not satisfied that it is in the interests of justice for the order to be made – Application for release of funds dismissed.
Legislation:	Family Law Act 1975 (Cth) ss 79, 80, 90SM, 117
Cases cited:	Bing & Bing (2007) FLC 93-318; [2007] FamCA 418 Medlow& Medlow (2016) FLC 93-692; [2016] FamCAFC 34 Murillo & Murillo (No 2) [2022] FedCFamC1F 757 PBF as Child Representative for AF (Legal Aid Commission of Tasmania) & TRF & LKL (2005) 33 Fam LR 123; [2005] FamCA 158 Poletti & Poletti (1990) 15 Fam LR 794; [1990] FamCA 79 Salvage & Fosse (2020) FLC 93-966; [2020] FamCAFC 144 Strahan & Strahan (Interim Property Orders) (2011) FLC 93-466; [2009] FamCAFC 166 Wenz v Archer (2008) 40 Fam LR; [2008] FMCAfam 1119
Division:	Division 1 First Instance
Number of paragraphs:	47
Date of hearing:	20 November 2023
Place:	Sydney
Counsel for the Applicant:	Mr Todd
Solicitor for the Applicant:	Mills Oakley Lawyers
Counsel for the First Respondent:	Mr Macarounas
Solicitor for the First Respondent:	Matthews Folbigg Pty Ltd
Counsel for the Second Respondent:	Mr Lo Schiavo
Solicitor for the Second Respondent:	Cruz & Partners Lawyers

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:	23 NOVEMBER 2023