OCHOA & OCHOA - [2014] FCCA 3131

FEDERAL CIRCUIT COURT OF AUSTRALIA

OCHOA & OCHOA

[2014] FCCA 3131

Catchwords:
FAMILY LAW – Interim spousal maintenance.

Legislation:

Fair Work Act 2009 (Cth), ss.117, 123
Family Law Act 1975, ss.13C, 60I, 72, 74, 75(2), 79(9)
Federal Circuit Court Rules 2001

Nelson & Nelson [1995] HCA 25
Zanda & Zanda [2014] FamCAFC 173
Bell & Bell [2013] FMCAfam 6
Plany & Geller [2014] FamCA 114
M & M (2007) 36 Fam LR 97
Bevan & Bevan (1995) FLC 92-600

Applicant:

MS OCHOA

Respondent:

MR OCHOA

File Number:

PAC 3857 of 2014

Judgment of:

Judge Harman

Hearing date:

27 November 2014

Date of Last Submission:

27 November 2014

Delivered at:

Parramatta

Delivered on:

27 November 2014

REPRESENTATION

Solicitors for the Applicant:

Ms McMahon of Turner Freeman Lawyers

Solicitors for the Respondent:

Mr Connop of Connop Barristers & Solicitors

ORDERS

Pending further order, the Respondent, Mr Ochoa shall pay by way of spousal maintenance to the Applicant the sum of $750.00 per week, the first payment within seven (7) days to be made by bank transfer to the account nominated by the Applicant.
By consent, within 14 days, the Respondent in his capacity as director of [F] Pty Ltd ABN [omitted] (“the company”), shall cause the company to pay to the Applicant or as she directs all entitlements due to her arising from her employment with the company including but not limited to outstanding wages, accrued long service leave, annual leave, payment in lieu of notice (equivalent of 5 weeks salary) and any other entitlements due to the Applicant pursuant to Fair Work Act 2009 (Cth) or any other instrument.
The husband shall attend to all payments of principal and interest with respect to the mortgage relating to the acquisition of the [L] property in which he resides, pending further order.
The parties shall attend Mediation with an accredited Family Dispute Resolution Practitioner as agreed between the parties.
The parties shall be responsible for ensuring that a copy of their documents as filed are provided to the Mediator not less than seven (7) days prior to the Mediation.
Forthwith upon a Family Dispute Resolution Practitioner being agreed or appointed then each party shall:
(a)Do all things, sign all documents and give all consents, authorities and instructions necessary to instruct and retain that practitioner;
(b)The husband shall at first instance pay all fees charged by the practitioner;
(c)Attend at such times, dates and places necessary to complete mediation.
Pursuant to Rules 14.06 and 24.04 of the Federal Circuit Court Rules 2001 and within 21 days, the parties and each of them are to ensure that copies of the following documents are provided to all other parties, namely:
(a)Copies of income tax returns, assessment notices and BASs for the last 3 completed financial years for that party personally and for any entity in which that party has an interest (such as a private company, trust or partnership);
(b)An up to date statement with respect to any superannuation interest of that party together with…

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 OCHOA & OCHOA

Details

AGLC: OCHOA & OCHOA [2014] FCCA 3131
Case: [2014] FCCA 3131
Decision Date: 27 November 2014

CaseChat Overview and Summary

In the matter of *Ochoa & Ochoa*, heard before Judge Harman, the Applicant and Respondent, a married couple, presented a dispute concerning spousal maintenance, the payment of employment entitlements, and the management of property and financial disclosure. The proceedings involved an application for interim orders to address these financial matters pending further resolution.

The court was required to determine the appropriate quantum of spousal maintenance to be paid by the Respondent to the Applicant, and to make orders regarding the payment of all outstanding employment entitlements owed to the Applicant by a company in which the Respondent is a director. Further issues included the Respondent's responsibility for mortgage payments on a property he occupies, and the procedural steps necessary for the parties to engage in mediation and exchange financial information. The court also considered an application to strike out a specific form of relief sought by the Respondent.

Judge Harman ordered the Respondent to pay spousal maintenance of $750.00 per week to the Applicant. By consent, the Respondent was also ordered to ensure the company pays the Applicant all her employment entitlements, including wages and leave. The Respondent was directed to continue making mortgage payments on the property he resides in. The parties were ordered to attend mediation, with specific directions regarding the exchange of financial documents, including tax returns, superannuation details, bank and credit card statements, and property valuations, to facilitate disclosure and negotiation. The court also struck out paragraph 2 of the relief sought by the husband in his Response and reserved costs.

Orders

Orders of the court

Pending further order, the Respondent, Mr Ochoa shall pay by way of spousal maintenance to the Applicant the sum of $750.00 per week, the first payment within seven (7) days to be made by bank transfer to the account nominated by the Applicant.

By consent, within 14 days, the Respondent in his capacity as director of [F] Pty Ltd ABN [omitted] (“the company”), shall cause the company to pay to the Applicant or as she directs all entitlements due to her arising from her employment with the company including but not limited to outstanding wages, accrued long service leave, annual leave, payment in lieu of notice (equivalent of 5 weeks salary) and any other entitlements due to the Applicant pursuant to Fair Work Act 2009 (Cth) or any other instrument.

The husband shall attend to all payments of principal and interest with respect to the mortgage relating to the acquisition of the [L] property in which he resides, pending further order.

The parties shall attend Mediation with an accredited Family Dispute Resolution Practitioner as agreed between the parties.

The parties shall be responsible for ensuring that a copy of their documents as filed are provided to the Mediator not less than seven (7) days prior to the Mediation.

Forthwith upon a Family Dispute Resolution Practitioner being agreed or appointed then each party shall:

(a) Do all things, sign all documents and give all consents, authorities and instructions necessary to instruct and retain that practitioner;

(b) The husband shall at first instance pay all fees charged by the practitioner;

Pursuant to Rules 14.06 and 24.04 of the Federal Circuit Court Rules 2001 and within 21 days, the parties and each of them are to ensure that copies of the following documents are provided to all other parties, namely:

(a) Copies of income tax returns, assessment notices and BASs for the last 3 completed financial years for that party personally and for any entity in which that party has an interest (such as a private company, trust or partnership);

(b) An up to date statement with respect to any superannuation interest of that party together with a valuation of the fund if not an accumulation interest;

(c) Copies of bank statements for the period from the date of separation to date for any account in that party’s name (whether singularly or jointly with any other person or in trust) and in the name of any entity in which that party has an interest such as a private company, trust or partnership;

(d) Copies of credit card statements for the period from the date of separation to date for any account in that party’s name (whether singularly or jointly with any other person or in trust) and in the name of any entity in which that party has an interest;

(e) Market appraisals with respect to any parcel of real estate in which any party has an interest;

(f) Any document proving or tending to prove any allegation contained in that party’s Financial Statement or Affidavit;

(g) Copies of market appraisals or computer site print outs as to value of:

(i) Any motor vehicle or boat the value of which is not agreed.

The Applicant shall within seven (7) days of today’s date serve upon the Respondent a draft balance sheet to include all assets, liabilities, superannuation interests, financial resources and property suggested to be relevant and to include values as alleged by each party and:

(a) The Respondent shall then within seven (7) days of receipt of the draft balance sheet make any additions to the balance sheet as required to reflect contra allegations by the Respondent and any values that are agreed (if applicable); and,

(b) Wheresoever controversy exists as to the inclusion of an item or the value of an item a footnote shall be appended to explain the controversy; and,

(c) Upon completion of any single expert valuation the balance sheet shall be amended to reflect determined/agreed values;

(d) The balance sheet reflecting current agreements and controversies shall be provided to the Mediator not less than seven (7) days prior to the Mediation and a final, settled version shall be filed prior to trial with the Case Outline filed by each person.

In the event that that there then remains dispute as to the value of any parcel of real estate upon exchange of appraisals (within 35 days of this order) then the parties are to seek, within a further fourteen (14) days, to negotiate an agreed figure and, if no agreement is reached, to obtain, file and serve single expert valuations of such parcels within a further 14 days and the cost of the report shall be met by the parties equally and the valuation report shall be filed with the Court prior to the Mediation.

10.

Any party seeking to retain any asset and/or to pay monies to another person shall ensure that they have made all relevant enquiries as to their borrowing capacity and so that they are able to negotiate and make a real and genuine attempt to resolve the matter at the Mediation.

11.

The husband shall use his best endeavours and shall provide all necessary, cooperation, assistance and instructions to his accountant to have financial returns and income tax returns for himself and the business [F] Pty Ltd to be prepared in draft (although not submitted unless that is the advice provided to the husband by his accountants) within 21 days.

12.

The matter is adjourned for further mention and directions to 4 March 2015 at 2.15pm.

13.

In addition, strike out paragraph 2 of the relief sought by the husband in interim or procedural orders sought by his Response.

14.

Reserve the costs of both parties with respect to today’s appearance and the interim/interlocutory proceedings generally.

Background

Background to the litigation

Full text does not contain this section.

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.