Ribeiro and Chase - [2013] FMCAfam 46

FEDERAL MAGISTRATES COURT OF AUSTRALIA

RIBEIRO & CHASE

[2013] FMCAfam 46

FAMILY LAW – Property dispute – very short relationship – very substantial assistance given by father to mother in previous matrimonial proceedings – significantly greater amounts contributed by mother – negative financial outcome for both parties – inadequate evidence from both parties about financial matters – Court taking robust approach to achieve just and equitable outcome.

Evidence Act 1995, s.140
Family Law Act 1975, ss.75(2), 79(2), 79(4)

Stanford v Stanford [2012] FCA 52

Applicant:

MR RIBEIRO

Respondent:

MS CHASE

File Number:

MLC 6007 of 2012

Judgment of:

Burchardt FM

Hearing dates:

15, 16 & 20 November 2012

Date of Last Submission:

20 November 2012

Delivered at:

Melbourne

Delivered on:

30 January 2013

REPRESENTATION

Counsel for the Applicant:

Mr Mellas

Solicitors for the Applicant:

Robinson Gill

Counsel for the Respondent:

Ms Gordon

Solicitors for the Respondent:

Cinque Oakley Senior

DRAFT ORDERS

THE COURT ORDERS THAT:

The funds held on trust by the respondent’s solicitors be paid as to 35 per cent to the applicant and 65 per cent to the respondent.
Each party retain, to the exclusion of the other, any chattels in their possession.
The applicant have liberty to collect chattels held by any third party.
Each party retain their superannuation.

IT IS NOTED that publication of this judgment under the pseudonym Ribeiro & Chase is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 6007 of 2012

MR RIBEIRO

Applicant

And

MS CHASE

Respondent

REASONS FOR JUDGMENT

Introductory

This case started as recently as July 2012 as a parenting dispute about a very young child, [X], born [in] 2011. An Independent Children’s Lawyer was appointed and on 16 November 2012 final parenting orders were made, almost entirely by consent. The appointment of the Independent Children's Lawyer was discharged on that day.
In the interim, and as something of an add-on, the applicant father had filed an amended initiating application on 13 July 2012 which sought property orders including orders seeking the return to him of his personal possessions.
The mother’s response to the amended initiating application, filed

26 September 2012, merely sought that the moneys held in trust in her solicitor’s trust account be distributed in such manner as the Court deemed fit.
It is clear from the materials filed by the parties that their primary focus was on parenting issues. As a result, neither party has set out the facts regarding their property history in any structured or complete way.
As a result, many of the assertions made in the separate hearing as to property matters are very difficult, if not impossible, to properly evaluate.

The history between the parties

The applicant father is 50 years old having been born [in] 1962. To the extent that he is employed, he is employed as a [omitted]. The mother is 38 years old having been born [in] 1974. At the present time she is engaged in home…

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.

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Details

Case: [2013] FMCAfam 46
Decision Date

CaseChat Overview and Summary

The case of Ribeiro v Chase involved a property dispute between the parties following the breakdown of their relationship and the finalisation of parenting orders regarding their young child. The matter proceeded to a hearing before Burchardt FM in the Federal Magistrates Court, where the primary issue was the division of the remaining financial assets of the parties. Both parties had inadequately documented their financial contributions and possessions, complicating the Court's task in making a just and equitable outcome.

The legal issues before the Court included determining the appropriate pool of assets to be divided, assessing the respective financial contributions of each party, and considering the factors under section 75(2) of the Family Law Act 1975 in making an equitable property settlement. The Court had to navigate the parties' minimal and often contradictory evidence, the substantial assistance provided by the father to the mother during her previous matrimonial litigation, and the negative financial outcome for both parties due to dissipation of funds.

The Court's reasoning focused on the significant contributions made by the father to the mother's legal expenses and the establishment of a new home, despite the mother's substantially greater overall financial input. The Court noted the father's health issues and limited earning capacity, balanced against the mother's need to care for their young child and her substantial financial contributions. Given the disparity in contributions and the overall unjust outcome for both parties, the Court decided to take a robust approach in making its orders. The Court ultimately apportioned the remaining assets 65 per cent to the mother and 35 per cent to the father, recognising the father's contributions while acknowledging the mother's greater financial input.

The Court made draft orders reflecting this outcome, which included the distribution of funds held in trust by the mother's solicitors, the retention of personal possessions by each party, and the exclusion of superannuation from the divisible pool due to the short duration of the relationship. The final orders were to be made after hearing from counsel.

Orders