RICARDO and EVANS - [2020] FCWA 210

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: RICARDO and EVANS [2020] FCWA 210
CORAM: SUTHERLAND CJ
HEARD: 11 NOVEMBER 2020
DELIVERED : 23 NOVEMBER 2020
FILE NO/S: PTW 156 of 2020
BETWEEN: MS RICARDO
Applicant
AND
MR EVANS
Respondent

Catchwords:

PROPERTY - Interim property settlement order or alternatively 'dollar for dollar' order sought - Payment of arrears of mortgage payments and ongoing mortgage payments - Case turns on its own facts

Legislation:

Family Law Act 1975 (Cth)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr Klimek
Respondent	:	Mr Rynne
Independent Children's Lawyer	:	Excused from attendance

Solicitors:

Applicant	:	Klimek & Wijay Family Lawyers
Respondent	:	Lavan
Independent Children's Lawyer	:	RM Law

Case(s) referred to in decision(s):

Atkins & Hunt and Ors [2018] FamCA 14
Farnell and Farnell (1996) FLC 92-681
G and T (2004) FLC 93-176
Iphostrou & Iphostrou and Ors [2011] FamCA 20
Ricardo and Evans [2020] FCWAM 62
Strahan & Strahan (2011) FLC 93-466
Zschokke & Zschokke (1996) FLC 92-693

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Ricardo and Evans has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Introduction

1[Ms Ricardo] (“the wife”) and [Mr Evans] (“the husband”) have been unable to reach agreement in relation to various interim financial issues.
2The orders sought by the wife were set out in her Form 2A response filed on 21 September 2020, and as amended by her counsel at the hearing on 11 November 2020.[1] In summary, the wife sought orders that either the husband pay the wife the sum of between $89,000 and $131,000, pursuant to s 79 and s 80(1)(h) of the Family Law Act 1975 (Cth) (“the Act”); or that the court make a “dollar for dollar order”, to enable the wife to meet her litigation costs. In addition, the wife also sought orders that the husband pay any arrears in relation to two specified loan accounts, together with all instalments, as and when they fell due.
[1] With the consent of the husband.
3The orders sought by the husband were set out in his amended Form 2 application filed on 6 November 2020. In short, the husband sought that the wife’s Form 2A response be dismissed.
4Both parties have been represented by solicitors throughout the proceedings, and both were represented by counsel at the interim hearing.
5A perusal of the affidavits and financial statements relied upon by the parties for the purposes of the interim hearing reveal that there are considerable factual disputes between the parties, including but not limited to the following:
a)The date they commenced cohabitation.
b)The full extent of each party’s assets, liabilities and financial resources at the commencement of their relationship.
c)The wife’s current employment arrangements.
d)The level of child support…

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 RICARDO and EVANS

Details

AGLC: RICARDO and EVANS [2020] FCWA 210
Case: [2020] FCWA 210
Decision Date: 23 NOVEMBER 2020

CaseChat Overview and Summary

The case involved Ricardo and Evans, who were in a de facto relationship. The dispute related to the division of their property, with Ricardo seeking an interim property settlement order or, in the alternative, a 'dollar for dollar' order. Ricardo's primary request was for Evans to pay the arrears of mortgage payments and ongoing mortgage payments on their jointly owned property. The matter was heard in the Family Court of Australia.

The legal issues before the court included determining the appropriate method for dividing the property between the parties and resolving the dispute over the mortgage payments. The court had to consider the principles of fairness and justice in the division of property under the Family Law Act, as well as the specific circumstances of the case, including the contributions made by each party to the property and the financial implications of an interim property settlement order versus a 'dollar for dollar' order.

In delivering the judgment, the court noted that the case turned on its own facts and circumstances. It found that an interim property settlement order was not appropriate in this instance, as it did not provide a fair and just outcome for both parties. Instead, the court opted for a 'dollar for dollar' order, which required Evans to pay Ricardo the amount of the arrears of mortgage payments and ongoing mortgage payments on the jointly owned property. The court emphasised that the decision was based on the specific facts and contributions of the parties and was not intended to set a precedent for similar cases.

The final orders of the court required Evans to pay Ricardo the arrears of mortgage payments and ongoing mortgage payments on their jointly owned property. The court's decision was based on the principles of fairness and justice in the division of property, as well as the specific facts and circumstances of the case. The court did not intend for this decision to set a precedent for similar cases, as each matter turns on its own facts.

Orders