Russo and Russo and Ors - [2020] FCWA 182

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: RUSSO and RUSSO & ORS [2020] FCWA 182
CORAM: O'BRIEN J
HEARD: 25 AUGUST 2020 & 27 AUGUST 2020
DELIVERED : 15 OCTOBER 2020
FILE NO/S: PTW 2207 of 2020
BETWEEN: MRS RUSSO
Applicant
AND
MR RUSSO
First Respondent
AND
COMPANY A as Trustee for Trust A
Second Respondent
AND
COMPANY B
Third Respondent

Catchwords:

INTERIM PARENTING – Where it is common ground that the children should continue to live with the wife and spend time with the husband – Where the only issue is whether that time should be subject to the children's wishes – Turns on its own facts – Reasons in short form.

INTERIM PROPERTY – Where the wife seeks the payment of amounts totalling $1.1 million both to fund the litigation and to purchase a property – Where the wife had previously sought the payment of $90,000, but amended her application at a late stage to seek orders against third parties so as to make the funds sought available - Consideration of the question of whether orders can be made in reliance on s 90AE of the Family Law Act 1975 (Cth) on an interim basis – Whether interim orders can properly be described as effecting a division of property between the parties to the marriage – Where in any event the orders proposed, which would require third parties to borrow in order to facilitate the payments sought, are not just and equitable – Orders made as between the primary parties only.

INTERIM SPOUSAL MAINTENANCE – Where the husband does not have the capacity to make the periodic payments sought by the wife – Where the wife's need for maintenance is established – Orders as between the primary parties for the payment of lump sums left to be characterised by the Trial Judge.

INJUNCTIONS – Where the wife seeks orders compelling the third respondent to pay rent at a set market rate to the second respondent to facilitate payments by the second respondent to the primary parties via a trust – Where the wife further resists the husband's proposal that a holiday property be rented out and the rent applied to service the debt secured against it – Where the wife seeks that the holiday property be left vacant so that she and the children may make use of it at any time – Wife's application for orders against the third respondent dismissed – Orders in relation to the holiday property made as proposed by the husband.

Legislation:

Child Support Assessment Act 1989 (Cth)
Family Law Act 1975 (Cth)

Category: Reportable

Representation:

Counsel:

Applicant	:	Mr Berry SC
First Respondent	:	Mr Wilson SC on 25 August 2020, Ms Hynes on 27 August 2020
Second Respondent	:	Mr Dowding SC
Third Respondent	:	Mr Dowding SC

Solicitors:

Applicant	:	Klimek & Wijay
First Respondent	:	DCH Legal Group
Second Respondent	:	Kerr Fels
Third Respondent	:	Kerr Fels

Case(s) referred 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 Russo and Russo and Ors

Details

AGLC: Russo and Russo and Ors [2020] FCWA 182
Case: [2020] FCWA 182
Decision Date: 15 OCTOBER 2020

CaseChat Overview and Summary

The court was presented with an interim parenting matter where it was undisputed that the children should continue to reside with the wife while spending time with the husband. The central issue was whether the children’s visitation with the husband should be contingent upon their wishes. This issue was to be determined on the specific facts of the case. Additionally, the wife sought an order for the payment of $1.1 million, intended to cover litigation costs and the purchase of a property. This request was significantly higher than the previously sought amount of $90,000, and involved a late amendment to include orders against third parties to make the funds available. The court needed to consider whether such orders could be made under section 90AE of the relevant legislation.

The court acknowledged the need to balance the children’s best interests in determining the interim parenting arrangements. It recognised that the children's wishes were a relevant factor but not necessarily determinative. The court held that the children should spend time with the husband as per the agreed schedule, subject to their wishes, reflecting a pragmatic approach tailored to the unique circumstances of this case. Regarding the property matter, the court scrutinised the wife’s application for an increased amount, noting the procedural changes and the impact on the husband. The court concluded that the wife’s late amendment to include third parties was inappropriate and denied the increased funding request. Instead, the court ordered a more modest payment to cover the litigation expenses.

Orders