Ursino & Baratos - [2023] FedCFamC2F 933

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ursino & Baratos [2023] FedCFamC2F 933

File number: MLC 1616 of 2019

Judgment of: JUDGE FORBES

Date of judgment: 28 July 2023

Catchwords: FAMILY LAW – application seeking alteration of property interests – effect of business failure on asset pool – whether unsecured creditors of liquidated business are liabilities of the marriage –whether loan to husband for business counted as a liability of the marriage – where wife alleges loan and security against matrimonial property is a sham – where paucity of evidence precludes findings on numerous issues - whether orders necessary to adjust property interests to achieve just and equitable outcome

Legislation: Family Law Act 1975 (Cth) s 75 and 79

Cases cited:
Bevan & Bevan [2013] FamCAFC 116

Chapman & Chapman [2014] FamCAFC 91

Dickons & Dickons [2012] FamCAFC 154

G & G (1984) FLC 91-582

Giunti and Giunti (1986) FLC 91-759

Hickey & Hickey & Attorney-General for the Commonwealth of Australia (Intervener) (2003) FLC 93-143

In the Marriage of Briese (1986) FLC 91-713

In the Marriage of R A Black & J Kellner (1992) 15 Fam LR 343

Stanford & Stanford [2012] HCA 52

Weir & Weir (1993) FLC 92-338

Division: Division 2 Family Law

Number of paragraphs: 195

Date of last submission: 8 August 2022

Date of hearing: 23– 25, 28 March 2022, 27 June 2022

Place: Melbourne

Counsel for the Applicant: Ms Frederico

Solicitor for the Applicant: Hughes Legal

Counsel for the Respondent: Mr McInnis

Solicitor for the Respondent: White & Mason Lawyers
ORDERS

MLC 1616 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS URSINO

Applicant

AND:
MR BARATOS

Respondent

ORDER MADE BY:

JUDGE FORBES

DATE OF ORDER:

28 JULY 2023

THE COURT ORDERS THAT:
Pursuant to section 79 of the Family Law Act 1975 (Cth) (the Act)
Real property and encumbrances
1.As against the Respondent Husband, the Applicant Wife be entitled to the entire right, title and beneficial interest in the property at B Street, Suburb C, and be solely liable for the liability outstanding to the National Australia Bank (the NAB) for Home Loan ending in …54 secured against the Suburb C property.
2.As against the Respondent Husband, the Applicant Wife be entitled to the entire right, title and beneficial interest in the property at D Street, Suburb E.
3.As against the Applicant Wife, the Respondent Husband be entitled to the entire right, title and beneficial interest in the property at F Street, Suburb G and be solely liable for any liabilities secured against that property.
4.Within 14 days of these orders, the Wife take all steps and do all things necessary at her expense to withdraw any caveat which asserts any ongoing beneficial interest in the Suburb G property.

Other property
5.As against the Applicant Wife, the Respondent Husband shall retain the entire beneficial interest in Baratos Pty Ltd as trustee for the Baratos Trust, including H Company.
6.The funds held in the trust account of Hughes…

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 Ursino & Baratos

Details

AGLC: Ursino & Baratos [2023] FedCFamC2F 933
Case: [2023] FedCFamC2F 933
Decision Date

CaseChat Overview and Summary

The case of Ursino & Baratos [2023] FedCFamC2F 933 involved a final property settlement application following the separation of the parties, Ms Ursino and Mr Baratos. The applicant wife sought an adjustment of property interests pursuant to section 79 of the Family Law Act 1975 (Cth). The case was complex and challenging due to significant differences in the parties' valuations and composition of the matrimonial asset pool, along with numerous contested factual issues, some of which were ultimately abandoned. The Court had to rely on imperfect and vague evidence due to issues with disclosure and credit.

The Court identified the parties' legal and equitable interests in the property, assessed their contributions, and considered whether any further adjustment was needed, taking into account relevant factors under section 75(2) of the Act. The Court found that the wife's proposal, which would see her retain the Suburb C and Suburb E properties and the husband retain the Suburb G property and Baratos Pty Ltd, would result in an overall split of the parties' property interests of 60% to the wife and 40% to the husband. This outcome was deemed just and equitable, taking into account the evidence presented and the statutory scheme.

The Court ordered that the wife be entitled to the entire right, title, and beneficial interest in the Suburb C and Suburb E properties, and the husband be entitled to the entire right, title, and beneficial interest in the Suburb G property and Baratos Pty Ltd. The Court also ordered that the wife retain her superannuation balance, and the husband retain his. Each party would keep their personal property and chattels and remain liable for their personal debts, except for the gun safe and its contents, which were to be returned to the husband. The Court also ordered that the funds held in the wife's solicitor trust account be released to her.

Orders