Assante & Vinas

Case [2025] FedCFamC2F 393


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Assante & Vinas [2025] FedCFamC2F 393

File number(s): MLC 532 of 2024
Judgment of: JUDGE A. HUMPHREYS
Date of judgment: 27 March 2025
Catchwords: FAMILY LAW – PROPERTY – de facto relationship of approximately 26 years with more than three years since separation – dispute as to value of a real property with a partially constructed and defective build, which both parties seek to retain – consideration of asserted “add-backs” – treatment of inheritance received by respondent after separation – assessment of parties’ contributions and matters relevant pursuant to section 90SF(3) – two pool approach taken, with respondent’s inheritance considered separately – respondent to retain 100% of inheritance at value received by him – orders providing for applicant to receive 52.5% of the non-inheritance pool and the respondent 47.5%
Legislation:

Evidence Act 1995 (Cth) s 140

Family Law Act 1975 (Cth) ss 75, 79, 90RB, 90SF, 90SM, 90ST, 106A

Cases cited:

Babett & Falconer (2015) FLC 98-067; [2015] FamCAFC 124

Benson & Drury (2020) FLC 93–998; [2020] FamCAFC 303

Calvin & McTier (2017) FLC 93-785; [2017] FamCAFC 125

Chorn & Hopkins (2004) FLC 93-204; [2004] FamCA 633

Davey & Davey [2020] FamCA 528

Dickons & Dickons (2012) 50 Fam LR 244; [2012] FamCAFC 154

Fields & Smith (2015) FLC 93–638; [2015] FamCAFC 57

Gollings & Scott (2007) FLC 93–319; [2007] FamCA 397

Holland & Holland (2017) FLC 93-798; [2017] FamCAFC 166

In the Marriage of Aroney (1979) FLC 90-709; [1979] FamCA 62

In the Marriage of Lutzke (1979) FLC 90-714; [1979] FamCA 60

Jabour & Jabour (2019) FLC 93–898; [2019] FamCAFC 78

Marker & Marker [1998] FamCA 42

Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17

Omacini & Omacini (2005) FLC 932–218; [2005] FamCA 195

Perrin & Perrin (No 2) [2018] FamCAFC 122

Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52

Stella & Stella [2023] FedCFamC1F 1092

Wallis & Manning (2017) FLC 93-759; [2017] FamCAFC 14

Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598

Zubcic & Zubcic [2018] FamCA 129

Division: Division 2 Family Law
Number of paragraphs: 137
Date of hearing: 20-21 February 2025
Place: Melbourne
Counsel for the applicant: Mr Dean
Solicitor for the applicant: Aspire Lawyers
Representative for the respondent: Mr Vinas

ORDERS

MLC 532 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS ASSANTE

Applicant

AND:

MR VINAS

Respondent

ORDER MADE BY:

JUDGE A. HUMPHREYS

DATE OF ORDER:

27 MARCH 2025

THE COURT ORDERS THAT:

The payment

1.Within 60 days of the date of these orders (“the date”) the respondent pay to the applicant the sum of $57,530 (“the payment”).

B Street, Suburb C

2.Contemporaneously with the payment, the parties do all acts and sign all documents as may be required to transfer to the applicant at the expense of the applicant all of the respondent’s right, title and interest in the real property known as B Street, Suburb C in the State of Victoria…

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AGLC
Assante & Vinas [2025] FedCFamC2F 393
Case
[2025] FedCFamC2F 393
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of Assante v Vinas involved a protracted dispute over the division of assets following a de facto relationship of approximately 26 years, with the parties having separated more than three years prior to the proceedings. The central issue was the valuation and division of two real properties, B Street and D Street, each with their own construction and financial challenges. The court had to decide the appropriate value of the properties, the consideration of "add-backs" to the pool of assets, and the treatment of an inheritance received by the respondent post-separation. It also needed to assess the contributions of both parties and relevant factors under section 90SF(3) of the Family Law Act 1975.

The court adopted a two-pool approach in its reasoning, keeping the respondent’s inheritance separate from the pool of assets accrued during the relationship. The inheritance was valued at the amount received by the respondent, and he was to retain 100% of it. For the remaining pool, the applicant was awarded 52.5%, and the respondent 47.5%. The court considered the defective and incomplete state of the property at B Street and valued it accordingly, with the applicant retaining this property and the respondent retaining D Street. The court ordered that the respondent pay the applicant $57,530 within 60 days, failing which D Street would be sold by auction with specific terms, and the proceeds would be divided as per the court’s orders.

The court's final orders included specific directions for the transfer of properties, occupation rights, and financial responsibilities during the interim period. It also detailed the division of other assets and liabilities, ensuring that each party was left with clear ownership of specific items and responsibilities. The orders were intended to finalise the financial relationships between the parties to the extent practicable, thereby avoiding further proceedings. The court appointed a Registrar to execute any necessary deeds or instruments if either party failed to comply with the orders.

Orders

Orders of the court

MLC 532 of 2024

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS ASSANTE

Applicant

AND:

MR VINAS

Respondent

ORDER MADE BY:

JUDGE A. HUMPHREYS

DATE OF ORDER:

27 MARCH 2025

THE COURT ORDERS THAT:

The payment

1. Within 60 days of the date of these orders (“the date”) the respondent pay to the applicant the sum of $57,530 (“the payment”).

B Street, Suburb C

2. Contemporaneously with the payment, the parties do all acts and sign all documents as may be required to transfer to the applicant at the expense of the applicant all of the respondent’s right, title and interest in the real property known as B Street, Suburb C in the State of Victoria (“B Street”).

3. Pending the transfer of B Street:

(a) The applicant have the sole right to occupy B Street;

(b) The applicant pay all rates, taxes, and like apportionable outgoings of B Street as and when they fall due;

(c) The parties hold their respective interests in B Street upon trust pursuant to these orders; and

(d) Neither party encumber B Street without the consent in writing of the other party.

D Street, Suburb C

4. Contemporaneously with the payment, the parties do all acts and sign all documents as may be required to:

(a) Transfer to the respondent at the expense of the respondent all of the applicant’s right, title and interest in the real property known as D Street, Suburb C in the State of Victoria (“D Street”); and

(b) Assign to the respondent and authorise release to the respondent, all monies payable pursuant to the E Authority insurance claim relating to D Street.

5. Pending the transfer of D Street:

(a) The respondent have the sole right to occupy D Street;

(b) The respondent pay all rates, taxes, and like apportionable outgoings of D Street as and when they fall due;

(c) The parties hold their respective interests in D Street upon trust pursuant to these orders; and

(d) Neither party encumber D Street without the consent in writing of the other party.

6. In the event the respondent fails to make the payment by the date, the parties, within 30 days of the date, sign all documents and do all things to list D Street for sale by auction (“the sale”):

(a) Engaging a selling agent agreed by the parties and failing agreement, the applicant nominate three prospective agents within seven days, the respondent elect one of those nominated agents within a further seven days and failing the respondent electing an agent, the applicant elect the agent;

(b) “As is”, in its current condition, unless otherwise agreed in writing;

(c) With a reserve price of $150,000 unless otherwise agreed in writing; and

(d) With the applicant at liberty to bid at the auction to purchase D Street.

7. The proceeds of the sale be applied as follows:

(a) First to pay all costs, commissions and expenses of the sale;

(b) Secondly, to discharge any mortgage and other encumbrance affecting D Street;

(c) Thirdly, from the first $150,000 of the balance then remaining (or the whole of the balance if it is $150,000 or less):

(i) So much of the payment as is outstanding to the applicant; and

(ii) The balance to the respondent; and

(d) Fourthly, if there remain any proceeds of sale after the payments pursuant to paragraphs (a), (b) and (c) of this order, that balance be divided 52.5% to the applicant and 47.5% to the respondent.

Other property

8. The applicant retain absolutely and the respondent relinquish any right or claim to:

(a) The payment;

(b) B Street;

(c) The property at 2 F Street, Suburb G;

(d) Her Motor Vehicle 1;

(e) The proceeds of any bank account conducted in the applicant’s name;

(f) The contents of B Street; and

(g) Any liability in her sole name, with the applicant to indemnify the respondent in respect of any such liability.

9. The respondent retain absolutely and the applicant relinquish any right or claim to:

(a) D Street, subject to the provisions of these orders;

(b) The property at 1 F Street, Suburb G;

(c) The H Business (ABN …);

(d) All monies payable pursuant to the E Authority insurance claim relating to D Street;

(e) The balance of the proceeds from the sale of the property at J Street, Suburb K (being $123,200.44), paid to him pursuant to interim orders made on 21 February 2025;

(f) His Motor Vehicle 2;

(g) The proceeds from the sale of his Motor Vehicle 3;

(h) The proceeds of any bank account conducted in the respondent’s name; and

(i) Any liability in his sole name, or in the name of H Business, and he indemnify the applicant in respect of any such liability.

10. Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:

(a) Each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders;

(b) Monies standing to the credit of the parties in any joint bank account (if any) are to be divided equally and the joint account/s thereafter closed;

(c) Each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;

(d) Insurance policies remain the sole property of the owner named thereon;

(e) Each party be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to these orders; and

(f) Any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

Execution of instruments by the court

11. Pursuant to section 106A of the Family Law Act 1975 (Cth) (“the Act”), in the event either party fails to execute a deed or instrument as directed by these orders, a Registrar of the Federal Circuit and Family Court of Australia (Melbourne registry) is appointed to execute the deed or instrument in the name of the defaulting party and to do all acts and things necessary to give validity and operation to the deed or instrument.

Procedural

12. All extant applications be dismissed.

AND THE COURT NOTES THAT:

A. In accordance with section 90ST of the Act, it is intended these orders will, as far as practicable, finally determine the financial relationships between the parties and avoid further proceedings between them.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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