FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bellomia & Bellomia [2021] FedCFamC1F 334
File number(s): ADC 1780 of 2017 Judgment of: MEAD J Date of judgment: 21 December 2021 Catchwords: FAMILY LAW – PROPERTY – Where the applicant husband’s parents and associated company and trust were joined as first and second respondents – Where the first and second respondents claimed debt as against the applicant husband and the third respondent wife – Where the matter was heard undefended as between the applicant husband and the third respondent wife – Where the third respondent wife failed to properly participate in the proceedings – Where the third respondent wife opposed the applicant husband’s interim application for the appointment of a Litigation Guardian for her – Where the third respondent wife agreed to comply with an order that she obtain a psychiatric assessment of her capacity to represent herself – Where the third respondent wife then refused to obtain the assessment – Where the Court declined to make the orders sought by the applicant husband – Where the third respondent wife consistently failed to comply with trial directions – Where the overwhelming majority of the applicant husband and the third respondent wife’s gross assets consisted of the proceeds of sale of the former matrimonial home – Where the amount of debt alleged to be owing by the husband and wife to the first and second respondents exceeded the amount of the sale proceeds – Where the first and second respondents sought an order that all such proceeds be paid to them in reduction of the alleged debt – Where the applicant husband consented to that order – Where the Court was required to consider, in the absence of the third respondent wife’s participation in the proceedings, whether the funds advanced to the parties by the first and second respondents were advances by way of gift or loan – Where the funds were advanced in various tranches to the husband and wife over a period of several years – Where the funds advanced were recorded in the financial records of the first and second respondents – Where there was no evidence to support a conclusion that the advances were by way of gift – Where the first and second respondents’ evidence as to advances being by way of loan was accepted by the Court – Where an order is made for the entirety of the sale proceeds to be transferred to the first and one of the second respondents, B Pty Ltd, in part‑payment of the debts owed – Where the Court determined the remaining assets of the applicant husband and the third respondent wife should be apportioned equally – Where that finding resulted in a modest superannuation split from the husband’s superannuation interest in favour of the wife – Where the wife is ordered within two calendar months of judgment to vacate the premises owned by one of the second respondents, the G Family Trust, and occupied by her rent-free since…
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Details
- Case
- [2021] FedCFamC1F 334
- Decision Date
CaseChat Overview and Summary
The case of Bellomia & Bellomia involved the husband and wife, who had been married for several years before separating. The husband sought a final property settlement and other relief from the court. The wife, who had various health issues, had been living in the family home after separation, despite orders for her to vacate the premises. The wife also claimed contributions from the husband’s parents and the family business towards the family home and other properties. The court had to decide on the division of the couple's assets, the wife's health impact on her work capacity, and the contributions of the husband's parents and the family business.
The wife argued that her health conditions, including psoriatic arthritis, hypermobility syndrome, fibromyalgia syndrome, and Ehlers-Danlos Syndrome, affected her ability to care for the child and her work capacity. She also claimed that the husband's parents and the family business had contributed to the purchase and construction of their properties, which should be taken into account in the property settlement. The husband, on the other hand, argued that the wife's health issues did not affect her ability to work and that the contributions of his parents and the family business should be considered as loans rather than contributions.
The court found that the wife's health issues did impact her work capacity, and she was unlikely to return to the paid workforce in the foreseeable future. The court also found that the husband's parents and the family business had made contributions to the purchase and construction of the properties, which should be taken into account in the property settlement. The court ordered a superannuation split in favour of the wife, with the husband's superannuation to be split by $75,442.50. The court also ordered that the husband pay the wife $150,000 as a property settlement, reduced by the $10,000 already paid to her and a further $20,000 to be paid within twenty-one days of the date of the order. The balance of $120,000 was to be paid upon the wife vacating the N Street property and the payment of the amounts owing to the first and second respondents with respect to the N Street property and motor vehicle expenses.
The court made an order that the husband and wife's assets be apportioned equally between them, and the husband's superannuation be split in favour of the wife by $75,442.50. The court also ordered that the husband pay the wife $150,000 as a property settlement, reduced by the $10,000 already paid to her and a further $20,000 to be paid within twenty-one days of the date of the order. The balance of $120,000 was to be paid upon the wife vacating the N Street property and the payment of the amounts owing to the first and second respondents with respect to the N Street property and motor vehicle expenses.
The wife argued that her health conditions, including psoriatic arthritis, hypermobility syndrome, fibromyalgia syndrome, and Ehlers-Danlos Syndrome, affected her ability to care for the child and her work capacity. She also claimed that the husband's parents and the family business had contributed to the purchase and construction of their properties, which should be taken into account in the property settlement. The husband, on the other hand, argued that the wife's health issues did not affect her ability to work and that the contributions of his parents and the family business should be considered as loans rather than contributions.
The court found that the wife's health issues did impact her work capacity, and she was unlikely to return to the paid workforce in the foreseeable future. The court also found that the husband's parents and the family business had made contributions to the purchase and construction of the properties, which should be taken into account in the property settlement. The court ordered a superannuation split in favour of the wife, with the husband's superannuation to be split by $75,442.50. The court also ordered that the husband pay the wife $150,000 as a property settlement, reduced by the $10,000 already paid to her and a further $20,000 to be paid within twenty-one days of the date of the order. The balance of $120,000 was to be paid upon the wife vacating the N Street property and the payment of the amounts owing to the first and second respondents with respect to the N Street property and motor vehicle expenses.
The court made an order that the husband and wife's assets be apportioned equally between them, and the husband's superannuation be split in favour of the wife by $75,442.50. The court also ordered that the husband pay the wife $150,000 as a property settlement, reduced by the $10,000 already paid to her and a further $20,000 to be paid within twenty-one days of the date of the order. The balance of $120,000 was to be paid upon the wife vacating the N Street property and the payment of the amounts owing to the first and second respondents with respect to the N Street property and motor vehicle expenses.
Orders
Orders of the court
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Background
Background to the litigation
At the time of trial the husband was aged 41 years and the wife 38 years.Background to undefended hearing When proceedings commenced in 2017 both parties were represented. In the affidavit filed by the wife on 15 June 2017 in support of her Response she deposed in paragraphs 29 to 36 inclusive as to her medical conditions. She deposed to:·beginning to experience regular extreme physical pain and chronic lethargy in or about 2014;·seeing a number of medical experts including two rheumatologists and a sleep specialist;·being diagnosed with psoriatic arthritis, hypermobility syndrome and fibromyalgia syndrome;·experiencing symptoms of muscle stiffness, soreness and general fatigue;·her diagnosed illness being Ehlers-Danlos Syndrome, a genetic connective tissue disorder;·her understanding there is no known cure for that syndrome;·being prescribed Tramadol for pain relief and requiring regular physical therapy;·her chronic lethargy being diagnosed as idiopathic hypersomnia;·her conditions not affecting her ability to care for X but requiring her to pace herself and plan daily activities;·her conditions being physical in nature and not suffering from any mental health issues; and·attending upon a rheumatologist Dr R and a respiratory and sleep physician Dr S. Certain parenting orders were made by Judge Heffernan on each of 19 June 2017, 26 June 2017 and 31 August 2017. Included in the order of 26 June 2017 was a requirement for the parties to obtain a family report. This was prepared by Ms T and filed under cover of affidavit of the husband’s solicitor Mr Jordan on 22 December 2017. On 25 January 2018 the wife’s solicitors filed a Notice of Ceasing to Act. At the next hearing on 22 February 2018 the wife was represented by the Duty Solicitor. The matter was adjourned to 19 March 2018 for interim argument. The wife filed a Notice of Address for Service in her own name on 22 February 2018. At the hearing on 19 March 2018 the wife was self-represented. The parenting orders made by the Court that day substantially increased the time X was to spend with her father from three overnight periods in each two week cycle to seven overnight periods in each two week cycle. This new parenting arrangement was substantially in accordance with the recommendations of Ms T as contained in her family report. The wife’s physical and psychological health challenges and the impact of same on her parenting capacity were issues of significance in that report. The order of 19 March 2018 included an adjournment to 18 June 2018. On 7 June 2018 V Lawyers filed a Notice of Address for Service on behalf of the wife. At the next hearing on 18 June 2018, at which time the wife was represented by Mr U of V Lawyers, the parties consented to an order effectively continuing the pattern of X’s care until further order. At a further hearing on 6 September 2018 Judge Heffernan made an order by consent inter alia that the wife deliver up vacant possession of the “Suburb J property” on or before 11 October 2018. There were a raft of other orders made by his Honour on that occasion with respect to property issues, including the joinder order referred to in paragraph 5 of these reasons. The wife was represented by Mr U of V Lawyers at the time of the making of the consent order.
Evidence
Evidence Before The Court
Upon the tendering of that document to the Court on 8 October 2020 at a hearing at which the wife also attended, judgment was reserved.Evidence of the partiesThe husband The husband relied on his trial affidavit filed 12 August 2020 and his financial statement filed 11 August 2020. The only evidence before the Court from the wife with respect to issues of settlement of property was that contained in the two affidavits filed by her during the course of the proceedings, on 15 June 2017 and 31 January 2020 respectively. In so far as the first and second respondents were concerned an affidavit was filed by the husband’s father Mr C Bellomia (on 27 August 2020) on his behalf and on his wife’s behalf with her authority as first respondents, and as the sole Director and Secretary of B Pty Ltd, the sole Director and Secretary of E Pty Ltd, and as the Trustee of the G Family Trust, the second respondents. The husband’s mother Ms D Bellomia filed an affidavit (on 26 August 2020) in her own right and as a Trustee of the G Family Trust, and as a shareholder in E Pty Ltd. A further affidavit was filed on 26 August 2020 in support of the claims of the first and second respondents by Ms PP, Executive Assistant to Mr C Bellomia. In the husband’s trial affidavit he deposed to the following matters, namely that:·he and the wife commenced living together in September 2000 at his parents' home, rent free and without necessity to contribute to household expenses or meals;·in August 2001 his father purchased two blocks of vacant land at 1–2 KK Street, Adelaide for $113,751, with each block having a separate Torrens Title;·at settlement the title over 1 KK was registered in his brother's name and the title over 2 KK was registered in the names of he and the wife;·his father made the financial arrangements;·he was unaware of how much deposit was paid but a mortgage loan was taken from F Bank guaranteed by his parents;·soon after purchase his father arranged for building plans to be drawn after consultation with he and the wife, following upon which two identical residences were built, one on 1 KK and one on 2 KK Street;·he and the wife moved out of his parents' home into rented accommodation at JJ Street, Adelaide in approximately June 2002;·they lived in that rented accommodation for approximately nine months whilst waiting for the home at 2 KK Street, Adelaide (“the KK Street property”) to be completed;·the husband and the wife moved into the KK Street property in March 2003;·the total cost of the purchase of the land and construction of the house was $350,000;·by the time of completion of the building the mortgage was $250,000;·following the husband and wife moving into the KK Street property they paid a portion of the mortgage payments to F Bank and his parents paid the remainder;·the husband’s parents paid a total of $22,378 towards the mortgage payments until the sale of the property;·in May 2003 the husband commenced working in his parents’ business B Pty Ltd;·the parties remained living in the KK Street property until January 2007 when the property was sold;·in November 2006 the husband and wife purchased a property at LL Street, Suburb MM (“the Suburb MM property”);·the total cost of the property was $486,510 (including settlement costs);·the husband’s parents paid the total cost on a "bridging basis" pending the sale of the KK Street property;·the net proceeds of sale of the KK Street property were $152,694;·the parties paid those funds to the husband’s parents in reduction of the cost of the Suburb MM property;·that payment reduced the parties’ indebtedness to the husband’s parents to $333,716;·the Suburb MM property was unencumbered notwithstanding the amount owing to the husband’s parents;·$15,000 was spent on air-conditioning, a security system and other minor work on the Suburb MM property;·the cost of the improvements was invoiced to and paid by B Pty Ltd;·the husband and wife lived at the Suburb MM property without paying mortgage payments or rent but did pay rates and taxes;·in June 2011 the husband purchased vacant land at K Street, Suburb L (“the Suburb L property”) for $82,000 plus costs;·the purchase was a speculative venture;·the property was registered in the husband’s sole name but the purchase price was paid from a Commercial Bill purchased by B Pty Ltd in the amount of $100,000;·B Pty Ltd paid the interest from time to time;·in March 2011 the husband and wife found a property at H Street, Suburb J that they were keen to purchase;·the husband’s parents agreed to fund the purchase;·the property was purchased on the basis that a new home would be built on the land after demolishing the existing dilapidated home;·the parties purchased the H Street property for $552,490 including settlement costs;·the husband’s parents paid the purchase price and costs at first instance whilst a mortgage was arranged;·some months later a mortgage loan of $420,000 was obtained from F Bank;·the property was registered in the joint names of the husband and the wife;·construction of the new property on the H Street site commenced in approximately mid-2013;·the husband and wife moved into the H Street property in December 2014;·the building costs were paid by B Pty Ltd in an amount just under $1 million;·at the same time, the Suburb MM property was sold for $592,000 (net);·that amount was paid to B Pty Ltd in reduction of the parties’ debt;·whilst the parties resided at the H Street property the husband’s parents paid the monthly mortgage payments;·the husband and wife paid rates and taxes and utilities for the H Street property;·the parties finally separated on 5 May 2017;·the wife remained living in the H Street property until it was ultimately sold;·during that time the husband paid the mortgage and the outgoings on that property;·as at the date of separation the parties owed approximately $600,000 to the husband’s parents personally and approximately $780,000 to B Pty Ltd;·the sums deposed to did not include any component for interest;·the H Street property was sold in mid-June 2019 with settlement on 12 July 2019;·sale and settlement on that property was delayed as a result of the wife’s refusal to vacate the property following separation;·the husband sought and obtained an order for vacant possession on 6 September 2018;·the wife did not comply with the order;·he sought and obtained a Warrant for Possession on 16 November 2018;·the Suburb L property was sold on 12 March 2020;·the net proceeds of that sale were $57,989;·the property secured a Commercial Bill with F Bank in the amount of $100,000 as referred to earlier herein; and·the sale price occasioned a shortfall of approximately $40,000.
Decision
Reasons for decision
Taking into account her work history both during the marriage and post-separation I find she is unlikely to return to the paid workforce in the foreseeable future.CONCLUSION Taking into account the adjustment on account of s 75(2) factors, combined with my finding as to contribution, the assets available to the husband and the wife should be apportioned equally between them. That can only be effected by a superannuation split in favour of the wife. I have found that the assets total $190,885. One half of that amount equals $95,442.50. Of that amount the wife is deemed to have received $10,000 by way of interim property settlement and has superannuation entitlements deemed to have a value of $10,000, a total of $20,000. Equality as between the husband and the wife will require a superannuation split in favour of the wife of the husband’s superannuation in the sum of $75,442.50. I referred earlier herein to a minute of order tendered to the Court by way of an agreed position between the husband and the first and second respondents. It was proposed by way of order that the first respondents, Mr C Bellomia and Ms D Bellomia, and the second respondent B Pty Ltd retain the full proceeds of the F Bank account (account number …40) held in the joint names of the husband and the wife. This would be by way of part-payment of amounts due and payable by the husband and the wife for:·all loans made to them by the first respondents;·the amounts due and payable by the husband and the wife jointly to B Pty Ltd for the construction of the home on the H Street property;·loans made to the husband and the wife jointly by the second respondent B Pty Ltd pursuant to the terms of a Loan Agreement entered into between the husband, the wife and B Pty Ltd; and·loans made to the husband by B Pty Ltd pursuant to a Loan Agreement entered into between the husband and B Pty Ltd,to be allocated in reduction of the husband’s and wife’s liabilities to them, as the first respondents and the second respondent B Pty Ltd see fit. It was further proposed that:·the wife pay the outgoings in respect of the Motor Vehicle 2 and that if she was to receive any funds by way of property settlement those outstanding liabilities be paid therefrom before she received such funds; and·the same scenario apply with respect to payment of amounts owing to the G Family Trust with respect to outgoings relating to the N Street property. The draft order also proposed inter alia, that by way of property settlement the husband pay the wife the total sum of $150,000, reduced by the sum of $10,000 already paid to her by way of interim property settlement on account of the order of 21 October 2019. A further $20,000 was proposed to be paid to her within twenty-one days of the date of an order, with the balance of $120,000 being paid to her upon vacation of the N Street property and the payment of the amounts owing to the first and second respondents with respect to the N Street property and motor vehicle expenses.
Ratio Decidendi
Legal Principle Established
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