Bonacci and Bonacci - [2010] FamCA 331

FAMILY COURT OF AUSTRALIA

BONACCI & BONACCI

[2010] FamCA 331

FAMILY LAW – PROPERTY SETTLEMENT – assessment of contributions – whether expenditure on alcohol eroded financial contributions – the weight to be given an informal agreement – relevant s. 75(2) matters – just and equitable orders – whether a superannuation splitting order should be made

Family Law Act 1975 (Cth) ss 75(2), 79, 79(2)

Hickey & Anor and Attorney-General for the Commonwealth (2003) FLC 93-143 Robb & Robb (1995) FLC 92-555
Woodland & Todd (2005) FLC 93-217
Dupont (No.3) (1981) FLC 91-103
Browne & Green (1999) FLC 92-873
Norbis v Norbis (1986) FLC 91-712
Pierce & Pierce (1999) FLC 92-844
Coghlan & Coghlan (2005) FLC 93-220
Waters & Jurek (1995) FLC 92-635
Collins and Collins (1990) FLC 92-149

APPLICANT:

Ms Bonacci

RESPONDENT:

Mr Bonacci

FILE NUMBER:

NCC

487

2008

DATE DELIVERED:

30 April 2010

PLACE DELIVERED:

Sydney

PLACE HEARD:

Newcastle

JUDGMENT OF:

The Hon. Justice Rose

HEARING DATE:

29 & 30 June 2009,
1, 3 & 17 July 2009

WRITTEN SUBMISSIONS:

18 August 2009

21 September 2009
25 September 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:	W Tregilgas
SOLICITOR FOR THE APPLICANT:	Aubrey Brown Partners

COUNSEL FOR THE RESPONDENT:	J Hamilton
SOLICITOR FOR THE RESPONDENT:	M G O'Callaghan & Associates

Orders

That the husband pay to the wife the sum of $90,165.00 on or before 5.00pm 30 June 2010.
Declare that subject to Order 1 each of the parties is the sole beneficial owner of all property in his or her name, possession, power or control respectively.
That all other outstanding applications are dismissed.
That all documents produced on subpoena may be returned to the person who produced the same.
That the proceedings be removed from the active pending cases list.

IT IS NOTED that publication of this judgment under the pseudonym Bonacci & Bonacci is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: NCC 487 of 2008

MS BONACCI

Applicant

And

MR BONACCI

Respondent

REASONS FOR JUDGMENT

Introduction

In these proceedings the applicant (who for convenience I shall refer to as “the wife”) seeks property settlement orders and a superannuation splitting order in accordance with her Further Amended Application filed 29 June 2009.
The respondent (who for convenience I shall refer to as “the husband”) seeks an order that the wife’s further amended application be dismissed and declarations that each of the parties be declared the sole and beneficial owner of all property including real property and superannuation entitlements in his or her name respectively.
There is an issue in relation to the periods of cohabitation between the parties. The wife contends that cohabitation commenced in April 1989 and that following a number of periods of separation the parties finally separated on 12 November 2004.
The husband contends that cohabitation commenced early in 1990 and that following a number of different periods of separation to those claimed by the wife, the parties finally separated on 26 September…

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 Bonacci and Bonacci

Details

AGLC: Bonacci and Bonacci [2010] FamCA 331
Case: [2010] FamCA 331
Decision Date: 30 April 2010

CaseChat Overview and Summary

In *Bonacci and Bonacci*, the husband and wife were parties to proceedings in the Family Court of Australia concerning the division of their property. The dispute centred on the equitable distribution of assets following the breakdown of their marriage.

The primary legal issue before the Court was the appropriate method for valuing and distributing the parties' respective assets, particularly in light of certain financial contributions and the overall financial position of each party. The Court was required to determine the extent to which each party was entitled to a share of the matrimonial property.

Justice Rose reasoned that a just and equitable division of the property required a careful consideration of all relevant factors, including the financial contributions of each party, their future earning capacities, and the need to achieve a fair outcome. The Court applied principles of property adjustment under the *Family Law Act 1975* (Cth), assessing the value of the assets and liabilities to arrive at a final distribution.

The Court ordered that the husband pay the wife a sum of $90,165.00 by 30 June 2010. Subject to this payment, each party was declared the sole beneficial owner of all property in their respective names, possession, power, or control. All other outstanding applications were dismissed, and the proceedings were removed from the active pending cases list.

Orders

Orders of the court

That the husband pay to the wife the sum of $90,165.00 on or before 5.00pm 30 June 2010.

Declare that subject to Order 1 each of the parties is the sole beneficial owner of all property in his or her name, possession, power or control respectively.

That all other outstanding applications are dismissed.

That all documents produced on subpoena may be returned to the person who produced the same.

That the proceedings be removed from the active pending cases list.

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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