Bonaventura and Bonaventura
[2008] FMCAfam 297
•2 April 2008
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BONAVENTURA & BONAVENTURA | [2008] FMCAfam 297 |
| FAMILY LAW – Transfer to the Family Court of Australia – complicated matter – husband transfers marital home to parents – wife claims constructive trust in Supreme Court action – Supreme Court holds no constructive trust – Supreme Court action filed after wife applied to Family Court for property division – wife unaware of transfer of the property to husband’s parents. |
| Federal Magistrates Act1999, s.40 Federal Magistrates Rules 2001, Rule 8.02 |
Bonaventura v Bonaventura & Anor [2005] QSC 270
| Applicant: | LINDA SUSAN BONAVENTURA |
| Respondent: | JOHN BONAVENTURA |
| File Number: | TVM 2340 of 2001 |
| Judgment of: | Coates FM |
| Hearing date: | 30 January 2008 |
| Date of Last Submission: | 30 January 2008 |
| Delivered at: | Cairns |
| Delivered on: | 2 April 2008 |
REPRESENTATION
| The Applicant appeared In Person |
| The Respondent appeared In Person |
ORDERS
The matter be transferred to the Family Court of Australia Registry at Cairns.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CAIRNS |
TVM 2340 of 2001
| LINDA SUSAN BONAVENTURA |
Applicant
And
| JOHN BONAVENTURA |
Respondent
REASONS FOR JUDGMENT
The wife filed her application for a property division on
20 September 2001.
She sought a property division of 90 percent in her favour and spousal maintenance of $350.00 per week.
In her financial statement filed with her application, at paragraph 40, the wife claimed a beneficial interest under a constructive trust in a property situated at Bentley’s Road, Homebush, which is near Mackay. She refers to the property as the marital home in her affidavit.
She also claimed an equitable interest in a property situated at Mohrs Road, Colston Park, which is near Mackay.
In his response the husband in his financial statement did not refer to any real estate.
By way of background the wife was born in 1955.
The husband was born in 1950.
The couple met in England in 1977 and married in 1978.
They had two children born in 1980 and 1982.
The couple separated in about 2000 or 2001.
There appears to be agreement that the husband brought the land upon which the marital home was built to the relationship but that the house was built during the relationship.
I cannot address the issues in relation to the alleged contributions in any detail because the parties, being self represented, have not been able to produce all of the evidence which goes to the consideration of financial and non-financial contributions.
It does appear from the evidence that the father’s parents assisted the couple in relation to the building of the house but to what extent is a matter of fact to be determined at trial.
Of the greatest importance, it is alleged that the property was transferred to the husband’s parents in or around 1984, without the wife’s knowledge. She claimed an equitable interest in the land and the matter was the subject of a decision by the Supreme Court of Queensland, delivered on 30 September 2005.
The Court found in the husband’s favour, that the wife did not have an equitable interest in the land under a constructive trust or because of an oral testamentary contract between the husband and the parents made for the purpose of defeating her interest in the property.
Justice Mullins found no unconscionable conduct in the transfer of the property from the husband to his parents. An appeal against the decision was abandoned.
On 12 July 2006 the matter was transferred from the Family Court of Australia to the Federal Magistrates Court of Australia.
The transfer was proper in that the Registrar was informed that there was no dispute over the marital realty.
As this was a circuit matter from Mackay, several trial directions have been issued to the parties. Possibly because they are self represented, they have not necessarily complied with the filing of all relevant material and with issues of disclosure.
The last bundle of material received from the husband was sent to the Townsville Registry on 7 February 2008 but not filed because the material was not in admissible form.
Attached to that material was the judgment delivered by Her Honour Justice Mullins in the Supreme Court of Queensland on
30 September 2005. That is the first time I had seen the judgment of that Court in this matter.
As I understand the judgment (Bonaventura v Bonaventura & Anor [2005] QSC 270) it was not determined upon the tests outlined in the Family Law Act 1975.
I was told that the family law case was “put on hold” until the Supreme Court case was finalised.
I do not know why the matter proceeded in the way it has but I am told that the marital property is in issue.
This matter raises several issues including the conflict between the Family Law Act 1975 and the common law principles adjudicated in the Supreme Court, appropriate forums for the resolution of family law property proceedings and whether the matter has been finally determined and should not be re-opened.
On the facts of this case these appear to be important and difficult questions of law.
Considering s.40 of the Federal Magistrates Act1999 and r8.02 of the Federal Magistrates Rules 2001, this is a complicated matter which should more appropriately be dealt with by the superior court.
That the parties are not represented, while causing difficulties at trial level, does not in itself create the difficult questions which have arisen here, but the lack of representation will make submissions as to the law by the parties difficult if not futile.
Apart from the legal and factual questions, the wife, who is resident in England, needs a firm date for the trial so she can make travel arrangements to Australia.
On that basis I will transfer the matter to the Family Court of Australia.
I certify that the preceding thirty (30) paragraphs are a true copy of the reasons for judgment of Coates FM
Associate: Erin Firns
Date: 1 April 2008
0