Camilli & Albini

Case [2021] FamCA 48

FAMILY COURT OF AUSTRALIA

Camilli & Albini [2021] FamCA 48

File number(s): MLC 2939 of 2020
Judgment of: JOHNS J
Date of judgment: 16 February 2021
Catchwords: FAMILY LAW – PROPERTY – final orders – undefended hearing – where the applicant seeks final property orders – where the respondent has failed to participate or file any material in the proceedings – leave is granted for the applicant to proceed on an undefended basis – where the parties were in a de facto relationship for approximately 10 years – where the parties’ asset pool is extremely modest – where the applicant is seeking that she retain the majority of the assets including the former matrimonial home – where the applicant’s direct financial contributions are overwhelming – order that the applicant retain the former matrimonial home.  
Legislation:

Family Law Act 1975 (Cth) ss 4AA, 79, 90SB, 90SF, 90SM, 106A

Family Law Rules 2004 (Cth) r 11.02

Cases cited:

Bevan & Bevan [2013] FamCAFC 116; (2013) FLC 93-545

Chapman & Chapman [2014] FamCAFC 91; (2014) FLC 93-592

Hunter & Borman and Anor [2020] FamCAFC 250

Stanford v Stanford (2012) 247 CLR 108

Watson & Ling [2013] FamCA 57; (2013) FLC 93-527
Number of paragraphs: 68
Date of hearing: 4 February 2021
Place: Melbourne
Solicitor for the Applicant: Ms Bradford, McDonald Slater & Lay
The Respondent: No appearance

ORDERS

MLC2939/2020
BETWEEN:

MS CAMILLI

Applicant
AND:

MR ALBINI
Respondent

ORDER MADE BY:

JOHNS J

DATE OF ORDER:

16 FEBRUARY 2021

THE COURT ORDERS THAT:

1.That within 30 days the Respondent do all such things and sign all such documents as are required to transfer to the Applicant all his right, title and interest in the property at B Street C Town in the State of Victoria being the land more particularly described in Certificate of Title Volume … Folio… and the Applicant indemnify the Respondent in respect of all and any liabilities associated with the property past, present and future.

2.In the event that the Respondent fails or refuses to comply with order 1 hereof, upon the Applicant’s solicitor filing an affidavit deposing as to the Respondent’s failure to comply with order 1, an Officer of the Court may execute any deed or instrument in the name of the Respondent pursuant to Section 106A of the Family Law Act 1975 to give effect to these Orders.

3.That unless otherwise specified in these Orders and save for the purpose of enforcing any monies due under these or any subsequent Order:-

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

(b)Any money standing to the credit of the parties in a bank account are to be retained by the party in whose name the account appears;

(c)Each party hereby foregoes any claim he/she may have to any superannuation benefit that is belonging to or owned by the other save as provided for in these…

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AGLC
Camilli & Albini [2021] FamCA 48
Case
[2021] FamCA 48
Decision Date

CaseChat Overview and Summary

In the matter of *Camilli & Albini*, heard before Johns J in the Federal Circuit and Family Court of Australia, the applicant, Ms Camilli, sought final property orders against the respondent, Mr Albini, who failed to participate in the proceedings. Leave was granted for the applicant to proceed on an undefended basis. The parties were in a de facto relationship for approximately 10 years, during which the applicant made overwhelming direct financial contributions, including the purchase of the former matrimonial home. The asset pool was described as extremely modest, and the applicant sought to retain the majority of the assets, including the former matrimonial home.

The court was required to determine the appropriate property settlement orders in circumstances where one party had failed to engage with the proceedings. Specifically, the court had to consider the division of a modest asset pool, the significant direct financial contributions of the applicant, and the applicant's request to retain the former matrimonial home. The court also considered the need for orders to facilitate the transfer of property, given the respondent's non-participation.

Johns J reasoned that the applicant's direct financial contributions were overwhelming and that an adjustment in her favour was just and equitable. The court noted that the applicant had funded the respondent's immigration process and had primarily financed the acquisition of the former matrimonial home, which was initially registered in joint names at the respondent's suggestion to assist his residency application. The court found that no further adjustment was warranted under s 90SF(3) of the *Family Law Act 1975* (Cth), given the parties' ages and the applicant's receipt of a Centrelink pension. The court also considered it appropriate to make orders under s 106A of the Act to ensure the transfer of the property could be effected without further delay, anticipating difficulties in securing the respondent's cooperation.

The court ordered that the respondent transfer all his right, title, and interest in the former matrimonial home to the applicant within 30 days, with the applicant indemnifying the respondent for all liabilities associated with the property. In the event of the respondent's non-compliance, an officer of the court was empowered to execute any necessary documents. The orders also stipulated that each party would be solely entitled to property in their possession, with specific provisions for bank accounts, superannuation, insurance policies, and liabilities. The applicant's initiating application was dismissed.

Orders

Orders of the court

MLC2939/2020

BETWEEN:

MS CAMILLI

Applicant

AND:

MR ALBINI

Respondent

ORDER MADE BY:

JOHNS J

DATE OF ORDER:

16 FEBRUARY 2021

THE COURT ORDERS THAT:

1. That within 30 days the Respondent do all such things and sign all such documents as are required to transfer to the Applicant all his right, title and interest in the property at B Street C Town in the State of Victoria being the land more particularly described in Certificate of Title Volume … Folio… and the Applicant indemnify the Respondent in respect of all and any liabilities associated with the property past, present and future.

2. In the event that the Respondent fails or refuses to comply with order 1 hereof, upon the Applicant’s solicitor filing an affidavit deposing as to the Respondent’s failure to comply with order 1, an Officer of the Court may execute any deed or instrument in the name of the Respondent pursuant to Section 106A of the Family Law Act 1975 to give effect to these Orders.

3. That unless otherwise specified in these Orders and save for the purpose of enforcing any monies due under these or any subsequent Order:-

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

(b) Any money standing to the credit of the parties in a bank account are to be retained by the party in whose name the account appears;

(c) Each party hereby foregoes any claim he/she may have to any superannuation benefit that is belonging to or owned by the other save as provided for in these Orders;

(d) All insurance policies are to become the sole property of the owner named herein;

(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 applicant and the respondent in any real or personal estate is hereby expressly severed.

4. That the Applicant cause a sealed copy of these orders to be served on the respondent as follows:-

(a) By registered post to the respondent care of:-

(i) Mr D at H Street, Suburb J;

(ii) Ms F at K Street, L Town; and

(iii) Ms G at M Street, Suburb N;

together with a letter to each of the named recipients requesting that they urgently bring the sealed envelope and its contents to the attention of the Respondent.

(b) By email to the respondent at

5. The Initiating Application filed on behalf of the Applicant on 18 March 2020 be dismissed.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

The applicant relied upon the material referred to above and the submissions of her lawyer. In addition, both the applicant and her lawyer gave brief oral evidence in support of the application.BACKGROUND The applicant’s unchallenged evidence as to the parties’ background is as follows. The parties commenced a relationship in October 2008 whilst the respondent was on a visitor’s visa in Australia from Country Q. At that time he was living with members of his family in Melbourne. The applicant deposes that at that time the respondent had no money or possessions other than his own clothing. The parties commenced living together at the applicant’s home at R Street, Suburb S (“Suburb S”) on 27 October 2009. At the commencement of their cohabitation the applicant was the sole owner of the unencumbered property at Suburb S and its contents, and had savings. The applicant did not work and was in receipt of a Centrelink pension. The applicant paid the sum of approximately $5,000 for immigration lawyers to commence procedures to obtain a partner visa for the respondent to ensure he was able to remain living in Australia. As the respondent could not find employment, the applicant sponsored him for the ten years over which the parties were living together and assumed sole responsibility for his financial support. In or around 2013 the applicant sold the Suburb S property, the net proceeds of sale being approximately $120,000. The applicant applied those funds to the purchase of the C Town property for $107,000 plus other sale expenses. The C Town property is currently valued at approximately $138,000. The C Town property was registered in the parties’ joint names. The applicant deposes at paragraph 17 of her affidavit filed 21 December 2020 that:-[The respondent] suggested that we purchase the house in joint names to enhance his residency application and he assured me that he would transfer the property back to me once he had his citizenship. I loved and trusted him and accordingly I agreed to the registration of the property in joint names. In December 2013 the respondent was granted permanent residency in Australia. At about that time the applicant purchased a motor vehicle 1 for the sum of approximately $8,000. That vehicle was registered in the respondent’s name. The respondent was granted Australian citizenship on 23 September 2019. On 27 September 2019, the respondent informed the applicant that he wished to separate and be began moving his possessions. The respondent vacated the C Town property on 30 September 2019 taking his possessions and the motor vehicle 1. During her oral evidence the applicant stated that in addition to the motor vehicle the respondent removed a computer, a photocopier, many tools and his clothing. She estimates the value of the chattels removed and retained by him to be between $15,000 and $20,000. The applicant deposes at paragraph 27 of her affidavit that:-[The respondent] had stated that he would transfer the house back to me after he left because he hadn’t paid for it, and that he only wanted his car and his other belongings. I agreed to him taking the car and his belongings and said that I would get the paperwork for the house ready for him to sign.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Having regard to the parties’ ages and the fact that the applicant is in receipt of an income-tested pension, I am satisfied that there should be no further adjustment pursuant to s 90SF(3) of the Act. CONCLUSION The pool of assets available for division is extremely modest. The applicant seeks an order that will result in her retaining the C Town property, its contents, her savings and motor vehicle. The value of the property sought to be retained by her is $160,000. That property represents approximately 88 per cent of the parties’ identified interests. Taking into account the overwhelming direct financial contributions made by the applicant towards the acquisition of property as well as towards the welfare of the family, particularly with respect to the respondent’s citizenship application, I am satisfied that it is appropriate that there be an adjustment in favour of the applicant in accordance with her application. An adjustment in those terms recognises the direct financial contributions made by the applicant. Orders in those terms will enable her to retain the C Town property. I am satisfied that orders in those terms are just and equitable. The applicant seeks an order pursuant to s 106A of the Act to ensure that the transfer of property is able to be effected without further delay. She seeks an order that will enable a Registrar of the Court to sign relevant documents in order to effect the property transfer. In circumstances where the respondent has elected not to participate in the proceedings and it is reasonable to anticipate that there will be difficulties in securing his cooperation with the execution of the necessary transfer documents, I am satisfied that such order is appropriate. Accordingly, I will make orders as follows:-1.That within 30 days the Respondent do all such things and sign all such documents as are required to transfer to the Applicant all his right, title and interest in the property at B Street C Town in the State of Victoria being the land more particularly described in Certificate of Title Volume Folio … and the Applicant indemnify the Respondent in respect of all and any liabilities associated with the property past, present and future. 2.In the event that the Respondent fails or refuses to comply with order 1 hereof, upon the Applicant’s solicitor filing an affidavit deposing as to the Respondent’s failure to comply with order 1, an Officer of the Court may execute any deed or instrument in the name of the Respondent pursuant to Section 106A of the Family Law Act 1975 to give effect to these Orders. 3.That unless otherwise specified in these Orders and save for the purpose of enforcing any monies due under these or any subsequent Order:-(a)Each party be solely entitled to the exclusion of the other to all property, including choses-in-action, in the possession of such party as at the date of these Orders; (b)Any money standing to the credit of the parties in a bank account are to be retained by the party in whose name the account appears; (c)Each party hereby foregoes any claim he/she may have to any superannuation benefit that is belonging to or owned by the other save as provided for in these Orders; (d)All insurance policies are to become the sole property of the owner named herein; (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 applicant and the respondent in any real or personal estate is hereby expressly severed. 4.That the Applicant cause a sealed copy of these orders to be served on the respondent as follows:-(a)By registered post to the respondent care of:-(i)Mr D at H Street, Suburb J;(ii)Ms F at K Street, L Town;(iii)Ms G at M Street, Suburb N;together with a letter to each of the named recipients requesting that they urgently bring the sealed envelope and its contents to the attention of the Respondent. (b)By email to the respondent at ...5.The Application filed on behalf of the Applicant on 18 March 2020 be dismissed.

Ratio Decidendi

Legal Principle Established

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