Capello & Capello

Case [2025] FedCFamC1F 110

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Capello & Capello [2025] FedCFamC1F 110  

File number(s): ADC 2763 of 2021
Judgment of: HARTNETT J
Date of judgment: 25 February 2025
Catchwords: FAMILY LAW – PROPERTY – Interlocutory application – Where the husband seeks the removal of a caveat as lodged by the wife on the former matrimonial home – Where the wife seeks partial property settlement – Where the wife seeks interim spousal maintenance – Where the wife seeks the appointment of single experts for various valuations – Where the wife seeks orders that the husband provide updated financial disclosure – Where the wife has an incapacity to work – Where the wife’s circumstances meet the threshold articulated in s 72 of the Family Law Act 1975 (Cth) – Husband’s application dismissed – Wife to receive partial property settlement – Wife to receive interim spousal maintenance.
Legislation: Family Law Act 1975 (Cth) ss 72, 74, 75, 79, 80, 114
Cases cited:

Bing & Bing [2007] FamCA 418

Kensit & Kensit [2022] FedCFamC1F 633

Strahan & Strahan (Interim Property Orders) [2009] FamCAFC 166
Division: Division 1 First Instance
Number of paragraphs: 50
Date of hearing: 7 February 2025
Place: Melbourne, via videolink
Counsel for the Applicant: Mr Glezakos
Solicitor for the Applicant: Tolis & Co Lawyers
Solicitor for the Respondent: Litigant in person

ORDERS

ADC 2763 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MS CAPELLO

Applicant
AND:

MR CAPELLO

Respondent

ORDER MADE BY:

HARTNETT J

DATE OF ORDER:

25 FEBRUARY 2025

THE COURT ORDERS THAT:

1.The Application in a Proceeding filed by the Respondent Husband (“the Respondent”) on 6 November 2024 is dismissed.

2.By way of partial property settlement, and pursuant to sections 80(1) and 79 of the Family Law Act 1975 (Cth) (“the Act”) and within thirty (30) days of this order, the Respondent do pay or cause to be paid to the trust account of Tolis & Co Lawyers, for and on behalf of the Applicant Wife (“the Applicant”) a lump sum of $100,000.

3.Pursuant to section 74 of the Act, the Respondent do pay, or cause to be paid, to the Applicant the sum of SIX THOUSAND DOLLARS ($6,000) per month by way of interim spousal maintenance with such payments to be made directly to the Applicant’s nominated bank account commencing on the first Monday following the date of these Orders and on the first Monday of each month thereafter.

4.Within 21 days of this order, and in the event the Respondent and Applicant cannot agree on a value for the below items, the Respondent do all such acts and things necessary to appoint and instruct Mr B of C Valuers to value the following property of the Respondent:

(a)his hobby equipment;

(b)his other hobby equipment;

(c)his music equipment and instruments;

(d)his recreational vehicle; and

(e)his media collection.

5.Within 14 days of this order the Respondent provide to the Applicant all 2024 and 2025 council rate notices and land tax assessment notices…

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AGLC
Capello & Capello [2025] FedCFamC1F 110
Case
[2025] FedCFamC1F 110
Decision Date

CaseChat Overview and Summary

In the matter of Capello & Capello, the wife, Ms Capello, applied for various reliefs including the removal of a caveat on the former matrimonial home, partial property settlement, interim spousal maintenance, and the appointment of single experts for various valuations. The husband, Mr Capello, sought to remove the caveat on the former matrimonial home. The wife's health condition, her role in home duties, and the financial circumstances of both parties formed the crux of this interlocutory application. The court was tasked with determining whether the wife met the threshold for spousal maintenance under s 72 of the Family Law Act 1975 (Cth), and if so, the appropriate quantum and terms of any interim spousal maintenance order. Additionally, the court needed to assess the wife's need for a partial property settlement and the necessity of appointing single experts for certain valuations.

The court considered the wife's health and incapacity to work, her role in caring for the child, and her financial dependency on the husband. It was noted that the wife met the criteria for spousal maintenance under s 72 of the Act due to her incapacity to work and her reliance on government benefits. The court emphasised the importance of protecting the wife's standard of living and ensuring that she had adequate resources to support herself and her child. In assessing the appropriate quantum of spousal maintenance, the court considered the husband's income, his capacity to pay, and the wife's needs. The court also examined the wife's need for a partial property settlement to provide her with financial stability and independence. After a thorough analysis, the court determined that the wife was entitled to an interim spousal maintenance payment of $6,000 per month and a partial property settlement of $100,000.

The court dismissed the husband's application to remove the caveat on the former matrimonial home, as the wife's right to occupy the property until a final property settlement was deemed more pressing. The court ordered the husband to provide updated financial disclosure and instructed him to appoint a single expert to value specific items of hobby and recreational equipment. The court also restrained the husband from dealing with certain assets without prior notice to the wife, ensuring that the wife's interests were protected during the property settlement process.

The court ordered that the husband pay the wife a lump sum of $100,000 as a partial property settlement within thirty days of the order. The husband was also required to pay interim spousal maintenance of $6,000 per month directly to the wife's nominated bank account, commencing on the first Monday following the date of the order. The husband was directed to appoint a single expert to value specified items of hobby and recreational equipment and to provide updated financial disclosure within 21 days of the order. Additionally, the husband was restrained from dealing with certain assets without prior notice to the wife and was required to inform the wife of any claims or developments relating to his late father's estate. The wife's costs were reserved, and all other applications were adjourned to a future mention.

Orders

Orders of the court

ADC 2763 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS CAPELLO

Applicant

AND:

MR CAPELLO

Respondent

ORDER MADE BY:

HARTNETT J

DATE OF ORDER:

25 FEBRUARY 2025

THE COURT ORDERS THAT:

1. The Application in a Proceeding filed by the Respondent Husband (“the Respondent”) on 6 November 2024 is dismissed.

2. By way of partial property settlement, and pursuant to sections 80(1) and 79 of the Family Law Act 1975 (Cth) (“the Act”) and within thirty (30) days of this order, the Respondent do pay or cause to be paid to the trust account of Tolis & Co Lawyers, for and on behalf of the Applicant Wife (“the Applicant”) a lump sum of $100,000.

3. Pursuant to section 74 of the Act, the Respondent do pay, or cause to be paid, to the Applicant the sum of SIX THOUSAND DOLLARS ($6,000) per month by way of interim spousal maintenance with such payments to be made directly to the Applicant’s nominated bank account commencing on the first Monday following the date of these Orders and on the first Monday of each month thereafter.

4. Within 21 days of this order, and in the event the Respondent and Applicant cannot agree on a value for the below items, the Respondent do all such acts and things necessary to appoint and instruct Mr B of C Valuers to value the following property of the Respondent:

(a) his hobby equipment;

(b) his other hobby equipment;

(c) his music equipment and instruments;

(d) his recreational vehicle; and

(e) his media collection.

5. Within 14 days of this order the Respondent provide to the Applicant all 2024 and 2025 council rate notices and land tax assessment notices in respect of the following real properties:

(a) D Street, Suburb E;

(b) F Street, Suburb G;

(c) H Street, Suburb J;

(d) K Street, Suburb L;

(e) 1 M Street, Suburb N;

(f) O Street, Suburb P;

(g) 2 M Street, Suburb N; and

(h) Q Street, Suburb R.

6. Within 21 days of this order the Respondent provide to the Applicant his updated financial disclosure including but not limited to:

(a) Bank statements for:

(i) his ANZ account ending #...45 for the period 14 March 2024 to 13 September 2024 and from 13 December 2024 to date;

(ii) his ANZ account ending #...31 for the period from 27 August 2024 to date;

(iii) his ANZ account ending #...21 for the period from 6 September 2024 to date;

(iv) his ANZ account ending #...75 for the period from 11 November 2023 to 10 May 2024 and from 8 November 2024 to date;

(v) his ANZ Home Loan account ending #...05 for the period from 2 August 2024 to date; and

(vi) his ANZ credit card account ending #...00 for the period from 8 April 2024 to 6 December 2024 and from 5 January 2025 to date.

(b) Bank statements for the account number …95 for the period of 18 months prior to May 2021 to date;

(c) Bank statements for the account number …49 for the period of 18 months prior to May 2021 to date;

(d) His personal Income Tax Return and Notice of Assessment for the financial year ended 30 June 2024;

(e) Bank statements, Financial Statements and Income Tax Returns for the following entities for the financial year ended 30 June 2024:

(i) S International Pty Ltd;

(ii) S Investments Pty Ltd;

(iii) S Nominees Pty Ltd;

(iv) S Properties Pty Ltd;

(v) S2 Pty Ltd;

(vi) S Holdings Pty Ltd;

(vii) Capello Unit Trust;

(viii) Capello Unit Trust No 2; and

(ix) T Family Trust; and Capello Family Trust;

(f) His most recent statements evidencing dividends paid for any shares he holds in any publicly listed company, including but not limited to:

(i) U Pty Ltd; and

(ii) V Company;

(g) Statements for his W Investments portfolio number …78 for the period 18 months prior to May 2021 to date.

7. The Respondent do inform the Applicant, via her solicitors, of:

(a) any further claim made in relation to, or against, his late father’s Estate pursuant to the Inheritance (Family Provision) Act 1972 (SA) (“the IFP Act”), or any repealed Act in that regard, within 48 hours of receipt of notice of such claim AND do provide a copy of the same to the Applicant’s solicitors forthwith upon receipt thereof; and

(b) the progress of any claim/s made in relation to, or against, his late father’s Estate pursuant to the IFP Act, or any repealed Act AND will provide such update/s to the Applicant’s solicitors monthly unless any significant developments occur in anticipation of such time.

8. Pursuant to section 114(1)(e) of the Act, the Respondent be hereby restrained and an injunction be granted restraining him from, without providing 30 days’ notice in writing to the Applicant’s solicitors AND the Applicant expressly consenting to the same:

(a) drawing, transferring or otherwise withdrawing funds from his ANZ Home Loan Account number ending #...05;

(b) selling, transferring, encumbering or otherwise dealing with the former matrimonial home;

(c) dealing with, diminishing, drawing on, and/or depleting, his interest in the Estate of his late father pending final agreement with the Applicant in relation to settlement of property pursuant to section 79 of the Act, save and except to such extent that the same may be required to meet expenses that arise in the ordinary course of business;

(d) signing any document or instrument or doing any act or thing, including but not limited to entering into or signing a Deed of Family Arrangement, that has the effect of compromising or resolving any claim or claims made in relation to, or against, his late father’s Estate pursuant to the IFP Act, or any repealed Act in that regard without providing 30 days’ prior notice to the wife and/or

(e) otherwise disposing of or diminishing the value of any matrimonial property.

9. The costs of the wife be reserved.

10. Otherwise, all extant applications be adjourned to a mention at 10.00am on 5 May 2025.

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

The applicant wife relied upon:(1)Amended Response to a Case Application filed 18 December 2024;(2)her affidavits filed 25 August 2023 and 3 December 2024;(3)her Financial Statement filed 3 December 2024;(4)the husband’s affidavits filed 17 November 2023 and 30 January 2025; (5)Case Summary Document filed 31 January 2025; (6)her Tender Bundle filed 6 February 2025; and(7)her Minute of Order emailed to chambers on 7 February 2025.SOME RELEVANT FACTS In 1976, the husband was born. He is 49 years of age. The husband is in good health and works full-time in his family’s business as conducted by ‘S International Pty Ltd’ (“the company”). He is a director and shareholder of the company, as is his brother Mr Y. In 1980, the wife was born. She is 44 years of age. She is engaged in full time home duties which include the primary care of the parties’ young son. Her health is compromised. In 2009, the parties married. It would appear that the wife moved into the husband’s home at this time. In 2017, X was born. He is aged seven years. He is the only child of the parties’ marriage. In April 2020, the parties separated under the one roof on the husband’s evidence. On 16 May 2021, on the wife’s evidence, the parties separated, and the husband left the FMH. They had cohabitated for approximately 11 or 12 years. The wife and X continue to reside in the FMH which is registered in the husband’s sole name. In the period since separation, the husband has paid the mortgage instalments as they have fallen due, and the rates and other outgoings in respect of the property. Such liabilities are in his sole name. The husband has also however, on the wife’s account, redrawn monies against the mortgage since separation. On her evidence, the mortgage was in the sum of $1,084.89 at separation. Thereafter, the husband redrew a total sum of $60,000 for his sole benefit. The husband deposed to such liabilities as now exist in respect of the mortgage and rates and taxes on the FMH as representing a cost to him of approximately $10,000 a year. Each of the parties claim that they do not reside with another person and neither asserts of the other that he or she has re-partnered. The wife deposed to having some bank savings of approximately $53,000.[1] The husband deposed in his financial statement of November 2023 to having bank savings of more than $54,238 together with shares of $11,168. He claimed thereafter in affidavit material to have no significant assets save the FMH and outstanding legal costs and family borrowings.[1] Wife’s Financial Statement filed 3 December 2024. The husband claimed to have an income of $78,520 with his phone and health insurance paid on his behalf. On the wife’s evidence, the husband retained shares with a value of $13,413.19 as at April 2024, earnt interest on bank accounts not disclosed, and is provided with a fully maintained company vehicle. The wife had no income but deposed to being in receipt of the following government benefits:(1)Family Tax Benefit A in the amount of $213.36 per fortnight;(2)Family Tax Benefit B in the amount of $126.56 per fortnight;(3)Single Parenting Payment in the amount of $940.87 per fortnight; and(4)Other supplements in the cumulative amount of $47.10 per fortnight.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Section 75 of the Act is relevantly, as follows:Matters to be taken into consideration in relation to spousal maintenance (1) In exercising jurisdiction under section 74, the court shall take into account only the matters referred to in subsection (2).(2) The matters to be so taken into account are:(a) the age and state of health of each of the parties; and (b) the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment; and (c) whether either party has the care or control of a child of the marriage who has not attained the age of 18 years; and (d) commitments of each of the parties that are necessary to enable the party to support:(i) himself or herself; and (ii) a child or another person that the party has a duty to maintain; and (e) the responsibilities of either party to support any other person; and (f) subject to subsection (3), the eligibility of either party for a pension, allowance or benefit under:(i) any law of the Commonwealth, of a State or Territory or of another country; or (ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia; and the rate of any such pension, allowance or benefit being paid to either party; and (g) where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable; and (h) the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of education or training or to establish himself or herself in a business or otherwise to obtain an adequate income; and …(j) the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party; and (k) the duration of the marriage and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration; and (l) the need to protect a party who wishes to continue that party's role as a parent; and …(n) the terms of any order made or proposed to be made under section 79 in relation to:(i) the property of the parties; or ……(na) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage; and (o) any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account; and …(3)In exercising its jurisdiction under section 74, a court shall disregard any entitlement of the party whose maintenance is under consideration to an income tested pension, allowance or benefit. Section 74 of the Act is as follows:Power of court in spousal maintenance proceedings (1) In proceedings with respect to the maintenance of a party to a marriage, the court may make such order as it considers proper for the provision of maintenance in accordance with this Part.…