Carano & Carano (No 2)

Case [2024] FedCFamC2F 461


FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Carano & Carano (No 2) [2024] FedCFamC2F 461

File number(s): MLC 10929 of 2021
Judgment of: JUDGE O'SHANNESSY
Date of judgment: 22 March 2024
Catchwords:  FAMILY LAW– final property orders – oral reasons delivered soon after last day of hearing – settled reasons – third parties – 7 day final hearing – More than 400 items of personal property valued – very detailed evidence from Husband and Wife as to personal property – 2125 page court book – ownership and value of more than 149 items of personal property in dispute – allegation of gift of personal property by delivery – whether Husband or Wife had dismantled or removed personal property prior to valuation – fraud/theft allegations not proven – third party and other peoples claim of ownership accepted – whether Husband or Wife should retain FMH – long marriage – disparity of initial contribution – Husband brought in land unencumbered and machinery – Husband’s ill health significant aspect of Wife’s homemaker contribution – one child with special needs significant aspect of Wife’s parenting contribution – where each party sought sec 75(2) adjustment in his/her favour – NDIS entitlement – substantial part of NDIS not received but applied to administration – carer’s pension – continuing poor health of Husband – Wife with care of teenage child – finding of equal contribution – finding no section 75(2) adjustment – which party to obtain FMH – who should retain items of personal property – order for items to be delivered to adult child.
Legislation:

Evidence Act 1995 (Cth) section 140

Family Law Act 1975 (Cth) ss 75(2), 79 and 80

Federal Circuit and Family Court of Australia Act (2021)

Cases cited:

Blass & Blass [2022] FedCFamC1A 63

Briginshaw v Briginshaw (1938) 60 CLR 336

Brown & Dunn (1893) 6 R 67

Dougherty and Dougherty v Dougherty (1987) FLC 91-823

Henderson v Queensland (2014) 89 ALJR 162

Hickey and Hickey and the AG for the C’lth of Australia (2003) FLC 93-143

Johnson v Page (2007) FLC 93-344

 Keskin & Keskin and Anor (2019) FLC 93-932

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170

Nolan v Lady Nolan [2004] VSCA 109

Stanford v Stanford [2012] HCA 52

White and Tulloch v White [1995] FamCA 127

Division: Division 2 Family Law
Number of paragraphs: 171
Date of last submission/s: 27 March 2024
Date of hearing: 12 – 20 March 2024
Place: Melbourne
Counsel for the Applicant: Ms Clarkin with Mr Brear
Solicitor for the Applicant: MMH Lawyers
Counsel for the First Respondent: Ms Taylor
Solicitor for the First Respondent: SMR Legal
Litigation Guardian for the Second and Third Respondents, in person: Ms J

ORDERS

MLC 10929 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS CARANO

Applicant

AND:

MR CARANO

First Respondent

MR C CARANO

Second Respondent

MS B CARANO

Third Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

22 MARCH 2024

THE COURT…

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AGLC
Carano & Carano (No 2) [2024] FedCFamC2F 461
Case
[2024] FedCFamC2F 461
Decision Date

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Ms Carano, the Applicant, brought a proceeding against Mr Carano, the first respondent, seeking final property settlement orders. The dispute involved the division of personal property, ownership of a family home, and the allocation of superannuation. The court had to determine the ownership and value of over 149 disputed items of personal property, address fraud and theft allegations, and consider the contributions of each party to the marriage, including the Wife's role as a homemaker and the Husband's ill health. The court also had to decide on the allocation of the family home and items of personal property, including which party should retain specific items, and make orders for the payment of a lump sum and the delivery of personal property. The court delivered settled reasons shortly after the final day of hearing, addressing the complex and detailed evidence presented by both parties regarding the ownership and value of the personal property in dispute.

The court found that the allegations of fraud and theft were not proven and accepted the claims of third parties to the ownership of certain items. The court also found that there was an equal contribution by both parties to the marriage, taking into account the Wife's role as a homemaker and the Husband's ill health, and the significant parenting contribution of the Wife in raising a child with special needs. The court rejected both parties' applications for a section 75(2) adjustment in their favour. The court ordered that the Husband should pay the Wife a lump sum of $447,493.50 within 120 days and that specific items of personal property be delivered to the Wife, her nominee, or the Husband. The court also ordered that the Wife should retain the family home and that the Husband should pay all rates and taxes and like apportionable outgoings of or with respect to the real property as they fell due. The court further ordered that the Wife should retain for her sole use and benefit absolutely to the exclusion of the Husband all plant, equipment, antiques, and collectables in her possession and that the Husband should retain for his sole use and benefit absolutely to the exclusion of the Wife all plant, equipment, antiques, and collectables in his possession. The court also made orders for the allocation of superannuation benefits and declared the ownership of certain items of personal property.

Orders

Orders of the court

MLC 10929 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MS CARANO

Applicant

AND:

MR CARANO

First Respondent

MR C CARANO

Second Respondent

MS B CARANO

Third Respondent

ORDER MADE BY:

JUDGE O'SHANNESSY

DATE OF ORDER:

22 MARCH 2024

THE COURT ORDERS THAT:

1. Within 7 days of the date of these Orders the funds held in the trust account of D Law Firm ($6,933) be paid to Ms Carano (‘the Wife’) as follows:

(a) the sum of $2,500 to SMR Legal in payment of the tax invoice issued to the Wife for the Wife’s half share of the costs of the Court Book in accordance with Order 6 of the Orders made on 16 February 2024 by this Court; and

(b) the balance (about $4,433) as directed by the Wife.

2. Mr Carano (‘the Husband’) pay to the Wife the sum of $447,493.50 (“the payment) within 120 days of the date of these Orders (“the date”).

3. Within 30 days the Husband make available for collection by the Wife’s nominee the items listed in Annexure A, save that the Wife’s nominee shall not be a relative of the Wife and the arrangements shall be made in writing by text message or email and with no less than 14 days notice and until collected the Husband store those items as is appropriate to the nature and condition of the item.

4. Within 30 days the Wife make diligent search for the items described as Mr E’s items and when located, the Wife or her nominee deliver to the offices of SMR Legal the items listed at Annexure E described as Mr E’s items to be collected by the Husband for delivery to Mr E.

5. Contemporaneously with the payment:

(a) the Wife withdraw at her expense caveat lodged on the real property situate at and known as F Street, Town G in the State of Victoria being the whole of the land more particularly described in Certificate of Title Volume … Folio … (“the farm”); and

(b) the Husband do all such acts and things and sign all such documents as may be required to transfer to the Wife, at the expense of the Wife, resource licences being ID … (“the resource licences”).

6. In the event that the whole of the payment has not been made by the date, the farm real be sold after a further 120 days (to allow for presentation for sale) altogether out of Court ("the sale") and upon completion of the sale, the proceeds of the sale be applied:

(a) first to pay all costs, commissions and expenses of the sale;

(b) secondly to discharge any encumbrance affecting the real property;

(c) thirdly, so much of the payment as is then outstanding together with interest thereon at the rate prescribed by the applicable rules calculated monthly from the date to the Wife; and

(d) fourthly, the balance to the Husband.

7. Pending the payment or completion of the sale:

(a) the Husband have the sole right to occupy the farm and during such right of occupation the Husband pay all rates and taxes and like apportionable outgoings of or with respect to the real farm as they fall due;

(b) the Husband and the Wife hold their respective interests in the farm upon trust pursuant to these orders; and

(c) neither the Husband nor the Wife encumber the farm without the consent in writing of the other.

8. It is declared that:

8.1 There be a declaration that the goods and chattels listed at Annexure C are the sole property of the second and third respondents, Mr C Carano and Ms B Carano; and

8.2 There be a declaration that the goods and chattels referred to in Annexure D are the property of the second and third respondents, Mr C Carano and Ms B Carano, to the extent of the percentage entitlement set out therein; and

8.3 The statement of claim of the second and third respondents, Mr C Carano and Ms B Carano be otherwise dismissed.

9. The Husband be entitled to retain for his sole use and benefit absolutely, to the exclusion of the Wife, all plant, equipment, antiques and collectables in his possession and or situated including all items at the farm, save for those items listed at Annexures A, C and D.

10. The Wife retain for her sole use and benefit absolutely to the exclusion of the Husband all plant, equipment, antiques and collectables in her possession, including the items listed at Annexure B.

11. In accordance with Section 90XT(4) of the Family Law Act 1975, a base amount of $162,889 is allocated to the Wife out of the Husband’s interest in Super Fund member number … (“the fund”).

12. In accordance with Section 90XT(1)(a) of the Family Law Act 1975 whenever a splittable payment becomes payable:

(a) the Wife (or such other person to whom a splittable payment is payable) is entitled to be paid, using the base amount allocated in the immediately preceding Order, the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001;

(b) the entitlement of the Husband in the fund (or the entitlement of such other person who becomes entitled to receive a payment out of the Husband’s superannuation interest) is correspondingly reduced by force of this Order.

13. The Trustee of the fund, Super Fund 1 Pty Ltd, (“the Trustee”) shall do all such acts and things and sign all such documents as may be necessary to:

(a) Calculate, in accordance with the requirements of the Family Law Act 1975, the entitlement awarded to the Wife in the immediately preceding clause of the Order (“the entitlement”); and

(b) pay the entitlement to the Wife from the Husband’s interest in the fund; and

(c) make a corresponding reduction in the entitlement that the Husband would otherwise have in the Fund but for these Orders.

14. These Orders have effect from the operative time and the operative time is five business days from the service of a certified copy of these Orders upon the Trustee by way of prepaid post.

15. Within 14 days of these Orders being made:

(a) The Wife serve a sealed copy of these Orders upon the Trustee; and

(b) The Wife give notice in writing to the Trustee pursuant to regulation 72 of the Family Law (Superannuation) Regulations 2001.

16. Orders 8 to 11 are binding on the Trustee.

17. There be liberty to apply to each party in relation to the implementation and enforcement of these Orders.

18. Unless otherwise specified in these orders and save for the purposes of enforcing any monies due under these or any subsequent orders:

(a) each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) owned by or in the possession of such party as at the date of these orders (the furniture, personal possessions and like chattels in the real property being deemed to be in the possession of the Husband);

(b) each party forego any claims they may have to any superannuation benefits belonging to or earned by the other;

(c) insurance policies remain the sole property of the owner named thereon;

(d) 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

(e) any joint tenancy of the parties in any real or personal estate is hereby expressly severed.

ANNEXURE “A”

ITEMS IN POSSESSION OF HUSBAND TO BE RETAINED BY THE WIFE

ASSET NUMBER

ITEM

VALUATION AMOUNT

4

Motor Vehicle

$15,000.00

75

Motor Vehicle

$1,800.00

76

Motor Vehicle

$6,500.00

77

Item of Furniture

$200.00

78

Motor Vehicle

$500.00

80

Child’s push bike

$500.00

81

Item of Furniture

$300.00

84

Item of Furniture

$800.00

127

Item of Furniture

$140.00

129

Item of Furniture

$200.00

130

Crockery

$1,000.00

133

Item of Furniture

$800.00

137

Crockery

$60.00

139

Item of Furniture

$300.00

140

Crockery

$100.00

228

Motor Vehicle

$1,600.00

388

Crockery

$300.00

422

Motor Vehicle

$3,500.00

Total Value

$33,600.00

ANNEXURE “B”

Items in Possession of Wife that were valued

ASSET NUMBER

ITEM

VALUATION AMOUNT

67

Motor Vehicle

$7,200

366

Item of Furniture

$40

367

Item of Furniture

$880

368

Item of Furniture

$120

369

Item of Furniture

$3,500

370

Item of Furniture

$220

371

Ornaments

$50

372

Item of Furniture

$200

373

Figurines

$200

374

Ornaments

$250

375

Crockery

$50

376

Item of Furniture

$250

377

Collectible Ornaments

$200

378

Item of Furniture

$80

379

Crockery

$110

380

Games

$40

381

Games

$50

382

Crockery

$100

383

Item of Furniture

$200

384

Item of Furniture

$350

385

Item of Furniture

$1,500

386

Item of Furniture

$2,200

TOTAL

$17,790

a)

ANNEXURE “C”

SOLELY OWNED BY MR C CARANO & MS B CARANO

ASSET

ITEM

5

Motor Vehicle

10

Motor Vehicle

11

Motor Vehicle

13

Motor Vehicle

14

Motor Vehicle

37

Motor Vehicle

39

Lawn mower

40

Lawn mower

41

Lawn mower

42

Lawn mower

43

Lawn mower

44

Lawn mower

45

Farm Machinery

46

Lawn mower

47

Farm Machinery

48

Farm Machinery

49

Tools

50

Tools

51

Farm Machinery

52

Farm Machinery

53

Farm Machinery

54

Farm Machinery

55

Farm Machinery

56

Farm Machinery

57

Farm Machinery

58

Farm Machinery

59

Farm Machinery

60

Farm Machinery

74

Farm Machinery

79

Farm Machinery

83

Farm Machinery

88

Farm Machinery

116

Farm Machinery

117

Farm Machinery

120

Farm Machinery

121

Farm Machinery

147

Motor Vehicle

153

Motor Vehicle

158

Farm Machinery

164

Farm Machinery

165

Farm Machinery

166

Farm Machinery

167

Farm Machinery

169

Mower

173

Motor Vehicle

175

Motor Vehicle

176

Motor Vehicle

179

Motor Vehicle

180

Farm Machinery

181

Motor Vehicle

183

Motor Vehicle

185

Motor Vehicle

186

Motor Vehicle

187

Motor Vehicle

188

Farm Machinery

189

Farm Machinery

190

Farm Machinery

194

Farm Machinery

195

Farm Machinery

196

Motor Vehicle

197

Motor Vehicle

198

Farm Machinery

199

Motor Vehicle

201

Motor Vehicle

205

Motor Vehicle

206

Motor Vehicle

208

Motor Vehicle

209

Motor Vehicle

210

Motor Vehicle

211

Motor Vehicle

212

Motor Vehicle

215

Motor Vehicle

217

Motor Vehicle

218

Motor Vehicle

219

Motor Vehicle

220

Motor Vehicle

221

Motor Vehicle

222

Motor Vehicle

224

Motor Vehicle

225

Motor Vehicle

227

Motor Vehicle

235

Motor Vehicle

243

Motor Vehicle

244

Motor Vehicle

245

Motor Vehicle

246

Motor Vehicle

247

Motor Vehicle

248

Motor Vehicle

250

Motor Vehicle

255

Motor Vehicle

256

Motor Vehicle

258

Motor Vehicle

264

Motor Vehicle

266

Motor Vehicle

270

Motor Vehicle

286

Motor Vehicle

291

Motor Vehicle

294

Motor Vehicle

299

Motor Vehicle

300

Farm Machinery

303

Farm Machinery

310

Farm Machinery

312

Farm Machinery

313

Farm Machinery

315

Farm Machinery

319

Farm Machinery

324

Farm Machinery

333

Farm Machinery

341

Farm Machinery

346

Farm Machinery

387

Farm Machinery

389

Farm Machinery

391

Farm Machinery

395

Farm Machinery

399

Farm Machinery

400

Motor Vehicle

402

Motor Vehicle

403

Farm Machinery

404

Farm Machinery

407

Motor Vehicle

408

Motor Vehicle

409

Motor Vehicle

410

Motor Vehicle

415

Farm Machinery

416

Farm Machinery

417

Motor Vehicle

419

Motor Vehicle

420

Motor Vehicle

427

Motor Vehicle

430

Motor Vehicle

431

Farm Machinery

434

Farm Machinery

ANNEXURE “D”

ITEMS OWNED BY MR C & MS B CARANO JOINTLY WITH THE HUSBAND

ASSET NUMBER ON H COMPANY REPORT

ITEM

VALUATION AMOUNT OF ITEM

2nd & 3rd Respondent’s % SHARE OF ITEMS JOINTLY OWNED WITH THE HUSBAND

9

Motor Vehicle

$2,000

AOS 50%

20

Farm Machinery

$8,000

50%

26

Farm Machinery

$1,600

50%

65

Motor Vehicle

$1,800

50%

72

Motor Vehicle

$12,000

71%

111

Tools

$250

50%

154

Motor Vehicle

$5,500

66%

162

Farm Machinery

$20,000

71%

163

Farm Machinery

$7,000

50%

170

Farm Machinery

$2,000

50%

191

Motor Vehicle

$120

50%

192

Farm Machinery

$400

50%

214

Farm Machinery

$7,000

50%

249

Farm Machinery

$500

50%

266

Farm Machinery

$3,000

50%

267

Farm Machinery

$500

35%

428

Farm Machinery

$1,500

35%

ANNEXURE “E”

MR E’S ITEMS

Coffee table removed by Wife from the real property

Mr E’s ornaments

Mr E’s small item of furniture

Small item of furniture belonging to Mr E

Table made by Mr E

Item of furniture

Tools made by Mr E

Ornament made by Mr E totalling $700

Mr E’s school personal items

Mr E’s books

Mr E’s personal items

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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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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