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
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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CaseChat Overview and Summary
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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