Conti and Conti - [2012] FamCA 290

FAMILY COURT OF AUSTRALIA

CONTI & CONTI [2012] FamCA 290

FAMILY LAW – PROPERTY – Net negative property pool – Treatment of unsecured debts – Whether parties’ superannuation interests should be regarded as separate pool – Power to make a s 79 property settlement order where net negative pool – The need if possible to make an order to finally determine the financial relationship between the parties – If no order made the parties' financial relationship cannot be finally determined – Despite net negative pool the parties' circumstances are such that it is just and equitable to make an order dealing with joint moneys in a solicitors’ trust account for the payment of certain debts – Parties to retain their respective superannuation interests – Husband to retain his motor vehicle – Wife to retain accident moneys when received

Family Law Act 1975 (Cth) s 4, s 79, s 75(2)
Child Support (Assessment) Act 1989 (Cth) s 117(2)

Aleksovski & Aleksovski (1996) FLC 92-705
Australian Securities & Investments Commission v Rich (2003) FLC 93-171
Coghlan & Coghlan (2005) FLC 93-220
Farmer and Bramley (2000) FLC 93-060
Figgins and Figgins (2002) FLC 93-122
K & K [2004] FamCA 360
Kessey and Kessey (1994) FLC 92-495
Kowaliw & Kowaliw (1981) FLC 91-092
LAM & RAM (2005) FamCA 868
Pierce and Pierce (1999) FLC 92-844
Phillips and Phillips (2002) FLC 93-104
Prantage & Prantage [2001] FamCA 1198
Sippel & Sippel [2004] FamCA 201
Trustee of the Property of G Lemnos, a Bankrupt & Lemnos (2009) FLC 93-394
Williams & Williams (1995) 61 ALR 215
Wentner & Rater [2010] FamCA 1188
Zorbas & Zorbas (1990) FLC 92-160

APPLICANT: Ms Conti

RESPONDENT: Mr Conti

FILE NUMBER: BRC 436 of 2009

DATE DELIVERED: 4 May 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: O’Reilly J

HEARING DATE: 20 and 21 October 2011
REPRESENTATION

SOLICITOR FOR THE APPLICANT:
Mr Carmont

Somerville Laundry Lomax
(pro bono)

THE RESPONDENT: In person
Orders
IT IS ORDERED
1.The parties’ property proceedings be further listed at 9.30am on Monday 4 June 2012 for the pronouncement of s 79 order in the terms of Annexure A, subject to paragraph 2.
2.The Docket Registrar provide a copy of these orders and reasons for judgment to the Proper Officer, Deputy Commissioner of Taxation at Brisbane and the Proper Officer, Centrelink at Brisbane, with a covering letter drawing attention to the s 79 order I propose to make, subject to the Court receiving any letter of objection by 4.00pm on Thursday 31 May 2012.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Conti & Conti has been approved by the Chief Justice pursuant to s 121(9)(g) of the Act.
ANNEXURE A
IT IS ORDERED
Pursuant to s 79 of the Family Law Act 1975 (Cth) the property and assets of the parties and either of them be divided as follows:
1.The parties within 7 days do all things necessary and sign all documents and authorities necessary to direct C…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Conti and Conti

Details

AGLC: Conti and Conti [2012] FamCA 290
Case: [2012] FamCA 290
Decision Date: 4 May 2012

CaseChat Overview and Summary

In the matter of *Conti and Conti*, heard before O’Reilly J, the proceedings concerned property settlement between the parties. The court was tasked with making orders under section 79 of the *Family Law Act 1975* (Cth) regarding the division of the parties' property.

The central legal issue before the court was the determination of the terms of the property settlement order. This involved considering the financial circumstances of the parties and potentially the impact of third-party interests, as indicated by the court's direction to notify the Deputy Commissioner of Taxation and Centrelink.

O’Reilly J indicated an intention to make orders in the terms of Annexure A, subject to a condition. This condition required the court to provide the orders and reasons for judgment to the Deputy Commissioner of Taxation and Centrelink. The court allowed a period for these bodies to lodge any objection, suggesting that the final orders would be made after this period, unless objections were received. The court's final orders were to list the property proceedings for the pronouncement of the section 79 order on 4 June 2012, contingent on the absence of objections from the notified third parties by 31 May 2012.

Orders

Orders of the court

IT IS ORDERED

1. The parties’ property proceedings be further listed at 9.30am on Monday 4 June 2012 for the pronouncement of s 79 order in the terms of Annexure A, subject to paragraph 2.

2. The Docket Registrar provide a copy of these orders and reasons for judgment to the Proper Officer, Deputy Commissioner of Taxation at Brisbane and the Proper Officer, Centrelink at Brisbane, with a covering letter drawing attention to the s 79 order I propose to make, subject to the Court receiving any letter of objection by 4.00pm on Thursday 31 May 2012.

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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