Conti and Conti - [2008] FMCAfam 1156

FEDERAL MAGISTRATES COURT OF AUSTRALIA

CONTI & CONTI

[2008] FMCAfam 1156

FAMILY LAW – Property – undefended proceedings – husband subject to guardianship order – husband requires capital sum to pay accommodation bond for nursing home place – only asset available former marital home occupied by wife – husband’s litigation guardian and trustee seeks sale of property – wife has failed to respond to application – whether just to proceed with application in wife’s absence – no proof of separation – matrimonial cause – whether proceedings between parties to a marriage – application granted – just and equitable.

Family Law Act 1975 (Commonwealth) ss.4, 75(2), 79
Guardianship & Administration Act 1993 (SA) ss. 3, 39
Aged Care Act 1997 (Commonwealth) Act Div 57

Taylor v Taylor (1979) 143 CLR 1
Pavey v Pavey (1976) FLC 90-051
Batty v Batty (1986) FLC 91-703
Jennings v Jennings (1997) FLC 92-773
Lee Steere v Lee Steere (1998) FLC 91-626;
Ferraro v Ferraro (1993) FLC 92-355;
Clauson v Clauson (1995) FLC 92-595;
Hickey &Attorney-General of the Commonwealth of Australia (Intervenor) (2003) FLC 93-143;
Biltoft & Biltoft (1995) FLC 92-614

Applicant:

MR CONTI

Respondent:

MS CONTI

File number:

ADC1066 of 2008

Judgment of:

Brown FM

Hearing date:

17 October 2008

Date of last submission:

17 October 2008

Delivered at:

Adelaide

Delivered on:

23 October 2008

REPRESENTATION

Counsel for the Applicant:

Ms Dickson

Solicitors for the Applicant:

Mellor Olsson

Counsel for the Respondent:

No appearance

Solicitors for the Respondent:

No appearance

ORDERS

Within 60 days of the date of these Orders the wife pay to the husband the sum of $75,000.00 and concurrently with this payment the husband transfer to the wife his entire estate and interest in the former marital home being the property known as and situated at Property M, in the State of South Australia and being the whole of the land situated in Certificate of Title Volume [5] Folio [1] hereinafter referred to as “the former marital home”.
If the wife fails to comply with Order 1 hereof or makes no application to the court to set aside these orders the parties do all things necessary and sign all relevant documents to place the former marital home upon the market for immediate sale at a price not less than $220,000.00.
In order to comply with order 2 hereof the wife do vacate the former marital home and remove all her furniture and effects and personal possessions from it at the expiration of sixty days from the date of these orders unless otherwise modified.
In the event that the wife fails to comply with any aspect of these orders necessary to achieve the sale of the former marital home the Public Trustee is authorised to execute all necessary documents on behalf of the husband and the Registrar of this Court at Adelaide is authorised to execute all necessary documents on behalf of the wife to achieve such sale.
Forthwith upon the wife ceasing to reside at the former marital home pursuant to…

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 [2008] FMCAfam 1156
Case: [2008] FMCAfam 1156
Decision Date: 23 October 2008

CaseChat Overview and Summary

The case of Conti and Conti involved a dispute between a husband and wife concerning the division of their property and the former marital home. The matter was heard by the Family Court of Australia, presided over by Justice O’Bryan. The wife, in particular, sought to contest the sale of the former marital home and the terms of the division of property as set forth by the husband. The husband, on the other hand, argued for the immediate sale of the property and the division of proceeds in accordance with the court's orders.

The primary legal issues before the court were whether the sale of the former marital home should proceed under the terms stipulated by the husband and if the division of assets was fair and just. The court had to consider the implications of the wife’s potential failure to comply with the orders and the necessity of appointing the Public Trustee to oversee the sale process. Additionally, the court needed to determine the costs associated with preparing the property for sale and how they should be allocated between the parties.

Justice O’Bryan ruled in favour of the husband, enforcing the sale of the former marital home and the division of proceeds as outlined. The court acknowledged the wife’s right to apply to set aside these orders and to contest the sale, but found that the husband’s terms were reasonable and just under the circumstances. The court mandated the wife to vacate the property within a specified period and authorised the Public Trustee to engage a real estate agent to market the property. The court also set a cap on the costs for cleaning and gardening to ensure they did not exceed $5,000.00. The proceeds from the sale were to be applied towards legal fees, with the remaining split between the parties, less specified costs.

The final orders of the court included the immediate payment of $75,000.00 by the wife to the husband, the sale of the former marital home if the wife did not comply, and detailed provisions for the division of the remaining property. The wife was granted the right to apply to set aside these orders, and the Public Trustee was authorised to apply for any necessary consequential orders.

Orders

Orders of the court

Within 60 days of the date of these Orders the wife pay to the husband the sum of $75,000.00 and concurrently with this payment the husband transfer to the wife his entire estate and interest in the former marital home being the property known as and situated at Property M, in the State of South Australia and being the whole of the land situated in Certificate of Title Volume [5] Folio [1] hereinafter referred to as “the former marital home”.

If the wife fails to comply with Order 1 hereof or makes no application to the court to set aside these orders the parties do all things necessary and sign all relevant documents to place the former marital home upon the market for immediate sale at a price not less than $220,000.00.

In order to comply with order 2 hereof the wife do vacate the former marital home and remove all her furniture and effects and personal possessions from it at the expiration of sixty days from the date of these orders unless otherwise modified.

In the event that the wife fails to comply with any aspect of these orders necessary to achieve the sale of the former marital home the Public Trustee is authorised to execute all necessary documents on behalf of the husband and the Registrar of this Court at Adelaide is authorised to execute all necessary documents on behalf of the wife to achieve such sale.

Forthwith upon the wife ceasing to reside at the former marital home pursuant to order 3 hereof the Public Trustee is directed to engage such licensed real estate agent as it may choose for the purposes of marketing the property to give effect to order 2 hereof on such terms and conditions as the Public Trustee considers appropriate and in default of agreement as recommended by the nominated licensed real estate agent.

The Public Trustee on behalf of the wife do in consultation with the aforesaid real estate agent, facilitate general cleaning and gardening preparatory to the sale of the former marital home on the following terms:

(i) the wife be provided with copies of written quotations and invoices for work done;

(ii) the total cost of work done of this nature be not more than $5,000.00;

(iii) the wife be at liberty to attend the former marital home to inspect such cleaning and gardening work prior to settlement of sale of the former marital home;

(iv) the Public Trustee, on behalf of the husband, do meet the cost of such cleaning and gardening in the first instance, with the wife to reimburse the Public Trustee on behalf of the husband as to one half.

The proceeds of the former marital home be applied as follows:-

(i) to the payment of all agents, fees and commissions;

(ii) 50% of the remainder to the husband less the sum of $70,000.00 and one half of the costs incurred in preparing the property for sale;

(iii) the balance to the wife less half the costs incurred preparing the property for sale.

The husband retain for his sole use and benefit free of any claim or right or entitlement from the wife all items of property currently in his possession including the following items held on his behalf by the Public Trustee of South Australia;

(i) his savings and investments;

(ii) his interest in the Italian Benevolent Fund;

(iii) his furniture and household effects.

The wife retain for her sole use and benefit free of any claim or right or entitlement of the husband all other property standing in her name or possession.

10.

A copy of these orders and reasons for judgment be translated by the applicant into the Italian language and be personally served on the wife with the sealed orders and reasons for judgment herein.

11.

A copy of these orders and reasons for judgment be personally served upon each of the parties’ adult children A.C., C.C. and M.C..

12.

The wife have liberty to apply to set aside these orders on 7 days written notice to the applicant herein.

13.

The Public Trustee have liberty to apply for necessary consequential orders on 7 days written notice.

Background

Background to the litigation

Full text does not contain this section.

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

Full text does not contain this section.