Culotta & Culotta - [2022] FedCFamC2F 50

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Culotta & Culotta [2022] FedCFamC2F 50

File number(s): ADC 967 of 2021

Judgment of: JUDGE DICKSON

Date of judgment: 28 January 2022

Catchwords: FAMILY LAW – PROPERTY – 27 year marriage – two now adult children of marriage – where at Trial the husband minimised the wife’s contributions during the marriage – where both parties contributed financially and non-financially to their family unit during the course of their marriage but in different ways – where contributions should therefore be assessed as equal – where the husband has not paid the mortgage or Line of Credit secured against the former matrimonial home since separation in 2017 aside from two payments – where the wife should receive a 10% adjustment due to the husband’s conduct in not meeting the liabilities secured against the former matrimonial home since separation – where husband seeks to retain the former matrimonial home at settlement – where husband should be afforded an opportunity to retain the former matrimonial home and pay the wife a settlement sum – where if the husband is unable to keep the former matrimonial home the property will be sold and the wife receive a settlement sum on a percentage basis.

Legislation: Family Law Act 1975 (Cth), Pt VIII, ss.75, 79
Federal Circuit and Family Court (Family Law) Rules 2021, r.12.06

Cases cited:
Bremner & Bremner (1995) FLC 92-560
Browne v Green (1999) FLC 92-873
Carron v Laninga [2019] FamCAFC 115; (2019) FLC 93-909
Kowaliw & Kowaliw (1981) FLC 91-092
Jabour & Jabour [2019] FamCAFC 78; (2019) FLC 93-898, (2019) 59 Fam LR 475
Lalor & Lalor (1989) FLC 92-164
Money & Money (1994) FLC 92-485
AJO & GRO (2005) FLC 93-218
Pierce & Pierce (1999) FLC 92-844

Stanford & Stanford (2012) 247 CLR 108

Division: Division 2 Family Law

Number of paragraphs: 122

Date of last submission/s: 22 November 2021

Date of hearing: 10 November 2021

Place: Adelaide

Counsel for the Applicant: Mr Bowler

Solicitor for the Applicant: Gary Inglis & Associates

The Respondent: In person
ORDERS

ADC 967 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS CULOTTA

Applicant

AND:
MR CULOTTA

Respondent

ORDER MADE BY:

JUDGE DICKSON

DATE OF ORDER:

28 JANUARY 2022

THE COURT ORDERS:
1. Pursuant to section 79 of the Family Law Act 1975 (Cth):
1.1.That within 30 days of the date hereof the husband pay to the wife the sum of $419,171.00 (‘the settlement sum’).
1.2.That contemporaneously with the payment referred to in paragraph 1.1 herein, the wife do discharge at her sole expense any Caveat registered by her on the property situate at B Street, Suburb C in the State of South Australia (being the whole of the land comprised and described in Certificate of Title Register Book Volume … Folio …) (‘the said former matrimonial home’).
1.3.That the wife do retain as her sole property:
1.3.1.The settlement sum;
1.3.2.The Motor Vehicle 1;
1.3.3.Her personal savings; and
1.3.4.Her furniture…

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 Culotta & Culotta

Details

AGLC: Culotta & Culotta [2022] FedCFamC2F 50
Case: [2022] FedCFamC2F 50
Decision Date

CaseChat Overview and Summary

This case involved a final property settlement proceeding following a 27-year marriage between the parties. The wife sought a sale of the former matrimonial home and that the husband pay her a settlement sum. The husband sought to retain the former matrimonial home and pay a settlement sum. The Court determined that the parties made equal contributions during the marriage and that the wife was entitled to a 10% adjustment on account of the husband's failure to meet the liabilities secured over the former matrimonial home since separation. The Court ordered the husband to pay the wife a settlement sum of $419,171.00 within 30 days. If the husband is unable to meet this obligation, the former matrimonial home will be sold and the net proceeds divided between the parties. The Court also made orders in relation to the parties' personal assets and liabilities.

Orders