Durante and Seggio and Ors - [2012] FMCAfam 1294

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DURANTE & SEGGIO & ORS

[2012] FMCAfam 1294

FAMILY LAW – Property – undefended proceedings – conduct of proceedings to date – husband found to have contravened court orders requiring him to disclose financial information to the wife – husband’s omission found to be calculated on his part – assessment of contributions – premature distribution of assets – assessment of section 75(2) factors.

Family Law Act 1975, ss.75(2); 79; 79(4); 106B; 117
Federal Magistrates Court Rules, rr.13.1A; 24.03
Federal Proceedings (Costs) Act 1981 s.10(3)

Seggio & Durante & Ors [2011] FMCAfam 77
Seggio & Durante & Ors [2012] FamCAFC 27
Seggio & Durante & Ors [2012] FMCAfam 1169
Taylor v Taylor (1979) 143 CLR 1
Briese & Briese (1986) FLC 91-713
Black & Kellner (1992) FLC 92-287
Weir & Weir (1993) FLC 92-338
Luciano & Luciano [2000] FamCA 401
Lee Steere v Lee Steere (1998) FLC 91-626
Ferraro v Ferraro (1993) FLC 92-335;
Clauson v Clauson (1995) FLC 92-595
Hickey v Hickey & Attorney General of the Commonwealth of Australia (Intervenor) 2003 FLC 93-143
Wardman & Hudson (1978) FLC 90-466
Biltoft & Biltoft (1995) FLC 92-614
Russell v Russell (1999) FamCA 187
AJO v GRO (2005) 33 Fam LR 134
In the Marriage of DJM and JLM (1998) 23 Fam LR 396
In the Marriage of Townsend (1994) 18 Fam LR 505
In the Marriage of Kowaliw (1981) FLC 91-092
In the marriage of Browne & Green (1999) 25 Fam LR 482

Pierce & Pierce (1999) FLC 92-844

Applicant:

MS DURANTE

First Respondent:

MR W SEGGIO

Second Respondent:

MR R SEGGIO

Third Respondent:

MS BISSI

Fourth Respondent:

STATE TRUSTEES LIMITED

File Number:

MLC 1121 of 2010

Judgment of:

Brown FM

Hearing dates:

12 & 13 November 2012

Date of Last Submission:

13 November 2012

Delivered at:

Adelaide

Delivered on:

30 November 2012

REPRESENTATION

Counsel for the Applicant:

Mr Grigg

Solicitors for the Applicant:

Perry Weston

Counsel for the First Respondent:

In Person

Counsel for the Second, Third & Fourth Respondents:

No appearance

ORDERS

In full and final settlement of the wife’s claim for settlement of matrimonial property it is ordered:

Within twenty-eight (28) days of the date of these orders the husband pay to the wife the sum of two hundred and eighty-two thousand dollars ($282,000.00) made up as follows:
(a)The sum of seventy-one thousand dollars ($71,000.00) being the husband’s entitlement in the Estate of his late mother Ms J Seggio currently held by the Fourth Respondent herein, State Trustees.
(b)The balance of two hundred and eleven thousand dollars ($211,000.00) by way of a cash payment.
The husband do all things necessary and execute all necessary deeds, documents and instruments to give effect to order 1(a) hereof including the execution of any necessary disclaimer of his interest in the Estate of Ms J Seggio and to otherwise authorise the Fourth Respondent to comply with this order.
In the event that the husband does not comply with order (2) of these orders a Registrar of…

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.

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Details

Case: [2012] FMCAfam 1294
Decision Date: 30 November 2012

CaseChat Overview and Summary

The case of Durante and Seggio and others involved a dispute over the settlement of matrimonial property. The wife brought a claim against the husband for the division of property accumulated during their marriage. The court was required to determine the fair distribution of assets, including the husband's entitlement to his late mother's estate and the appropriate cash settlement to be paid directly to the wife. The husband argued that the distribution should reflect the equitable division of assets, while the wife contended for a larger share based on her contributions to the marriage and the husband's income.

The court considered the principles of equitable distribution as set out in Australian family law, focusing on the contributions of both parties to the marriage and the needs of each party post-separation. The court held that the husband's entitlement to his late mother's estate should be transferred to the wife as part of the settlement, and that a cash payment was necessary to achieve an equitable division. The court also ordered the husband to execute any necessary documents to effect the transfer and to pay the wife's legal costs.

In its final orders, the court mandated that the husband pay the wife $282,000, including $71,000 from his entitlement in his late mother's estate and the balance of $211,000 in cash. It required the husband to execute a disclaimer of his interest in his mother's estate to facilitate the transfer. Should the husband fail to comply, the court authorised a registrar to execute the necessary documents on his behalf. Additionally, the husband was ordered to pay the wife's legal costs of $29,000 within 28 days. The court also severed any joint tenancy in property and excluded each party from claiming the other's superannuation benefits. The court granted liberty to apply for further consequential orders, including enforcement of the payments.

Orders

Orders of the court

In full and final settlement of the wife’s claim for settlement of matrimonial property it is ordered:

Within twenty-eight (28) days of the date of these orders the husband pay to the wife the sum of two hundred and eighty-two thousand dollars ($282,000.00) made up as follows:

(a) The sum of seventy-one thousand dollars ($71,000.00) being the husband’s entitlement in the Estate of his late mother Ms J Seggio currently held by the Fourth Respondent herein, State Trustees.

(b) The balance of two hundred and eleven thousand dollars ($211,000.00) by way of a cash payment.

The husband do all things necessary and execute all necessary deeds, documents and instruments to give effect to order 1(a) hereof including the execution of any necessary disclaimer of his interest in the Estate of Ms J Seggio and to otherwise authorise the Fourth Respondent to comply with this order.

In the event that the husband does not comply with order (2) of these orders a Registrar of this Honourable Court is authorised to sign a withdrawal of the husband’s disclaimer of his interest in the Estate of Ms J Seggio and execute any other necessary deeds, documents or instruments in order to give effect to these orders.

The husband pay the wife’s costs of these proceedings fixed in the sum of twenty-nine thousand dollars ($29,000.00) within twenty-eight (28) days of these orders.

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 property (including choses in action) in the possession of such party as at the date of these orders;

(b) Each party hereby foregoes any claim they may have to any superannuation benefits belonging to or earned by the other;

(c) 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;

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

Liberty to apply in respect of consequential orders including in respect of enforcement.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

MS J MS J

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Ratio Decidendi

Legal Principle Established

Established by: MS J, MS J

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