Fontana & Fontana - [2017] FamCA 374

FAMILY COURT OF AUSTRALIA

FONTANA & FONTANA

[2017] FamCA 374

FAMILY LAW – Property – Where both husband and wife receive lump sum trauma payments at different times – Where wife’s payment substantially contributed to real estate equity early in relationship – Where husband retained and substantially expended his trauma payout post separation – Where parties agree that three pools approach appropriate by reason of differing contributions based entitlements – Where assessment of contributions entitlement to each pool – Where wife to make payment to husband.

FAMILY LAW – Practice and procedure – Where application to adduce adversarial expert as to real estate – Where consideration of applicable principles – Where appropriate to dismiss such application.

Family Law Act 1975 (Cth) ss 75(2), 79, 79(1), 79(2), 79(4)
Family Law Rules 2004 (Cth) rr 15.42, 15.64B, 15.65, 15.66

Bevan & Bevan [2014] FamCAFC 19 Chapman & Chapman [2014] FamCAFC 91 Daniels v Walker [2000] 1 WLR 1382 Harris (1991) 104 FLR 458 Kessey and Kessey (1994) FLC 92-495 Lovine & Connor and Anor (2012) FLC 93-515 Miller (2009) FamCAFC 121 Russell & Russell (1999) FLC 92-877 Scott & Danton [2014] FamCAFC 203 Stanford v Stanford [2012] HCA 52 Teal & Teal [2010] FamCAFC 120
APPLICANT:	Mr Fontana

RESPONDENT:

Ms Fontana

FILE NUMBER:

PAC

5188

2008

DATE DELIVERED:

19 May 2017

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

20, 21, 22 and 23 February 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Druitt

SOLICITOR FOR THE APPLICANT:

Gonzalez & Co

COUNSEL FOR THE RESPONDENT:

Mr Hodgson & Mr Chen

RESPONDENT:

Self-represented litigant

Orders

That within three months from the date of these orders the wife pay to the husband $323,033.00 in default of payment by the due date interest to accrue.
That in default of payment to the husband as provided the husband shall have liberty to apply as to enforcement.
That the wife indemnify and save harmless the husband from any liability to Mr CC and Mr SR arising from work undertaken at the property at Suburb BB.
Otherwise, all applications be removed from the pending cases list.
That any application for costs be made by way of written submission within one month from this date with any submissions in response to be within a further 14 days.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Fontana & Fontana has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT PARRAMATTA

FILE NUMBER: PAC 5188 of 2008

Mr Fontana

Applicant

And

Ms…

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 Fontana & Fontana

Details

AGLC: Fontana & Fontana [2017] FamCA 374
Case: [2017] FamCA 374
Decision Date: 19 May 2017

CaseChat Overview and Summary

In *Fontana & Fontana*, Foster J of the Family Court of Australia considered a property settlement dispute between a husband and wife. The central disagreement revolved around the division of assets, particularly concerning lump sum trauma payments received by each party at different times. The wife’s payment had significantly contributed to real estate equity early in the relationship, while the husband retained and expended his payout after separation. The parties agreed to a "three pools" approach to assess their respective entitlements based on contributions.

The court was required to determine the appropriate assessment of each party's contributions to the various asset pools. This involved evaluating the impact of the trauma payments on the marital estate and how those contributions should be reflected in the final property division. Additionally, the court considered an application by the husband to adduce adversarial expert evidence regarding the valuation of real estate, and whether such an application was appropriate in the circumstances.

Foster J applied established principles of family law concerning property division, focusing on the contributions of each party to the acquisition, improvement, and conservation of the marital assets. The court adopted a valuation of $1.75 million for the Suburb H property, based on the evidence of a single expert, acknowledging that the market value had likely increased since the initial valuation. The court also considered the historical contributions to the Suburb A property and the acquisition of the Suburb M unit. The application to adduce adversarial expert evidence was dismissed.

Ultimately, the court ordered the wife to pay the husband $323,033.00 within three months. The wife was also ordered to indemnify the husband against any liability arising from work undertaken at the Suburb BB property. All other applications were removed from the pending cases list, and a process for making written submissions regarding costs was established.

Orders

Orders of the court

That within three months from the date of these orders the wife pay to the husband $323,033.00 in default of payment by the due date interest to accrue.

That in default of payment to the husband as provided the husband shall have liberty to apply as to enforcement.

That the wife indemnify and save harmless the husband from any liability to Mr CC and Mr SR arising from work undertaken at the property at Suburb BB.

Otherwise, all applications be removed from the pending cases list.

That any application for costs be made by way of written submission within one month from this date with any submissions in response to be within a further 14 days.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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Evidence

Evidence Before The Court

The evidence of the Single Expert: The expert report (Exh “E”) values the Suburb H property at $1.6 million as at 16 November 2016. The expert was cross examined at some length by counsel for the husband on 22 February 2017. It was revealed that he had reviewed three of his comparable properties on the morning of his oral evidence. It was put to him that the value of the subject property had gone up since the valuation done by him three months before trial. He responded that “it may well have”. He valued the property based on land value and the poor condition of the dwelling constructed thereon. He considered that the property was not capable of being renovated to an appropriate standard and in all probability any purchaser would proceed to demolition and construction of a new dwelling that most likely would provide some Sydney Harbour views. He expressed concern as to the topography of the land that included a steep fall away after approximately the first one third of the property where the original house stood. The expert was asked to consider in detail various comparable properties in his own report and those of the husband’s shadow expert. He provided detailed and logical responses in respect of each comparable he was asked to consider. None of which cast any doubt upon the valuation exercise undertaken by him. He conceded that by reason of the existing Sydney market subsequent to valuation and at the time of trial that the value of the property would be up and that his original valuation could now be somewhat on the low side. He considered that the property at the time of trial would have a value between $1.7 million and $1.8 million. Overall, in considering the evidence of the single expert for the purposes of these proceedings a valuation of $1.75 million for the Suburb H property will be adopted, such figure being the mid-range of the oral valuation opinion provided by the expert. Prior to the parties’ cohabitation and in about September 1990 they purchased an investment property at II Street, Suburb A. The purchase price was $148,000.00 with the wife providing funds to meet the deposit of $14,800.00 and other costs of purchase and part of the balance of the purchase price being funded by way of mortgage of $118,400.00 (Exh “DD”). The balance of purchase funds including stamp duty it appears coming from the husband. Subsequent to purchase the property was tenanted. The parties opened a joint account into which the rent was deposited and from which otherwise they met property outgoings and mortgage payments equally. At the commencement of cohabitation the wife was in full-time employment. The husband was a partner in Company ET. At the commencement of cohabitation the wife’s assets comprised her 50 per cent share in the Suburb A home unit and minimal savings. At the commencement of cohabitation the husband’s assets comprised his 50 per cent share in the Suburb A home unit, minimal savings and a motor vehicle. Shortly after marriage in late 1994 the parties acquired in the wife’s name a home unit at Suburb M. The property was purchased for $265,000.00 with the purchase price comprising some modest savings of the parties, net proceeds of sale from the Suburb A unit with the balance by way of mortgage advance from the National Australia Bank.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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