GALLO & GALLO-SEMMENS - [2014] FCCA 398

FEDERAL CIRCUIT COURT OF AUSTRALIA

GALLO & GALLO-SEMMENS

[2014] FCCA 398

Catchwords:
FAMILY LAW – Application for final property orders – dispute over property available for distribution – initial contributions favour the husband – wife has greater future needs – orders just and equitable.

Legislation:

Family Law Act 1975 (Cth), ss.79, 79(2),79(4),75(2)

In the Marriage of Kessey (1994) 18 Fam LR 149; (1994) FLC 92-495
In the Marriage of Olliver (1978) 4 Fam LR 360; (1978) FLC 90-499
In the Marriage of Ferraro (1992) 16 Fam LR 1; (1993) FLC 92-335
In the Marriage of Clauson (1995) FLC 92-595
Pierce v Pierce (1999) FLC 92-844
Hickey & Hickey (2003) FLC 93-143
NHC & RCH (2004) FLC 93-204
Beklar & Beklar [2013] FamCA 327
Bevan& Bevan [2013] FamCAFC 116
Stanford & Stanford [2012] 293 ALR 70

Applicant:

MR GALLO

Respondent:

MS GALLO-SEMMENS

File Number:

MLC 5934 of 2012

Judgment of:

Judge O’Sullivan

Hearing dates:

27 & 28 February 2014

Date of Last Submission:

4 April 2014

Delivered at:

Melbourne

Delivered on:

18 June 2014

REPRESENTATION

Counsel for the Applicant:

Mr D. Sweeney

Solicitors for the Applicant:

Pearsons Lawyers Pty Ltd

Counsel for the Respondent:

Mr K. MacFarlane

Solicitors for the Respondent:

Novatsis & Alexander

ORDERS

The husband pay to the wife the sum of $200,000.00 (“the payment”) within 60 days (“the date”).
Contemporaneously with the payment:
(i)the wife sign all documents and do all acts and things as are necessary to relinquish in favour of the husband any and all her right, title and interest she has or may have had in the real properties situate at and known as:
(a) Property T, [T] (“[T] property”); and
(b) Property C, [C] (“[C] property”)
(ii)the husband pay and indemnify the wife in respect to any and all encumbrances on the title to [T] property and [C] property including any rates taxes and charges thereon.
In the event of default in making the payment by the date or complying with the obligations imposed by paragraph (2) hereof [T] property be forthwith offered for sale on terms and conditions and for a reserve price of $430,000 (or other agreed figure) and the proceeds and be applied as follows:
(a)     Firstly, to pay the costs of and incidental to the sale;
(b)     Secondly, to discharge the registered first mortgage;
(c)Thirdly, to make the payment together with interest calculated monthly from the date of default in accordance with the Family Law Rules 2004;
(d)     Finally, the balance be paid to the husband.
That pending the payment:
(a)The husband pay and be solely responsible for the mortgage payments and all other outgoings of [T] and [C] properties;
(b)The husband have the right to occupy [T] and [C] properties;
(c)The husband be and is hereby restrained from drawing on the loan secured by the mortgage.
Unless otherwise specified in these orders and save for the purposes of enforcing monies due under these or any subsequent orders:
(a)each party be solely entitled to the exclusion of the…

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 GALLO & GALLO-SEMMENS

Details

AGLC: GALLO & GALLO-SEMMENS [2014] FCCA 398
Case: [2014] FCCA 398
Decision Date: 18 June 2014

CaseChat Overview and Summary

This matter concerned an application for final property orders between a husband and wife. The dispute centred on the division of property available for distribution, with the court considering the parties' initial contributions and the wife's greater future needs.

The court was required to determine the just and equitable division of the parties' property. This involved assessing the contributions made by each party to the marriage, both financially and non-financially, and considering the future needs of each party, particularly in relation to financial circumstances, parenting responsibilities, and age.

In reaching its decision, the court applied the principles of the *Family Law Act 1975* (Cth), balancing the parties' contributions against their future needs to achieve a just and equitable outcome. The court ordered the husband to pay the wife $200,000 within 60 days, in exchange for the wife relinquishing her interest in two properties. The orders also stipulated terms for the sale of one property in the event of default, and outlined the parties' responsibilities regarding the properties and other assets pending the payment.

Orders

Orders of the court

1. The husband pay to the wife the sum of $200,000.00 (“the payment”) within 60 days (“the date”).

2. Contemporaneously with the payment:

(i) the wife sign all documents and do all acts and things as are necessary to relinquish in favour of the husband any and all her right, title and interest she has or may have had in the real properties situate at and known as:

(a) Property T, [T] (“[T] property”); and

(b) Property C, [C] (“[C] property”)

(ii) the husband pay and indemnify the wife in respect to any and all encumbrances on the title to [T] property and [C] property including any rates taxes and charges thereon.

3. In the event of default in making the payment by the date or complying with the obligations imposed by paragraph (2) hereof [T] property be forthwith offered for sale on terms and conditions and for a reserve price of $430,000 (or other agreed figure) and the proceeds and be applied as follows:

(a) Firstly, to pay the costs of and incidental to the sale;

(b) Secondly, to discharge the registered first mortgage;

(c) Thirdly, to make the payment together with interest calculated monthly from the date of default in accordance with the Family Law Rules 2004;

(d) Finally, the balance be paid to the husband.

4. That pending the payment:

(a) The husband pay and be solely responsible for the mortgage payments and all other outgoings of [T] and [C] properties;

(b) The husband have the right to occupy [T] and [C] properties;

5. Unless otherwise specified in these orders and save for the purposes of enforcing monies due under these or any subsequent orders:

(a) each party be solely entitled to the exclusion of the other to all other property (including choses-in-action) in the possession of such party as at the date of these orders and the chattels in [T] and [C] properties shall be the property of the husband;

(b) monies standing to the credit of the parties in any bank account are deemed to be in possession of the person whose name appears on the bank record thereof;

(c) superannuation entitlements are deemed to be in the possession of the person who is named as the worker whose age or working future provides the conditions for payment out of such entitlements;

(d) insurance policies remain the sole property of the owner named thereon;

(e) 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.

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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