LUCCI and FREDA - [2022] FCWA 103

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: LUCCI and FREDA [2022] FCWA 103
CORAM: DUNCANSON J
HEARD: 1, 2 DECEMBER 2014, 28, 29 APRIL 2015, 9, 10, 11, 12, 13, 16, 17 NOVEMBER 2015, 28, 29 APRIL 2016, 2, 3 MAY 2016, 5, 6 OCTOBER 2016, 19, 20 JULY 2021
DELIVERED : 17 MAY 2022
FILE NO/S: [Redacted]
BETWEEN: MR LUCCI
Applicant
AND
MS FREDA
Respondent

Catchwords:

PROPERTY - where the parties have property in Australia and Italy - identification of the existing legal and equitable interests of the parties in their property - where it is found the husband does not have an equitable interest in a property owned by the wife - where funds provided by the wife's mother are not taken into account as a liability of the wife - where it is just and equitable to make a property settlement order - where the parties have been separated for a lengthy period - where a two pool approach is taken to the assessment of contributions - where the wife made the greater contributions - consideration of a just and equitable outcome

Legislation:

Family Law Act 1975 (Cth) s 75(2), s 78, s 79
Stamp Act 1921 (WA) s 27

Category: Reportable

Representation:

Counsel:

Applicant	:	Mr M Ryan / Ms K Smith
Respondent	:	Ms G Anderson / Self-Represented Litigant

Solicitors:

Applicant	:	Bostock & Ryan / Meillon & Bright
Respondent	:	Direct Brief / In Person

Case(s) referred to in decision(s):

Biltoft and Biltoft (1995) FLC 92-614.
Browne v Green (1999) FLC 92-873.
Chorn and Hopkins (2004) FLC 93-204.
Horrigan & Horrigan [2020] FamCAFC 25.
Jabour and Jabour [2019] FamCAFC 78.
Jarrott & Jarrott [2012] FamCAFC 29.
Kowaliw and Kowaliw (1981) FLC 91-092.
Lucci and Freda [2020] FCWA 142.
Lucci and Freda [2021] FCWA 129.
Polonius & York [2010] FamCAFC 228.
Rodgers & Rodgers (No 2) (2016) FLC 93-712.
Trevi & Trevi (2018) FLC 93-858.

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Lucci and Freda has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the order pursuant to r 311 of the Family Court Rules 2021 (WA).

1[Mr Lucci], the husband and [Ms Freda], the wife were in a relationship for over 17 years. They separated in 2008. The wife resides in Italy. The husband resides in Australia.
2The parties' dispute centres on a property in [Suburb A], Western Australia. In that respect they are significantly far apart. It is not in issue that the parties will retain their…

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

AGLC: LUCCI and FREDA [2022] FCWA 103
Case: [2022] FCWA 103
Decision Date

CaseChat Overview and Summary

This case concerns a property settlement between Mr Lucci and Ms Freda. The parties were married for over 17 years and have two daughters. They separated in January 2008 and were divorced in June 2012. The husband resides in Australia and the wife in Italy. The parties have been engaged in lengthy litigation in both Australia and Italy. The dispute before the court centres on a property in Australia. The husband seeks a declaration that he has a half interest in the property and/or that he is entitled to a cash payment of 50% of the value of the property. The wife opposes any payment to the husband and seeks various orders in relation to other properties and money. The court identified the existing legal and equitable interests of the parties in their property. The court found that the husband does not have an equitable interest in the Australian property. The wife's loan from her mother was not taken into account as a liability of the wife. The court found it was just and equitable to make a property settlement order. The court adopted a two pool approach to the assessment of contributions. The court found that the wife made the greater contributions. The court considered the parties' respective contributions in a holistic way. The court found the wife's contributions overall were greater than those of the husband. The court assessed the contributions and ordered the wife to pay the husband the sum of $261,069. In the event the wife fails to make the payment, the property is to be sold and the proceeds are to be divided according to the court's orders. The court orders the wife to pay the husband the sum of $261,069 within 60 days of the orders. The court orders the husband to transfer any right, title, or interest he may have in the property to the wife. The court orders the wife to indemnify the husband against any debt, encumbrance, or other liability associated with any property retained by her, transferred to him, or in her control as at the date of the orders. The court orders the husband to indemnify the wife against any debt, encumbrance, or other liability associated with any property retained by him, transferred to her, or in his control as at the date of the orders. The court orders the parties to each be solely responsible for any and all liabilities presently in the name of each of them respectively and to indemnify the other party and keep that party indemnified in relation to such liabilities. The court orders the parties to do all acts and things and sign all documents necessary to give effect to the orders. The court orders the parties to collect their exhibits from the chambers of Justice Duncanson within 42 days of the orders. In the event of an appeal being lodged prior to the expiration period of 42 days, the court orders do not apply.

Orders