NADELLA & NADELLA - [2019] FCCA 40

FEDERAL CIRCUIT COURT OF AUSTRALIA

NADELLA & NADELLA

[2019] FCCA 40

Catchwords:
FAMILY LAW – Alteration of property interests – long marriage – assessment of contribution and future needs – Kennon claim decided – just and equitable order.

Legislation:

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

Cases cited:

Bevan & Bevan [2013] FamCAFC 116
Hickey & Hickey & Attorney General for the Commonwealth of Australia [2003] FamCA395
Kennon v Kennon (1997) 22 Fam LR 1
Pierce v Pierce (1998) FLC 92-844

Stanford & Stanford [2012] HCA 52

Applicant:

MS NADELLA

Respondent:

MS NADELLA

File Number:

SYC 826 of 2017

Judgment of:

Judge Altobelli

Hearing dates:

24-26 September 2018

Date of Last Submission:

26 September 2018

Delivered at:

Wollongong

Delivered on:

21 January 2019

REPRESENTATION

Counsel for the Applicant:

Mr Blackah

Solicitors for the Applicant:

Calabrese Lawyers

Counsel for the Respondent:

Mr Schonell, SC

Solicitors for the Respondent:

Rossi Simicic Lawyers

ORDERS

That within 14 days, the Wife and Husband do all acts and things and sign all documents necessary to close the Members Equity joint account (account number …), and in the event there are nominal funds contained within such account, such funds be divided between the parties 57.5:42.5 per cent in the Wife’s favour.
That within 42 days of the date of these Orders, the Wife and Husband do all acts and things and sign all documents necessary for the Wife to transfer to the Husband, all of her right, title and interest in the property known as and situate at Property J1in the State of NSW, being the whole of the land described in Folio Identifier ….
That within forty-two (42) days of the date of these Orders, the Wife and Husband do all acts and things and sign all documents necessary for the Husband to transfer to the Wife, all of his right, title and interest in the property known as and situate at Property H1 in the State of NSW, being the whole of the land described in Folio Identifier … .
That within a further 30 days after the time prescribed in Orders 2 and 3 above, the Husband pay to the Wife the sum of $329,027.65, failing which interest will accrue on the said sum at the rate prescribed under the Family Law Act, its Rules and Regulations.
That within 30 days, the Wife provide to the Husband, one half of all original photographs in the Wife’s custody, possession or control, and the remaining one-half of photographs be provided by the Wife to the Husband as copies.
That the Wife, to the exclusion of the Husband, be declared to have sole right, title and interest in:
(a)The property situate at Property H1 in the State of NSW, being the whole of the land described in Folio Identifier …;
(b)The property situate at Property F in the State of NSW, being the whole of the land described in Folio Identifier … ;
(c)Her share of the property situate Property D in the State of NSW,…

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 NADELLA & NADELLA

Details

AGLC: NADELLA & NADELLA [2019] FCCA 40
Case: [2019] FCCA 40
Decision Date: 21 January 2019

CaseChat Overview and Summary

This matter concerned an application by the Wife and Husband for the alteration of property interests following a long marriage. The court was required to assess the parties' contributions and future needs, and to determine a just and equitable property settlement. A claim under *Kennon v Kennon* was also considered.

The primary legal issues before the court were the appropriate division of the parties' various assets, including real estate and motor vehicles, and the equitable distribution of funds from a joint account. The court also had to determine the terms of the transfer of interests in specific properties between the parties and the payment of a sum of money from the Husband to the Wife. Furthermore, the court needed to address the division of personal property, including photographs, and to make orders for the execution of necessary documents to give effect to the property settlement.

Judge Altobelli made orders for the closure of a joint account with funds to be divided 57.5% in the Wife's favour. The parties were ordered to transfer their respective interests in certain properties to each other, with the Husband to pay the Wife a sum of $329,027.65 within 42 days of the orders. The Wife was also ordered to provide the Husband with half of original photographs as originals and the remainder as copies. Specific properties and motor vehicles were allocated to each party to their sole right, title, and interest. The court further ordered that each party retain all personal property in their possession, along with sole name interests in shares, accounts, and superannuation. In the event of non-compliance, the Registrar of the Court was appointed to execute necessary documents. Liberty was granted to relist the matter for interpretation, implementation, or enforcement of the orders.

Orders

Orders of the court

That within 14 days, the Wife and Husband do all acts and things and sign all documents necessary to close the Members Equity joint account (account number …), and in the event there are nominal funds contained within such account, such funds be divided between the parties 57.5:42.5 per cent in the Wife’s favour.

That within 42 days of the date of these Orders, the Wife and Husband do all acts and things and sign all documents necessary for the Wife to transfer to the Husband, all of her right, title and interest in the property known as and situate at Property J1in the State of NSW, being the whole of the land described in Folio Identifier ….

That within forty-two (42) days of the date of these Orders, the Wife and Husband do all acts and things and sign all documents necessary for the Husband to transfer to the Wife, all of his right, title and interest in the property known as and situate at Property H1 in the State of NSW, being the whole of the land described in Folio Identifier … .

That within a further 30 days after the time prescribed in Orders 2 and 3 above, the Husband pay to the Wife the sum of $329,027.65, failing which interest will accrue on the said sum at the rate prescribed under the Family Law Act, its Rules and Regulations.

That within 30 days, the Wife provide to the Husband, one half of all original photographs in the Wife’s custody, possession or control, and the remaining one-half of photographs be provided by the Wife to the Husband as copies.

That the Wife, to the exclusion of the Husband, be declared to have sole right, title and interest in:

(a) The property situate at Property H1 in the State of NSW, being the whole of the land described in Folio Identifier …;

(b) The property situate at Property F in the State of NSW, being the whole of the land described in Folio Identifier … ;

(c) Her share of the property situate Property D in the State of NSW, being the whole of the land described in Folio Identifier … ;

(d) Her share of the property situate at Property K in the State of NSW, being the whole of the land described in Folio Identifier … ;

(e) Motor Vehicle, Registration … .

That the Husband, to the exclusion of the Wife, be declared to have sole right, title and interest in:

(a) The property situate Property J1 in the State of NSW, being the whole of the land described in Folio Identifier … ;

(b) The property situate Property J2, in the State of NSW, being the whole of the land described in Folio Identifier … ;

(d) Motor Vehicle Registration … ;

(e) Motor Vehicle.

That as between the Wife and Husband, and subject to the above Orders, the Wife and Husband shall each retain all interest in and entitlement to:

(a) All personal property now in his/her respective possession or control.

(b) All shares, debentures, units in unit trusts, bank, building society or credit union accounts standing in his/her sole name respectively.

That in the event that either party refuses or neglects to execute any deed, document or instrument necessary to give effect to these Orders, the Registrar of the Court be appointed pursuant to section 106A of the Family Law Act 1975 to execute such deed, document or instrument in the name of the said party and do all acts and things necessary to give validity and operation to the deed, document or instrument upon the Registrar being provided with verification of such refusal or failure by way of Affidavit.

10.

Liberty be granted to the parties to relist the matter on 7 days’ notice before Judge Altobelli as regards the interpretation, implementation and enforcement of 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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