Nevin and Raneri - [2018] FCCA 2714

FEDERAL CIRCUIT COURT OF AUSTRALIA

NEVIN & RANERI

[2018] FCCA 2714

Catchwords:
FAMILY LAW – Undefended property proceedings – matters to be considered in respect of determining proceeding in absence of one party – attempted murder of the wife by the husband – assessment of contributions – contents of property pool – satisfy requirements of section 79(2) – assessment of section 79(4) factors – just and equitable.

Legislation:

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

Federal Circuit Court Rules, rr.13.1A, 13.03(2)
Family Law (Superannuation) Regulations 2001

Cases cited:

Taylor v Taylor (1979) 143 CLR 1
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 and Attorney General for Commonwealth of Australia (2003) FLC 93-143

Wardman & Hudson (1978) FLC 90-466
Biltoft & Biltoft (1995) FLC 92-614
Russell v Russell (1999) FamCA 187
Bevan & Bevan [2013] FamCAFC 116

Applicant:

MS NEVIN

Respondent:

MS RANERI

File Number:

ADC 1931 of 2018

Judgment of:

Judge Brown

Hearing date:

6 September 2018

Date of Last Submission:

6 September 2018

Delivered at:

Adelaide

Delivered on:

27 September 2018

REPRESENTATION

Counsel for the Applicant:

Ms Cutufia

Solicitors for the Applicant:

Women’s Legal Service

Counsel for the Respondent:

No appearance

ORDERS

That in full and final settlement of all claims that either party may have for settlement of property or alteration of interests in property under Parts VIII and Part VIIIB of the Family Law Act 1975 (as amended) in the past, in the present or in the future:
(a)That within thirty (30) days from the date of these Orders the Husband shall transfer to the Wife at the Wife’s cost all his estate and interest in the property situated at Property A in the state of Queensland (hereinafter referred to as “the former matrimonial home”) and do execute a Memorandum of Transfer and Statutory Declaration in registrable form in order to give effect thereto;
(b)That prior to or contemporaneously with the registration of the said transfer, the Wife do pay such amount or take such other action as may be necessary to register a discharge of the mortgage registered over the former matrimonial home;
(c)The costs of the preparation, stamping and registration of the said transfer and any other costs in relation thereto to be paid by the Wife;
(d)That as and from the date hereof and more particularly as and from the date of performance of the matters contained in paragraphs 1.1 to 1.4 hereof the Wife shall indemnify the Husband and forever keep the Husband indemnified from any and all liabilities including but not necessarily limited to mortgage repayments, rates, taxes, levies and other like charges or any other expenses whatsoever relating to the former matrimonial home.
(e)That the Court allocate, as required by Section 90MT (4) of the Family Law Act (as amended), a base amount of SIXTY EIGHT THOUSAND EIGHT HUNDRED AND SEVENTY SEVEN DOLLARS ($68,877) to the Wife out of the Husband’s interest…

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 Nevin and Raneri

Details

AGLC: Nevin and Raneri [2018] FCCA 2714
Case: [2018] FCCA 2714
Decision Date: 27 September 2018

CaseChat Overview and Summary

The case of Nevin and Raneri involved an application before Judge Brown concerning the settlement of property and alteration of interests in property under Parts VIII and VIIIB of the *Family Law Act 1975* (Cth). The dispute centred on the division of assets and liabilities between the parties, including their former matrimonial home and superannuation interests.

The court was required to determine how the parties' property and financial resources should be divided. Specifically, the court had to consider the transfer of the former matrimonial home, the discharge of any mortgage over that property, the allocation of a specific amount from the Husband's superannuation interest to the Wife, and the respective indemnities for liabilities. The court also needed to address the retention of other specified assets and liabilities by each party, and the general release of claims between them.

In its determination, the court ordered the Husband to transfer his interest in the former matrimonial home to the Wife, with the Wife to be responsible for discharging the mortgage and all associated costs. The Wife was also ordered to indemnify the Husband against all liabilities relating to the former matrimonial home. A specific sum of $68,877 was allocated from the Husband's superannuation interest to the Wife, with provisions for the Trustee of the superannuation fund to make payments to the Wife upon the occurrence of a splittable payment. Each party was to retain their respective furniture, personal effects, bank accounts, motor vehicles, long service leave entitlements, and life insurances, along with other property in their possession not otherwise specified. The court also ordered that each party bear their own costs, with the exception of costs related to property transfers. Provisions were made for a Registrar to execute documents on behalf of a party who refused or neglected to do so, with the defaulting party to pay the other's costs. All extant applications were dismissed.

Orders

Orders of the court

That in full and final settlement of all claims that either party may have for settlement of property or alteration of interests in property under Parts VIII and Part VIIIB of the Family Law Act 1975 (as amended) in the past, in the present or in the future:

(a) That within thirty (30) days from the date of these Orders the Husband shall transfer to the Wife at the Wife’s cost all his estate and interest in the property situated at Property A in the state of Queensland (hereinafter referred to as “the former matrimonial home”) and do execute a Memorandum of Transfer and Statutory Declaration in registrable form in order to give effect thereto;

(b) That prior to or contemporaneously with the registration of the said transfer, the Wife do pay such amount or take such other action as may be necessary to register a discharge of the mortgage registered over the former matrimonial home;

(c) The costs of the preparation, stamping and registration of the said transfer and any other costs in relation thereto to be paid by the Wife;

(d) That as and from the date hereof and more particularly as and from the date of performance of the matters contained in paragraphs 1.1 to 1.4 hereof the Wife shall indemnify the Husband and forever keep the Husband indemnified from any and all liabilities including but not necessarily limited to mortgage repayments, rates, taxes, levies and other like charges or any other expenses whatsoever relating to the former matrimonial home.

(e) That the Court allocate, as required by Section 90MT (4) of the Family Law Act (as amended), a base amount of SIXTY EIGHT THOUSAND EIGHT HUNDRED AND SEVENTY SEVEN DOLLARS ($68,877) to the Wife out of the Husband’s interest with the Super Fund 1 (hereinafter referred to as “the Fund”).

(f) That pursuant to Section 90MT(1)(a) of the Family Law Act (as amended) whenever the Trustee of the Fund makes a splittable payment out of the Husband’s superannuation interest in the Fund the Trustee shall:

(i) Pay to the Wife the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using a base amount of SIXTY EIGHT THOUSAND EIGHT HUNDRED AND SEVENTY SEVEN DOLLARS ($68,877) and

(ii) Make a corresponding reduction in the entitlement of the person to whom the splittable payment would be made but for these orders.

(g) That paragraphs 1.6.1 and 1.6.2 of the Orders set out herein have effect from the operative time.

(h) That the operative time for paragraph 1.7 of these orders shall be four (4) working days after the date of the service of a copy of the sealed orders on the Trustee of the Fund.

(i) That the Trustee of the Fund shall do all such acts and things and sign all such documents as shall be necessary so that, in accordance with the obligations set out under the Family Law Act 1975 and Family Law (Superannuation) Regulations 2001, the Trustee can calculate the entitlement of and make payments to the Wife in accordance with paragraph 1.6 of these Orders.

(i) That the Wife do forthwith cause a copy of these Orders to be served upon the Trustee of the Fund and do request the Trustees do note the Orders and act in relation to any payment in accordance with the Husband’s obligations pursuant to these Orders.

(j) The Husband shall indemnify the Wife and forever keep the Wife indemnified from any liabilities in his sole name.

(k) The Wife shall indemnify the Husband and forever keep the Husband indemnified from any liabilities in her sole name.

(l) That subject as aforesaid the Husband shall retain for his sole use and benefit absolutely free of any claim from the Wife all his estate and interest in the following:

(i) The Husband’s furniture and personal effects currently in his possession or control;

(ii) All amounts standing to his credit in any bank, building society or credit union account;

(iii) The benefits of his superannuation entitlements;

(iv) The Husband’s Motor Vehicle M;

(v) All long service leave entitlements;

(vi) All life insurances;

(vii) All other property in his possession or control whether registered in his name or not and not otherwise specified herein.

(viii) That subject as aforesaid the Wife shall retain for her sole use and benefit absolutely free of any claim from the Husband the following:

(ix) The former matrimonial home;

(x) The Wife’s furniture and personal effects currently in her possession or control;

(xi) All amounts standing to her credit in any bank, building society or credit union account in her name;

(xii) The benefits of her superannuation entitlements including the sum referred to in paragraph 1.6 hereof;

(xiii) The Wife’s Motor Vehicle N;

(xiv) All long service leave entitlements;

(xv) All life insurances;

(xvi) All other property in her possession or control whether registered in her name or not and otherwise specified herein.

(m) That each party shall do all such acts and things and sign all such necessary documents to give effect to the terms of these Orders.

(n) That subject to these orders each party do release the other party from any liability for any claim that either one may have against the other and the parties do discharge their several debts and liabilities without calling upon the other to contribute (including any tax liability assessed in their respective names) and the Husband and Wife agree that neither one of them will hereafter pledge the credit of the other.

(o) That each party do pay their own costs of and incidental to the within proceedings but the transferee in each case shall pay the cost and disbursements of and incidental to any transfer to give effect to the terms of this Order.

(p) If either the Husband or the Wife shall refuse or neglect to execute any document necessary to give effect to the terms hereof within seven (7) days after the same has been tendered to him or her for that purpose then and in such case:

(i) A Registrar or Deputy Registrar of this Honourable Court upon proof by affidavit of such refusal or neglect is hereby appointed to execute any such document on behalf of either party hereto and if in his or her opinion it shall be necessary so to do to settle the same and to do all such other acts, matters and things and execute all such other documents as shall be necessary to give full force and effect hereto and shall execute and do the same accordingly;

(ii) The party in default shall pay the other party’s costs as agreed or as taxed.

All extant applications be dismissed.

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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