Nevin and Raneri
[2018] FCCA 2714
•27 September 2018
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) |
| Cases cited: Taylor v Taylor (1979) 143 CLR 1 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 |
| 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 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.
IT IS NOTED that publication of this judgment under the pseudonym Nevin & Raneri is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT ADELAIDE |
ADC 1931 of 2018
| MS NEVIN |
Applicant
And
| MR RANERI |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment relate to undefended property proceedings, which arise in extraordinary circumstances. In my view, given the non-involvement of one of the parties and the moment of the case, it is appropriate that the court’s decision be formalised by way of written decision.
Ms Nevin “the wife” and Mr Raneri “the husband” were married on 2014 and separated on 2016, when the husband attempted to murder the wife, after illegally supplying a stupefying agent to her.
Subsequently, on 2018, Mr Raneri was convicted by a jury, in the Supreme Court of Queensland, of stupefying to commit an indictable offence and attempted murder. (Judge) sentenced him to a total term of imprisonment of nine (9) years. As a consequence, Raneri is incarcerated in the Correctional Centre in Town D, Queensland.
On 17 May 2018, the wife commenced proceedings, in this court, seeking orders for the settlement of matrimonial property. Her application was served on Mr Raneri, in prison, on 22 June 2018. He executed an acknowledgement of service, which has been filed in these proceedings.
Ms Nevin’s application first came before the court on 23 July 2018. On this occasion, there was no appearance on Mr Raneri’s behalf. In these circumstances, he was directed to file answering material, within 28 days, and if he failed to do so, the wife was given leave to proceed on an undefended basis.
Mr Raneri has not complied with this order. Nor has he instructed solicitors to appear on his behalf. In these circumstances, the wife seeks that her application be finalised without any involvement of the husband.
The wife’s application
The orders sought by the wife can be summarised as follows:
· The husband transfer to the wife, at her cost, all his interest in the parties former matrimonial home situated at Property A;
· The wife discharge and indemnify the husband in respect of the mortgage secured against that property;
· There be an equalisation of the parties superannuation interests;
· Otherwise each party retain property currently in their respective possession or control.
Background
The wife was born in 1983. The husband was born in 1974. At the time they met, in 2011, both were serving members of the (employer omitted). As a consequence, each has acquired Super Fund 1. By dint of his greater age, the husband has significantly more than does the wife.
The parties began to live together in 2012. They have one child, [X], born 2014. [X] lives with the wife and she is solely responsible for providing financial and emotional support for him, given his father’s current circumstances.
It is the wife’s case that the marriage between the parties was an unexceptional and happy one. In 2015, Mr Raneri arranged an insurance policy on Ms Nevin’s life for a significant sum of money. In these circumstances, it appears clear that his heinous crime was motivated by financial considerations.
The husband’s crime was committed on 2016 – the weekend of the parties’ second wedding anniversary. They had a celebratory lunch together. After which, they went home and the husband gave the wife a glass of wine, in which he had placed a dose of tramadol, which is an analgesic with relaxing and sedating effects.
The wife had previously been prescribed tramadol to assist with pain management following dental treatment. It seems apparent that the husband hoped that any subsequent toxicological examination of the wife would accept that the drug had been self-administered by the wife, perhaps accidentally.
Whilst Ms Nevin was asleep, as a consequence of her sedation by means of the tramadol dose, the husband attempted to suffocate her using a (omitted). Fortunately, she was awoken by the husband’s actions and there was a violent struggle between the two, in which Ms Nevin was significantly injured.
She now suffers serious symptoms of post traumatic stress disorder. In sentencing, (Judge) described the crime as premeditated and carefully planned, as a consequence of his planning it was to be inferred that Mr Raneri hoped there would be no evidence of any violent struggle between him and the wife and the therefore the relevant authorities would ascribe the wife’s sudden death to natural causes.
As a consequence of her resistance, the husband’s plans came unstuck and neighbours were alerted by Ms Nevin’s screaming, which resulted in the police being summonsed urgently to the parties’ home.
Mr Raneri elected to go to trial in respect of the indictment laid against him. As a consequence, Ms Nevin had to give evidence in the Supreme Court of Queensland, which undoubtedly exacerbated her PTSD.
The nature of an undefended hearing
It is a significant thing for proceedings to be determined in the absence of one of the parties. The court has an obligation to ensure that the parties to proceedings before it have an opportunity to participate in those proceedings.
Before a person can be adversely affected by judicial order, he or she must be afforded an adequate opportunity to be heard.[1] I am satisfied that Mr Raneri has been given an adequate opportunity to appear in these proceedings and put his position before the court.
[1] See Taylor v Taylor (1979) 143 CLR 1
In the all the circumstances, it is not surprising that Mr Raneri has elected to not take part in the proceedings. His situation for the next decade is clear and he has no need for financial support. It is also likely that he is aware that his actions have largely forfeited any entitlement, which he might have had to a significant proportion of the matrimonial estate.
The Federal Circuit Court is a court of private law. It determines disputes, between parties, according to law. In this case, according to the provisions of Part VIII of the Family Law Act 1975, which relate to the division of property following the breakdown of a marriage relationship.
Order 13.1A of the Federal Circuit Court Rules deals with the court’s authority to enter judgment against a respondent if that respondent defaults in complying with a court order or fails to prosecute any proceedings with due diligence.
Pursuant to Rule 13.03A(2) a respondent is in default if, amongst other things, he or she has failed to:
·Comply with an order of the court in the proceedings;
·Produce a document as required; or
·Defend the proceedings with due diligence.
The legal principles applicable
The process to be followed for the division of the parties’ property is well established by law.[2] The relevant legal principles are primarily contained in sections 79 and 75(2) of the Family Law Act 1975.I am required to follow a number of specific steps.
[2] See Lee Steere v Lee Steere (1998) FLC 91-626; Ferraro v Ferraro (1993) FLC 92-335;
In the first step, I must ascertain what are the parties’ assets and liabilities available to be divided between them. The normal rule is that those assets are to be determined as at the date of trial.[3]
[3] See Wardman & Hudson (1978) FLC 90-466; and Biltoft & Biltoft (1995) FLC 92-614
In the second step, I must ascertain the contributions, which each party has made towards the matrimonial pool of assets, as I have found them, following the first step. Contributions fall into two broad categories.
The first kind is contributions to the property: financial contributions and non-financial contributions, made directly or indirectly, by or on behalf of a party to the marriage to the acquisition, conservation or improvement of any of the property.
The second kind is contributions to the welfare of the family: in the words of the section, “the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage, including any contribution made in the capacity of home maker or parent.”[4]
[4] See Family Law Act 1975, s.79(4)(c)
It is clear from the authorities that this second kind of contribution must be given appropriate weight and is not to be treated as a token matter or as a contribution which is inherently less valuable or important than a financial contribution to property.
The third step involves the assessment of the parties’ prospective needs, by reference to the factors set out in section 75(2) of the Family Law Act 1975. Pursuant to section 75(2)(o), the Court is entitled to take into account “any fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account”.
Finally, in determining what order the court should make under section 79, the court must be satisfied that in all the circumstances, it is just and equitable to make the relevant orders. Overall, it is the justice and equity of the actual orders that the court must consider.[5]
[5] See Russell v Russell (1999) FamCA 187
Accordingly the fourth step is for the court to take a step back and examine whether the orders it proposes are just and equitable. These considerations must also inform each of the preceding steps. [6]
[6] See Hickey & Hickey & Attorney-General (Intervener) (2003) FLC 93-143 at 78,386 [39] and Bevan & Bevan [2013] FamCAFC 116 at [60]
Step one – the pool of property
The parties’ pool of assets is extremely modest. As such, Ms Nevin and [X] do not face a secure financial future. The parties’ major asset is their former matrimonial home, which is subject to a significant mortgage. Each has entitlements to Super Fund 1. At this stage, both parties are some distance away from retirement.
I find that that parties pool of assets is as follows:
| ASSET | VALUE ($) |
| Property A, Queensland | 447,000 |
| Bank account ending (Wife) | Nominal |
| Bank account (Husband) | Unknown |
| Motor vehicle N (Wife) | 3,000 |
| Motor vehicle M (Husband) | 50,000 |
| TOTAL ASSETS | 500,000 |
| LIABILITIES | VALUE ($) |
| Mortgage over former matrimonial home | 438,000 |
| Personal loan (Husband) | Unknown |
| Car loan over Motor vehicle M (Husband) | Unknown |
| Credit Card (Wife) | 2,000 |
| TOTAL LIABILITIES | 440,000 |
| SUPERANNUATION | VALUE($) |
| Super Fund 1 (Wife) | 117,114E |
| Super Fund 2 (Husband) | 200,000E |
| TOTAL SUPERANNUATION | 317,114 |
| TOTAL NET ASSETS (EXCL. SUPERANNUATION) | 60,000 |
| TOTAL NET ASSETS (INCL. SUPERANNUATION) | 377,114 |
Step two – assessment of financial contributions
Throughout the marriage, both parties were employed in the (employer omitted). The husband earned approximately $80,000 per annum and the wife earned approximately $48,000 per annum. Each party contributed to a joint savings account used for their wedding and honeymoon, and the deposit to purchase the former matrimonial home. The wife contributed a significantly greater amount to the joint account throughout the relationship.
After the birth of [X], the wife took one year of maternity leave, during which time she received a combination of maternity leave payments and Centrelink benefits.
It is the wife’s case that she paid the majority of the mortgage repayments during the marriage, and all payments since separation. In addition, she has as paid the majority of the household bills, including childcare costs for [X] on her return to work.
In all these circumstances, it is my finding that factors relevant to contribution greatly favour the applicant and it would constitute a marked injustice to her if this was not recognised by the court.
Step three – Section 75(2) factors
The wife continues to be employed in the (employer omitted). She earns a modest income, and has limited opportunities to advance her career and earning potential due to the psychological injuries sustained as a result of the attempt on her life by the husband. She is also the sole care giver to [X], which restricts her ability to take part in promotional training opportunities and extra duties to increase her income.
Since the parties separated, she has met all outgoings in respect of the Property A property without any assistance from the husband, who is incarcerated. In addition, she receives no child support, which will continue for the next decade due to the husband’s incarceration. This creates a significant financial burden on the wife for the foreseeable future. There is also the ongoing financial burden for the wife, of regular psychological counselling to deal with her PTSD.
Conclusions – what is a just and equitable outcome
I am satisfied that a proper consideration of both considerations relating to contribution and future need favour the wife receiving the entirety of the relatively modest pool of assets, which are currently available for distribution.
Above all, Ms Nevin and [X] require the security of having a home in which to live which is not subject to any interest in favour of Mr Raneri, a person who was intent on doing them evil. It is a long standing principle of equity that a person is not entitled to benefit from his crime.
Ms Nevin faces an uncertain financial future. She is a modest income earner, who will have to support a child of tender years without assistance from the other parent concerned. She still bears the psychological scars of the violence inflicted upon her and is likely to do so for the remainder of her life.
For understandable reasons, she wishes to sever her financial relationship with Mr Raneri. In my view, she has not made any outlandish claims for property settlement, notwithstanding the extraordinary circumstances surrounding the case. In my view, her application to equalise the parties’ respective superannuation holdings is a modest one, which is equitable in all the circumstances.
Ms Nevin’s ability to care for [X] and provide for herself has been gravely compromised by Mr Raneri’s criminal conduct towards her. As a consequence, her capacity to provide for herself in retirement has been severely compromised. For this reason, it is just and equitable for there to be an equalisation in superannuation holdings.
In all these circumstances, I am satisfied the various section 79(4) factors justifies an equalisation being made in respect of the alteration of the property interests of the parties as sought by the wife. The solicitor for the wife has provided confirmation that the relevant trustee is able to comply with the orders proposed. In these circumstances, I will make the orders as sought by the wife in the minute prepared by her solicitor.
For all these reasons, the orders of the court will be as set out at the commencement of these reasons for judgment.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Brown
Date: 27 September 2018
Clauson v Clauson (1995) FLC 92-595; Hickey v Hickey and Attorney General for Commonwealth of Australia (2003) FLC 93-143 at 78,386
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Civil Procedure
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