Peroni and Kappa - [2020] FamCA 767

FAMILY COURT OF AUSTRALIA

PERONI & KAPPA

[2020] FamCA 767

FAMILY LAW – PROPERTY – Application by husband and wife for alteration of property interests – cohabitation period of 14 years and separation under the one roof for a further 11 years – assessment of the asset pool for division between the parties – direct financial contribution by the wife of an interest in a property at the commencement of the marriage which remains as at the date of trial and significant advances by the wife’s parents during cohabitation – characterisation of those advances as contributions on behalf of the wife and not loans – contributions of the husband including a personal injuries settlement payment – discussion of the wife’s contributions to the compensation payment – contributions of other financial and non-financial nature by both parties – assessment of future needs of both parties where the husband has physical ailments - assessed that the husband’s physical ailments do not affect his capacity to earn income – where husband has the benefit and certainty of income protection payments for a considerable number of years compared to wife’s uncertain income earning capacity.

Family Law Act 1975 (Cth) ss.75, 79
Evidence Act 1995 (Cth) s.140

Stanford v Stanford [2012] HCA 52
In the Marriage of Hickey [2003] FamCA 395
Bevan & Bevan [2013] FamCAFC 116
Chancellor & McCoy [2016] FamCAFC 256
Chorn & Hopkins (2004) FLC 93-204
Trevi & Trevi [2018] FamCAFC 173
Griffiths v Kerkemeyer (1977) 139 CLR 161
Re Q (Damages for sexual assault) (1994) 18 Fam LR 442
Jones & Dunkel (1959) 101 CLR 298
Pierce& Pierce (1999) FLC 92-844
Biltoft & Biltoft (1995) FLC 92-614
Af Petersens & Af Petersens (1981) FLC 91-095
Kessey & Kessey (1994) FLC 92-495; [1994] FamCA 162
In the Marriage of Gosper (1987) 11 Fam LR 601
Aleksovski & Aleksovski (1996) 20 Fam LR 894
Dickons & Dickons [2012] FamCAFC 154

APPLICANT:

Mr Peroni

RESPONDENT:

Ms Kappa

FILE NUMBER:

SYC

5788

2015

DATE DELIVERED:

15 September 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Williams J

HEARING DATE:

1 – 3 June 2020

FINAL SUBMISSIONS:

Wife – 16 June 2020

Husband – 10 July 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Wong

SOLICITOR FOR THE APPLICANT:

Taylor & Scott Lawyers

COUNSEL FOR THE RESPONDENT:

Mr Jackson

SOLICITOR FOR THE RESPONDENT:

Anne Day & Associates

Orders

The parties forthwith do all acts and sign all documents required to disburse the funds in the Taylor and Scott trust account (approximately $590,090) as follows:
(a)$2,950 to the wife’s solicitors on behalf of the wife, being the costs ordered to be paid to the wife in February 2018;
(b)The balance to the husband, or at his direction.
That within 90 days from the date of these Orders and subject to the wife’s compliance with order 3 hereof, the husband transfer to the wife, at the wife’s expense all his right, title and interest in B Street, Suburb C (“the Suburb C Property”).
Contemporaneously with 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 Peroni and Kappa

Details

AGLC: Peroni and Kappa [2020] FamCA 767
Case: [2020] FamCA 767
Decision Date: 15 September 2020

CaseChat Overview and Summary

The case of *Peroni and Kappa* concerned a dispute between a husband and wife regarding the division of their property. The matter came before Williams J.

The primary legal issues before the court were the distribution of funds held in a trust account, the transfer of a property located at Suburb C, and the allocation of other jointly and individually held assets and liabilities. The court was required to determine how the parties' financial resources and property interests should be divided, including the resolution of any outstanding mortgages and caveats.

Williams J ordered the disbursement of approximately $590,090 from the Taylor and Scott trust account, with a portion allocated to the wife's solicitors for costs and the balance to the husband. The court further ordered that the husband transfer his interest in the Suburb C Property to the wife within 90 days, provided the wife complied with specific conditions. These conditions included discharging the joint mortgage on the property, paying a sum of $226,965 into the trust account, and ensuring the withdrawal of a caveat. In the event of the wife's non-compliance, the Suburb C Property was to be sold by public auction, with the proceeds distributed according to a specified priority. The court also ordered the closure of a joint bank account, with the balance to be paid to the wife, and established a framework for the parties' exclusive entitlement to other property in their possession, including superannuation, and their respective liabilities.

Orders

Orders of the court

The parties forthwith do all acts and sign all documents required to disburse the funds in the Taylor and Scott trust account (approximately $590,090) as follows:

(a) $2,950 to the wife’s solicitors on behalf of the wife, being the costs ordered to be paid to the wife in February 2018;

(b) The balance to the husband, or at his direction.

That within 90 days from the date of these Orders and subject to the wife’s compliance with order 3 hereof, the husband transfer to the wife, at the wife’s expense all his right, title and interest in B Street, Suburb C (“the Suburb C Property”).

Contemporaneously with the transfer referred to in order 2 hereof, the wife do all acts and things and sign all documents necessary to:

(a) discharge the parties’ joint mortgage registered against the title of the Suburb C Property (“the CBA Mortgage”);

(b) pay the husband the sum of $226,965 into the Taylor & Scott Trust Account;

(d) indemnify and keep indemnified the Husband in respect of any and all encumbrances, debts, taxes, imposts, outgoings and/or utilities secured against or in relation to the Suburb C.

In the event the wife fails, refuses or neglects to comply with Order 3, then the parties shall cause the Suburb C Property to be placed on the market for sale by public auction.

That upon completion of the sale of the Suburb C Property, the parties shall distribute the proceeds of sale in the following manner and priority:

i) firstly, in payment of the listing agent’s commission and expenses on the sale;

ii) secondly, in payment of the conveyancer/solicitor’s costs in respect of the sale;

iii) thirdly, in adjustment of rates and levies on the property;

iv) fourthly, in discharge of the CBA Mortgage;

v) fifthly, in payment to the husband $226,965 into the Taylor & Scott Trust Account plus interest calculated in accordance with the Family Law Rules 2004 from the date of the wife's default; and

vi) sixthly, the balance remaining to the wife.

That within 28 days from the date of these Orders, the parties shall do all acts and things and sign all documents necessary to close their jointly held savings account with the Commonwealth Bank of Australia (acct no. …84) and the wife shall be entitled to the balance to the exclusion of the husband.

Unless otherwise specified in these Orders except for the purposes of enforcing payment of any money due under these or any subsequent Orders:

(a) Each party shall be solely entitled to the exclusion of the other to all property in the possession of such party as at the date of these Orders including any jewellery, furniture, furnishings, shares and motor vehicles;

(b) Monies standing to the credit of the parties in any bank accounts to be the property of the party in whose name such bank account is held;

(c) Each party hereby foregoes any claims they may have to any superannuation benefit to or owned by the other. The party in whose name any such policy of superannuation or insurance shall be deemed to be the owner and the beneficiary of such policy to the exclusion of the other; and

(d) Each party shall be solely liable for and indemnify the other against any liability encumbering any item of property to which that party is entitled pursuant to this Order.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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