Ragusa & Ragusa - [2021] FedCFamC2F 470

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Ragusa & Ragusa [2021] FedCFamC2F 470

File number(s): ADC 3962 of 2015

Judgment of: JUDGE BROWN

Date of judgment: 10 December 2021

Catchwords: FAMILY LAW – Property – property settlement – long marriage – assessment of contributions – where the applicant has failed to engage in proceedings – criminal activity on behalf of the applicant – negative contributions to the property pool on behalf of the applicant – where parties have not accrued superannuation – considerations of justice and equity – just and equitable to make a property order – test in Stanford & Stanford.

Legislation: Criminal Assets Confiscation Act 2005 (SA)
Family Law Act 1975 (Cth) Pt VIII, ss.75, 79
Federal Circuit and Family Court of Australia (Division 2) (Family Law) Rules2021 (Cth), Pt.10.6, rr.10.26, 10.27

Cases cited: Bevan & Bevan [2013] FamCAFC 116
In the Marriage of Browne & Green (1999) 25 Fam LR 482
In the Marriage of DJM and JLM (1998) 23 Fam LR 396
In the Marriage of Kowaliw [1981] FamCA 70
In the Marriage of Omachini (2005) 33 Fam LR 134
In the Marriage of Townsend (1994) 18 Fam LR 505
Marriage of Hickey (2003) 30 Fam LR 355
Stanford v Stanford (2012) 247 CLR 108
Taylor v Taylor (1979) 143 CLR 1
Trevi & Trevi [2018] FamCAFC 173
Watson & Ling [2013] FamCA 57

Division: Division 2 Family Law

Number of paragraphs: 124

Date of hearing: 14 October 2021

Place: Adelaide

Counsel for the Applicant: The Applicant appearing In Person

Counsel for the Respondent: Mr Boehm

Solicitor for the Respondent: Johnston Withers
ORDERS

ADC 3962 of 2015

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR RAGUSA

Applicant

AND:
MS RAGUSA

Respondent

ORDER MADE BY:

JUDGE BROWN

DATE OF ORDER:

10 DECEMBER 2021

UPON NOTING THAT:
A.There have been three distinct awards of costs made against the applicant as follows NOTING THAT such costs orders remain outstanding:
i.An order of Chief Judge Alstergren dated 15 September 2020 where the applicant was ordered to pay the respondent the costs of the hearing before Chief Judge Alstergren on 20 July 2020;
ii.An order of Judge Kelly dated 27 October 2020 where the applicant was ordered to pay the respondent’s costs in an amount of $450.00 by 30 November 2020; and
iii.An order of Senior Registrar Heuer dated 25 November 2020 where the applicant was ordered to pay the respondent’s costs thrown away in an amount of $1,600.00 by 21 December 2020.

THE COURT ORDERS THAT:
In full and final settlement of all applications for the settlement of matrimonial property:
1.The real property of the applicant, Mr Ragusa (hereinafter referred to as ‘the applicant’) and the respondent, Ms Ragusa (hereinafter referred to as ‘the respondent’) be divided as follows:
(a)The property situated at B Street, Suburb C being the whole of the property comprised in Certificate of Title Register Book Volume … Folio … (hereinafter referred to as ‘the B Street, Suburb C…

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 Ragusa & Ragusa

Details

AGLC: Ragusa & Ragusa [2021] FedCFamC2F 470
Case: [2021] FedCFamC2F 470
Decision Date

CaseChat Overview and Summary

The case involved a long-married couple, Mr and Ms Ragusa, who were now aged pensioners. The only significant asset potentially subject to any order of the court was the wife's home. The husband's criminal activity had resulted in the forfeiture of half of their property, which was no longer available to be distributed between the parties. The wife sought to retain the B Street, Suburb C property, whilst the husband sought an equal division of the parties' marital property. The court considered the legal principles applicable to the division of property following the breakdown of a marriage relationship, including the requirement to make an order that is just and equitable in all the circumstances prevailing. The court found that it would not be just and equitable to make any order altering the existing property rights of the wife in respect of the B Street, Suburb C property, given the overall circumstances of the case. The court also found that it would not be just to utilise the wife's existing interest in the Suburb E properties for allocation to the husband, given the connection between the husband's criminal activity and the forfeiture of half of the property. The court made orders confirming the parties' existing proprietorial rights, with the wife retaining the B Street, Suburb C property and her interest in the Suburb E properties, and the husband being notionally attributed with a portion of the forfeited Suburb E properties. The court did not make any further award of costs, given that the husband had no obvious means of satisfying any such order.

Orders