Rametta and Rametta & Ors - [2020] FamCA 509

FAMILY COURT OF AUSTRALIA

RAMETTA & RAMETTA AND ORS

[2020] FamCA 509

FAMILY LAW – PROPERTY – where wife seeks to set aside a final property order made, by consent, in 2007. In the alternative, an extension of time within which she can review the registrar’s decision to make the final property order from seven days to nearly 13 years.

FAMILY LAW – EVIDENCE – agreement to qualify use of evidence so that evidence does not constitute evidence of value or quantity.

FAMILY LAW – COSTS – where legal practitioners were ordered not to charge for the parts of the affidavits which had been struck out and within 48 hours advise their respective clients in writing of the quantum by which this disallowance of fees will reduce his/her costs.

FAMILY LAW – PROPERTY – where it is appropriate to make order sought under s 79A(1A) of the Family Law Act.

Family Law Act 1975 (Cth)

APPLICANT:

Ms Rametta

RESPONDENT:

Mr Rametta

B Pty Ltd

C Pty Ltd

FILE NUMBER:

MLC

9433

2017

DATE DELIVERED:

23 June 2020

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Bennett J

HEARING DATE:

22 & 23 June 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Wilson

SOLICITOR FOR THE APPLICANT:

Kennedy Partners

COUNSEL FOR THE RESPONDENT:

Mr Puckey with Mr Schmidt

SOLICITOR FOR THE RESPONDENT:

Slater & Gordon

Orders

BY CONSENT IT IS ORDERED THAT:

Discharge of Previous Orders

All extant Orders in these proceedings be, and are hereby, discharged with the exception of the Order made on 22 June 2020 in relation to costs of inadmissible material.

Removal of Third Parties

The Second and Third Respondents be removed as parties to these proceedings.

Variation of 2007 Orders to Transfer Location K to Husband.

Pursuant to section 79A(1A) of the Family Law Act 1975 (“Act”), paragraph 3 of the Orders of this Honourable Court in proceeding number MLC6605 of 2007 made on 16 June 2007 be varied such that the real property known as Location K, Tasmania, more particularly described as the whole of the land in Certificate of Title Volume … Folio … (“Location K”), be transferred to the Respondent Husband and, to give effect this variation, within 30 days, the Applicant Wife do all such acts, and sign all such documents, as are required to transfer to the Respondent Husband, at the Respondent Husband’s sole expense, her right, title and interest in Location K (“Transfer”), and thereafter, the Respondent Husband be liable, and indemnify the wife, for all rates, taxes and other outgoings with respect to Location K, including any rates presently unpaid.

Arrangements Pending Transfer

Pending the Transfer, the Applicant Wife be, and is hereby, restrained from encumbering, or further encumbering, Location K.

Section 106A Order

If, within 7 days of a written request to do so, the Applicant Wife fails, refuses, or neglects, to sign, execute, and/or return, a document required to be signed by her to give effect to these Orders, then a registrar of 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 Rametta and Rametta & Ors

Details

AGLC: Rametta and Rametta & Ors [2020] FamCA 509
Case: [2020] FamCA 509
Decision Date: 23 June 2020

CaseChat Overview and Summary

In *Rametta and Rametta & Ors*, the wife sought to set aside a final property order made by consent in 2007, or alternatively, an extension of time to review a registrar's decision to make that order. The proceedings also involved issues concerning the qualification of evidence regarding value or quantity, and the costs associated with affidavits that were struck out. The matter came before Bennett J.

The primary legal issue before the court was whether to vary the 2007 consent orders pursuant to section 79A(1A) of the *Family Law Act 1975* (Cth). This involved considering the wife's application to set aside or extend time to review the original property order, and the appropriate disposition of certain real property. The court also had to determine the costs of the proceedings, including the costs related to inadmissible material.

Bennett J made orders by consent, discharging all extant orders except for a costs order made on 22 June 2020. Crucially, pursuant to section 79A(1A) of the Act, the court varied the 2007 orders to transfer a property known as Location K to the Respondent Husband. The wife was ordered to execute all necessary documents for this transfer at the husband's expense, and the husband was to assume liability for all outgoings thereafter. The court also made orders restraining the wife from encumbering Location K pending the transfer and appointed a registrar to execute documents if the wife failed to do so. All extant applications were dismissed, and each party was to bear their own costs. The parties intended these orders to finally determine their financial relationship.

Orders

Orders of the court

BY CONSENT IT IS ORDERED THAT:

Discharge of Previous Orders

All extant Orders in these proceedings be, and are hereby, discharged with the exception of the Order made on 22 June 2020 in relation to costs of inadmissible material.

Removal of Third Parties

The Second and Third Respondents be removed as parties to these proceedings.

Variation of 2007 Orders to Transfer Location K to Husband.

Pursuant to section 79A(1A) of the Family Law Act 1975 (“Act”), paragraph 3 of the Orders of this Honourable Court in proceeding number MLC6605 of 2007 made on 16 June 2007 be varied such that the real property known as Location K, Tasmania, more particularly described as the whole of the land in Certificate of Title Volume … Folio … (“Location K”), be transferred to the Respondent Husband and, to give effect this variation, within 30 days, the Applicant Wife do all such acts, and sign all such documents, as are required to transfer to the Respondent Husband, at the Respondent Husband’s sole expense, her right, title and interest in Location K (“Transfer”), and thereafter, the Respondent Husband be liable, and indemnify the wife, for all rates, taxes and other outgoings with respect to Location K, including any rates presently unpaid.

Arrangements Pending Transfer

Pending the Transfer, the Applicant Wife be, and is hereby, restrained from encumbering, or further encumbering, Location K.

Section 106A Order

If, within 7 days of a written request to do so, the Applicant Wife fails, refuses, or neglects, to sign, execute, and/or return, a document required to be signed by her to give effect to these Orders, then a registrar of the Melbourne Registry of this Honourable Court is hereby appointed pursuant to s 106A of the Act to sign, or execute, such document on behalf of the defaulting party.

Costs

Each party bear their own costs in relation to these proceedings (including any previously reserved costs).

It is certified, pursuant to rule 19.50 of the Family Law Rules 2004, that this matter reasonably required the attendance of Counsel for each party.

Dismissal of Extant Applications

All extant applications be, and are hereby, dismissed and this matter be removed from the docket of the Honourable Justice Bennett.

IT IS DIRECTED:

That the signed minute of consent be marked Exhibit “A” and remain on the Court file.

AND THE COURT NOTES THAT the parties intend that these Orders shall, in accordance with section 81 of the Act, as far as practicable, finally determine the financial relationships between them, and avoid further proceedings between them.

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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