RIVALLI & RIVALLI - [2017] FamCA 984

FAMILY COURT OF AUSTRALIA

RIVALLI & RIVALLI

[2017] FamCA 984

FAMILY LAW – PROPERTY – Undefended final hearing – Where the husband has failed to file documents for trial – Where the husband has not made full and frank disclosure – Where there is property in the Middle East – Where there have been orders made in the Middle East as between the parties – Where the Middle East property is included in the matrimonial asset pool – Where the parties’ contributions to property are found to be equal – Where the husband has withdrawn funds from the parties’ joint bank account subsequent to separation – Where the husband’s failure to disclose warrants a small adjustment in favour of the wife – Where to facilitate this adjustment the wife should retain the former family home – Where the husband is to vacate the former family home – Orders made accordingly.

FAMILY LAW – PRACTICE AND PROCEDURE – Undefended final hearing – Where the husband has failed to file documents despite multiple directions to do so – Where the husband has failed to attend court on multiple occasions – Where the husband made no appearance on the first day of the hearing – Where it is appropriate for the matter to be dealt with on an undefended basis.

Family Law Act 1975 (Cth) ss 75, 79

Property (Relationships) Act 1984 (NSW) s 20

Aleksovski v Aleksovski (1996) FLC 92-705
Bevan& Bevan [2014] FamCAFC 19
Chapman & Chapman [2014] FamCAFC 91
Davey v Lee (1990) DFC 95-084; (1990) 13 Fam LR 688
Dickons & Dickons [2012] FamCAFC 154
Harris (1991) 104 FLR 458
Russell & Russell (1999) FLC 92-877
Stanford v Stanford [2012] HCA 52
Teal & Teal [2010] FamCAFC 120

APPLICANT:

Ms Rivalli

RESPONDENT:

Mr Rivalli

FILE NUMBER:

PAC

3326

2014

DATE DELIVERED:

1 December 2017

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Foster J

HEARING DATE:

17 May & 4 August & 15 September 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Givney

SOLICITOR FOR THE APPLICANT:

Mclarens Lawyers

SELF REPRESENTED RESPONDENT:

No appearance on 17 May 2017, appeared in person on 4 August and 15 September 2017

Orders

That the husband vacate the property situate at B Street, Suburb C by no later than 28 days from the date of these orders and that thereafter the husband is restrained from approaching or entering upon the said property.
That as and from 28 days from the date of these orders the wife have sole use and occupation of the property at B Street, Suburb C.
That the husband pay as they fall due and payable council and water rates levied in respect to the property at B Street, Suburb C, mortgage payments as they fall due and payable in respect to the mortgage presently secured against the said property and maintain house property insurances until he vacates the said property.
That within three months from the date of these orders the wife pay to the husband $41,330.00…

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 RIVALLI & RIVALLI

Details

AGLC: RIVALLI & RIVALLI [2017] FamCA 984
Case: [2017] FamCA 984
Decision Date: 1 December 2017

CaseChat Overview and Summary

In the matter of *Rivalli & Rivalli*, Foster J of the Family Court of Australia considered an undefended final hearing concerning property settlement between a husband and wife. The husband had failed to file required documents for the trial and had not made full and frank disclosure of assets. The dispute also involved property located in the Middle East, in respect of which orders had previously been made between the parties, and which was to be included in the matrimonial asset pool.

The court was required to determine how to divide the parties' property, including the Middle Eastern assets, given the husband's non-disclosure and failure to comply with court directions. Specifically, the court needed to address the impact of the husband's withdrawal of funds from a joint bank account post-separation and to make appropriate orders for the disposition of the former family home. The court also had to consider the husband's repeated failures to attend court and to file documents, and whether the matter could proceed on an undefended basis.

Foster J found the parties' contributions to the property to be equal. However, the husband's failure to disclose warranted a small adjustment in favour of the wife. To facilitate this adjustment, the court ordered that the wife retain the former family home. The husband was ordered to vacate the property within 28 days and was restrained from approaching or entering it thereafter. The wife was to have sole use and occupation of the home from that date, and was responsible for rates, mortgage payments, and insurance until the husband vacated. Within three months, the wife was to pay the husband $41,330.00, in consideration of which the husband was to transfer his interest in the home to the wife and facilitate the discharge of the mortgage. The wife was also to refinance the mortgage to release the husband from liability. In default of the wife making this payment, the home was to be sold, with the net proceeds divided 52.5% to the wife and 47.5% to the husband, reflecting the overall asset pool division.

Orders

Orders of the court

That the husband vacate the property situate at B Street, Suburb C by no later than 28 days from the date of these orders and that thereafter the husband is restrained from approaching or entering upon the said property.

That as and from 28 days from the date of these orders the wife have sole use and occupation of the property at B Street, Suburb C.

That the husband pay as they fall due and payable council and water rates levied in respect to the property at B Street, Suburb C, mortgage payments as they fall due and payable in respect to the mortgage presently secured against the said property and maintain house property insurances until he vacates the said property.

That within three months from the date of these orders the wife pay to the husband $41,330.00 and in consideration of such payment the husband do all things necessary to transfer to the wife his interest in the property at B Street, Suburb C including signing the necessary memorandum of transfer and signing all documents so as to permit the wife to procure a discharge of the mortgage presently secured against the said property.

That concurrently with the payment provided for above the wife refinance the mortgage presently secured against the property at B Street, Suburb C so as to release the husband from all or any liability arising from the said mortgage.

That in default of the wife paying to the husband the sum provided for above the parties shall do all things necessary to sell the home at B Street, Suburb C for the best price reasonably obtainable and the net proceeds of sale be apportioned between the husband and wife so as to effect an overall division of property as to 52.5 per cent to the wife and 47.5 per cent to the husband by reason of the asset pool otherwise determined in paragraph [55] of these reasons for judgment.

Liberty to apply as to implementation or enforcement of these orders.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.