FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Scaletta & Scaletta [2023] FedCFamC2F 1290
File number(s): SYC 6504 of 2021 Judgment of: JUDGE ELDERSHAW Date of judgment: 12 October 2023 Catchwords: FAMILY LAW – PROPERTY – FINAL ORDERS – Where initial contributions favour the husband – Where the wife made contributions to the home and husband’s business – Where the husband’s financial disclosure is inadequate – Consideration of Kennon & Kennon – Consideration of Robb & Robb Legislation: Family Law Act 1975 (Cth) ss 75, 79, 121 Cases cited: Benson & Drury (2020) FLC 93-998; [2020] FamCAFC 303
Black & Kellner (1992) FLC 92-287
In the Marriage of Kowaliw (1981) FLC 91-092
In the Marriage of Weir (1993) FLC 92-338
Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78
Kennon & Kennon (1997) FLC 92-757
Martell & Martell (2023) 66 Fam LR 650; [2023] FedCFamC1A 71
Perrin & Perrin (No 2) [2018] FamCAFC 122
Pierce & Pierce (1998) FLC 92-844; [1998] FamCA 74
Robb & Robb (1995) FLC 92- 555
Stanford v Stanford (2012) 247 CLR 108
Trevi & Trevi (2018) FLC 93-858; [2018] FamCAFC 173
Willis & Willis [2007] FamCA 819
Division: Division 2 Family Law Number of paragraphs: 178 Date of hearing: 5-7 September 2023 Place: Sydney Counsel for the Applicant: Mr Jackson Solicitor for the Applicant: Marano Family Lawyers Counsel for the Respondent: Mr Barham Solicitor for the Respondent: V L Macri Lawyers ORDERS
SYC 6504 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS SCALETTA
Applicant
AND: MR SCALETTA
Respondent
ORDER MADE BY:
JUDGE ELDERSHAW
DATE OF ORDER:
12 OCTOBER 2023
ON A FINAL BASIS, THE COURT ORDERS THAT:
1.All prior Orders in these proceedings be discharged.
2.By no later than 4.00 pm on 8 December 2023, the wife shall do all acts and things to transfer the property known and situated at B Street, Suburb C in the State of New South Wales, being the whole of the land in Folio Identifier … (“Suburb C property”) to the husband.
3.Simultaneous with Order 2, the husband shall:
(a)Do all acts and things to discharge any existing loan account secured by the Suburb C property and refinance such loans in his own name; and
(b)Pay the wife’s solicitor’s trust account the sum of $1,811,187.
4.If the husband fails to comply with Order 2 herein, the wife may do all acts and things to enter into an agency agreement with a registered real estate agent to sell the Suburb C property for the best price reasonably obtainable.
5.The selection of a real estate agent and conveyancer, and all matters related to the conduct of the sale shall be as agreed between the parties but failing agreement, the provisions of Order 7 herein shall apply to the extent of any disagreement.
6.Upon completion of the sale of the Suburb C property, the sale proceeds shall be distributed in the following manner and priority:
(a)In payment of such sum as is required to discharge…
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CaseChat Overview and Summary
The court considered the principles set out in the cases of Kennon & Kennon and Robb & Robb, which guide the division of property in the context of family law. The court needed to balance the husband's greater initial financial contributions with the wife's subsequent contributions to the family home and business. Given the inadequate financial disclosure by the husband, the court was required to make an informed decision on the division of property, taking into account all relevant factors, including the contributions made by both parties and the overall fairness of the outcome.
The court ordered that the property at B Street, Suburb C, be transferred to the husband, subject to the discharge of any existing loans and the payment of a specified sum to the wife. The sale proceeds from this property were to be distributed between the parties, with the wife receiving 58.3 per cent and the husband receiving 41.7 per cent. The court also made orders regarding the sale of the property, the distribution of proceeds, and the division of other assets, including a joint bank account and property in Country E. The wife was to retain her personal assets, and both parties were to be solely liable for their respective debts.
The final orders included provisions for the payment of rates and insurance, the exclusive occupation of the Suburb C property by the husband, and the division of other assets. The court also made orders to ensure that the parties cooperated in the sale of the Suburb C property and provided for the appointment of a Registrar to execute deeds if necessary. The proceedings were removed from the list of matters awaiting finalisation, and each party was required to execute deeds and documents as necessary to give effect to the orders.
Orders
Orders of the court
SYC 6504 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MS SCALETTA
Applicant
AND:
MR SCALETTA
Respondent
ORDER MADE BY:
JUDGE ELDERSHAW
DATE OF ORDER:
12 OCTOBER 2023
ON A FINAL BASIS, THE COURT ORDERS THAT:
1. All prior Orders in these proceedings be discharged.
2. By no later than 4.00 pm on 8 December 2023, the wife shall do all acts and things to transfer the property known and situated at B Street, Suburb C in the State of New South Wales, being the whole of the land in Folio Identifier … (“Suburb C property”) to the husband.
3. Simultaneous with Order 2, the husband shall:
(a) Do all acts and things to discharge any existing loan account secured by the Suburb C property and refinance such loans in his own name; and
(b) Pay the wife’s solicitor’s trust account the sum of $1,811,187.
4. If the husband fails to comply with Order 2 herein, the wife may do all acts and things to enter into an agency agreement with a registered real estate agent to sell the Suburb C property for the best price reasonably obtainable.
5. The selection of a real estate agent and conveyancer, and all matters related to the conduct of the sale shall be as agreed between the parties but failing agreement, the provisions of Order 7 herein shall apply to the extent of any disagreement.
6. Upon completion of the sale of the Suburb C property, the sale proceeds shall be distributed in the following manner and priority:
(a) In payment of such sum as is required to discharge any liability secured by the property;
(b) In payment of the agent’s fees and commissions and costs of sale;
(c) In payment of any adjustments as to council and/or water rates; and
(d) As to the balance:
(i) 58.3 per cent to the wife; and
(ii) 41.7 per cent to the husband.
7. If the parties cannot agree on the selection of a real estate agent and conveyancer or any other matter related to the conduct of the sale of the Suburb C property, the following shall apply to the extent of any disagreement:
(a) The parties shall appoint a real estate agent as agreed, but failing agreement, the wife shall nominate three real estate agents and the husband shall, within seven days of receipt of the nominations, select one and such selection shall bind the parties (“the Agent”). If the husband fails to make a nomination in the prescribed time, the wife shall make the nomination from one of the three named agents and that nomination shall bind the parties;
(b) The parties shall appoint a solicitor to act on the sale as agreed, but failing agreement, the wife shall nominate three suitably qualified solicitors or conveyancers to the husband and the husband shall make a selection within seven days of receiving the nominations and such nomination shall bind the parties. If the husband fails to make a nomination in the prescribed time, the wife shall make the nomination and that nomination shall bind the parties;
(c) Except as otherwise agreed in writing, the property is to be sold “as is”;
(d) If the parties cannot agree to the terms of the Contract of Sale, the completion period shall be 42 days after exchange;
(e) If the parties cannot agree on the listing price or price guide, the guide shall be as recommended by the Agent;
(f) The method of sale, whether by private treaty, public auction or otherwise, shall be as recommended by the Agent;
(g) The reserve price for any auction shall be as recommended by the agent or $3,600,000 whichever is the lower;
(h) If the property is passed in at auction, the parties may negotiate with the highest bidder and, provided that the bidder agrees to pay a sum which is not more than 5 per cent below the reserve, the parties shall sell the property for that price;
(i) If the property remains unsold seven days after an auction, the parties will do all acts and things and sign all documents necessary to re-list the property for sale by private treaty; and
(j) The parties shall co-operate in every way with the Agent including making the key available to the agent, signing all documents requested by the Agent to sell the property, executing a Contract for Sale in the form prepared by the solicitors having the conduct of the sale at the sale price, allowing inspections of the property at all reasonable times as requested by the Agent and not doing or saying anything to hinder or prevent a sale being effected.
8. Pending the completion of Order 3(b) or Order 6(d)(i) herein:
(a) The husband shall pay as and when they fall due all council rates, water rates and home building insurance for the Suburb C property;
(b) The husband shall have exclusive occupation of the Suburb C property; and
(c) Neither party may further encumber the Suburb C property other than with the written consent of the other party.
Joint Property
9. By no later than 4.00 pm on 10 November 2023, the parties shall do all acts and things to close the D Bank Account in the joint names of the parties ending …44 (“Joint Account”) with the whole of the balance to be paid to the wife.
10. By this Order, the wife may immediately withdraw or transfer the whole of the balance of the Joint Account without the consent of the husband.
11. By no later than 4.00 pm on 8 December 2023, the husband shall do all acts and things to:
(a) Transfer the property known and situated in Country E to the wife; and
(b) Close any bank account in the parties’ joint names in Country E with the whole of the balance to be paid to the wife.
12. By this Order, the wife may immediately withdraw or transfer the whole of the balance of any Country E Account without the consent of the husband.
General Orders
13. Except as otherwise provided by these Orders, the wife shall retain, to the exclusion of the husband, all her shareholdings, bank accounts, superannuation entitlements, vehicles, personal effects and household contents of which she is the account holder, named member or interest holder, registered owner or is otherwise in possession.
14. Except as otherwise provided by these Orders, the husband shall retain, to the exclusion of the wife, all his corporate interests and shareholdings including in F Pty Ltd, G Pty Ltd, H Pty Ltd (In liquidation), J Pty Ltd, bank accounts, superannuation entitlements, vehicles, personal effects and household contents of which he is the account holder, named member or interest holder, registered owner or is otherwise in possession.
15. Except as otherwise provided by these Orders, the wife shall be solely liable for any credit card, taxation or other debt howsoever incurred or arising and standing in her name at the time of the making of these Orders AND this Order may be relied on by the husband as a defence against any claim for the whole or any part of the said debt by a third party creditor, and against any claim against him for contribution or apportionment of such debt.
16. Except as otherwise provided by these Orders, the husband whether in his personal capacity or as a current or former director of F Pty Ltd, G Pty Ltd, H Pty Ltd (In liquidation) and J Pty Ltd shall be solely liable for any credit card, taxation or other debt howsoever incurred or arising and standing in her name at the time of the making of these Orders AND this Order may be relied on by the wife as a defence against any claim for the whole or any part of the said debt by a third party creditor, and against any claim against her for contribution or apportionment of such debt.
17. Pursuant to s 121 of the Family Law Act 1975 (Cth) (“the Act”), each party may provide a copy of these Orders to:
(a) D Bank;
(b) Any other Australian or overseas bank or lending facility or brokerage;
(c) New South Wales Land Registry Services;
(d) Any agency of Country E for the purpose of giving effect to Orders 11 and 12 herein;
(e) Any real estate agent or solicitor or conveyancer acting on the sale of the Suburb C property;
(f) Any overseas attorney or suitably qualified person acting on the transfer of the Country E property; and
(g) Any accountant or tax agent retained by a party to administer that party’s financial and/or taxation affairs.
18. Each party must do all acts and things and sign all documents as may be necessary to give effect to these Orders.
19. In the event either party refuses or neglects to execute any deed or instrument within 14 days of being requested to do so, then a Registrar of the Federal Circuit and Family Court of Australia be appointed pursuant to s 106A of the Act to execute such deed or instrument in the name of such party and to do all acts and things necessary to give validity to the operation of the deed or instrument.
Procedural Orders
20. All outstanding applications are otherwise dismissed and the proceedings are removed from the list of matters awaiting finalisation.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
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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