Scalia & Antarus - [2022] FedCFamC2F 1496

Federal Circuit and Family Court of Australia
(DIVISION 2)
Scalia & Antarus [2022] FedCFamC2F 1496

File number(s): MLC 14125 of 2019

Judgment of: JUDGE O'SHANNESSY

Date of judgment: 4 November 2022

Catchwords: FAMILY LAW – six day final hearing-property orders – addbacks – alleged waste – unreliable evidence of financial position – allegations of “make stuff up” – weight to initial contributions – Husband’s finances bound up with paternal family – court not satisfied Husband made full and frank disclosure of his financial affairs – no superannuation payment split.

Legislation:
Evidence Act 1995 (Cth), s 140

Family Law Act 1975 (Cth), ss 75(2), 79(2), 79(4), 79(8)

Cases cited:
Blass & Blass [2022] FedCFamC1A 63

Browne v Green (1999) FLC 92-873

Candle & Falkner (2021) FLC 94-069

NHC & RCH (2004) FLC 93-204

Halinan & Witynski [1999] FamCA 1127

Hickey and Hickey and the Attorney-General [2003] FamCA 395

Fox v Percy (2003) CLR 118

Kennon v Kennon [1997] FamCA 27

Keskin & Keskin and Anor [2019] FamCAFC 236

Kessey & Kessey (1994) FLC 92-495

Kowaliw and Kowaliw (1981) FLC 91-092

Mabb & Mabb (2020) FLC 93-947

Marker [1998] FamCA 42

AJO & GRO (2005) FLC 93-218

Parshen & Parshen (1996) FLC 92-720

Robb & Robb (1995) FLC 92-555

Stanford v Stanford [2012] HCA 52

Trevi & Trevi (2018) FLC 93-858

Division: Division 2 Family Law

Number of paragraphs: 278

Date of last submission/s: 2 August 2021

Date of hearing: 3-4 December 2020, 4-5 March 2021, 16 March 2021, 2 June 2021

Place: Melbourne

Counsel for the Applicant: Ms B Tulloch

Solicitor for the Applicant: Lennon Lawyers

Counsel for the Respondent: Mr P Marchetti

Solicitor for the Respondent: Anderson Family Lawyers
ORDERS

MLC 14125 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR SCALIA

Applicant

AND:
MS ANTARUS

Respondent

order made by:

JUDGE O'SHANNESSY

DATE OF ORDER:

4 November 2022

THE COURT ORDERS THAT:
1.Within seven days of these Orders, the funds currently held in trust by Lennon Lawyers for the benefit of the parties be split as follows:
(a)46.63% to the Wife; and
(b)Subject to Order 2 herein, the balance then remaining, 53.37%, to the Husband.

2.Contemporaneously with, or before, the payment to the Husband pursuant to Order 1(b) herein the Husband, at his sole expense, withdraw, and provide evidence of the withdrawal, of any caveat lodged by or on his behalf over the real property known and situate at B Street, Suburb C.
3.The Wife retain to the exclusion of the Husband all real and personal property in her name and possession, including but not limited to the following:
(a)Her right, title and interest in the real property at B Street, Suburb C;
(b)The benefit part property settlements from the sale proceeds of the Former Matrimonial Home;
(c)Her Motor Vehicle 1;
(d)Her Motor Vehicle 2;
(e)The benefit of funds in any account in the name of the Wife;
(f)The personal effects and chattels in her possession as at the date of these Orders.

4.The Husband retain…

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 Scalia & Antarus

Details

AGLC: Scalia & Antarus [2022] FedCFamC2F 1496
Case: [2022] FedCFamC2F 1496
Decision Date

CaseChat Overview and Summary

Scalia & Antarus [2022] FedCFamC2F 1496 is a case between Mr Scalia and Ms Antarus, who were married in 2007 and separated in 2019. The court had to decide how to distribute the property of the parties pursuant to section 79 of the Family Law Act 1975 (Cth). The court found that the Wife had made a significant contribution to the relationship as a homemaker and caregiver, and that the Husband's financial affairs were opaque due to his relationship with his parents and the Company. The court also found that the Wife had not made a full and frank disclosure of her financial position, and that the Husband's financial contributions were not entirely transparent. Based on the evidence, the court determined that it was just and equitable to divide the non-superannuation assets in the proportion of 45/55 in the Husband's favour, and to leave the superannuation in the existing proportions of roughly 44/56. The court also made orders for the distribution of the remaining funds in trust and for the parties to indemnify each other against any liabilities.

Orders