Federal Circuit and Family Court of Australia
(DIVISION 2)
Spalla & Spalla (No 2) [2022] FedCFamC2F 1723

File number(s): CAC 872 of 2020

Judgment of: JUDGE W J NEVILLE

Date of judgment: 15 December 2022

Catchwords: FAMILY LAW – Property – Parties married in Country B in 1978 – Husband states date of separation as being in November 2019 – Wife states date of separation as being in August 2012 – Separation under one roof – Husband seeks final property settlement orders – Wife seeks finding that deed of settlement dated 31 January 2021 finalised property settlement between parties – Husband seeks finding deed of settlement unenforceable - Wife’s evidence accepted in accordance with deed of settlement dated 31 January 2014 – Husband’s evidence was shambolic and not credible – Husband’s Application for property settlement order pursuant to s 79 of the Act dismissed - Fixed costs order made in favour of Wife.

Legislation: Family Law Act 1975 (Cth) s.79

Cases cited:
Bevan v Bevan (2013) 279 FLR 1; (2014) 49 Fam LR 387

Chang v Su (2002) 170 FLR 244; (2002) 29 Fam LR 406

Greer v Kettle [1938] AC 156

Jones v Dunkel (1959) 101 CLR 298

Labracon Pty Ltd v Cuturich [2013] NSWSC 97

Stanford v Stanford (2012) 247 CLR 108

Stephens v Stephens (2011) 44 Fam LR 117

Thumbiran v Silver Chef Rentals Pty Ltd [2022] NSWCA 148

K.R. Handley, Estoppel by Conduct and Election (Second Edition) (London: Sweet & Maxwell, 2016)

N. Seddon, Seddon on Deeds (Second Edition) (Sydney: The Federation Press, 2022)

Halsbury’s Laws of England, Fourth Edition (1975) Volume 12, “Deeds and Other Instruments”

Division: Division 2 Family Law

Number of paragraphs: 208

Date of last submission/s: 24 October 2022

Date of hearing: 9 & 10 September 2021

Place: Canberra

Counsel for the Applicant Mr J Moffett (at trial); Mr J Masters (for post-hearing directions and submissions)

Solicitor for the Applicant Marjason & Marjason Solicitors

Counsel for the Respondent Ms R Winfield

Solicitor for the Respondent Zali Burrows Lawyers

ORDERS

CAC 872 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR SPALLA
Applicant

AND:
MS SPALLA
Respondent

order made by:

JUDGE W J NEVILLE

DATE OF ORDER:

15 december 2022

ON A FINAL BASIS, THE COURT ORDERS THAT:
1.The Initiating Application filed 7 May 2020 be dismissed.
2.By 31 March 2023, the Husband is to pay the costs of the Wife from the conclusion of the Final Hearing on 10 September 2021 fixed in the sum of $25,000.00 arising from the later abandoned “fraud” claim.
3.Absent any other Application within 21 days, being by 5 January 2023, each party is to bear their own costs, in relation to the Final Hearing commencing on 9 September 2021.

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…

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 Spalla & Spalla (No 2)

Details

AGLC: Spalla & Spalla (No 2) [2022] FedCFamC2F 1723
Case: [2022] FedCFamC2F 1723
Decision Date

CaseChat Overview and Summary

This case involved a property settlement dispute between a husband and wife, who were married in Country B in 1978. The wife was medically unfit to provide evidence, and her daughter was appointed as her litigation/case guardian. The central issue in dispute was the validity of a Deed of settlement dated 31 January 2014, signed by both parties and witnessed by their two adult children. The husband sought a final property settlement order, while the wife sought a finding that the Deed finalised the property settlement between the parties. The husband claimed that he did not receive independent legal advice about the Deed and did not understand what he was signing. The court found that the husband's evidence was unsatisfactory and contradicted by documentary evidence provided by the wife's daughter. The court also found that the husband had ample opportunity to obtain independent legal advice, as required by the Deed. Based on the principles outlined in Stanford v Stanford, the court concluded that there was no principled basis for the husband's application to succeed. The court dismissed the husband's application for a property settlement order and made a fixed costs order in favour of the wife.

Orders