FAMILY LAW – property – final defended hearing – orders pursuant to section 79 of the Family Law Act 1975 (Cth) – where asset pool is contested – where Court deals with asserted “addbacks” to the pool – where Court finds it just and equitable to make an order pursuant to section 79.
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR TAVANO
Applicant
AND:
MS TAVANO
Respondent
ORDER MADE BY:
JUDGE MORLEY
DATE OF ORDER:
25 MARCH 2022
THE COURT ORDERS THAT:
1.Pursuant to section 79 of the Family Law Act 1975 (Cth):
(a)That within two (2) months from the date of these orders, the Husband Mr Tavano (‘the Husband’) do all acts and provide all consents and sign all documents as are necessary to transfer to the Wife Ms Tavano (‘the Wife’) all of his right, title, and interest in the property known as and situate at B Street, Suburb C, NSW being the whole of the land more particularly described in Certificate of Title Folio Identifier … (‘the former matrimonial home’).
(b)That simultaneously with order 1(a) above, the Husband and the Wife do all acts and provide all consents and sign all documents as are necessary to discharge registered mortgage number … to Bank D secured over the former matrimonial home, and the Wife is to be solely responsible as between the Husband and the Wife for any costs associated with obtaining and lodging a discharge of mortgage document.
(c)That within two (2) months from 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.
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Details
AGLC
Tavano & Tavano [2022] FedCFamC2F 326
Case
[2022] FedCFamC2F 326
Decision Date
CaseChat Overview and Summary
In Tavano & Tavano, the court considered a property settlement dispute between Mr and Ms Tavano following the breakdown of their marriage. The court was required to determine the appropriate division of the parties' property, including the former matrimonial home, bank accounts, and superannuation entitlements. The court found it just and equitable to make an order under section 79 of the Family Law Act 1975 (Cth) to alter the interests of the parties in their property. The court considered the contributions of the parties, both financial and non-financial, and the matters referred to in section 75(2) of the Act. The court found that an appropriate division of the property between the parties was 73.5% to the wife and 26.5% to the husband. The court made orders for the transfer of the former matrimonial home to the wife, the division of bank accounts, and the allocation of superannuation entitlements. The court also made an order for the wife to compensate the husband for half of any Capital Gains Tax liability arising from the sale of an investment property.