TOLARNO & TOLARNO - [2018] FamCA 836

FAMILY COURT OF AUSTRALIA

TOLARNO & TOLARNO

[2018] FamCA 836

FAMILY LAW – PROPERTY SETTLEMENT – where the wife seeks money by way of partial property settlement for litigation funding where there is a bundle of assets probably around the $6 million mark over which the husband seems to have immediate control – where the husband seeks an order that he too have the same sort of money that the wife seeks – where there is no basis to make an order in favour of the husband but there is a basis to make an order in favour of the wife.

FAMILY LAW – SPOUSAL MAINTENANCE – where the wife seeks spousal maintenance either on a periodic basis or on a lump sum basis – where the wife satisfies the test in s 72 of the Act but the payment should be a lump sum to avoid further confrontation and argument between the parties – where the husband seeks $2000 per week by way of partial property settlement but effectively to live on, there is no basis to make such an order in this case have regard to the access to funds that the husband has.

FAMILY LAW – ANCILLARY ORDERS – where the husband seeks costs but there is no basis for such an order departing from the principal in s 117 of the Act – where the wife seeks an order under s 106A of the Act but there is no indication that the orders will not be complied with at this stage.

Family Law Act 1975 (Cth)

Kendling v Kendling[2008] FamCAFC 70
Strahan & Strahan [2009] FamCAFC 166

APPLICANT:

Ms Tolarno

RESPONDENT:

Mr Tolarno

FILE NUMBER:

MLC

4394

2018

DATE DELIVERED:

18 October 2018

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

15 October 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr North S.C.

SOLICITOR FOR THE APPLICANT:

Nicholes Family Lawyers

SOLICITOR-ADVOCATE FOR THE

RESPONDENT:

Ms Barbayannis

SOLICITOR FOR THE RESPONDENT:

Barbayannis Lawyers Pty Ltd

Orders

That within 30 days, the husband pay to the wife by way of partial property settlement the sum of $120,000.
That within 30 days husband pay to the wife the sum of $80,000 by way of spousal maintenance capitalised at the rate of $2,000 per week.
That the parties instruct B Accountants to complete all outstanding taxation returns up and until 30 June 2018 and the necessary professional costs be paid from the parties resources other than the sums already mentioned above.
That the husband and wife obtain valuations of the relevant real estate properties that are subject to any dispute in those expenses be paid from the parties joint resources other than the funds referred to above.
That upon the completion of the taxation returns and valuations of all properties, the parties engage an appropriate expert for the purposes of a valuation of their business interests.
That the parties forthwith engage counsel experienced in taxation matters for the purpose of obtaining advice to assist B…

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 TOLARNO & TOLARNO

Details

AGLC: TOLARNO & TOLARNO [2018] FamCA 836
Case: [2018] FamCA 836
Decision Date: 18 October 2018

CaseChat Overview and Summary

In the matter of *Tolaro & Tolaro*, Cronin J of the Family Court of Australia considered applications by both the wife and the husband concerning property settlement and spousal maintenance. The wife sought a partial property settlement to fund litigation, given the husband's apparent immediate control over a substantial asset pool estimated at approximately $6 million. The husband also sought a similar sum by way of partial property settlement. The wife further sought spousal maintenance, either periodically or as a lump sum.

The court was required to determine whether to make orders for partial property settlement in favour of the wife, and whether to make a similar order in favour of the husband. Additionally, the court had to consider the wife's claim for spousal maintenance, assessing whether she met the criteria under section 72 of the relevant Act and, if so, whether it should be awarded as a lump sum or periodic payments. The court also addressed ancillary matters, including the husband's application for costs and the wife's application under section 106A of the Act.

Cronin J found a basis to make an order for partial property settlement in favour of the wife, but not the husband, noting the husband's access to funds. The court determined that the wife satisfied the test for spousal maintenance under section 72 of the Act, concluding that a lump sum payment would be more appropriate to prevent further conflict. The court dismissed the husband's application for costs, finding no basis to depart from the general rule under section 117 of the Act, and similarly found no grounds to make an order under section 106A at that stage.

The court ordered the husband to pay the wife $120,000 by way of partial property settlement and $80,000 by way of capitalised spousal maintenance. Further orders directed the parties to arrange for the completion of outstanding taxation returns and valuations of real estate and business interests, with associated professional costs to be paid from joint resources. The parties were also ordered to provide discovery and engage counsel for advice on accounting matters. All interim applications were otherwise dismissed.

Orders

Orders of the court

That within 30 days, the husband pay to the wife by way of partial property settlement the sum of $120,000.

That within 30 days husband pay to the wife the sum of $80,000 by way of spousal maintenance capitalised at the rate of $2,000 per week.

That the parties instruct B Accountants to complete all outstanding taxation returns up and until 30 June 2018 and the necessary professional costs be paid from the parties resources other than the sums already mentioned above.

That the husband and wife obtain valuations of the relevant real estate properties that are subject to any dispute in those expenses be paid from the parties joint resources other than the funds referred to above.

That upon the completion of the taxation returns and valuations of all properties, the parties engage an appropriate expert for the purposes of a valuation of their business interests.

That the parties forthwith engage counsel experienced in taxation matters for the purpose of obtaining advice to assist B Accountants as to what course of action should be taken in respect of accounting matters.

That all parties provide discovery in accordance with the Family Law Rules (2004) (Cth) immediately.

That the parties have liberty to apply.

That all interim applications are otherwise dismissed.

10.

That the court certifies that it was appropriate in the circumstances for the wife to be represented by senior counsel.

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

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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