Zanone & Zanone - [2022] FedCFamC2F 1474

Federal Circuit and Family Court of Australia
(DIVISION 2)
Zanone & Zanone [2022] FedCFamC2F 1474

File number(s): MLC 2391 of 2021

Judgment of: JUDGE GLASS

Date of judgment: 9 November 2022

Catchwords: FAMILY LAW – PROPERTY – assessment of financial and non-financial contributions throughout the relationship – initial contributions – failure to comply with disclosure obligations – where there is a child from a previous marriage who lived with the parties – where funds from the Wife’s initial capital at cohabitation were applied to purposes outside of the relationship – whether it is just and equitable to make an order – orders made.

Legislation: Family Law Act 1975 (Cth) s 79(2), s 79(4), s 81.

Cases cited:
Jabour & Jabour (2019) FLC 93-898; [2019] FamCAFC 78

Kingston & Field (No 2) (2020) FLC 93-986; [2020] FamCAFC 235

Kowaliw & Kowaliw (1981) FLC 91-092

Kramer & Anor & Ward (2017) FLC 93-817; [2017] FamCAFC 270

Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11

Parshen & Parshen (1996) FLC 92-720; (1996) 21 FamLR 199

Re Ronald Neville Mcgorm ex-parte: the Co-operative Building Society of South Australia [1989] FCA 87

Robb & Robb (1995) FLC 92-555; (1994) 18 FamLR 489

Russo & Wylie (2016) FLC 93-747; [2016] FamCAFC 227

Sabrosky & Putnam (2018) FLC 93-834; [2018] FamCAFC 32

Stanford v Stanford (2012) 247 CLR 108; [2012] FamCAFC 1

Division: Division 2 Family Law

Number of paragraphs: 60

Date of last submissions: 24 October 2022

Date of hearing: 24 October 2022

Place: Melbourne

Counsel for the Applicant: Mr Scriva

Solicitor for the Applicant: Swifty Legal

Counsel for the Respondent: Mr Potter

Solicitor for the Respondent: Griese Lawyers
ORDERS

MLC 2391 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MS ZANONE

Applicant

AND:
MR ZANONE

Respondent

order made by:

JUDGE GLASS

DATE OF ORDER:

9 November 2022

THE COURT ORDERS THAT:
1.Within 90 days, the Husband pay to the Wife the sum of $252,507, such sum to be paid to the Wife’s solicitors.
2.Having been accorded procedural fairness in relation to the making of these Orders, Orders 2 to 6 of these Orders bind the Trustee of the Super Fund B.
3.Orders 2 to 6 inclusive have effect from the operative time.
4.The operative time is the fourth business day after the day of service of a certified copy of the final sealed and signed orders on the Trustee of the Fund.
5.The Court allocate, pursuant to s 90XT(4) of the Family Law Act 1975 (Cth) (Act), a base amount of $86,905 to the Wife out of the Husband’s interest in the Fund.
6.In accordance with s 90XT(1)(a) of the Act, whenever a splittable payment becomes payable to the Husband, from his interest in the Fund, the Wife is entitled to be paid an
amount calculated in accordance with Part 6 of the Family Law (Superannuation)
Regulations 2001 (Cth) using a base amount of $86,905 and there be a corresponding
reduction in 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.

Continue reading Zanone & Zanone

Details

AGLC: Zanone & Zanone [2022] FedCFamC2F 1474
Case: [2022] FedCFamC2F 1474
Decision Date

CaseChat Overview and Summary

The case Zanone & Zanone involved a dispute between Ms Zanone and Mr Zanone regarding the division of their property interests following their separation. The Federal Circuit and Family Court of Australia (Division 2) was tasked with determining the appropriate allocation of assets and superannuation interests between the parties. The court considered various factors, including the contributions made by each party to the acquisition, conservation, or improvement of their property, as well as their non-financial contributions to the family unit. The court also examined the financial and non-financial contributions made by each party during their relationship and the welfare of any children from prior relationships.

The court found that it was just and equitable to make a property settlement order as the parties would no longer be using property in common. The court assessed the financial and non-financial contributions made by each party and determined that their contributions favoured Mr Zanone to the extent of 75% and Ms Zanone to the extent of 25%. The court concluded that it was appropriate for Ms Zanone to retain 25% of the value of the non-superannuation assets, which amounted to assets worth $273,609. Mr Zanone was ordered to pay Ms Zanone $252,507 within 90 days. In terms of superannuation, Ms Zanone was awarded a split of 15% from Mr Zanone's superannuation, amounting to $86,905. The court also issued an injunction to prevent Mr Zanone from taking any actions that would render his superannuation interest unsplittable.

In summary, the court ordered Mr Zanone to pay Ms Zanone $252,507 within 90 days, awarded Ms Zanone a 15% split from Mr Zanone's superannuation, and issued an injunction to protect the superannuation split. Both parties were to retain their other respective assets in their ownership and possession.

Orders