Gigliotti and Gigliotti

[2008] FamCA 1144

FAMILY COURT OF AUSTRALIA

GIGLIOTTI & GIGLIOTTI [2008] FamCA 1144

FAMILY LAW – CHILDREN – Final parenting orders

Family Law Act 1975 (Cth)

Hickey & Hickey & Attorney-General for the Commonwealth of Australia (2003) FLC 93-143

APPLICANT: Ms Gigliotti

RESPONDENT: Mr Gigliotti

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 3293 of 2007

DATE DELIVERED: 21 November 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 21 November 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Berger Kordos & Co

SOLICITOR FOR THE RESPONDENT: Middletons

INDEPENDENT CHILDREN’S LAWYER T J Mulvany & Co

Orders

1. I make orders in terms of the minutes which I will mark as exhibit B.

2. I direct that the minute remain on the court file and the wife to engross.

IT IS NOTED that publication of this judgment under the pseudonym Gigliotti & Gigliotti is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 3292 of 2007

MS GIGLIOTTI

Applicant

And

MR GIGLIOTTI

Respondent

REASONS FOR JUDGMENT

1. This is a matter that has been in my list for quite a long time and was facing the prospect of a very unpleasant trial.  I will not go through the background of the matter because everybody knows that I have read the file and I know the tragic circumstances of the loss of one of the two children.

2. Yesterday I was very pleased to see the parties make final orders in terms of the delightful young child, M, and it was noticeable that the parties had changed substantially in their approach towards each other.  I was quite comfortable that the orders were in their daughter's best interests.

3. Today, after another 24 hours of hard slog, the parties have come to me with minutes of final orders.  There is no doubt, as there is in every situation, a dispute between the parties as to what these actually represent, but on any view of the facts, it is somewhere in the range of around one-third, two-thirds, the two-thirds being in the favour of the husband, having regard to the substantial contribution which he made at the start.  The wife made a contribution of about $200,000 at the start of the relationship and the husband about $900,000.  Again, although those figures are not entirely tied down as accurate, they certainly indicate a substantial contribution by one party over the other.

4. Conversely, in respect of s 75(2) factors, the wife has a substantial task ahead of her with a two and a half year old child for whom she will be primarily responsible and that exacerbates her earning capacity difficulties and creates the disparity between the parties.

5. On any view, this is not only a just and equitable decision but it is a commendable one that is within the range of commercial reality and I have no doubt about the ultimate outcome for the purposes of the fourth step described in Hickey’s case[1].  The one issue that seems almost resolved but not entirely, but certainly resolved for the purposes of the orders, is paragraph 15 of the minutes, under which the parties are actually going to spend some time with an arbitrator, if not Mr Mulvany, for the purposes of determining how they divide up the chattels.  Whilst that might to some extent look like a delegation of responsibility, I am treating it as a formal arbitration order, and on that basis, I see that the jurisdiction of the court is ended by making the orders that I make.

   [1] (2003) FLC 93-143

6. I am satisfied in all the circumstances that these are very sensible orders and ones that I should make on the basis that they are just and equitable.  That goes without saying.  I commend not only the parties but obviously their very tired lawyers who have done an enormous amount of work.

I certify that the preceding Six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate:

Date:  24 December 2008