FEDERAL CIRCUIT COURT OF AUSTRALIA
| MANDEL & PALUMBO | [2018] FCCA 2704 |
| Catchwords: FAMILY LAW – Property proceeding – application for adjustment of property interests – relationship of ~20 years – three children of the marriage – children lived with respondent after separation – applicant continued to provide financial and emotional support to children – respondent’s new partner moved into matrimonial home – children moved out to live with applicant at his father’s home – applicant primary care giver for children since late 2013 – applicant suffered significant back injury after separation – applicant received payment for total and permanent disablement – orders made for respondent to vacate matrimonial home – enforcement proceedings necessary to secure vacant possession – respondent failed to make full and frank disclosure – uncertainty as to asset pool – cost and length of proceeding unduly prolonged by respondent’s attitude towards preparation, hearing, and determination of matter – whether applicant’s father made a loan to parties – respondent unilaterally appropriated monies from children’s bank accounts in breach of trust – respondent made a drawdown on mortgage account – modest shareholdings – assets valued as at the date of trial – wasted costs and expenditure a liability of respondent – just and equitable for a property adjustment – financial and non-financial contributions given weighting as to 60% in favour of the applicant and 40% in favour of the respondent – applicant in poor health and now has no capacity to work– respondent has support of new partner – respondent in substantial arrears of liability to pay child support – issue as to respondent’s earning activities before and since separation – inferences more easily to be drawn from lack of evidence – respondent’s earning capacity limited by birth of recent child – children will remain predominantly in the care of the applicant – property interests adjusted so as to divide property 70% to applicant and 30% to respondent. |
| Legislation: Evidence Act 1995 (Cth), s.140 Family Law Act 1975, ss.75, 79 Federal Circuit Court Rules 2001 (Cth), r.24.03 |
| Cases cited: Berghan v Berghan [2017] QCA 236 Bevan & Bevan [2014] FamCAFC 19 Black & Kellner (1992) FLC 92-287 Briginshaw v Briginshaw (1938) 60 CLR 336 Bulleen & Bulleen [2010] FamCA 187 In Re Hallett’s Estate (1879) 13 Ch D 69 In the marriage of Briese & Briese (1986) FLC 91-713 In the marriage of Rolfe (1979) FLC 90-629 Jacks & Parker [2011] FamCAFC 34 Johnson v Page (2007) FLC 93-344 Kannis and Kannis (2003) FLC 93-135 |
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- Mandel and Palumbo [2018] FCCA 2704
- Case
- [2018] FCCA 2704
- Decision Date
CaseChat Overview and Summary
The court was tasked with determining the procedural steps necessary to facilitate the making of final orders. This involved establishing a timeline for the parties to exchange and file proposed orders and responses, ensuring that all issues were clearly articulated and addressed by both sides before the final hearing.
The court's reasoning focused on ensuring a fair and efficient process for resolving the dispute. By requiring the applicant to serve a minute of proposed orders, and then the respondent to provide a detailed response indicating agreement or disagreement with each proposed order and the reasons for any dissent, the court aimed to narrow the issues in contention. This structured approach would allow for a more focused and productive hearing for the making of final orders.
The orders made by the court set out a clear timetable for the parties to exchange and file their respective proposed orders and responses. Specifically, the applicant was to serve proposed orders by 4.00pm on Wednesday, 3 October 2018. The respondent was to serve a response by 4.00pm on Wednesday, 10 October 2018, addressing each of the applicant’s proposed orders and providing reasons for any disagreement. Finally, the applicant was to file and serve the consolidated minute of proposed orders by 4.00pm on Tuesday, 16 October 2018, with the proceeding to be listed for directions for the making of final orders at 10.00am on Thursday, 18 October 2018.
Orders
Orders of the court
1.
By 4.00pm on Wednesday, 3 October 2018, the applicant serve (in electronic Word format) a minute of proposed orders that will give effect to these Reasons for Judgment.
2.
By 4.00pm on Wednesday, 10 October 2018, the respondent serve a response (in electronic Word format) addressing each of the applicant’s proposed orders indicating where she agrees or disagrees with each of those orders and why.
3.
By 4.00pm on Tuesday, 16 October 2018, the applicant file and serve (in electronic Word format) the minute of proposed orders containing each of the respondent’s annotations pursuant to paragraph 2 of this Order (if any).
4.
The proceeding be listed for directions for the making of final orders at 10.00am on Thursday, 18 October 2018.
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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