Mandelbaum & Mandelbaum - [2009] FamCAFC 138

FAMILY COURT OF AUSTRALIA

MANDELBAUM & MANDELBAUM

[2009] FamCAFC 138

FAMILY LAW - PROPERTY SETTLEMENT - APPEAL FROM FEDERAL MAGISTRATES COURT - DISCRETION – APPLICATION OF LAW –
Not established that the discretion of the Federal Magistrate in her quantification of the non-superannuation asset pool of the parties was incorrect. Not established that the assessment of contributions to date of separation fell beyond ambit of reasonable exercise of discretion. Further, not established post period separation adjustments inadequate. Section 75 (2) adjustment not established as excessive.

Family Law Act 1975 (Cth) Section 75(2)

Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621
House v The King (1936) 55 CLR 499
Norbis v Norbis (1986) 161 CLR 513
CDJ v VAJ (1998) 197 CLR 172
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 24
Bennett and Bennett (1991) FLC 92‑191
Coghlan & Coghlan (2005) FLC 92‑220
Gronow v Gronow (1979) 144 CLR 513

APPELLANT:

MR MANDELBAUM

RESPONDENT:

MS MANDELBAUM

FILE NUMBER:

PAC

1499

2008

APPEAL NUMBER:

EAA

2009

DATE DELIVERED:

4 August 2009

PLACE DELIVERED:

Parramatta

PLACE HEARD:

Parramatta

JUDGMENT OF:

Coleman J

HEARING DATE:

25 June 2009

LOWER COURT JURISDICTION:

Federal Magistrate’s Court

LOWER COURT JUDGMENT DATE:

12 December 2008

LOWER COURT MNC:

[2008] FMCAfam 1399

REPRESENTATION

COUNSEL FOR THE APPELLANT:

Neil Jackson

SOLICITOR FOR THE APPELLANT:

COUNSEL FOR THE RESPONDENT:

Andrew F. Givney

SOLICITOR FOR THE RESPONDENT:

McPhee Kelshaw

Orders

That the appeal be dismissed.
That the wife’s costs of the appeal be reserved.

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

IN THE FAMILY COURT OF AUSTRALIA AT PARRAMATTA

Appeal Number: EA 1 of 2009
File Number: PAC1499 of 2008

MR MANDELBAUM

Appellant

And

MS MANDELBAUM

Respondent

REASONS FOR JUDGMENT

By Amended Notice of Appeal file 11 June 2009, Mr Mandelbaum (“the husband”) appealed against orders made by Cassidy FM on 12 December 2008 in proceedings with respect to settle of property between himself and Ms Mandelbaum (“the wife”).
The orders of the Federal Magistrate provided that the wife receive funds totalling $217 916, and that a “splitting order” be made in her favour with respect to a superannuation interest of the husband in the base amount of $154 120.
In lieu of those orders, the husband sought that the sum of $217 916 be reduced to the sum of $150 000 and that the base amount with respect to the splitting order in favour of the wife be increased from $154 120 to $166 000.
The wife resisted the husband’s appeal and sought to maintain the Federal Magistrate’s orders.

Background

The parties cohabited from 1980 to 2005, a period of 25 years. They married in April 1983. There were four children of the marriage, all of whom had attained the age of 18 years by the time of the Federal Magistrate’s judgment.
The wife was aged 48 years at 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 Mandelbaum & Mandelbaum

Details

AGLC: Mandelbaum & Mandelbaum [2009] FamCAFC 138
Case: [2009] FamCAFC 138
Decision Date: 4 August 2009

CaseChat Overview and Summary

The case of Mandelbaum & Mandelbaum involved a dispute over the property settlement between the parties, which was initially determined by the Federal Magistrates Court. The wife appealed the decision, arguing that the quantification of the non-superannuation asset pool, the assessment of contributions, and the post-separation adjustments were flawed. The court was required to determine whether the Federal Magistrate's exercise of discretion was correct and whether the assessment of the wife's arguments was adequately considered.

The court found that the wife had not demonstrated that the Federal Magistrate's quantification of the non-superannuation asset pool was incorrect, nor that the assessment of contributions fell beyond the reasonable exercise of discretion. The court further found that the post-separation adjustments were adequate and that the Section 75(2) adjustment was not excessive. The wife's arguments did not establish a basis for overturning the original decision.

In light of the above findings, the court dismissed the wife's appeal. The court also reserved the wife's costs of the appeal, indicating that they would be addressed at a later stage. This decision reaffirms the importance of demonstrating clear error in the exercise of judicial discretion in family law matters, particularly concerning property settlements.

Orders

Orders of the court

That the appeal be dismissed.

That the wife’s costs of the appeal be reserved.

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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