FAMILY COURT OF AUSTRALIA
| MANOLIS & MANOLIS (NO. 2) | [2011] FamCAFC 105 |
| FAMILY LAW - APPEAL – Property orders – Challenge to the percentage division attributed to the parties by way of property settlement – Where it was submitted the Federal Magistrate made an error of principle in the approach to property settlement – Where it was said that the husband’s initial contribution demanded a greater percentage of the property pool – Where it was submitted that the Federal Magistrate erred in giving the husband a fixed sum of the monies held on trust for the parties and failed to account for any interest earned on the sum invested – Where the approach taken by the Federal Magistrate was not the proper approach – Where it was found that there were inconsistencies in the Federal Magistrate’s reasons – Where the Federal Magistrate erred in not making an order allowing for the distribution of the accumulation of interest and attributing one party a fixed sum – Appeal allowed FAMILY LAW - APPEAL – Cross appeal – Challenge to the percentage division attributed to the parties by way of property settlement – Where it was submitted that the husband’s contribution was not a “springboard” as the Federal Magistrate determined – Where the Federal Magistrate’s reasons were said to be inconsistent – Whether the trial judge had the power to make a further adjustment in relation to the parties’ contributions under the fourth step – Where the power to make property settlement orders is not exhausted after the third step, it is not until orders are made that the power is exhausted – Where the husband’s contributions were found to be greater than that of the wife – Where the Federal Magistrate erred in not making an order allowing for the distribution of the accumulation of interest and attributing one party a fixed sum – Appeal allowed FAMILY LAW - APPEAL – Re-exercise of discretion – Husband made a greater initial contribution – Where there are no circumstances by which the percentages would alter to the date of trial – No alteration made to the percentage to be applied to the property pool from that ordered by the Federal Magistrate – Adjustment of orders to account for the interest earned on the monies held in trust FAMILY LAW - COSTS – Error of law identified – Where each party would be entitled to a costs certificate – Where it is appropriate in the circumstances for written submissions to be filed and served |
| Family Law Act 1975 (Cth) s 75(2); s 79; s 79(4); s 79A Family Law Rules 2004 (Cth) Federal Proceedings (Costs) Act 1981 (Cth) |
| Gabel & Yardley (2008) FLC 93-386 Hickeyand Hickey& the Attorney-General for the Commonwealth of Australia (Intervenor) (2003) FLC 93-143 Pierce & Pierce (1999) FLC 92-844 |
| APPELLANT & CROSS RESPONDENT: | Mr Manolis |
| RESPONDENT & CROSS APPELLANT: | Mrs Manolis |
| FILE NUMBER: | BRC | 7940 | of | 2008 |
| APPEAL NUMBER: | NA | 85 | of | 2010 |
| DATE DELIVERED: | 13 May 2011 |
| PLACE… |
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- AGLC
- Manolis & Manolis (No 2) [2011] FamCAFC 105
- Case
- [2011] FamCAFC 105
- Decision Date
CaseChat Overview and Summary
The court found that the Federal Magistrate's approach to property settlement was flawed and did not properly account for the husband's initial financial contribution. The court held that the magistrate erred in giving the husband a fixed sum without considering the interest earned on the invested amount. Additionally, the court identified inconsistencies in the magistrate's reasoning and concluded that the magistrate should have allowed for the distribution of the interest accrued on the trust monies. Both the appeal and the cross-appeal were allowed, with the court finding that the husband’s contributions were indeed greater than those of the wife. The court exercised its discretion under the Family Law Act to adjust the orders to account for the interest earned on the trust monies but did not alter the percentage distribution of the property pool.
The appeal court ordered that the sum of $884,986 held in trust be divided, with $531,882.56 attributed to the husband and the balance to the wife. The interest accrued on this sum was to be divided 55% to the husband and the remaining percentage to the wife. The parties were directed to file written submissions regarding the costs of the appeal, with a specified timeline for these submissions.
In conclusion, the appeal court allowed both the appeal and cross-appeal, varied the property division orders to account for interest earned on the trust monies, and set a schedule for the parties to address the costs of the appeal.
Orders
Orders of the court
1.
The appeal be allowed.
2.
The cross appeal be allowed.
3.
Order 8 of the orders made 17 June 2010 be varied to provide:
That the money in the sum of EIGHT HUNDRED AND EIGHTY FOUR THOUSAND NINE HUNDRED AND EIGHTY SIX DOLLARS ($884,986) held in Trust be divided as follows:
a) FIVE HUNDRED AND THIRTY ONE THOUSAND EIGHT HUNDRED AND EIGHTY TWO DOLLARS AND FIFTY SIX CENTS ($531,882.56) to the husband;
b) The balance to the wife, and further;
c) That any interest accrued on that sum be divided as to 55 per cent to the husband and the balance to the wife
4.
The parties are at liberty to file written submissions with regard to the costs of the appeal in accordance with the following timetable:
(a) On behalf of the husband within 21 days of the date hereof;
(b) On behalf of the wife within 21 days thereafter;
(c) On behalf of the husband in reply within seven days thereafter, and;
(d) That each submission have endorsed on the cover sheet the date on which a copy of that submission was served on the other party.
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
The relevant parts of s 79 of the Family Law Act 1975 (Cth) (“the Act”) to this appeal provide:Alteration of property interests (1)In property settlement proceedings, the court may make such order as it considers appropriate: (a)in the case of proceedings with respect to the property of the parties to the marriage or either of them--altering the interests of the parties to the marriage in the property; or (b) in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the marriage--altering the interests of the bankruptcy trustee in the vested bankruptcy property; including: (c) an order for a settlement of property in substitution for any interest in the property; and (d) an order requiring: (i)either or both of the parties to the marriage; or (ii) the relevant bankruptcy trustee (if any); to make, for the benefit of either or both of the parties to the marriage or a child of the marriage, such settlement or transfer of property as the court determines. …(2) The court shall not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order. (4) In considering what order (if any) should be made under this section in property settlement proceedings, the court shall take into account: (a)the financial contribution made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and (b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the marriage or a child of the marriage to the acquisition, conservation or improvement of any of the property of the parties to the marriage or either of them, or otherwise in relation to any of that last‑mentioned property, whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the marriage or either of them; and (c) the contribution made by a party to the marriage to the welfare of the family constituted by the parties to the marriage and any children of the marriage, including any contribution made in the capacity of homemaker or parent; and (d) the effect of any proposed order upon the earning capacity of either party to the marriage; and (e) the matters referred to in subsection 75(2) so far as they are relevant; and (f) any other order made under this Act affecting a party to the marriage or a child of the marriage; and (g) any child support under the Child Support (Assessment) Act 1989 that a party to the marriage has provided, is to provide, or might be liable to provide in the future, for a child of the marriage. …