Palumbo & Mandel

Case [2019] FamCAFC 228


FAMILY COURT OF AUSTRALIA

PALUMBO & MANDEL [2019] FamCAFC 228

FAMILY LAW – APPEAL – PROPERTY – Where the orders made by the primary judge do not distribute the parties’ property in the stated proportions – Where errors of fact influenced the assessment of the contributions – Care of a child over the age of 18 years – Superannuation – Failure to evaluate contributions when assessing superannuation as a discrete class of property – Appealable errors established – Appeal allowed – Re‑exercise of discretion.

FAMILY LAW – APPEAL – PROCEDURAL FAIRNESS – Short adjournment (one day) given where a longer adjournment was sought – Discretion – Procedural unfairness not established. 

FAMILY LAW – APPEAL – COSTS – Failure to give full and frank disclosure weighs against costs order – Costs certificates granted to both the appellant and the respondent.  

Family Law Act 1975 (Cth) ss 75(2), 79, 93A
Federal Proceedings (Costs) Act 1981 (Cth) ss 6, 9
Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Carron & Laniga [2019] FamCAFC 115
Chorn and Hopkins (2004) FLC 93-204; [2004] FamCA 633
Coghlan and Coghlan (2005) FLC 93-220; [2005] FamCA 429
D & D [2004] FMCAFam 154
Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63
House v The King (1936) 55 CLR 499; [1936] HCA 40
Lint & Lint [2011] FamCAFC 115
National Companies & Securities Commission v News Corp Ltd (1984) 156 CLR 296; [1984] HCA 29
Stanford v Stanford (2012) 247 CLR 108; [2012] HCA 52
Trevi & Trevi [2018] FamCAFC 173
Zaruba & Zaruba (2017) FLC 93-776; [2017] FamCAFC 91
APPELLANT: Ms Palumbo
RESPONDENT: Mr Mandel
FILE NUMBER: MLC 8028 of 2014
APPEAL NUMBER: SOA 85 of 2018
DATE DELIVERED: 29 November 2019
PLACE DELIVERED: Sydney
PLACE HEARD: Melbourne
JUDGMENT OF: Ryan J (via videolink), Aldridge & Kent JJ
HEARING DATE: 3 June 2019
LOWER COURT JURISDICTION: Federal Circuit Court of Australia
LOWER COURT JUDGMENT DATE: 21 September 2018
LOWER COURT MNC: [2018] FCCA 2704

REPRESENTATION

COUNSEL FOR THE APPELLANT: Mr Hall
SOLICITOR FOR THE APPELLANT: Randles Cooper & Co
COUNSEL FOR THE RESPONDENT: Ms Smallwood
SOLICITOR FOR THE RESPONDENT: Pearsons Lawyers

Orders

  1. The appeal be allowed.

  2. Order 1 of the orders dated 23 October 2018 be varied so that it reads “By 4 pm on 24 December 2019 (“the date”), the husband pay to the wife the sum of $190,455.65”.

  3. Order 9 of the orders dated 23 October 2018 be varied by deleting “$169,900” and inserting in its place “$118,773.78”.

  4. There be no order as to costs.

  5. The Court grants to the appellant a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.

  6. The Court grants the respondent a costs certificate pursuant to…

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AGLC
Palumbo & Mandel [2019] FamCAFC 228
Case
[2019] FamCAFC 228
Decision Date

CaseChat Overview and Summary

The appeal before the court involved the husband and wife in relation to the distribution of their property. The wife appealed against the orders made by the primary judge, arguing that the property distribution was not in the proportions stated, and that there were errors in the assessment of the parties' contributions. The husband cross-appealed, seeking an order for the wife to contribute to his legal costs. The court was required to determine whether the primary judge's orders were correct and whether the husband's cross-appeal was justified.
The court found that the primary judge's orders contained errors of fact that influenced the assessment of the parties' contributions. The court also found that the primary judge failed to evaluate the contributions when assessing superannuation as a discrete class of property. These errors were sufficient to establish that the appeal was allowed. The court further found that the primary judge's decision to grant a one-day adjournment, when a longer adjournment was sought, did not amount to procedural unfairness. However, the court found that the wife's failure to give full and frank disclosure weighed against her in relation to the costs order.
The court allowed the appeal and varied the orders to reflect the correct distribution of property. The court also granted costs certificates to both parties, recognising the costs incurred in relation to the appeal. The court did not make any order as to costs, given the wife's failure to give full and frank disclosure. The form of the order is subject to the entry of the order in the Court’s records.

Orders

Orders of the court

1.

The appeal be allowed.

2.

Order 1 of the orders dated 23 October 2018 be varied so that it reads “By 4 pm on 24 December 2019 (“the date”), the husband pay to the wife the sum of $190,455.65”.

3.

Order 9 of the orders dated 23 October 2018 be varied by deleting “$169,900” and inserting in its place “$118,773.78”.

4.

There be no order as to costs.

5.

The Court grants to the appellant a costs certificate pursuant to s 9 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the appellant in respect of the costs incurred by the appellant in relation to the appeal.

6.

The Court grants the respondent a costs certificate pursuant to s 6 of the Federal Proceedings (Costs) Act 1981 (Cth) being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the respondent in respect of the costs incurred by the respondent in relation to the appeal.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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