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
The appeal be allowed.
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”.
Order 9 of the orders dated 23 October 2018 be varied by deleting “$169,900” and inserting in its place “$118,773.78”.
There be no order as to costs.
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.
The Court grants the respondent a costs certificate pursuant to…
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- Palumbo & Mandel [2019] FamCAFC 228
- Case
- [2019] FamCAFC 228
- Decision Date
CaseChat Overview and Summary
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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